The Way It Isn't

[Dr] Martin Luther King [Jr] Day was formally established as a federal holiday in the 80s, falling on the third Monday in January. This year, it happens to fall on 20 January — the first time it has been on Inauguration Day. So Dr King's commemoration coincides with… this. And this. And this. I think I'll have to shift to a new cliché-like aphorism, perhaps "the paper calling the snowflake white"; I can't very well use the old one, about cookware, as the hue is rather ironic (and they don't get irony — not even, perhaps especially, cast-iron[y] cookware).

• One area that is just not going to get an awful lot of public attention from the incoming Administration (not that past Administrations have done much more) is the region surrounding Mu5k's childhood home — before his adventures with a US immigration "system" that would have astounded Kafka with its arbitrariness and culture of secrecy. At least now, though, Leopold's ghosts are clanking loud enough to be heard; even slightly further afield.

  You can scream "America First!" all you like, guys. All you'll be doing is trying to deflect attention from nearly a century of America screaming exactly the opposite to the rest of the world — which, when it didn't believe it, at least heard it.

• Sometimes, by sticking to their "areas of competence," academic organizations can (often inadvertently) provide a window onto incompetence. In particular, the American Historical Association has condemned destruction not even of historical monuments, but of education and particularly teaching of history in Gaza. One should carefully note two things here: This statement is confining itself to present efforts by the theocratic government of Israel, and making no claims that can support even a conspiracy-theory-tinged claim of "antisemitism" — particularly since Palestinians are a semitic people, too; and the OP is unduly generous in saying "Historically (ha), the AHA has functioned as a moderate-to-conservative organization, often loath to weigh in on political matters." My past professional interactions indicate that "moderate-to-" has little support in the AHA's ahistorical — ha yourself! — silence on a broad range of adventures and the narratives arising therefrom, precisely because in a very McLuhanesque fashion, the historical narrative is the educational/scholarly/political positions because the historical narrative shapes and controls their scale and form.
• The AHA is far from the only "learned organization" with an undeserved reputation for true and neutral rigor; I'm a refugee from four others! Sometimes, those clubs for "experts" don't even try to be neutral (or rigorous); even more often, the hidden agendas are dangerous precisely because they're hidden, and all too often undermine or contradict that carefully-shaped reputation (for example, anyone who claims that the American Bar Association is "leftist" or "liberal" has never actually read the ethics rules it sponsors, let alone pondered the structures and silences).
• The less said about the "evolution" of gaming, the better. It's rather distressing that a pasttime based on a literature of the imagination, of difference, of above all turning failure to conform to expectations into a virtue, has been appropriated via the somewhat misnamed Lamarckian inheritance of political affiliation, of religion, of vice — and of virtue. Ironically, many of those who object to the place of outliers in character-based adventure gaming choose to ignore the vast variations built into character generation, themselves typically rolling a five for wisdom (yes, I still have my original-edition three-volume set and the heavily annotated copy of Chainmail needed in large spaces and outdoors; get over it). Snide remarks about how "wisdom" was/is all too often a proxy for "socialization aligned between sociopathy and extreme conformity" will have to wait for another time, especially when applied to the "original gamers" in and around Lake Geneva… and their corporate successors…
• Unfortunately, there's a common spicing on this platter: The power of (self-aggrandizing) narrative to overwhelm inconvenient, unfavorable-to-self-image/interest facts. The real problem with Mr Walther's piece is that he stops before closing the methodological loop. I'm sure there are some differences, somewhere, somehow, among Goebbels, Alex Jones, and organizations acting the same way — but those differences are not in methodology, and only marginally in viewpoint. Which is not to say that, historically, that sort of thing has been confined to the mislabelled "right wing"; it is only to say that the "right wing" is at present more obvious/oblivious about it.

  tl;dr "Good" and "evil" are seldom pure, no matter how they're presented for marketing purposes. Means used limit and shape the ends actually achieved; when those means rely upon deception…

No, Sir — That Is Incorrect

Saying that too often definitely impairs one's career prospects. Saying it at all far enough up the chain of command/supervision makes that consequence rather more… immediate. As I have precisely no career prospects in the present or incoming administrations, I'll do it, remembering that speaking truth (or advocating alternative viewpoints when "truth" is indeterminate) is not a declaration of sartorial impropriety.

Secretary (Gen) Austin, you have recently attempted to impose what appears to be unlawful command influence (PDF) upon decades-long criminal proceedings involving specific defendants and alleged offenses — proceedings that began outside of your personal purview — by rejecting plea agreements. This decision cannot be justified either in principle or on these facts. In short, sir, you are in the wrong here, and your attempt undermines both the justice system and the chain of command. Not just the military justice system, but the entire apparatus; not just the chain of command to GITMO, but every chain of command involved with post-activity consequences to be imposed on non-US persons (which, ultimately, is all of them). That imperils your oath of office, and everything you've stood for in the past half century — since you took that oath upon entering the United States Military Academy to support and defend the Constitution of the United States against all enemies, foreign and domestic. I respectfully suggest that you trust your learned subordinates, rescind your statements, disqualify yourself from further "supervision" of the process, and allow proceedings still in pretrial mode to continue.

Your post-plea decision to reject the plea deals in this matter appears — so far as is in any currently-available public record — to be unaccompanied by specific implied threats of retribution against the officers (and others) involved in making a decision on the facts before them.¹ That, at least, is somewhat less egregious than it could be (and has been). The standard, however, is not "somewhat less egregious." It is to not only do justice, but be seen to do justice — and as Gilmet and similar matters imply but seldom state explicitly, that includes nonjudicial decisionmakers. That is the point of having a military (and related) justice system, of the general concept of the rule of law, of both the entirety of and specific provisions in the Constitution.

The particular sequence of events at issue here rests upon two decades of (entirely understandable) public outrage.² This points at the fundamental tension between "democratic will" and "professional judgment." You are not a lawyer, so you are not charged with that particular version of "professional" (although those who negotiated and accepted the plea agreements at issue are, a fact that should inform your own decision process). You are, however, by training a professional military officer — and you have retaken that oath you took in 1971 to place loyalty to the Constitution above all else. It is bad strategy to undermine one's own principles of command and control in pursuit of small immediate advantages, and especially so when that pursuit seeks an irreversible escalation on the spectrum of conflict.³ These plea agreements seek to impose the only sanction short of the individual-instance equivalent of total nuclear war: One cannot deescalate from the death penalty once imposed and executed.

Delegating leadership and execution is a necessary element of strategy, of government, of state policy. The irony that the real reason delegation is both necessary and appropriate when dealing with individual, tactical matters is that the lower levels of leaders making those decisions have specific competencies and information not available to their superiors, as often as the converse presumed in "civilian control of the military," appears to have escaped almost everyone. This tension is implicit in the precommissioning programs throughout the US military (and that of most democratic nation-states), and throughout further professional military education and command-selection criteria thereafter.

Please reconsider your decision to overrule the underequipped leaders in actual tactical control who — very much like Operation Eagle Claw — have detailed appreciations of tactical specifics that you do not. Unless, that is, your decision is based upon what must be at minimum breaches of attorney-client privilege, which would very much resemble destroying the village to save it.⁴

Mr Secretary — General — please reconsider. Conceive that just as you believe those who negotiated and accepted these plea agreements might be wrong (from at minimum a certain perspective), so might you. Trust the years of training, the years of investigation, that have gone into those decisions made by those in a position that you might well have been in yourself. Trust the remainder of the Constitutional process. Remember that under these plea agreements, those individuals are pleading guilty and are being incapacitated from repeating their conduct, without achieving a martyrdom whose attraction is literally foreign to you and especially to those to whom you answer.

In short: Do not demand complete victory in a context in which victory is inherently incomplete.

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1. I have precisely no confidence that those around you, in both the present and incoming administrations, have similarly refrained. Unlawful command influence occurs by proxy, too; that is precisely what was at issue in Gilmet. And, for that matter, at Nuremberg, in post-Yugoslavia proceedings, in… Delegation does not remove command responsibility.
2. I do not believe that I am saying anything you have not considered, particularly since you held multiple command positions concerning the conflict zone. Neither am I saying anything not already said behind closed doors: That the very nature of these proceedings arises from information-gathering sources and methods — indeed, from specific information — that nobody who actually knows anything wants revealed in public. Not even, if it thought about it (which almost by definition it cannot and will not), the Mob.

   The disturbing corollary here is that rejection of these plea agreements — agreements which would keep the defendants in custody for the remainder of their lives, just short of the maximum possible penalty — appears based upon not just policy imperatives, but relevant information that has been withheld from those charged with making individual-case decisions. That is not good military strategy.

3. See, e.g., Frank Hoffman, Examining Complex Forms of Conflict: Grey Zones and Hybrid Challenges, 7(4) Prism 30, 32 (2018) (PDF). This is not at all a controversial or unfamiliar concept; in broad strokes, it has been a fundamental part of officer training throughout the nuclear age, and is implicit in centuries-old doctrine. Cf. e.g., Carl von Clausewitz, Vom Kriege ("On War") (1832, this trans. 1874)("War is only a continuation of State policy by other means").
4. The controversy over both the origin and later uses of this statement is not just relevant, but is indeed the point.

Survival

Four years ago, there was a serious possibility that this nation would succumb to something that hasn't ever happened on this part of this continent before: A successful violent revolution by the loser at the polls. The First War of American Secession came about precisely because there weren't any polls, so the colonials could hardly be accused of sore-loserdom. The Second War of American Secession beat back the attempt (after four years), although we're still recovering from it in many ways. This time around, the loser was more graceful, more respectful of a quarter of a millennium of men and women who fought, and bled, and died — and of those they never came home to — in defense of "voting matters."

What damage that former loser will cause is for the future. It may be mostly "just" policy failures (as I remarked here just short of a couple of decades ago, stupid ≠ unconstitutional); it may be the executive this time instead of Congress; it almost certainly will result in needless suffering, casualties, and probably deaths. But we're not quite at the death of the American Experiment

We interrupt this rant to return to the irregularly-scheduled platter of link sausages.

• All too often, "old and wise" really means "decrepit and inflexible." It's been a dozen years since there's been an occupant of 1600 Pennsylvania Avenue who wasn't drawing Social Security, and the average age of Senators just sworn in last week is at least Social Security-eligible. I've been griping about this for quite a while, and I'm glad to see I've finally got company. Well, a little company, in that most Senators might as well be off just keeping their "bad habits" (and short workweeks).
• I'm firmly against the draft, but it's like both Dracula and a Cyberdyne Systems Model 101 it (or at least advocacy of it) keeps coming back. Peace Corps veteran Jonathan Zimmerman is here rather overdoing it, though.

  We don't need the entire nation to engage in national service. For one thing, that's a rather fast path toward devaluing an awful lot of jobs that are far more complex to do well than one can train draftees to do. It's one thing to say "build roads" (or even just "fill potholes") with some vision of creating the Transcontinental Railroad with slightly updated materials in mind; it's another entirely to do so safely, effectively, and with few side effects. Rather than reinstating the draft, I propose something a bit more… targeted: Appearance on a ballot for a state or federal legislative or executive (or, hackcoughshouldn'tbeelected judicial) office should require prior satisfactory completion of national service (and, of course, the Peace Corps counts, among many other "nontraditional" roles). That might, at minimum, provide some appropriate — arguably essential in a democratic republic — insight into some of those who don't have much in common with candidates for high office.

• Being a (nonuniformed) lawyer, however, isn't one of them. For example, just consider how much "service" to the nation as a whole was actually being provided by the lawyers in this fiasco. Or this one. Leaving aside that these two matters demonstrate yet again that states are incapable of effectively regulating the legal profession, I find myself unable to distinguish the conduct of counsel in these matters from that of counsel related to the attempted coup on 06 Jan 2021. Oh, wait, many them — including one of the most egregious — weren't disciplined either…

[fade out and static]

…yet.

Not Braving the Mall for Boxing Day

…particularly since the malls near here are a quarter or more empty. Which doesn't diminish the parking lot madness. Or the threat of being run down by delivery vehicles.

• Misconduct in the "c-suite" in corporations is everywhere, from health insurance to water utilities. This is what happens when more than one generation reads the LLM-generated summary of The Wealth of Nations and never realizes that there's a word before "self-interest." It's bad enough to neglect "enlightened"; too often, though, executives forget what the "self" is when they're directing operations of a company with a lot of non-equity stakeholders. Big hint to MBA programs: The "self" in "self-interest" is most emphatically not related to the "take any opportunity for personal advancement and withdrawing an arbitrageur's commission";¹ insurance policy holders are in fact the company's creditors, the water utilities exist at the suffrance of the landowners served, and so on.

  Insert a comment — with footnotes and photographs and a paragraph on the back of each one — about "the reason for the season" being inconsistent with the prosperity gospel (which is, itself, inconsistent with actions by the protagonist, but since we're already in cognitive-dissonance territory what's a little more?) right about here.

• Or maybe right about here. Sadly, the publishing industries (frequently including the "indie" segment) epitomize the problem. Those in charge — whether in editorial, S&M, or "general management" — are almost invariably not qualified to practice in the field.² This should remind the excessively scholarly of Holmes's Lament:

  It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights.³

• Which leads directly into musing about blind spots in the law that itself displays an immense blind spot: The inept equation of "extremism" with "ideology," without adequate consideration of deception, of claiming the mantle of victimhood to evade real examination, of rage (however justified/unjustified) relating to self-identity. Bluntly, "hurt feelings" do not equate to, and seldom result in, coherent, or indeed any, disinterested inquiry into details of an ideological position. Justified? Distrust of Manifest Destiny by Native Americans. Unjustified? The disturbingly-corresponding Great Replacement Theory, which is not in fact an "ideology" at all. Hint: Just because the FBI and Geheimstaatssicherheitbüro declare that something has an "ideological origin," coming from agencies that gave us self-interest-masquerading-as-principle ranging from Cointelpro to [redacted, much more recently] doesn't make it so. I do not think that word means what they think it does — let alone what they say it does. This is just excessive fandom — disturbingly similar to belief that if the opponent wins he/she/they must have cheated.
• Issues with bullying, lashing out, and self-interest shading into the cognitive dissonance of limited-scope megalomania (with elements of "simple" narcissism and sociopathy blended in) often arise in retrospective legal proceedings regarding "war crimes." This is by no means saying that, for example, on available evidence a certain recently-fled dictator guy doesn't merit such scrutiny. The irony that, in the medium and longer term, formalized reconciliation really hasn't worked, just points at how hard the problem is — especially when applied to businesspeople, not government officials. When all of the other tools for dealing with misbehavior by the powerful are taken away, "the law" becomes a hammer… and all misbehavior starts to look like nails.
• At least they're not nails viewed in a mirror. Yet. What kind of holiday season would it be without an existential threat? (Not one I've ever experienced.) No more sugar chirality for you, guys. (Or proteins, or nucleic acids, or…)
• Those who lost the last American election are the most likely (not certain) to propose dragging us out of the eighteenth century and landowners' franchise. It does bother me that my vote for President this past election was worth about 82% of that of a resident of Montpelier, just in terms of population disparity between districts… and it gets worse when one factors in that I was "only" voting for one tenth of my state's "undivided whole" of electoral votes. (And the less said about Iowa and the "representativeness" of the caucuses, the better.) The real problem is that every electoral system has distortions built into it; comparison is a highwire balancing act, with very hungry litialligators below…

  That this is a natural consequence of "gatekeepers" is for another time; the US certainly isn't alone in having severe difficulties. The real problem is that our betters don't trust us not to elect demogogues. How's that worked out in the last century, guys? (There's a reason that "divide and conquer" leads almost inexorably to "plurality claiming a mandate"… and the math just isn't that hard. Well, it's hard to put into HTML.)

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1. Analogies to Maxwell's Demon, Szilard's seldom-challenged-never-refuted demonstration (three quarters of a century ago) that the Second Law problems with Maxwell's Demon apply not just to heat but to information and indeed all ordering, and of executives to demons are entirely intentional.
2. Hell, they're often not qualified to even consume in the field! So as to avoid a defamation action (if the individual is still alive), I am carefully not naming the c-suite executive of a major NYC commercial publisher — one that included a "literary fiction" imprint — who boasted in the bar at a convention a while back of never having read any literary fiction.
3. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted). I'd call this a safe and seasoned precedent, but of late the Court has been ignoring the imprecation to limit lawyerly egos to the law. Take your pick: basic biology, lab technique, nonscholarly 18th century linguistics applied to people whose progenitors had no preserved voice in that era…

Raising the DebtCaffeine Ceiling

I'll begin with the morning ritual: Coffee. Definitely not any brand or type advertised on American television — let alone the UK (foreshadowing seven years of fighting against demons while seriously undercaffeinated).

• Stealth branding efforts continue to be problematic, whether unopposed but later challenged or distinctive only to monolingual boors. But that's nowhere near as confusing as figuring out what conduct, or who, is actually regulated by copyright principles from afar.
• If there's an underlying theme to the preceding link, it's that being a special snowflake isn't good enough to evade generally-applicable, well-settled restrictions on overreaching bullying. Claiming that it's all the users' fault doesn't seem to be much more successful. Means used need to be consistent with ends desired, or one ends up subverting both — especially when the special snowflakes are the ones already in power, unable to tolerate any criticism whatsoever. It's neither "pro-democracy" nor "the rule of law" if what really matters is whether anyone who might object knows about it. (Yes, that's a hint for the incoming administration.)
• Throwing the bastards out is only the first step, of course. The Romanovs were bastards, but what followed was worse. Violent revolution followed by vengeance against those perceived/labelled as the former oppressors seldom makes it a decade without descending even farther — and especially so when religion is involved (just look two nations to the east… or at any of the neighbors to the southwest). (Yet another hint for the incoming administration.)
• That danger is perhaps more obvious with governments than with dominant business entities, whether in large or niche "markets." Indeed, "business as usual" can be even more repulsive in the niches, because blacklists are a lot more effective — and pervasive.

Caseless Link Sausages

Since I haven't finished what little holiday shopping I'll be engaging in, I'm not going to wrap these link sausages either.

• So the rich want to buy into nobility (semi$wall) despite the American prohibition on titles of nobility, do they? Well, that's certainly not the only benefit of an original position advantage. Nobel prizes appear to be directed that way, too. Not to mention the irony-free criticism of a "nepo baby" by another "nepo baby".
• That last note leads to a few musings on the meaning and strategy of President Biden's pardon of his son Hunter.

  First, let's clear something out of the way: So far as I can tell, President Biden did not criticize any action or decision of the judge(s), so the judicial faux outrage is unwarranted. What he instead was criticizing was misuse of prosecutorial discretion — and choosing to elevate these charges to criminal (instead of the ordinary assessment of civil penalties on both the tax and firearms charges) should raise eyebrows, because it certainly presents the appearance that a Drumpf appointee with a history of vindictiveness in his prior Drumpf appointment may have failed to consider the complete context. Anyone who tries to pretend that there's never any pressure on individual prosecution decisions coming from institutional loyalty concerns has never been there, or at least never had misgivings about a particular matter. Let alone any regrets.

  Second, consider the timeframe. This is both legally sophisticated and a slight error by President Biden and his advisors. What he has essentially done is cut off the ability of a new administration to continue prosecution on purportedly "new" charges that are similar to those already raised. It's not just that extending backward to 01 January 2014 includes the entire period during which Hunter Biden was on a Ukrainian board of directors; it's that it extends three years backward from 20 January 2017, slightly over three years — that is, the statute of limitations for federal offenses for all except RICO (four years), continuing conspiracies, and outright murder. In turn, that means that in order to get a subpoena, a newly-appointed special prosecutor is going to have to demonstrate probable cause that something over ten years old by the time Drumpf is in office (another, obscure evidentiary-value issue that would force a judge reviewing a warrant application to at least pause) remains not just relevant, but persuasive. It's a slight error because going back 11 years, instead of 10, would also have related to RICO charges (four years prior to the prior Drumpf Administration initiation — it's a bad argument, but one that can be made in camera with a straight face for political purposes). Of course, this analysis is coming from the outside, without any inside knowledge of what was actually being considered… but in light of some previous frustrations with statutes of limitations.

  Third, this is intimately connected to Drumpf's own past and future conduct regarding pardons. Past, in that he pardoned his brother-in-law (cousin-in-law?) and now proposes to appoint that convicted felon individual to an ambassadorship (for which he's manifestly unqualified, but that's a half-century tradition that crosses party boundaries, I'm afraid; at least it's only to France); how this differs from Biden pardoning his son will be a tale told by a fool, full of sound and fury but signifying nothing. Future, in that criticism of Biden for pardoning his son as a white-collar criminal and for technical regulatory violations that (so far as is known) are unconnected to any substantive offense will underly any conversation about prospective pardons for insurrection. One might suggest that the holier-than-thou of all politico-personality loyalties ponder hoisting by one's own petard, but that sort of goes off the rails once one says "ponder," doesn't it?

  And, frankly, this is a lot more verbiage and consideration than the topic deserves. Don't kid yourselves: Pardons have always been politically dubious, if only because they necessarily involve second-guessing specific decisions by the judicial branch, the legislative branch, or both — not to mention depend upon finding third-party advocates (especially visible/prominent/powerful ones) more than the underlying facts, however those facts have been determined.

• Unfortunately, this just leads into other contexts and considerations of prejudice in action. (n.b. These examples have been carefully selected to offend as many unthinking doctrinaire assumptions as I can conveniently stuff into a single sausage. OK, maybe that's an eyebrow-raising assertion after the preceding one, but a foolish consistency is for small minds — and this is surely about foolishness.)
• Or, I suppose, we could just ponder yet more inaccurate, inadequately considered assumptions about large-language generative Eliza. It's not "intelligence" if it doesn't enable actual, defensible (even if incorrect) reasoning by analogy — and the "teachers' assumptions" built in deserve a lot more consideration than they've gotten. It's not even particularly insightful, however convenient.

Grinch-Approved Link Sausages

These are just the basic sausages. There's plenty of garlic in their souls, but you'll have to bring your own sauerkraut and toadstools.

• If we had an effective national health assurance system, we wouldn't be talking about the CEO of the insurer with the highest rate of claim denial among major insurers (except maybe for the VA, but that's a different issue entirely) getting shot in an apparent targeted assassination — and then seeing teh internets explode with schadenfreude over an act of vigilante violence.

  The legitimate use of violence in pursuit of policy objectives is the exclusive province of the State. It can't be tolerated from private citizens, whether we're talking about a single targeted assassination or a much larger atrocity. Sure, States (and quasistate actors) make mistakes about it — like, say, the assholes on both all sides of the disputes in the Levant — but they're not unaccountable bullyionaires (well, not supposed to be). <SARCASM> Like the proposed cabinet for the incoming administration, some of whom clearly have no clue about how government officials are supposed to act.¹ Oh, wait, maybe that explains why so many bullyionaires want to be in the new cabinet where they can direct violence, or at least the power of the State, against their personal enemies. </SARCASM>

• I did mention unaccountable private citizens as a problem. Their power is especially problematic when it arises from accounting dodges in the first place, whether individuals or entire businesses.
• It's the holiday season so there's lots of dubious intellectual property news. The newly formalized reach of EU designs is highly technical and mostly concerns what we (over here) call "industrial design." But that doesn't — indeed, can't — make "Русский военный корабль, иди на хуй" on t-shirts protectable (for trademark purposes) on behalf of the Ukraine border guards; it's just not distinctive. Katy Perry had only a little bit more success in Australia.
• But that was better luck than the Kahlebros² have had: They decided not to petition the Supreme Court to overturn their abject loss in the Second Circuit. The IA's attitude is extremely common among techbros (and too common among other activists) — "the law already must be what we want it to be to advance our interests, regardless of what that does to anyone else." Admittedly, the law is often ossified, stuck in assumptions (not to mention precedents, and poorly-worded legislation and constitutional provisions) that are overtly out of date, and frequently ignore problems never imagined. The public statements by the IA, however, reflect an almost theological arrogance, an unwillingness to conceive of personal error, an utter disrespect for those whose interests are not completely aligned with those of the techbros — even when the techbros proclaim that they know what those interests are better than do those who have them. This is especially so when what the techbros demand is theirs as of right is totally unencumbered use of what the law treats as someone else's property (literal copies here, creation of derivative works for the egregiously misnamed "generative AI" that has almost zero chance of passing the Turing Test in the next decade, let alone now). The law can certainly do better than it does with science — but one must also remember that the applications and self-interest of techbros are not a congruent set with "science." Or "invariable right."

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1. Or, for that matter, what "treason" is in the first place; one thing that it's definitely not is "providing testimony on personal knowledge in support of a complaint properly filed in the right place," or "filing a complaint regarding conduct that appears to violate clearly-established law." But then, that individual has a track-record with his own whistleblowers, so we shouldn't be surprised.
2. What to call the advocates of conversion of printed books to electronic books without authority from either the publishers or the authors/successors, while the works are still in copyright, is itself an interesting question of deceptive labelling. Making it an even more interesting conundrum, none of the "groups" actually have unified interests in themselves. For example, the authors of mainstream novels have different interests and perspectives on how this conversion might matter to them than do, say, journalists employed by a periodical who knowingly signed an employment agreement containing a clear work-made-for-hire clause; and even within distinct segments, there is legitimate disagreement among members. And that's just the authors; the assumption that publishers' interests coincide with authors leaves me ROFLMAOing (because, well, I know too many of both). This is a problem, similar in nature to whether one wants to be called a "liberal" in today's political environment. So, because this group largely insists on insulting the interests of everyone else, the intelligence of those actually involved in creating original expression, and me rather personally, I'm going to be snide. Get over it.

A Few Words on Behalf of the Leadership

Words that they can't say, due to fear of being seen as disloyal, and Article 88 (for at least some of them), and frequently lack of prior opportunity to reflect on the full scope of their duties as members of the leadership. Sometimes they've been so coopted that they don't know, or in extreme instances have lost the ability, to think about them. But none of those limitations apply to me any longer (not all ever did), so:

Those "duties as members of the leadership" point to another part of the owner's manual, a part that reminds the leadership — all of whom have taken that oath and continue to be bound by it; an oath almost unique in world governments, proclaiming as it does ultimate loyalty to a linguistically-bound abstraction rather than an anthropomorphized one — that they are all social justice warriors by definition. They have sworn to

…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 on which I am about to enter… (5 U.S.C. § 3331)

when that Constitution includes these:

…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. (U.S. Const. Art. VI cl. 3)¹

No State shall… deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. Amd. XIV § 1)

It doesn't get much more directive to be a social justice warrior than demanding that all holding "positions of trust" support and defend the equal protection of the laws for everyone. Even people they don't particularly like.

It's not 1948 any more.² Even if a substantial proportion of the incoming government would rather it were 1785, the true high point of "states' rights." Neither is it the Republic of Korea, a nation that has been under a military dictatorship in my lifetime (hell, during my adult lifetime) and really would rather not go back. It's not just the military, either: The oath applies to every federal, every state officer.³

So go out and do your jobs, to the best of your ability, supporting and defending the Constitution of the United States against all enemies, foreign and domestic. The hard part is determining who is the enemy at any one moment; blaming someone's parents for having the wrong skin color, wrong religion, wrong nation of origin, wrong social class, wrong whatever, is always suspicious, however. After all, on September 16, 1789, there was not one natural-born citizen of the United States; the once-and-future President is only a second-generation natural-born citizen of the United States; a not-so-long-ago Chairman of the Joint Chiefs of Staff was an immigrant — from Warsaw by way of Peoria.

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1. Those of you who persist in religious nationalism, or in perpetuating the mythic propaganda that the US was formed as a christian nation, should consider this carefully. And if still not convinced, I suggest a careful reading of Matthew 5, Numbers 30, and Ecclesiastes 8 — among others. The only reason the Devil can cite scripture for his own purposes is that someone wrote down scripture intending it to be cited…
2. Cf. Executive Order 9981 (26 Jul 1948) (Truman's order desegregating the military, applying only to "race, color, religion, or national origin"; all else came later, or remains yet to come).
3. "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution… U.S. Const. Art. VI § 3 (emphasis added).

The 2024 Turkey Awards

An annual tradition for a quarter of a century! This is my list of ridiculous people from 2024 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to advocates of "open AI" who are carefully ignoring that they're running Eliza on processors, memory, storage systems, an peripherals from displays to input devices all considerably more advanced than real AI conceived at roughly the same time — with the same sort of hallucinations and bullshitting, like in the clip.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the major-party candidates for President — not excluding the last-second replacement. My generation needs to get off the ballot (and doubly so for its predecessors), and especially out of the smoke-filled back rooms that act as gatekeepers on who can get a party endorsement in the first place. During an era of accelerating change, "old and wise" is usually PR bullshit for "decrepit, ignorant, and slow to adapt."
• The Broken Wishbone Award for shattering dreams goes to everyone excoriated here on 23 May. Unfortunately, it's probably too many miscreants to actually get a grip on that wishbone.
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to McZorgle's for its latest trademark overreach (with an unexpectedly delicious result).
• The Conspicuous Consumption Cranberry Relish Award for the most-outrageous example thereof goes to the 0.001% with their purchase of politicians everywhere. This isn't exactly new — politicians have always been for sale, or at least long-term lease — but, surprisingly, it's even more outrageous than overpriced artwork "originals" this year.
• The Crabapple Pie Award for marketing something sour as something sweet goes to Moms for Theocracy Liberty and their demand to be treated like and have the powers of the government while ignoring core limitations on government (like accountability).
• The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to Robert F. Kennedy… Junior. His only apparent qualification for office is his surname (and even that family of loyalists has repudiated him). Not to mention fluoridation, Mandrake — and he's just as well-balanced and fact-oriented as BG Ripper (and equally likely to attack the wrong target for the wrong reasons).
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to everyone involved in the struggle to control Paramount, none of whom actually have had a damned thing to do with building that monstrosity (let alone with any creative decisions).
• The Dried-Out Breastmeat Award for overcooking the books goes to my friends across the lake who are convinced they can speed up publishing by naming their new imprint and process after a microprocessor suitable primarily for primitive games. At least they didn't name it after the processor that was foundation of their company's operating-system success — a processor that was intentionally crippled. Meanwhile, it wasn't the processor at all that ultimately mattered (the Motorola 68xx and 68xxx series were both considerably superior to their Intel counterparts), but the software, peripherals, price points, and above all the documentation and training. Why, no, of course I'm not suggesting any parallels there.
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to state-level bar regulators whose (inept) efforts destroy public confidence in the courts and legal system. Do you need a few more examples? Damn, there are more legs stuck out than on a terducken made of a cuttlefish stuffed inside an octupus stuffed inside a squid — hiding behind a cloud of ink…
• The GMO Tofurkey Roast Award for a main-dish item that's supposed to be more wholesome, nutritious, and/or ethical, but merely hides something that's perhaps worse under that veneer of virtue, goes to the Heritage Foundation, which begins the deceptions with its very name (if nothing else, by denying the role of slavery and plutocracy in America's "states' rights" heritage).
• The Unwanted Obligatory Guest Award for the guest at the banquet that you had to invite (but wish you didn't have to because you knew would spoil everything) goes to El0n Mu5k for more reasons than I can list here. His immigration to the US as an opportunistic draft-dodger from a shithole country (without respecting admittedly ridiculous visa restrictions that by their nature select for anyone but the tired, the poor, the wretched refuse of teeming shores) is just the start.
• Special Limited Time Offer! The Uninspected-Produce E. Coli Baby Carrot Medley Award for discrediting an office goes to Matt Gaetz, whose only qualification to fulfille the duties of the office he was nominated for (and, for that matter, the office that he had) was undue familiarity with the concept of "barely legal" (see 18 U.S.C. § 2421 et seq.; see also Fla. Stat. § 794.05). Notwithstanding his denials, there's enough other evidence to infer squickiness, regardless of whether that evidence meets the criminal standard of proof (that is, beyond a reasonable doubt). It's pretty obvious that the individual who nominated him prepared this dish didn't wash the produce or his hands, and I'm afraid this contaminated dish is making me sick to my stomach.

Looks like there wasn't enough room on the buffet table this year for pets from Springfield, which is probably just as well — we're going to be stuck with that guy for a loooooooooong time, maybe even long enough to move up from the kids' table. Maybe next year he can be the Unwanted Obligatory Guest… almost certainly by 2028.

Today's Group W Bench

Satire warning (slightly updated from six decades ago.¹):

•  •  •

"Kid, I want you to go over and sit down on that bench that says Group W. Now, kid!"

And I walked over to the bench there — and Group W's where they put you if you may not be moral enough to join the government after committing your special crime. And there was all kinds of mean, nasty, ugly-lookin' people on the bench there. Atheists. Genderless-lovers. Border-crossers!²

Border-crossers sitting right there on the bench next to me! And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench. And the meanest, ugliest, nastiest one, the meanest border-crosser of them all, was coming over to me and he was mean and ugly and nasty and horrible and all kind of things. And he sat down next to me and said, "Kid… what did you get?" I said, "I didn't get nothing, I had to pay fifty thousand dollars and pick up the textbooks." He said, "What were you arrested for, kid?" and I said, "Literature." And they all moved away from me on the bench there, and gave me the hairy eyeball and all kinds of mean nasty things, 'til I said, "And creating a nuisance," and they all came back, shook my hand, and we had a great time on the bench, talkin' about crime, atheism, border-crossing, an' all kinds of groovy things that we was talking about on the bench.

It's not really all that implausible, is it? Notice, though, that nobody on the Group W bench is there due to a white-collar crime conviction… either in the original of six decades ago or now. I'd make some snide remark that Ali's Restaurant is, these days, probably in Cambridge, Massachusetts, but certain Ivy-League-"educated" ignoramuses (whose "American mind" was obviously closed before attendance) would probably object a bit too loud… and Cambridge has a helluva lot more than three police officers.

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1. With no apologies whatsoever to Arlo Guthrie. And definitely none to EMI Music, Inc. and/or Appleseed Music, Inc. This does not qualify as a "parody" under the mistaken definition found in the 2Live Crew matter (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)) — a definition that would have absolutely appalled Founding Father Benjamin Franklin and his near-contemporary François-Marie Arouet a/k/a Voltaire. Because its target is not the talking-blues piece but the attitudes surrounding it, it is "only" satire and therefore outside the ordinary bounds of fair use.

   Which is wrong. But understanding why requires "doing literature," and perhaps "doing history and legislative intent." But the current rightsholders can, nonetheless, bite me.

2. <SARCASM> No reference to either Our Once and Future Dear Leader's family background, or the DOGE of Venice (floppy hat and all), is unintended. </SARCASM>

The Sound of One Shoe Dropping

A very floppy clown shoe, as the first — and almost certainly not the last — of Our Once-and-Future Dear Leader's nominees¹ for Senate-confirmable offices of the United States² ignominiously, and rather ungracefully, withdraws before there's even a schedule for a potentially embarrassing Senate committee hearing. This leaves the rather frightening question of whether the next DoJ clown nominated will be Pennywise. Who, at least, dressed the part.

This is even worse than last time around. That (IMNSHO eminently unsuitable) individual actually went through the hearings, actually got confirmed, and actually served a whole 22 days in office! Which beat my prediction by about 75 days or so.³

It almost certainly won't be the last utter "failed nomination." I bet that some casino in Vegas already has a betting pool with multiple side bets equivalent to whether the first kickoff of the game will be run back for a touchdown. Fortunately, Teh Orange One has already telegraphed one potential replacement; if the current nominee for HHS withdraws, or fails of confirmation, or resigns quickly, there's already been mention of an eminently suitable replacement. Plus, as a bonus, Boomers and Pre-Boomers probably remember mom's demand to "eat your liver, it's good for you," so there's already an "improve public health" aspect of that nomination! Unfortunately, the appropriate accompanying wine would be subject to the promised tariffs on imported goods; nobody really likes fava beans; and if we tried to avoid import duties, extra rare is usually a poor choice with American lamb chops (which generally are best between rare and medium rare).

One wonders how many floppy clown shoes dropping will begin to echo like the heels of jackboots; we'll probably get a hint when we see who is actually nominated in Gaetz's place. For the present, though, one wonders if Herr Garbitsch is in charge of vetting nominees…

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1. Technically only "designees" because no nomination can actually be submitted until at earliest Congress reconvenes on 03 January 2025, and arguably not until 20 January 2025. But everyone is using the shorthand "nominee," so objecting is a lost battle; and however fond of those I've been over the years, I have to prioritize them and this one just isn't important enough. Besides, "windmills" are themselves non-fossil-fuel alternative energy, and thus disfavored by the incoming administration…
2. Cf. 5 U.S.C. § 3331.
3. I have witnesses to my reaction upon the announcement of his designation that he wouldn't make it past April; I had my reasons…

Offshore Assets

Taking a break for a moment from US partisan politics (at least while gathering the ingredients for this platter), the last few weeks have seen some significant IP decisions, mostly overseas. But it's not 1930 any more: Especially with intellectual property, both "legal precedent" and "legal reasoning" for IP (which is essentially borderless anyway) squeeze their way past all borders — all too often without adequate (or honest) inspection at the border.

I am not suggesting — yet! — that Perry Rhodan is an undocumented immigrant. Neither, however, am I ruling out such consideration at a later date… especially if the West Germany of 1961 might well be called a "shithole country." (I did say "for a moment.")

• Since this is a platter of link sausages, let's start with whether the shape of a sausage is an enforceable-to-exclude element of a registered mark (in Europe, anyway). This just seems like one of those amusing bits of overreaching, but…
• …that seems almost like a standard business strategy these days, whether in Europe (and the UK) or in the US. Memories of discussions on this blawg of limp cockiness about an IP-related mark are more than "AI" hallucinations.
• That's about exploitation of IP, though. Before one gets to exploitation, one must produce the IP in the first place. This can be rather squicky in concept, and the result of a team effort that often involves dubious claims of "ownership" of the output. This last item has interesting implications for the enforceability of the US copyright law work-made-for-hire enforced statutory transfer in Europe (a doctrine that was always a bad idea anyway, and rested on the necessary condition that Congress has the right and authority to redefine a word in its relevant grant of power to mean nearly the opposite of its ordinary public meaning, either in the eighteenth century or now).
• Determining the kind of IP that's at issue in a particular dispute (especially once the lawyers get involved (third paragraph)!) is at least equally frustrating — and can be outcome-determinative. Consider, for a moment, whether this dispute would have reached this result under either trademark or more-generic "unfair competition" law. The key point to remember is that the natural-person creator is seldom, or at least seldom accurately, thinking about "the kind of law that will apply when I'm done" during the throes of creation… and that's before considering any "statutorily-enforced transfers of ownership"!
• After production, IP must be packaged for the consumer — especially when it's only words, words, and more words. I have always found CMS helpful, but not definitive, especially when it reaches outside its core competency in the humanities and nonnumeric social sciences. For example, for all of the foolishness of "signal priority" and "canonical abbreviations" found in The Bluebook (for American legal writing) — foolishness that never made sense, let alone a century later when about a third of the canonical abbreviations are entirely new and substantively overrule earlier but unchanged ones, not to mention show utter disdain for conflict-of-laws analysis of the actual weight of some abbreviations — CMS-compliant citations have always discounted essential information for legal materials (like full-and-adequate identification of which court issued many opinions). Bluntly, there cannot be an effective "uniform system of citation" that reaches all kinds of citations and all kinds of writing… and that's before getting into the distinction between "grammar in the real world" and "grammar in Mrs Grundy's sixth-grade classroom" underlying much of CMS's proscriptiveness. (Can you spot the seven items in this sausage that CMS would characterize as "improper" that actual real people and writers would characterize as "style for teh Internets" that actually has a substantive basis?)

Phew! That's exhausting if not necessarily exhaustive, to intentionally and ambiguously overload two terms of art that are themselves less than artful: Those initial rights are not truly "exhausted" if the parties can legitimately argue for years (with considerable attorneys' fees to be paid by someone) about them without regard to any disputed facts.