link to: 11:06 [GMT-6]

• We'd amend the Constitution so that Election Day always falls on Veterans' Day; or, conversely, we could change the statute that sets Veterans' Day as 11 November — in commemoration of what is, with 20/20 hindsight (hell, with 20/200 hindsight), merely a cease-fire agreement in 1918 — to be the first Tuesday after the first Monday in November.

  Because, even in the diversity of personal reasons; even in the face of the Second War of American Secession, 1861–65; even in the face of the unwilling tendency of the military to be a force for progressive social change by giving (at least a few) members of most minority groups an opportunity to rub shoulders with their "betters," thereby demonstrating that there isn't really that much difference; even in the face of the misuse of military force for private personal gain: Free elections are why the US developed, and continues to maintain, a military in the first place.

  Besides, for very personal reasons I'd prefer that Election Day not fall on 11 November... but that's another story entirely.

• Vote. Just do it. Even if you dislike everyone — because you have a right to leave the ballot blank, or enter a write-in candidate, for each individual race. As I mentioned yesterday, I do care for whom you vote; I care more that you vote at all. Even though "popular wisdom" usually turns into "popular stupidity" sooner rather than later, the alternatives are all worse. Remember, Plato explicitly did not want to live under the philosopher-kings.

  And for those of you snickering in other nations where voting turnout is higher, remember this: We don't have a tradition of enforcing the right to vote with guns and bullies that make voting not a right, but a chore.

• For those of you who believe that your vote doesn't count, realize that that's exactly what tyrants who have coopted the process throughout history (back to Greece, in any event) have wanted you to believe. It's never the landslides that provide opportunities for the thoughtful few to figure out what is going on, and potentially change it; it is the close races that require the "winners" to work with the "losers" to make any change last.
• Even farther down the list of electoral reform: Eliminate the Electoral College; eliminate the geographic tyranny of defining one's voting interests by where one lays one's head at night (most often), rather than by where one works or sends one's kids to school or engages in any other activity by choice; eliminate voting for judges — the members of the government who must be the least accountable to the popular will,¹ precisely because their role is to look at the individual circumstances of matters dispassionately and without regard to what the mob wants; overturn Buckley v. Valeo, which established that campaign contributions and political spending are "political speech" and not "exertion of preexisting power to the detriment of those who don't have it." Note, though, that all of that is reform of mechanism, not rejection of elections (with the possible exception of the judicial-elections issue, but as anyone who has ever argued complex issues during the same week before an elected state-court judge and an appointed federal-court judge could tell you, it's both more and less than that).

If you really want to scare a tyrant or any other self-selected "deserving ruler" this Halloween, dress up as an election judge... or be one. Harass media representatives who are harassing voters. Get your neighbors to vote. After all, as credulous as he was, Gulliver's best protection against enslavement by the Lilliputians was his size.

1. I'd argue that there's a more-than-hypothetical chance that electing state-court (or any) judges violates the "Republican Form of Government" clause, U.S. Const. Art. IV § 4... because the only "republican form of government" referencable in 1787 was the one being established in the Constitution, with its appointed judiciary. (At that time, all judges were appointed, not elected.) Take that, "original meaning" originalists!

Labels: culture, military, politics

link to: 13:06 [GMT-6]

• Should Mark Kirk be elected to the US Senate from Illinois — and, at present, the race is rather too close to call — I will be writing separately to demand that he resign his commission as a Naval Reserve officer. Officer promotions — and particularly to O-6, the next promotion available to Mr Kirk — are voted on by the Senate. Being a member of the "collegial" body that would approve a potential next promotion is an unacceptable conflict of interest.

  Of course, that would represent a new first for Mr Kirk in any event: Recognizing, and taking action to avoid, a conflict of interest.

• I already voted. Don't even try to convince me of anything; or ask for whom/what I voted (what part of "secret ballot" do you so-called "reporters" and "pollsters" not understand? you're going to get accurate results in a few days or less).
• I despise the American take on the "two-party system," for a very simple reason: The two parties are merely slightly different flavors of unacceptable. I say that not just because my own preferences are well to the liberal left of both parties; I say that because the two parties are not partisan in the policy-preference sense, but partisan in the whose-friend-am-I sense (and becoming partisan in Marshall Tito's sense, complete with genocidal acts, but that's a long and complex argument).

  Put another way, when you vote for someone on the basis of party affiliation, you are not voting for that individual; you are voting for his/her friends. On the Heffalump side, voting for a moderate Republican is also an indirect vote for the Mad Tea Partiers who also claim to be Republicans. On the Jackass side, voting for a moderate, urban/suburban Democrat is also an indirect vote for the social-issue-backward neopopulist rural Democrats and Dixiecrats who also claim to be Democrats. If this sounds too much like a Homecoming Court election in which all of the football players vote only for their preselected candidate (almost always the quarterback or a running back), while the student-government types unite behind a future Car Salesman of the Year and everybody disses the band and the nerds... welcome to the reality of twenty-first-century American partisan politics.

• I do care who you vote for; if you're reading this blawg, you're unlikely to vote too far to the right, but sometimes the candidate whose politics might better match mine is personally unsuited for office. For example, consider the recent governor's race in Illinois between now-convicted-felon Heffalump George Ryan — who, ironically, was probably the more liberal candidate — and Jackass Glenn Poshard — a fundagelical jackass with even more dubious ethics.

  I realize that this is a bit of a contradiction to the "remember that you're also voting for their friends" note above; contradictions, however, are the very nature of partisan politics when the parties are based upon friendship, campaign contributions, and single-issue pressure groups, instead of genuine, considered differences on issues and internally consistent ideologies.

Labels: culture, politics

link to: 16:28 [GMT-6]

• Old men sending young men off to die has been the central feature of national policy in the west for about six hundred years, give or take... and much longer than that in East Asia. Seldom, however, have those old men had so little experience of war themselves. Next time, we're going to celebrate Plato and rename members of the US Senate the Philosopher-Kings (particularly given that "kings" were more likely to be unseated than are incumbent senators).
• Lots of weird news from publishing today... rather oddly concentrated on the last Thursday before the holiday-season releases begin hitting the stores on Tuesday (the first Tuesday after Halloween). First up, one might call him Ishmael... but one might better call him Frank, Jr. I'm afraid that the result described in the article was entirely predictable. But it could be worse: Rather than a real spy spilling his perception of the beans, it could be an imaginary ad-man selling out imaginary Madison Avenue, or a Turkish author following in the footsteps of D.H. Lawrence (no, that's not some new kink) and thereby demonstrating rather definitively why Turkey is not ready for EU membership.
• From the Department of Burning Barn, Division of Horse Long Gone, the UK Publishers' Association wants stricter policing of territorial rights in the face of EU free-trade principles. Yeah, that's going to happen... to anyone's benefit except the lawyers.
• I must bow to the superior sarcasm displayed by my only feline colleague the IPKat concerning Paul the Psychic Octopus (although I'm not certain that an accurate description of Fabio Capello's team-selection method qualifies as "sarcastic," even if it sounds that way; having his starting left midfielder played off the field in twenty minutes by the long-anticipated US starting right back?).

Last, and far from least, and not really a sausage (because it was so predictable): SyFy has cancelled Caprica with immediate effect. I'm actually surprised that it took this long; the Zucker regime has been nothing if not antiintellectual, and one must remember who owns/runs/controls both SyFy and the studio that produces the show. But for the critical acclaim, Zucker et al. would have cancelled The West Wing after season 4, and a look at the dominance of Unlawful and Disorderly on NBC's broadcast primetime schedule; at the deterioration of Burn Notice to become more action-oriented this past season; at the action-oriented nature of SyFy's next BSG offering; the very continued employment of Jeff Zucker, who never met anything longer than a soundbite that he could understand, unless it related to men being in charge; and so on; all merely confirm that. In short, my only surprise is that it took this long for SyFy to realize that it might be undermining its testosterone level with a female-lead-dominated series that — however often it missed — strove for a thoughtful, ambiguous depiction of a declining, degenerate society.

Labels: arts, culture, mass media, military, politics, publishing, sport

link to: 11:58 [GMT-6]

To begin with, note the specific description of the Hells Angels:

4. Plaintiff HELLS ANGELS MOTORCYCLE CLUB ("HAMC") is now, and at all relevant times was, a non-profit mutual benefit corporation organized and existing under the laws of the State of California. Plaintiff HAMC is the owner of the trademarks described herein, which it administers on behalf of, and for the benefit of, the Hells Angels Motorcycle Club.

It just gets better as the complaint goes on to describe the incontestable trademark registrations; the infringing items; and so on... without ever stating what, precisely, is being diluted or otherwise infringed.

It's not quite as amusing as the thought of serving brownies at a rally for Proposition 19, but it's close.

Labels: culture, intellectual property, law practice

link to: 11:05 [GMT-6]

• In a sign of other shoes dropping, the Tory–LD coalition government will be cutting payments to authors for the public lending right at the same time it "privatizes" (or otherwise transfers) administration of the payments. I realize that this sounds bizarre to American authors, but that's just because the US — unlike most other Berne signatories, including in particular the entire EU — doesn't extend an author's copyright to the lending right in such a formal manner. Buried inside the story itself is the proof that a library is still one's best entertainment value, even with a lending right: The payment due the author is £0.0629 per circulation. To put it another way, that's a 0.5% royalty on the current list price of a casebound Harry Potter and the Philosopher's Stone (£12.99) that will add up to the cost of that volume after 206 borrowings... and for an unusually hungry bookworm reading a book of that length every day, costs a tenner every 159 days.
• Happy 40th birthday, Mike and B.D. Many sarcastic returns!
• Unfortunately, Paul the Psychic Octopus will not be making any more predictions. Perhaps the Spanish team should have a celebratory meal of pulpo prior to their next match, though.
• Yet another reason to decry media consolidation: MordorCorp promises to retaliate against actors who won't play publicity games with Fox-related news outlets. I'm not too worried about Denzel Washington getting dissed by Fox over disdain for Glenn Beck's overt racism; I'd be a lot more worried about it happening to a less-well-known actor, and in particular a less-well-known immigrant actor.
• Amazon won a customer privacy battle against North Carolina sales/use tax overreaching. What this really reflects, though, is an interesting question that tourism-heavy states really don't want asked: If "use tax" applies to all purchases by residents outside of the state, shouldn't all of that merchandise that was purchased on vacation also count? That is, why is it "shipment into the state by a third party" that triggers sales tax? Those of us in high-sales-tax states (like Illinois) who go to lower-sales-tax areas (like, believe it or not, Los Angeles) and bring home souvenirs, or more-substantive purchases, should also be paying use tax, right?

  My European colleagues are scratching their heads at this... because that's exactly what happens there at customs. This idea of differing tax systems in less-than-national jurisdictional areas is really confusing.

  Yes, that was sarcastically on purpose: Just like the Tea Party, I put the tax issues up front, and pushed the privacy and civil rights issues to the tail end of the discussion — even though those issues are vastly more important. In this particular instance, the tax collection issues are just an excuse. We all know damned well that at least some high-level people in the North Carolina administration (whether elected or incivil service) were salivating at the chance to see what their suspicious neighbors were buying from Amazon, and anticipating the potential blackmail opportunities. (Surely Justice Thomas remembers that, at least regarding videotape rentals...) Worse, it's many of the people not in the government anticipating another means to find out what that foreign-looking neighbor is reading so they can — at best, and most optimistically — ostracize him at the next neighborhood barbecue; after all, if the North Carolina government has the information in the first place, FOIA might make it accessible...

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

link to: 22:37 [GMT-6]

It was a good thing for the nation when Daniel Ellsberg provided the documents that became the Pentagon Papers. In my experience as a military historian, custodian of historical secure materials, etc., an extraordinarily high proportion of such documents were and are improperly classified in the first place... which necessarily diminishes the protection accorded to those that are properly classified, if only by diluting what it means to be classified.

I can and will say nothing further on the subject, due to my own nondisclosure agreement (that expires after the heat-death of the universe).

Labels: censorship, military, politics

link to: 20:11 [GMT-6]

• So, selling books over the internet will be a perfect, seamless replacement for brick-and-mortar stores, eh? Texas certainly thinks so, asserting that Amazon owes the state $269 million in back sales/use taxes. Naturally enough, the American Booksellers' Association applauds the move; Amazon decries it, claiming that "associates" are not a sufficient nexus to allow Texas to force Amazon to charge the taxes in the first place; and Texas is looking at a big pot of money. Meanwhile, nobody is paying a whole lot of attention to the most unfair, most regressive, least justifiable tax system... or to Texas's refusal to tax many of its home-grown industries on the same basis. But meanwhile, nobody is going to be paying taxes on books not bought on the internet because the booksellers' websites are so overloaded with crap that users die of boredome waiting.
• Maybe I'll put on my monkey suit and sing Happy Birthday to the world... if, that is, I choose to believe an ignorant, bigoted priest with no knowledge of either (1) how legends develop or (2) how translation works, particularly through multiple languages for long-after-the-story retellings of originally oral tradition. What's really sad is that Ussher didn't even do his math correctly.
• Now, a complicated trademark and unfair competition decision from Europe — in particular, England, but relying upon EU law — that also implicates several common publishing practices. As my feline colleague the IPKat explains:

  [After a masterly and pleasurably intelligible explanation of the doctrine, illustrated by cases decided under European trade mark, paying particular attention to Court of Justice rulings, the judge continued] It again seems clear from this that there can be a likelihood of confusion within the meaning of Article 9(1)(b) [of the Community Trade Mark Regulation] at the point when a consumer views an advertisement, whether or not the advertisement leads to a sale and whether or not the consumer remains confused at the time of any such sale.

  "Sudden outbreak of common sense? 'Initial interest confusion' part of EU trade mark law, says judge" (22 Oct 2010) (quoting Och-Ziff Management Europe Ltd., et al. v. Och Capital LLP, et al., [2010] EWHC 2599 (Ch), case name corrected to international norms).

  But what does this have to do with publishing practices? Well you might ask... until you walk into a bookstore and look at the monolithic cover designs in many sections, particularly including the whitewashing of covers in YA fiction. Given that this is, in fact and in stated intent, an attempt to develop a uniform meme for a type of product — and not an identification of origin — that cuts across publishers (it's not just Bloomsbury US; they just got called out), one might wonder whether this is a source of potential initial interest confusion on the part of two particularly unsophisticated classes of consumers: Pre-teens/teenagers... and their parents.

• As a follow-up to Thursday's item from the Department of Two Wrongs Don't Make a Right... but Three Do, Wiscon has disinvited its Guest of Honor, Elizabeth Moon, because she disagrees — misunderstanding some facts — with putting a "mosque" near the World Trade Center (and then screwed up a little bit in her response to the disingenuous personal attacks on her, but that's another issue entirely). Both "sides" in the "debate" are missing the point.

  I do not defend Ms Moon's rhetoric — it was ill-chosen for any purpose, legitimate or otherwise. Her position should have focused not on whether it's appropriate to put an Islamic center (not "mosque" any more than a cathedral that includes a food pantry, daycare center, and school is merely a "church") in a heavily Muslim subcommunity currently underserved by facilities that happens to be near a site where some of Islam's equivalent of the KKK committed an atrocity... but upon the propriety of anybody objecting on any ground to any religious facility. Personally, I object to all of them, regardless of sect/creed/whatever; in that sense, I guess you could call me an equal-opportunity antitheist. That said, I also recognize that American tradition is in favor of subsidized sectarian construction and facilities, often in wholly inappropriate places (like the fundagelical church that took over a building near my middle school and pointed its signs so that the best reading angle was from the school's bus line... back in the dark days before the fall of Saigon), so I'm not all that vehement about particular projects except when I remember to point out that no comparable project is appropriate, regardless of affilitation. Of course, on occasion I get overexcited and forget to link everything together adequately. Ms. Moon then compounded the problem with poorly chosen reactions to personal attacks, many of which appeared on her own blog... like none of us have ever done that, or had our thoughts taken out of context (or taken others' thoughts out of context), eh? In short, her position and reaction were substantially less than optimal.

  WisCon's response (technically and formally, the response of its governing committee, not the convention organizers) was, if anything, worse. Basically, WisCon's governing committee succumbed to mob rule — just like the British left did in the 1930s in succumbing to the loudest and most bullying voices (those of the Stalinists). It would have been one thing if they were still looking for a candidate for GoH, and decided to strike Ms Moon's name off the list of candidates. It would have been a very similar thing if they had quietly, privately, expressed concerns directly to Ms Moon, and reached an amicable agreement for her to withdraw as GoH on her own motion, and followed up with an appropriately regretful public acceptance of that withdrawal. Neither resembles what happened, though. The irony that WisCon is committed to deconstructing some existing orthodoxies, but has imposed another orthodoxy upon itself that is at least equally damaging, seems to have escaped too many people.

  There are a helluva lot of science fiction writers and other figures who should be excluded from ever being guests of honor based upon statements and attacks far more virulent than anything that appeared on Ms Moon's blog... but I don't hear any calls for the exclusions of falangistas and the like (you know exactly who you are) from consideration for WorldCon guest lists. Similarly, the fact that I have a Y chromosome and light-colored skin doesn't have a damned thing to do with my views, although there are extremists who claim that — despite my personal experiences — I can't possibly understand discrimination, and therefore have no right to speak on discrimination issues, or indeed social justice issues in general, at all under any circumstances (and you know who you are, too). I'm sick to death of this whole "my self-identified ethnographic/phenotypic/genotypic group has had it worse than has yours, at least at some time, so my statements on what anything hypothetically relating to any discrimination means/is are privileged regardless of the validity of my logic or soundness of my factual statements" bullshit; that is nothing more than the dominance patterns of gorillas (PDF), not a means of advancing social conditions or intellectual endeavor.

  And none of this would have arisen in the first place if everyone involved — Ms Moon, the WisCon governing committee, the media as a whole, the rabid crowd of attackers and defenders, etc., etc., etc. — was judging that proposed Islamic center on the content of its character and not the color of its hijab. Or, perhaps, we should boycott Alabama until it gets rid of a state flag that is an homage to slavery and treason as much as it is a purported homage to Scotland; that is, focus not on this particular bit of "inappropriate symbolic construction," but on all of them, particularly since that's purportedly part of WisCon's own charter.

Labels: culture, intellectual property, politics, publishing, science

link to: 17:25 [GMT-6]

Once upon a time, back before the invention of fire — or at least before the invention of the "personal computer" — I was a student at a high school in a rather small school district with continuing difficulty understanding the First Amendment.¹ At one point, one of the fundagelicals in the community demanded that a book be removed from the school libraries and curriculum because it "encouraged disrespect for authority." The book in question was Ray Bradbury's Fahrenheit 451, thereby demonstrating that for at least that fundagelical, "irony" is just like "goldy" and "bronzy" (but made out of iron). Fortunately — that time — the school board actually listened to some of the students who spoke against the fundy's demand, as all of the students in question were committed to joining the military upon graduation; apparently, Fahrenheit 451 had not eliminated all of their respect for authority.

That brings us to today's awful, and dangerous, decision from the Sixth Circuit in Evans-Marshall v. Bd. of Educ. of the Tipp City Sch. Dist., No. 09–3775 (6th Cir. 21 Oct 2010)... which also began with Fahrenheit 451. I'll let Judge Sutton set the scene:

[…] Evans-Marshall assigned Ray Bradbury’s Fahrenheit 451 to her 9th graders. To the end of exploring the book’s theme of government censorship, she distributed a list compiled by the American Library Association of the “100 Most Frequently Challenged Books.” Students divided into groups, and Evans-Marshall asked each group to pick a book from the list, to investigate the reasons why the book was challenged and to lead an in-class debate about the book. Two groups chose Heather Has Two Mommies by Lesléa Newman.

A parent complained about Heather Has Two Mommies, and the principal, Charles Wray, asked Evans-Marshall to tell the students to choose a different book. She complied, explaining to her class that “they were in a unique position to … use this experience as source material for their debate because they were in the … position of having actually experienced censorship in preparing to debate censorship.” After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.”

At the October 2001 meeting of the school board, twenty-five or so parents complained about the curricular choices in the schools, including Siddhartha and the book-censorship assignment. The next day, Principal Wray called a meeting of the English department and told Evans-Marshall that she was “on the hot seat.” Nearly 100 parents, as well as the local news media, attended the board’s November meeting. For over an hour, parents expressed concerns about books in the curriculum and in the school libraries. While the parents mentioned many books, they raised particular objections to the materials in Evans-Marshall’s classroom and her teaching methods. Superintendent John Zigler explained that the school board had purchased many of the materials, including Siddhartha, several years before, making it difficult to criticize Evans-Marshall for teaching a book the school board had bought. “You should be embarrassed,” one parent responded, referring to the explicit language and sexual themes in the book. Another parent complained that she had asked for an alternative assignment—instead of Siddhartha—and “was given three books,” two of which “were for a four-to-eight year old.” “I’m not going to put my daughter through this,” the parent added, explaining that she thought Evans-Marshall was “punish[ing] my daughter.” A group of parents presented the board with a 500-signature petition calling for “decency and excellence” in the classroom.

Slip op. at 2–3 (record citations omitted; italics in original). It gets better, too; Ms Evans-Marshall also trusted some of the wrong staffers at the school with photocopying chores.

The Sixth Circuit ruled against the teacher, who was eventually fired — formally, did not have her contract renewed — for "problems with communication and teamwork" (slip op. at 5, quoting the school board). Ultimately, this ended up in court as a free-speech retaliation claim by Ms Evans-Marshall against the school board. Ultimately, she lost, because the Sixth Circuit held that the (largely indefensible and irrelevant) reasoning in Garcetti v. Ceballos, 547 U.S. 410 (2006), means that:

Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight, as opposed to the teacher’s right to speak and write publicly about academic issues outside of the classroom. “[I]t is the educational institution that has a right to academic freedom, not the individual teacher.” Academic freedom implicates “[t]he freedom of a university to make its own judgments as to education,” requiring “deference to a university’s academic decisions.” In the context of in-class curricular speech, this court has already said in the university arena that a teacher’s invocation of academic freedom does not warrant judicial intrusion upon an educational institution’s decisions: “The First Amendment concept of academic freedom does not require that a nontenured professor be made a sovereign unto himself.” A school “may constitutionally choose not to renew the contract of a nontenured professor” when that professor’s “pedagogical attitude and teaching methods do not conform to institutional standards.” Just so here.

Evans-Marshall II, slip op. at 16–17 (citations omitted; boldface emphasis added).

Frankly, all three "sides" in the underlying dispute were in the wrong; the Sixth Circuit compounded the wrongness.

• Evans-Marshall was in the wrong largely through her personal choices and some silly decisions. Whether those rose to the level of justifying the school board's later firing of her (calling it a "refusal to renew her contract" is merely a labelling nicety that changes only the burden of proof — not its substantial effect as a firing) is another question, not before the court... although even Judge Sutton's description indicates that the board would have had a tough case to make in a less-emotionally-charged context.
• The parents were in the wrong in attempting to impose mob rule and "decency" in the schools, and in particular in an elective course for high school students (as in one of the other "complaints" concerning Ms. Evans-Marshall — the one involving the photocopying). They were even more misguided than Sam the Eagle of Muppet Show fame; and, most particularly, they were and are wrong as a matter of constitutional principle and law.²

  What's next? No news broadcasts at school? How about censoring Britney Spears's ouevre from student MP3 players, or perhaps gangsta rap? Or, more to the point, getting those Revised Standard Versions of the Bible out of the school library because they're not entirely consistent with the King James... or Romeo and Juliet because it depicts teenage love and implies teenage sex and disobedience to parents; Titus Andronicus because it involves cannibalism; Julius Caesar because it centers on (and arguably, under a shallow reading, advocates) treason and murder; To Kill a Mockingbird for its much-deeper-than-Bradbury antiauthoritarian streak; need I go on?

• The school board was in the wrong for both knuckling under to the mob that was complaining about something they had not read, and for obfuscating the entire proceedings. (And, in particular, the school board's lawyer was wrong for letting things happen this way.)
• Last, and far from least, the Sixth Circuit was wrong — perhaps, although not certainly, constrained to be so (at least in its own opinion) — in distinguishing educational institutions, the mission of educational institutions, and the faculty at educational institutions. Although it is possible to talk about these three elements as if they are separate, in fact and in function they are not. It compounded that error by continuing the illusory distinction between allegedly mandatory public school education and the option world of colleges and universities — a meaningless distinction as far as the need for academic freedom as a general proposition, albeit perhaps with more-detailed guidance from Authority for younger students.

Of course, the real losers here are the children of the Tipp City (Ohio) School District. Not only will these legal proceedings remain opaque to them (if disclosed to them at all), so that they cannot learn the lessons about realpolitik and dispute resolution that the proceedings would teach... but they will never again have the benefit of reading those books in class. And, in particular, it's the younger siblings who will suffer.

1. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (although not apparent from the Supreme Court's opinion, the zoning law in question arose due as much to church as to school location; the distances in question had been carefully mapped out to shove all "adult" entertainment outside city limits); Garnett v. Renton School Dist. No. 403, 987 F.2d 641 (9th Cir. 1993) (students from that fundagelical's church form evangelical religious club at local high school, since reported to me as less than ethnically or politically diverse... or tolerant). And that's just two of the examples that have produced widely discussed reported decisions...
2. Based on personal experience in more than one instance, there's a very, very high probability that at least some — and probably a majority — of the signatures on that petition and the speakers at the Board meeting were not from that school district. It is virtually certain that not more than 10% had read any of the books to which they were objecting... which, in the end, just makes Ms Evans-Marshall's point for her, at the cost of her job.

Labels: censorship, civil rights, jurisprudence, politics

link to: 11:46 [GMT-6]

• Even among college students, e-books are not making printed books obsolete. The irony, though, is that publishers are going to use reduced print runs as a rather pathetic excuse to keep raising prices far, far beyond the rate of either inflation or printing-cost changes (and have you ever noticed that textbook prices don't go down when paper prices do?).

  In the best of all possible worlds, this would encourage instructors to take a much closer look at the value of the materials they are assigning as "required" textbooks, particularly in 100- and 200-level lecture courses that have a strong tendency to go over the textbook material in a lockstep manner. It will also hopefully lead to unbundling of problem sets from the books in mathematics and the sciences — a part of the book on which an inordinate amount of time, and an inordinate proportion of errors, get expended by the publishers, only to be made irrelevant by the instructor's own problem sets and exams that seldom resemble what is in the book. (And yes, I have edited such books and their ancillaries.) Similarly, publisher influence on academic library acquisitions doesn't help, either.

• The electronic-forms-are-killing-print argument is no more valid for newspapers than it is for textbooks. Or, for that matter, for material for dedicated e-book readers, no matter what USA Today might otherwise imply with a misleading graphic not founded on verifiable, replicable data (but this time substituted an unacknowledged advertisement).
• One of my pet peeves is misuse of statistical analysis as somehow being independent of the sources of the statistics. Exhibit A: "Empirical" Legal Scholarship. There is some valuable work being done under this rubric... but it is not empirical. An empirical study requires real-time observation of the data; a retrospective analysis of data presented to (as opposed to gathered by) the analyst is, instead, epidemiological, which in turn requires the use of slightly different mathematical tools as a check on validity, not to mention fairly searching examination of the data sources. This probably makes less difference for studies of judicial behavior than for studies of litigant or jury behavior, because for judges there are built-in validity and continuity tools, plus sufficient external restraints, to substitute for at least some of that mathematical analysis. The next time I see someone title an article with both "empirical" and "jury" in it, though, I'm going to go stochastic.
• So Tea Party nutcase Virginia Thomas wants Anita Hill to "apologize" for testifying against Justice Thomas at his confirmation hearing. Perhaps Ms Thomas should consider offering an apology for the character assassination of Anita Hill by Ms Thomas's cronies first? At least there's a perception/room to differ issue on Professor Hill's own testimony; there isn't on the hatchet job from the right. n.b. I'm not going into the even-more-Alice-in-Wonderlandish cliché of the "pot calling the kettle black" for a number of reasons here... the most obvious being the race of two of the three individuals involved, and my pale skin creates "authenticity problems" for the undiscerning observer.

Labels: culture, jurisprudence, politics, publishing, science

link to: 14:57 [GMT-6]

• Here's a real shock: Spanish media conglomerate just as disingenuous as American media conglomerates over royalty accounting. The real problem is that — contrary to the implications spouted forth made by the spokescreature — this is not at all new to Gruppo Planeta. And notice that those implications were closer to a nondenial denial than to a denial of wrongdoing:

  Through its 60 years of existence, our prestigious company and sisters, have never given cause to face a claim of this sort and our professional practice is based on ethics and respect to third parties rights. An evidence of this is our market presence that has reached more than 25 countries

  Really? Market presence is evidence of trustworthiness? I wonder what BP, Enron, and Gazprom would say about that?

• Dean Wesley Smith offers an interesting take on electronic publishing of backlists that requires a couple of caveats to make any sense. First of all, realize that what he's saying applies primarily to category commercial fiction. To give only one obvious counterexample, a heavily illustrated book requires a lot of highly trained (and poorly paid) attention — regardless of the kind of book it is — prior to publication, ranging from permissions checking to reproduction palette adjustment (even for greyscale and pure monochrome!). Nonetheless, I think DWS's underlying point is valid: That large print publishers have outsourced too much... including the advantages they did have over self-publishers, and particularly for slowly-but-continuously-selling backlist works. Of course, I tend to work with the better class of agent, so some of DWS's disparagement of agents seems a bit excessive (even to me), even if on balance he's right as to its effect on commercial category fiction publishing. And yes, this does have more than a little bit to do with the next item:
• Realms of Fantasy is dead — again. I won't say "good riddance," because the magazine did publish some good work, and it's never good to see markets for authors fail. However, I would point the finger in a different direction than did Mr Lapine; consider this the polite version of that finger-pointing.

  Sure, the economic environment didn't help. What really didn't help. though, is that the magazine never learned the lesson of fifty years of periodical publishing in print and a decade in bits: What seems like overspecialization usually isn't, and overdiversification is deadly. The overly rigid editorial categories within each issue ultimately sank it, because there was never enough editorial room to allow the quality of what was available in a given month to determine the table of contents. Instead, there was the overemphasis on having exactly one game review article, of a given length; exactly one book review article, usually trending toward the new-and-kewl-otherwise-categorized-as-YA, which further pigeonholed the magazine for marketing without actually specializing; exactly one article, of a given length, discussing folklore (and over the last few years, too often in that awkward gap between the anthropologically/scholarly credible and the Bowdlerized crap shoved into high schools, and reflecting the worst of both); etc. Further, too many of the reviews were fanboyish/fangirlish, and reflected too much fear of offending advertisers to be useful in the first place (except, that is, film reviews). And then the fiction tended to be edited to a subordinate length and buried in the middle of the magazine. In short, a magazine is not a newspaper.

  Like I said, that's the polite version. The inept design (admittedly, Lapine's regime improved it a lot) didn't help; failure to reach out to libraries didn't help; reliance on cosplay advertisers didn't help; and... well, I did say I was going to keep this polite, so I'll stop there...

• Also along the same line, the 1709 Blog offers a fascinating revisionary tale on the razors v. blades nature of content and hardware... which only gets more interesting when one realizes that the Gillette razors v. blades "strategy" is apocryphal and was driven by pecularities in intellectual property protection and enforcement in the early part of the twentieth century.

Labels: copyright, intellectual property, mass media, publishing

link to: 11:48 [GMT-6]

• Lots of e-books-in-the-marketplace chatter today, ranging from why are so many e-books misformatted? (hint: maybe the print versions weren't either formatted or coded correctly in the first place — relying on Quark quirks, for those that have electronic files at all) to Amazon UK attacking resale-price maintenance on e-books (the proper term for the so-called "agency model"... and yes, that is yet another side-effect of Leegin). And correspondingly, Macmillan USA has a film division (being run by someone who knows nothing about how to actually make a film)... which is going to lead to more and more demands for film rights in publishing contracts, in a return to the 1950s.
• There are some disturbing, but not shocking, figures hidden in PW's inadequately considered piece on National Book Award finalists (or, at least, those in fiction and nonfiction). Leaving aside the Franzen non-nomination non-controversy — it's not a bad book, it's just not excellent — note the in-print figures noted for each of these finalists. These are supposed to be the best of the year. In a nation of three hundred million, one might expect that the best books of the year would attract sales from more than 0.01% of the population, particularly compared to the actual (fully extended) cost of going to a feature film providing about a quarter of the entertainment time (based on average reading speeds) or a CD providing even less than that. And that's before remembering that the 20,000–30,000 figures cited in the article are before returns — those are just the in-print figures...
• At least for books, though, the problem of art forgery is much rarer. That said, this is some well-deserved karma for Christies — one of the leading conduits responsible for transferring Nazi-looted art to museums. And the thrown-away reference in Mr Haidt's piece to Piaget's research showing that six-year-olds have some notion of "karma," even if they can't explicate it, is all too appropriate for the world of art collection...
• I can't embed this video revealing Neo's worst nightmare (HT: Professor Lipton at Madisonian)... but put down that beverage and see for yourself.
• Professor Crawford notes one of the other reasons that the Comcast/NBCU merger must be rejected: Given R_____ M______'s long history of petty vindictiveness, a continued independent MSNBC will piss off Fox News too much to live. I'm hesitant to call MSNBC a "counterweight" to Fox — for all that Rachel Maddow is reliably "liberal," Keith Olbermann is a left-centrist and many MSNBC commentators and news editors are just plain centrists. However, given CNN's descent towards irrelevancy — thanks to its cost-cutting and alienation of its best reporters and editors, more so than how it has treated its purported "anchors" — MSNBC is now the most likely alternative to Fox News. And, as disturbing as that is, it is at least an alternative...

Labels: arts, civil rights, culture, internet, mass media, politics, publishing

link to: 12:12 [GMT-6]

In Sherman v. Koch, No. 09–1455 (7th Cir. 15 Oct 2010) (PDF), the Seventh Circuit reversed an injunction against enforcement of Illinois's "moment of silence" law, holding (2–1) that the statute in question was satisfactorily secular in purpose, because the statute on its face says it is.

In each public school classroom the teacher in charge shall observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day. This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day.

105 ILCS 20/1 (emphasis added). Curiously — or, perhaps, not so curiously — Judge Manion, for the majority, quotes the language of the statute, and infers adequate secular intent from its language... but not once does he cite the campaign speeches of its principal sponsor, an avowed evangelical who has repeatedly advocated prayer in schools.

The obvious problem here is the tension between what anyone with two brain cells to rub together knows — that many politicians, in order to pander to certain electoral segments or their own personal ideology, do want to impose and enforce public school prayer, and in particular an evangelical protestant vision thereof with full establishment in the schools — and Supreme Court precedent that essentially says that courts will bend over backward to assume that legislatures act with proper purposes, not in bad faith.

[G]overnment does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the "`objective observer, acquainted with the text, legislative history, and implementation of the statute,'" cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.

McCreary Cty., Ky. v. ACLU of Ky., 544 U.S. 844, 863 (2005) (internal citation omitted). The difficulty with Justice Souter's formulation and assumption is that it is factually wrong... but probably necessary as a political principle, given the balancing act that courts must play in our constitutional system when dealing with acts of the legislature.

Delving a little bit deeper into McCreary, though, demonstrates that Justice Souter's desire for an objective test is, itself, subjective... because he rejects significant data that would tend to reveal "disguised... religious intent." Slightly earlier in the opinion, he restricts the possible sources of the data that an objective observer may rely upon to discern the legislative intent to

the traditional external signs that show up in the "`text, legislative history, and implementation of the statute,'" or comparable official act. [A proper] enquiry looks to "plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute, . . . and the specific sequence of events leading to [its] passage."

Id., 544 U.S. at 862 (internal citations omitted). This is, of course, wrong as a matter of fact, although probably inevitable as a matter of doctrine: The most valuable, and least likely to be "disingenuous," statements of a legislator's purpose in proposing, advocating, and/or voting on a legislative act comes from that legislator's own campaign materials and behavior — not from official statements in later-edited journals. I'll pause to allow you to giggle at the irony of accepting campaign materials as a better source of truth... but not for very long.

All of that said, Judge Williams's dissent in Sherman has it correct on this particular statute, noting that the exception language in the second sentence — the denial that this is intended for prayer — only reinforces the inference that it is intended to impose public school prayer, under a horrible, ironic, entirely expected political variation on "the wicked flee when no man pursueth" (Proverbs 28:1, King James version).

Why mention prayer at all? If the Act truly is meant to achieve the purpose that its sponsors claim it is — mandating a quiet, meditative time at the beginning of each school day for students to settle down and shift into learning mode — why is it necessary to reference prayer? I recognize that the government’s stated secular purpose for a law is entitled to “some deference,” but it is also our duty to ensure that the proffered purpose is “genuine, not a sham, and not merely secondary to a religious objective.” And we are “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” because “[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.”

So while I recognize that we assess a legislature’s stated purpose with some deference, let’s call a spade a spade — statutes like these are about prayer in schools. In my view, the legislature’s decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the “hollow guise” of a mandated period of silence. While the secular purposes articulated by the state might not be “shams,” it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones. I share the concerns raised by a number of legislators who expressed their doubts about the true purpose behind amending the Act. As one House member stated during floor debate, “[t]he only reason I can see for requiring this silent moment is to encourage prayer in the public schools.” And as another representative stated, “[Y]es, this doesn’t mandate prayer, but let’s face it that’s what this is about .... [t]he only calls I received about this Bill were people who were rabbis and priests and reverends and people who are interested in having prayer in the public schools.” I do not believe that the Illinois legislature truly adopted this law with a secular purpose, and for that reason it violates the first prong of the Lemon test.

Sherman, slip op. at 41–42 (Williams, J., dissenting; internal citations omitted).

Now, admittedly, I'm quite a bit more vehement than most about keeping religion out of schools. It's not just from visiting (at various times) such warnings as Jerusalem, Belfast, and Magdeburg; it isn't even from being stationed in places like Oklahoma and Alabama as an atheist of non-majority ancestry. No, it's from personal experience and observation... and the obvious connection between religious doctrine and a lot of the major causes of bullying in schools. It is symbolically important to that Jewish/Muslim/atheist kid who gets beaten up for saying he doesn't celebrate Easter. It is symbolically important to that kid who is perceived as being anything less than red-bloodedly heterosexual (whether he/she is or not) who realizes — however dimly — that the whispers, disdain, and petty theft of possessions (even library books) have at least a partial ratification in the religious teachings being foisted upon fellow students. Then, too, I live in a portion of a purportedly Jackass state dominated by some of the most hateful elements of the Heffalump party who have not decamped for the Mad Tea Party — one in which the local paper proclaims with pride that this area is more Caucasian than the rest of the country and looks like it will remain so, and in which it's getting increasingly difficult to go vote somewhere other than a church. But then, Judge Williams is an African-American woman who grew up in Detroit, taught in public schools in Detroit, and is herself Catholic; that is, she knows more about being "different" in public schools, and what that means, and how legislatures play games with that, than do either of the two judges in the majority.

On matters of religion, I would invert the presumption that the courts make under the Lemon test: I would presume that any religious interplay with legislative acts is not of primarily secular purpose, but is instead of improper religious/sectarian purpose. But then, I actually know and have dealt with too damned many legislators, at state and federal level, to be anything less than thoroughly cynical. Some Illinois student will commit suicide — probably at a "downstate," semirural or rural high school — due to harassment that was intensified by the bullies' use of that mandatory minute of silence to hone their hatred. It's going to happen, but nobody here in East Central Redneckistan is going to make the connection. And that price is too high for Superintendent Koch's post hoc rationalization that the minute of silence is supposed to help students clear their minds for the day ahead, and thereby lead to better behavior in schools (see Sherman, slip op. at 6–7).

The problem is that the courts probably cannot adopt that change without throwing off the checks and balances; instead, they must rely upon the good faith of legislators in an era of rampant bad faith.

Labels: civil rights, culture, jurisprudence, politics

link to: 15:01 [GMT-6]

• One of those secrets that isn't really a secret, or even confined to mortgages: Sometimes mortgage financiers didn't follow the rules that they demand purchasers follow when they transferred mortgages from originator to servicer to whomever. Basically, what happened was this: Companies would engage in complex financial transactions, separating the original "mortgage" (a single-payment, or at most single-payment-plus-escrow-for-taxes/insurance, transaction) into multiple parts, each of which had a "servicer" and a "holder."

  Imagine, for a moment, going to the supermarket, and having to go through three cash registers on the way out — one for store-brand goods, one for national-brand goods, and one for the overall transaction... and the scans at each register must match, and be reconciled, before you can walk out the door with your groceries, with any error being resolved in the store's favor. You can apply for a refund later if you can produce documentation showing that the shelf price was different from the register price; you're probably screwed, though, if quantities are different, or if you can't decipher which item was which from the cryptic abbreviations on the receipt that you'll get only if you demand it.

  Now repeat every week.

  No, that's not an exaggeration. As an aside, it's not just mortgages; it's consumer debt in general, to my certain knowledge, and debt in general based on inference and experience. And people wonder why we had a financial crisis triggered by debt swaps and insurance-company investments.

  Ironically, this resembles the ancient teeth-to-tail argument over military forces that has been raging since the embryonic nation-state era (the eleventh century or so in the West, somewhat before that in China). It also ignores one critical bit of evidence: Without an exception that I've found, every extended declared war in the gunpowder era has been won by the established, professional force with the lower teeth-to-tail ratio in theater. That is, REMFs win wars; and there's little reason to believe that they don't win financial battles, too.

• In the name of "efficiency," the Tory-led UK government is culling quangos — those hybrid national government/local government/private sector "agencies" responsible for administration of programs that cut across several different government departments' areas of responsibility. Sometimes, though, "efficiency" is inefficient; one of the quangos being cut is the one that collects public-lending-right payments and distributes them to authors. Remember, in most of the world libraries are not as "free" as the public libraries are in the US: Instead, there's a payment owed to the author each time a book is borrowed. The US experience with the CCC should be a cautionary tale for those proclaiming that the private sector can take this over and do it more efficiently than can the government (or a quasigovernmental agency) anyway: There is no more arrogant, less-accountable element in US publishing than the CCC. At least publishers and distributors are subject to audits... sort of like mortgage lenders. Further, the CCC also sticks its nose into areas that authors have explicitly told it not to, like acting as a conduit from foreign societies and extracting an administrative fee, even when the foreign publication was unauthorized in the first place. And, worse than the CCC, there's the ASCAP/BMI model lurking in the bushes with a couple of broken-off bottles available for persuasive effect.
• NATO is changing, including backing a missile shield, acknowledging cyberwarfare as an explicit, significant threat, and even acknowledging historical US-EU tensions as reality. How relevant any of these acknowledgements will be to actual employment of NATO resources in a proactive, not just reactive, manner, though is another question... and I don't think anyone has even the glimmerings of an answer. Sadly, history demonstrates that NATO is a good reactive/defensive threat, but not very good at doing anything other than waiting around for something bad to happen to it, and I don't see that changing.
• More Harry Potter copyright infringement news: Willy the Wizard must proceed to trial. Now, this is actually a civil procedure issue more than a copyright issue. Although the exact contours of summary judgment in England are slightly different (and worded more than slightly differently) than in the US, what the decision (linked in the IPKat's writeup) actually means is much less than it appears: That there were enough contested factual matters that a reasonable trier of fact could hypothetically find that Harry Potter infringed Willy the Wizard in at least one aspect justifying some judicial relief. Even though, as Professor Phillips states, "[the judge] expressed the view that it was improbable that the action would succeed," it still requires a trial.

  In US practice this would press both parties to the negotiating table to settle. In UK practice, not so much, primarily because "loser pays the winner's attorney's fees" is the default rule in the UK (rather than an exceptional case, as in the US)... and the standard of proof for copyright infringement is arguably somewhat higher in the UK than in the US. In short, there's little incentive for Ms Rowling's lawyers to settle, as all this decision says is that it wasn't an ironclad instance due to the legal presumption of access caused by the mere fact of publication of Willy the Wizard. All that Ms Rowling's lawyers will need to do to win this matter is rebut that presumption with facts at trial (under UK procedure, presumptions of this nature cannot be definitvely rebutted on summary judgment... unlike US practice, where they can).

• I had a miserable experience casting my early ballot this afternoon. (And my US reader(s) had bloody well better be planning on voting. I care who you vote for, but I care much more that you do in the first place.) I do early voting because the partisan asshole who runs elections in this county moved my polling place to a noxious church. Thus, I went to the regular county government offices... only to have a big, stereotypically redneckish poster with "God Bless America" emblazoned with gold glitter on a flag staring me in the face as I requested my ballot. At least this time there's no abortion-rights question on the ballot... even if many races are being played as a "referendum" on the performance of that alleged Muslim at 1600 Pennsylvania Avenue.

  And then there were the other problems, but those will be handled in writing via a direct complaint, as they're much too involved (and depend too much on actual legal authority) for a blawg entry. Not the least of those problems was the number of unopposed races in which the only candidate was a Heffalump, the same party as the partisan asshole who runs elections in this county. BTW, I'd say the same if they were Jackasses: I'm against unopposed elections, and particularly against the hostility toward so-called "third parties" that is prevalent here in flyover country.

• Last, and far from least, put down your beverage and consider whether MGM would be better advised to sue these guys... or get an endorsement deal going, considering their need for the services in question. (HT: Professor R. Tushnet) Note that it has to be the film rightsholder, not the estate of the original author, because the line in question was improvised by the original actor in one of the films, so it's not a line "belonging to" that author.

Labels: copyright, life, mass media, military, politics, publishing

link to: 11:48 [GMT-6]

• In a follow-up to her ruling declaring DADT unconstitutional on its face, Judge Phillips has issued a sweeping permanent injunction against the Don't Ask, Don't Tell "policy" barring gays from serving in the military. This is entirely expected, and she actually had little choice given her factual findings previously and the posture of the matter; the only real question was whether the injunction would issue immediately or be stayed pending prospective appeals, and delaying an injunction is disfavored (not unusual, just disfavored) in facial challenges like this one. Her order (PDF) makes clear that under such circumstances, the right to an injunction provided in law overcomes the political inconvenience to the government of taking a potentially unpopular step.

  As a political-historical-legal matter, rights (and corresponding responsibilities) concerning sexual orientation are following much the same path as the struggle against Jim Crow: Initial low-level governmental moves, followed by countervailing legislation, followed by changes in public opinion... followed by gridlock and judicial disdain. I do not look for a legislative solution; it took a decade after Brown for a less-gridlocked Congress to pass the Civil Rights Act of 1964. We haven't had a President with the balls of Harry S Truman since, well, Harry S Truman... because, contrary to the bloviation from those who don't understand military personnel systems, all it would have taken to make DADT a dead letter is an executive order changing the standard of proof for administrative action discharging a servicemember for "violating" DADT from the ordinary "judgment of the commander based upon substantial evidence" to "judgment of the commander based upon clear and convincing evidence of immediate danger to good order and discipline." And since the UCMJ requires proof beyond a reasonable doubt, just saying "we'll courtmartial the poofs and dykes!" (you can't exactly call them "women in comfortable shoes," given the quality of military footwear) — a proceeding in which, unlike an administrative discharge, the defendant can raise constitutional challenges to the underlying statute, in addition to everything else — that would have effectively eliminated enforcement of DADT during the pendancy of that Executive Order.

• Germany has been granted one of the rotating UN Security Council seats. This should be interesting, as Germany wants reforms to the Security Council... such as changing who has some of the five permanent seats, although that's not the focus of its public stance.
• Some thoughts on a "national digital library" from the NYRB. As is usual for such pieces, it is long on aspiration and very, very short indeed on details... but at least it makes its aspirations explicit.
• It hasn't taken long for the left to begin its usual games over the selection of Mario Vargas Llosa for the Nobel Prize for Literature: Shoot your allies when they dare to criticize other allies for being utter bastards. Llosa has had the balls to criticize authoritarianism in South American politics for three decades — regardless of whether it comes from the left or the right. In the words of one commentator,

  Vargas Llosa’s attempt to hold all rulers to the same standards is what makes the claim that he betrayed the left so revealing. A lot of intellectuals have condemned rightist dictatorships in Peru and Chile, and a lot of intellectuals have condemned leftist dictatorships in Cuba and Nicaragua, but few have, like Vargas Llosa, condemned them both.

  Johan Norberg, "Don’t give him the Nobel – he’s right-wing!" Spiked Online (12 Oct 2010). To put it another way: Tyranny is a nonideological evil; you're either for it or against it. Demoting the necessary democratic attack on dictatorships to a tool used as part of expressing policy preferences (such as the CIA's support of "anti-communist" dictatorship in Iran) is a betrayal of representative democracy... and my commitment to representative democracy is a lot stronger than my commitment to ideological solutions to social issues. So, apparently, is Varga Llosa's.

  In closing, I offer a judgment from the Trotskyite/Stalinist/Bukharinist struggles of the 1920s and 1930s on the left: objectively fascist... and note that those most like the fascists "won" that argument.

• Professor Goldman offers a useful introduction to trademark bullying that bears consideration by artists and authors who are considering using (or disparaging!) a trademark.

Labels: civil rights, copyright, intellectual property, internet, military, miscellany, politics

link to: 16:06 [GMT-6]

• Why might actors boycott The Hobbit? It's not about distrust of Peter Jackson — he's actually providing a better nonunion deal than called for by the union contract. It's not even about distrust of MGM and New Line, however merited that distrust might be... because eventually they do pay. No, it's about distrust of people like the thief and asshole Stanley Brooks, who declared bankruptcy rather than pay actors what was owed... years after the fact.

  What this reflects, more than anything else, is what unions are actually meant to do: To deal with abuses. The problems arise when — due to the strange way that labor law works, if nothing else — the unions cannot show favor to "good actors" (pun intended) and trade off particular clauses when, as in the case of The Hobbit, the production in question falls outside the parameters that were even considered when the union contract was created. Unfortunately, this is an increasing problem, as the existing union contracts were all conceived in Century City without any regard for things like documenting a nonunion play production for which one actor is a union member and is appearing under a waiver...

  In any event, Brooks's little ploy may well come around to bite him on the ass, as it's reasonably probable that compensation due employees as residuals will be treated as a priority claim by the employees that gets paid before the claims of any other unsecured creditors... and before the claims of some secured creditors, particularly if the security interest was not properly perfects (and, given that this is Hollywood, that's very probable indeed).

• Remember that old aphorism "It's the thought that counts"? That also applies to intellectual property. The Supreme Court today granted certiorari (agreed to hear) a case that raises an important question on inducing patent infringement that will, no matter how it turns out, bleed its way into cases on inducing copyright infringement. Basically, it boils down to this, at least for the case directly in front of the Court: Does "inducement" require specific intent to cause a third party to induce, or can it be some lesser (but "unmistakeable") intent? Grokster seems to say the latter, but the evidentiary record in Grokster would also support the former, at least at the civil (more-probable-than-not) standard of proof.

  Or, of course, one could always look at intent to infringe from a broader point of view; the contrast between the Irish ruling denying "three strikes" treatment of ISPs by record labels provides an interesting contrast with these thoughtful musings on morality and intellectual property, both from this shark's only feline friend, the IPKat (writing under his natural name).

Labels: arts, copyright, intellectual property, internet, mass media

link to: 10:56 [GMT-6]

What is simultaneously more amusing and more dangerous, though, is the utter ignorance of commercial reality inherent in the inquiry. Neither Mr McGurl (the author of the book being reviewed) nor Ms Batuman (the author of the book review) seem to acknowledge that what is on bookstore shelves is not there based primarily, or even tertiarily, upon its literary merit — even in the "contemporary literary fiction" category, not even from purportedly specialist publishers and imprints. There is, instead, a complex mixture of introductions and champions (even more so than in more "commercial" categories), judgments applied by people who have not read the books, editorial gatekeepers who do not share the same literary values, bookstore stock decisions, goofy feuds among the author/reviewer/book review editor clan, and so on. Ms Batuman, in her review (and, so far as I can tell, Mr McGurl in his book) essentially argues not just that Maxwell's Daemon exists, at least in literature, but that the unknown/unstated criteria used concerning one characteristic (gas-particle energy) by the Daemon are inherently and properly extended to all characteristics (combustibility)... assuming, of course, that the Deamon is doing his job accurately in the first place, given that for literature there is not an objective, verifiable, replicable definition of "beauty" (Exhibit A: Dickens). And when, as in reality, the Deamon is the collective mind of publishers, we're having even more fun denying reality.

The problem with both the book under review and the review itself is that they undermine the credibility of applying academic rigor in the humanities to reality. If there is one concept from the basic natural sciences that desperately calls for recognition in scholarship in the humanities (or, for that matter, law... but that's for another time), it is the explicit recognition of boundary conditions (or, as in math, the analogous — but not quite identical — concept of limits and asymptotes). Even more than the sample/population problem that is so obvious and that I just finished whomping on in the two preceding paragraphs, the humanities do an extraordinarily poor job of recognizing that one doesn't reach a Grand Theory of Everything through a detailed examination of, say, Planck-scale quantization without also verifying its applicability outside that examination... and there's no sign whatsoever of even any interest in doing so.

Remember, Galileo was wrong about a lot of things, and relied upon bullying and ridicule as his methods of argument nearly as much as he did on his (magnificently flawed) observations. On second thought, comparing the formal work in the humanities to the political bullshit of the Reformation and Counterreformation seems to cut a little bit too close to the truth for comfort...

Labels: arts, culture, publishing

link to: 14:30 [GMT-6]

    I'll start off with a public service announcement, and note that — although it's not quite as amusing (or horrifying) as "President Quayle" — there's a very simple way to deal with the problem:

Vote, wherever you're eligible. And since it's that time of the cycle in the US, make sure your registration is current and you take advantage of "early voting" where appropriate and possible.

• A pride of lions, a murder of crows, a rash of cutesy, untypesettable, idiotic company/product names. What's really sad is that the Economist columnist didn't see fit to notice — or perhaps just didn't get — the two cross-lingual puns being attempted with Cisco's "ūmi"...
• ...although "Johnson" makes up for it with his next entry, a worthy attempt to disambiguate "liberalism" and "libertarianism" that ultimately misses one of the subtle distinctions between the two caused by a differing perspective. I'll freely admit to being a "left liberal" myself, and having little respect for "libertarianism" of any variety, because history has convinced me that power is like gravity: It accretes. True "liberalism" recognizes power accretion and seeks, via structuring of government power, to shape that power toward guarantees of individual liberty, such as creating economic equilibrium through extensive (but not exclusive) private ownership of property/capital, means of production, and rights to labor. Libertarianism, however, denies that power accretes, instead presuming that individuals inherently have the means to defy gravity.

  To put it another way, in the face of a force I cannot avoid, I prefer to structure that force to minimize bad consequences... and Marsh v. Alabama is merely a window into the bad consequences of excessive, truly private control. This is the flip side of libertarianism: It presumes that nobody will abuse the power they can accrete under a truly libertarian, hands-off, no-restriction-on-conduct system. For all the faults of representative democracy, there are limits on accretion of power.

• The Second Circuit properly — at least, properly under existing interpretations of the First Amendment — has reversed Vermont's refusal to allow vanity license plates with religious messages (PDF) on the ground that that constitutes "viewpoint discrimination." This, however, leads to an alternate question: Can one refuse to place one's hand on the Bible, or state the words "so help me God," when rendering an oath in court? Same reasoning... and, unfortunately, there's probably a different answer, as it would probably be treated as contempt of court akin to refusing to recite the Pledge of Allegiance (like some West Virginia schoolgirl from an unpopular sect, even if the Court later overturned that decision).
• Put that drink down and follow Professors Froomkin and Feld as they discuss the real path toward 'net neutrality. And why does this matter? Ask yourself this question: Is Amazon potentially its own ISP (hint: see 17 U.S.C. § 512(k)(1)) subject to these rules?
• Professor Goldman notes the gorilla-eat-gorilla world of advertising graphics, which would probably make Don Draper pretty drunk (on the other hand, is there anything that wouldn't?). All seriousness aside, I think this a better claim than Professor Goldman does, for a very simple reason: The implied indorsement (or, I suppose, implied denigration) is one of the unstated subfactors under § 107 that will tend to deny fair use... particularly in the Sixth Circuit, where the case will be heard. (Whether it should be is a question for another time.)

Labels: civil rights, copyright, culture, intellectual property, internet, miscellany, politics

link to: 12:28 [GMT-6]

• Congratulations to Mario Vargas Llosa for the Nobel Prize for Literature. Here's a list of winners since 1960 for your dubious amusement... and it's as interesting as much for who does not appear on it as for who does, and more particularly for the virulent anti-Americanism (and more subtle anti-English-language bias) apparent from the list. That's not to say that there isn't a lot of worthy literature from outside the English-speaking world; it is only to say that some of the omissions, particularly compared to the archly political grounds for including some of the winners, make this a less-than-reliable reflection of greatness in contemporary world literature. IMNSHO, Mr Llosa is (in translation, anyway) a worthy winner; but...
• A purported 99% draft of the Anti-Counterfeiting Trade Agreement has been released. The actual text (PDF) required a few days to authenticate (given the widespread hand-wringing over the not-quite-as-current-as-it-said-it-was "draft" a few weeks back), but looks administratively workable. Whether it will work in substance is a different, and more difficult, question... and whether it's a good idea is yet murkier.

  The key point is this: If approved, ACTA will dissolve some of the protection pirates — and particularly internet pirates — have by operating from certain currently noncoooperative countries. Contrary to posturing on both sides, it will neither make internet piracy impossible nor will it destroy fair use ("fair dealing" in the rest of the world) on the internet. The critical language is, as usual, buried away from the aspirational language used to sell it:

  Article 2.3

  1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be destroyed, except in exceptional circumstances, without compensation of any sort.

  2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of such goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.

  3. The remedies under this article may be carried out at the expense of the infringer.

  The danger here is obvious: If a server that hosts Novaya Pravda, or another antigovernment publication — even as a mirror site — ever hosts a single infringing MP3, the entire server can be seized. If that sounds a lot like the Russian government's seizure of human rights organization computers that allegedly had infringing copies of Windows, it should. The concept of bad guys hiding among dissidents and civilians isn't limited to copyright infringement; it's a centuries-old problem in the law of armed conflict. How are we doing there, anyway?

  All of the posturing about ACTA, though, is about supply-side interdiction, just like in the "war on drugs." Nobody is paying attention to demand-side interdiction. As usual, though, it's the unstated implications of the link within that piece from PW that are most interesting: They go to a firm whose business is selling DRM. And that, given the anticircumvision provisions built into the draft of ACTA (currently Article 2.18.5, and even more flawed than is Chapter 12 of the US Copyright Act), is an uncomfortable coincidence.

• So, failure to extend tax cuts for the "rich" will destroy small business? Even the pro-tax-cut-for-the-rich Economist says that's BS.
• Then there's the question of killing off a different industry: the so-called "publishing industry." Some commentators are finally starting to accept that e-books won't kill publishing per se, but may force it to change... and to accept failure as the price of success. The irony of that last coming from Elsevier, though, is more than I could let pass without snark: It has been — for decades — notorious for using errors that are "too big" as an excuse to let risktakers below the top management level "find opportunities elsewhere in publishing," particularly for the educational subunit.
• Actually, I think this typo has it right: It's not the software platform, stupid, it's the content (or lack thereof).
• Yesterday, the Supreme Court heard arguments in one of those defend-the-Nazis cases: Snyder v. Phelps, which concerns a family member's lawsuit against some true nutcase religious fundamentalists who picketed a dead soldier's funeral with hate-speech placards not factually related to the dead soldier. At PrawfsBlawg, there's an interesting take, and comments thereon, predicting a remand for a retrial under narrower rules; I'm afraid, though, that the analysis misses two critical First Amendment issues that were also elided in the oral argument yesterday.

  First, there's the "clause interference" problem: Does the fact the Phelps uses the Westboro Baptist Church — thereby clothing his particular brand of odious bigotry in "exercise of religion" — change the analysis under the Expression Clause? I would argue not, but everyone is eager to avoid this issue entirely; on the other hand, I think it an issue that must be confronted, particularly given our condemnation for South African apartheid in the recent past when it was mandated by one of the ruling class's dominant religious sects. The Court has an opportunity here to make the various clauses and rights in the First Amendment fully independent by noting that the free speech aspects of whatever it decides have nothing whatsoever to do with the religious character (or not) of the speech. Consider, for example, whether we would accept — as valid religious speech that must be protected — the picketing of (and encouragement of violence against, in ever-so-polite language) a human rights center that opposed female circumcision, on the alleged ground that the Bible "says" that women are inferior and must submit to men.

  Second, I think the character of the forum provides an adequate ground for the Court to avoid ruling at all, if it chooses to do so... but the various advocates have avoided the issue entirely. My position is that a funeral is an almost-unlimited-purpose public forum, and therefore has the broadest possible First Amendment protection for expression. That many funerals are also prescribed religious ceremonies only reinforces this conclusion. The First Amendment does not enforce good taste — rather the opposite. So, in this instance, I would have barred the lawsuit on much different grounds: That it concerns speech at a public forum that at least on its face concerns a matter of public interest, and therefore any recasting of that speech to make it "personal" (and therefore actionable as "intentional infliction of emotional distress") is merely post hoc irrationality.

  So, much as I despise Phelps et al. — and I say this as a veteran and commanding officer who has buried casualties — he gets a free pass on this one. Or, at least, he should... because the consequences of not allowing him to state his message of self-aggrandizing hatred in that context are worse.

Labels: arts, censorship, civil rights, copyright, intellectual property, jurisprudence, mass media, miscellany, politics, publishing