15 March 2024

Poisoning iPads in the Park

Spring is here
Spring is here
Life is skittles
And life is beer…

Oh, it's not Spring until next week? Can't tell that from the non-Seattle weather today, although there's no need for air conditioning.

10 March 2024

Semicivilized Platter in the Wurst Way

Sometimes life 🦉 interferes at the sausage factory, and then one needs to throw out a bunch of spoiled stuff. Unfortunately, as it's election season (for eight more months, which is part of the problem), the news is going to look primarily like spoiled sausage ingredients for a while, and since the point of "sausages" is preserving the dodgier bits of dead animals…

  • …perhaps more than anything else the spoilage concerns "monetizing content." The obvious connection is the EU's imposition of rules making techbro darlings slightly less insulated from accountability than organized crime, but only slightly in the context of companies with market valuations making this fine a rounding error in the account books. Just like purported nonprofit shenanigans, though, this is not going to trickle down to authors and other creators of "content." Some people are actively destreaming (and the article neglects the biggest reason to rely on offline storage like DVDs: loss of, and eyebrow-raising moralistic restrictions on, access — that is, misuse of the concept of "licensing" and silently converting "access" to "one-time admission fee," rejecting the very concept of the "personal, long-term library" in a way I find intolerable).
  • Of course, it could be worse. It is, and one need not consider whether female psychopaths somehow get starring roles in purported informative speeches that have devolved to partisan spectacles in my lifetime or misuse of anecdotes isolated from context as sub rosa, post hoc rationalizations of outright bigotry. (One need not wield a knife and cackle in a TikTok video to be a psychopath. I'm not claiming to perform a diagnosis; I'm using the term in its wider, nontechnical sense — like asserting that "Stalin was a psychopath" despite his, umm, delegation skills.) There are disturbing connections to tyranny and to "political bias" (for any value thereof) in "generative AI" systems lurking in there, too.
  • Returning to "not going to trickle down to creators," consider vanity presses hiding their nature. Once upon a time, perhaps even PW would have refused to publicize this crap: It's dressier language, but it still requires authors to (a) have spare financial capital to contribute in addition to the same intellectual-property capital they've always contributed, meaning that Undesireables — especially meaning those without the Right Ethnicity, the Right Private Educations, and the Right Passive/Preaccumulated Wealth — will not be welcome, (b) trust that these highly-experienced commercial-publishing figures can drag their heads out of the rampant financial (and other) mistakes embedded in commercial publishing and its distribution model(s), and (c) going beyond mere "mistakes," that whatever royalty statements do get issued will be timely and honest, under the stewardship of people who know only a culture of people dependant upon untimely and dishonest. (Really: 90 days to account and another 30 or more to pay, together with the "reserve against returns"???)

    Once upon a time, United Artists purported to outmaneuver the moguls (for the benefit of on-screen talent and "filmmakers"… but excluding screenwriters, musicians, cinematographers, animators, and the predecessors of "special-effects" creators in a rather intense bit of foreshadowing). It didn't take all that long for the moguls to take over, though. This time, they're in on the ground floor, converting their post-IP-creation labor into equity interests in that IP. And during the history of UA, it was neither more nor less abusive or dishonest about complying with payments to the "talent" than the rest of the film industry. Unfortunately, it's very difficult to provide citations, because the disputes didn't generate nonconfidential, publicly-accessible records very often — and still don't.

  • But that thread pulled out from the snarl is all ready to snap right back in when the compensation at issue is the dubious mixture of power and survival under tyrannical governments. Loyalty is no panacaea, either; eventually, artistic truth speaks not necessarily directly to, but certainly inconsistently with, power, and perhaps even moreso when the "power" appears as generational conflicts purportedly "resolved" by The Law (and use of the definite article there is intentionally inaccurate). If there's one thing that the literary-theory wars from the 1960s through 1990s should have taught us, it's that Orwell's aphorism that "[t]he opinion that art should have nothing to do with politics is itself a political attitude" applies equally to "nonartistic" texts — and not just to the writer, but the interpreter, who is after all engaging in "writing" him/her/theirself. This is one area in which law devoutly and intentionally distinguishes itself from anything resembling reality — and, worse, proclaims that a virtue.

27 February 2024

Literacy Barriers

It's been ten days now, so I think I'm sufficiently calmed down to not bring shame and disgrace on the legal profession with excessively intemperate comments on a recent decision. Frankly, the combination of the decision and circumstances leading to it does that all by itself. Before I go any farther, though:

disclosure: The following discussion concerns a litigant and law firm, but not specific counsel, with whom I have had prior unpleasant dealings in other contexts. No names have been changed to protect the SOBs; and I'd be really, really pissed off anyway.

The United States Court of Appeals for the Federal Circuit has just rather definitively demonstrated why, and how, one cannot meaningfully delegate regulation of attorney conduct entirely to courts. And this really is about ethics; there were sanctions at issue.

On 16 February, the CAFC issued two precedential determinations in a dispute regarding a telecommunications/information-transmission patent. The substantive decision (PDF) is somewhat interesting, somewhat overtechnical as to both the law and the subject matter, and doesn't on its face concern attorney misconduct or ethics.1 But, simultaneously, the CAFC issued a precedential order regarding

show[ing] cause why Counsel/Appellee should not be sanctioned for attempting to incorporate by reference multiple pages of argument from the brief in one case into another.

Promptu Sys. Corp. v. Comcast Cable Comms., llc, No. 2022–1093 (Order Discharging OSC) (Fed. Cir. 16 Feb 2024), slip op. at 2. As the Court continued thereafter:

We have repeatedly held that incorporating argument by reference “cannot be used to exceed word count.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014); see also Medtronic, Inc. v. Teleflex Life Sciences Ltd., 86 F.4th 902, 906–07 (Fed. Cir. 2023). It is “fundamentally unfair to allow a party to use incorporation to exceed word count.” Microsoft, 755 F.3d at 910. That is exactly what would have occurred here had Appellee been allowed to incorporate by reference almost 2,000 words from a brief in a separate case—exceeding the total word count for its response brief in case 22-1093 by more than 1,300 words.

•  •  •  •

Counsel argued that he and Appellee were unaware of our decision in Microsoft until Appellant’s Reply Brief was filed, Show Cause Br. at 3, and had they been aware, they would not have included the incorporation by reference, id. at 4. Microsoft is not only a precedential decision of this Court, but a precedential decision of this Court that admonished the exact same law firm before us now for the exact same behavior. We accept as true Counsel’s claim that he was not aware of the Microsoft decision until the Reply Brief referenced it. When it becomes apparent that a lawyer has violated a court rule, as an officer of the court, it would be best for that lawyer to bring it to the court’s attention and withdraw the improper argument. Here, Appellee was made aware of our case law, but chose to do nothing.

Id., slip op. at 2–3 (hyperlinks added).

So why does this matter? Here, I'm afraid, the CAFC made a critical rhetorical error: It failed to cite the rule establishing the word-count limitation. Federal appellate briefs are limited to 13,000 words (Fed. R. App. Proc. 32(a)(7)(B)(i) (as amended 01 Dec. 2019). Editorially, this is too little, especially in fact-intensive circumstances like patent disputes; but, just like the speed of light and 1970s-gas-saving-55mph, whether it's a good idea is not at issue — it's the law.2 Indeed, the CAFC cites only to a different rule, regarding "incorporation by reference." Instead, it should have cited both…

…but that would have made the fundamental error and misconduct by experienced counsel at a "white shoe" law firm that had been the subject of one of the precedential opinions rejecting this litigation conduct unavoidably obvious.3 It wasn't just erroneous briefing conduct, but the claimed ignorance.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Mod. R. Prof. Cond. 1.1.4 I submit that "reading the rules of the court to which one is submitting a brief," and further "reading prior opinions admonishing one's own law firm regarding the rules of the court to which one is submitting a brief," falls so far within the core of "legal knowledge, skill, thoroughness[,] and preparation" that it is not subject to question.

But this leads directly to the much-more-serious, second-order/collateral damage implication. Why would an experienced appellate attorney be "unaware" of prohibitions on cross-references?5 Worse yet, why did no one on the team bring the matter to this attorney's attention? Surely some associate was tasked to double-check quirks; that would, after all, be at least 0.3 or 0.4 billable hours! Leaving aside my dark suspicions (see the disclosure at the top), this points directly to why regulation of attorney conduct cannot be delegated completely to courts. Courts do not have the authority, power, ability, or motivation to change law firm culture — especially not when it extends across multiple firms and the entire billing-culture meme. Those 0.3 or 0.4 billable hours would have been challenged by the client; and, due to "billable hours" pressures across all of "big law" (and especially at white-shoe firms like the one involved here) the associate would instead scurry off trying to bill 2600 hours6 in a way that wouldn't be challenged.

But all of that is inference — astoundingly irritated inference from subject-matter knowledge (but not detailed factual investigation) that required a week to tone this screed down to the point that it wouldn't damage your monitor/phone. It also implicates, a bit, the "there but for the grace of [insert deity] go I" problem with specific judges being responsible for regulating the conduct of attorneys they've seen before and will see again — because even when the conduct smacks the judge in the face, there's still that "familiarity" issue.7

This will not be the last time. Guaranteed.


  1. OK, at a different level, maybe it is. But it didn't involve an order to show cause regarding sanctions, "just" errors in claim construction by the trial court that proved outcome-determinative below. <SARCASM> There's no possibility of misconduct at all. By anyone… not excluding the attorneys who prosecuted a patent concerning "speech recognition services to a collection of users over a network that supports cable television and/or video delivery." Id., slip op. at 2, quoting U.S. Pat. No. 7047196.</SARCASM>

    And as a further editorial comment, I wish that all judicial opinions regarding patent validity would state the effective date of the application, which would clarify what law(s) might apply… and, to those who actually know the respective fields, just exactly how dubious the assertions of what the "prior art" and "inventive motivation" might have been. Both go directly to the credibility of the opinions, and in particular to ensuring that those who are potentially regulated can understand the law's requirements. This would require no change in law; it would require only that the courts add even a single parenthetical like "(App. Feb. 16, 2001)".

  2. Which, upon motion, can be increased if a particular matter requires it and counsel can persuasively articulate specific reasons (not just "I'm arrogant, verbose, and will gladly talk the ears off all the corn in Iowa," because that's rather the default in BigLaw). The dockets in these four appeals do not, however, disclose any such motion. Perhaps no such motion was made because courts, both federal and state, express reluctance to grant them; the gander, however, remains unsauced given the verbosity of many judicial opinions (which are not written under the kinds of deadlines imposed on the appellate lawyers). To only slightly mangle a phrase, "Regulated speech-length for thee but not for me."

    The irony that counsel may have been incentivized to find another way to incorporate more verbiage by the 2019 reduction in word count for a principal brief — from 14,000 to 13,000 (and the Federal Circuit here notes that it was a "2,000 word" incorporation by reference that would have exceeded the "old" rule by about 300 words, slip op. at 2) — also bears some other consideration. Maybe, just maybe, that reduction was a bad idea, especially since it (needlessly IMNSHO) encourages both inadequate detail in the "statement of facts" and "statement of the case" and, well, shenanigans like this.

  3. This is not the first time this shark has encountered "palpable ignorance as a rationale to avoid sanctions" protestations from white-shoe law firms. One of the individual miscreants in one of those incidents continues to give continuing legal education presentations on the underlying issue(s) and has been frequently quoted in the not-precisely-proprietary-but-definitely-not-generally-available "legal newspapers" on this subject. It reflects a fundamental problem with legal ethics: The standards are too low, and lawyers tend to live down to them. Even — perhaps especially — purported leaders of the profession.
  4. This rule is substantively identical in the relevant jurisdictions (DC, New York, and Virginia). I've quoted the ABA "model" version because it's substantively identical everywhere else, too.
  5. Or, for that matter, a "sophisticated" client, and in particular this one, which has an in-house legal department with a metric boatload of lawyers and has had thousands of federal appellate briefs submitted on its behalf — hell, it has had at least twenty appellate briefs submitted on its behalf to this court since the Microsoft decision in 2014, several relating not to this patent but to the subject matter of this patent (voice recognition systems and implementation). Inferring client knowledge and approval is not unwarranted, albeit at this stage neither supported nor refuted by evidence… which would probably be undiscoverable as privileged anyway.
  6. For those doing the math at home, that's not 2600 hours worked during the year, but billed — that is, billing out 50 hours a week directly to clients. Time spent in firm meetings, and doing recruiting and interviewing of prospective hires, and getting continuing education, and doing general-awareness reading, and researching a matter only to discover a conflict preventing any representation buried in the research, and doing pro bono work… don't count. The reason that big-firm lawyers shrivel up to ash if struck by sunlight is that the time spent exposed to sunlight isn't billable. Plus, ya know, the whole vampire thing.
  7. One might well question exactly how 28 U.S.C. § 455(b)(1) does, or should, apply when what's under consideration is not "a party" but "a party's lawyer's in-court conduct." Here, I think there's an infinitely-reflexive self-awareness problem warned against extensively in my first profession and entirely ignored in my second. "Trust, but verify" requires that "verification" both occur… and be independent and credible. Not to mention that "trust" be credible in the first instance (we are dealing with lawyers here…).

23 February 2024

Cliffdiving

I almost don't know which judicial outrage to excoriate today. I think I'll choose the more inflammatory one; there's a conflagration in the foothills of the first mountain:

One night as you sleep in your goose-feather bed
We will be kneeling at your bedside
We'll pray for your soul like the good Lord said
Let all be forgiven, let none be denied

Then one night as you sleep in your goose-feather bed
We will be standing at your bedside
Your bones will be broken and your blood will be shed
Your eyes will be taken and your hands will be tied

Then we'll take you to the forest
Where none will hear your cry
And we'll cut down the sycamore and broom
And it's there we will forgive you
And it's there we'll watch you die
Like a dancing silhouette against the moon

And you will burn, you will burn
We will purify your soul in the fire, in the fire
And your spirit will live forever
It will rise, it will rise
From the ashes and the embers in your eyes, in your eyes
And your spirit will live forever

Praise the Lord
Another soul is saved
Praise the Lord
Praise the Lord

Steeleye Span, "You Will Burn" (1996) (ironically, the songwriter has remarked that he envisioned the song's victim as probably a midwife…).

I might be tempted to file a judicial and/or legal ethics charge against the dominionist cretin who would impose his religious and archly theocratic vision on everyone (PDF, jump to page 26). Leaving aside that I have nothing to do with Alabama (I haven't in nearly 20 years), and thus have no standing, consider who would ultimately rule upon and be responsible for enforcing any opinion regarding the judicial and/or legal ethics errors present here: These very justices. How fast can you say "institutionalized conflict of interest"? And how fast after that can you say "losing battle"?

Even the dissent deserves precious little credit. It desperately tries to argue with the legalisms that came from the dominionist premise of both the majority opinion and Chief Justice Parker's concurrence without engaging with those premises at all… or the fundamental problem that the science of IVF is very much against those premises. <SARCASM> But that would be importing knowledge and methods of reasoning beyond judicial competence, so that would be inappropriate. </SARCASM>

Perhaps the Alabama Supreme Court needs to consider a document of undoubted supremacy to its own amended state constitution:

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; but 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 ¶ 3 (emphasis added). If you can't be required to be a dominionist as a qualification for office, that rather denies dominionism as a legitimate and overriding policy preference, doesn't it?

Y'all have failed the allowable test, sirrahs, and made yourselves look worse than the Mississippi judiciary (and that takes some real effort).

18 February 2024

Unmedicated Link Sausage Platter

I'm afraid that medication for back spasms does not make for timely posting of the sausages, so some of these have perhaps been in the smokehouse a bit longer than optimal. That, however, may make some of their other ingredients slightly less noticeable.

  • As I remarked during the first iteration of this meme (a few weeks ago), it's really too bad that nobody noticed that reading is sexy during my misspent youth (a couple decades before this internet-thingy), when I was found as often as possible in my natural habitat: The library.
  • Even then, I was pondering "Lucas is such an incoherent klutz in interviews, I wonder if he used a ghostwriter, especially since the Star Wars novelization is a lot better written than the movie?" As it turns out, I was onto something. Which leads to a rather interesting trademark-law and consumer-protection-law question: Does failing to accurately identify the author of a published work result in overt misrepresentation of the origin of goods placed in the stream of commerce, especially in those instances in which the purported source had virtually nothing to do with the content passed off as originating with that source? <SARCASM> I'm not aware of more than a few dozen specific instances covered by privilege, NDAs, or any other enforceable confidentiality requirements that implicate this problem, why do you ask? Let me give you a Glomar response in advance… </SARCASM>
  • Speaking of being at the edge of matters, consider copyright liability for CDN providers to overt/admitted/proud pirates. For those of you who object that this is just European nonsense, consider that it's a logical consequence of Grokster (especially as extended and reinforced in Global-Tech Appliances) that, primarily for procedural and insufficient-resources reasons, has seldom been raised in the US. The key point is that the European Cloudflare opinion, as did the US Grokster and Global-Tech Appliances opinions, rejects a willful-ignorance defense.
  • The truism that art is political is hard to deny; as Orwell noted,

    [N]o book is genuinely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

    Why I Write (1946) (BlueBook-approved typography, but not quotation rules, just to piss off ignorant pedants). However, Orwell and Ms Agarwal are talking about something that is an intersection, not a congruence — because they mean slightly different things by "political." Although in common parlance "political" often includes "partisan," and "tribalist," and "identity-group selective," the specific interests of those last three often do not qualify as "political" in the sense that Orwell was reaching for (especially as one reads the rest of his works, and in particular his works after he began working for the BBC… "original public meaning" be damned). It's a useful intersection; what it is not, however, is one capable of infinite extension.

  • That is perhaps most apparent in considering recent problems with peer review, which could be misleadingly asserted to arise from "political" issues when they far, far more often originate in failure of scientific detachment — especially when that failure is incentivized by tasty, tasty grant money. And tenure driven by numeric publication measures. And undisclosed conflicts of interest that are supposed to be eliminated by perfect scientific detachment but aren't (because humans are involved and therefore "perfect" is unachievable).
  • But this all revolves around contempt. The distinguished EP Thompson identified one kind, contempt for working classes among their "betters". That's just one example of contempt for the Other — ethnicity, race, religion, the hands-versus-minds problem, old money versus not, whatever. It's rather like SiriusXM's contempt for its customers expressed in junk fees publicly rationalized as "music royalties" that just don't seem to make their way to musicians or composers in the amounts asserted… or, for that matter, in the amounts assessed (and assessable). It's also rather like the institutionalized contempt of land ownership, reflected in calling only property arising from land ownership "real."
  • The purpose of the permitting process for protests outside the forthcoming Democratic National Convention is not to create disorder, but to preserve disorder. Think there'll be a New Chicago Seven trial thereafter? "Poor People's Army" sounds a lot more militant and dangerous than "Students for a Democratic Society"…

10 February 2024

The Weird Stuff

Time plods when you're waiting for weird stuff. I finally have enough weird stuff to fill the platter.

  • Took a little trip today to a suburb, to the library and a grocery story. Out in the parking lot, some MAGAts (in uniform — white skin, red hats, election buttons, and dubious shaving jobs) were leafletting against a tax measure with a set-aside for low-income housing. The surprise came as I went into the grocery store, to the expected "oldies station" background music, and the moment I picked up the basket this piece began playing. I got a lot of weird looks from customers because I was snickering for the next four and a half minutes…
  • That was amusing, but not as amusing as "smart toothbrushes" getting compromised and used in a DDOS attack. Really? WTF? The "convenience" of a toothbrush that will order (full-retail-price-from-the-manufacturer) toothbrush heads well before they're actually worn out? Or, more to the point, a "smart" pencil sharpener for those few who still use pencils? Or even a "smart" TV with voice recognition compromised into an all-hearing listening device… wait a minute…
  • Sometimes the weird stuff, though, has real-world consequences — like the increasing prevalence of scientific papers withdrawn due to scientific fraud. <SARCASM> It's a good thing this doesn't apply to judicial opinions; how many precalculus-level errors can you find in establishing policy based on "B > PL," or reliance on the centuries-old views of a notoriously misogynistic judge who believed in witches to determine the scope and weight of women's rights today? (I get to ask these questions because the few readers of this blawg are unusually perceptive — and I won't be arguing anything before those two courts in the forseeable future.) </SARCASM>
  • Speaking of real-world consequences, though, the mind boggles at the concept of turf wars at the International Criminal Court — not between the ICC and another court or a nation that doesn't want to comply, but at the court itself. And those consequence may let war criminals skate. So this is a rather pissed-off invocation of weirdness…

It Was Twenty Years Ago Today…

That AOL had to potentially pay (sorry, it doesn't scan, but this is the 'net after all in an infinitely-reflexive inquiry). It's still good law, as much because it's civil procedure as it is copyright law or law (hah!) of the 'net: If you're required to establish a contact point and take steps to ensure you don't have to deal with people using the published contact point, you don't get any benefit of having provided the contact point. That's a hint to online providers who provide only FormMail-like web interfaces for making complaints about IP and unfair-competition infringments: You'd better actually read things that come in, even if it's inconvenient (or inconsistent with your ideology) inappropriate to respond, let alone do anything.

Internet law that remains citeable, and is cited, two decades later.

ETA (17 Feb 2024) This was a scheduled post that the "scheduling" system glitched for unknown reasons. So sorry, "technical difficulties" not yet resolved (this is a manual force-post). I will refrain from commenting on the irony, because if you don't get it immediately it'll take about 500 words to unwrap — by which time it will no longer have any hint of amusement, only of pedantry.

02 February 2024

Mixed-Species Link Sausage Platter

Lots of weirdness from the arts and banking on this platter.

  • Consider The Broadsheet Hit List of 1648 (some of which remain disturbingly contemporaneous).
  • But that's just amusing, not as cringingly predictable as the impending implosion of gatekeeper-subculture-centric periodicals. Now when have I heard this before? Or seen it as a rather thin roman à clef that ultimately demonstrated just how irrelevant the allegory itself and its subject were?
  • Even that's less deliciously damning than a garden supply business chewing on Louis Vuitton, a business whose narcissism is a positive feedback loop. It is, unfortunately, a positive feedback loop encouraged by, and embedded in, the "must always defend against everyone" meme built into trademark law — a meme that clashes, at a fundamental level, with the concepts of "satire," "parody," and "egotism." Europe may be beyond help, but at least we have a First Amendment over here to (eventually) rein this sort of thing in. Oops. Too late (PDF).

    Go ahead, Vuitton. Sue me for the pinpoint URL of this link sausage. But make sure that your attorneys read Rule 11 first.

  • The family of the only true guitar god (the rest just want to be that good) is already experienced with litigation, and now his bandmates can join the fun. This exposes one of the critical problems with collective efforts in the arts: Who is the author? Cinema's so-called "auteur theory" was, at its core, an attention-getting device that actually evaded any real consideration — especially for films and even TV episodes adapted from preexisting material that wasn't a "script." Wait, is that the ghost of Raymond Carver trying to blend into the mantelpiece over there, snuggling up to that Hummel-like figurine of a walrus and the shockingly overpriced glass sculpture?

    My point here is that determining "the" author of a collective work requires intense examination, not acceptance of commercially-convenient labelling — and may, and indeed should, often result in "well, all of them" as an answer. Yes, that's commercially (and library-catalogingly) inconvenient; so is statistical mechanics.

  • The preceding sausages on this platter verge on navel-gazing. Sometimes, however, the arts look outward, and are then promptly forgotten or reappropriated for other purposes — purposes that seldom acknowledge their own virtual self-parody.
  • Turning from the healthier chicken sausages (no "natural hog casings" either) to pure pork, consider inflation targets. But not too broadly, or you might start considering the psychological fallout of inflation on trust-fund kids whose trusts were invested in long-term fixed-return securities and real property, and remain illiquid for Reasons… and then, rather sarcastically, ponder who disproportionately ends up in control of both banking policy and the messaging about it. Or that the monetary velocity of the consumer-facing portions of the economy is now an order of magnitude greater than when that "2% target" meme was developed, and since velocity inherently expands the apparent money supply, just maybe even a Friedman-worshipper would reconsider. Nothing to see here, no conflicts of interest here. Move along, citizens, back to your lives.
  • …which explains, all too well, why banks are not paying attention to customer safety. On the one hand, the banks are overenthusiastic about purported "two-factor authentication" (and it's only purported, because if the authentication comes through the same device or decisional funnel it's only a multistep authentication, not a two-factor authentication — not a self-defeating mirage that convenient-use-of-smartphones-for-everything advocates want anyone to think about) that uses inherently insecure methods plus a "time-out." They don't want it good, they want it Tuesday (at 1406 to pay for that three-martini lunch, and delaying to 1408 would be inconvenient and unacceptable).

    On the other hand, the banks do not implement a duress-word system that would sandbox transactions as prospectively subject to further, later reexamination. It would be incredibly simple to implement — but it could not be fully automated. And that's why the banking system doesn't want anything like it: It would require injecting humans and human judgment into "banking," and there would be "personal responsibility" involved that they can't foist off on others. Plus it would blow up some of the nineteenth-century conceits of UCC article 3, and we can't have that!

27 January 2024

Post-Dental-Work Link Sausage Platter

Because for a couple more days, until the cement fully cures, I can't go gnaw on ribs — and then, the only worthwhile barbecue place around here will be closed for the day. So, now that the anesthetic has worn off and I have a convenient excuse for grouchiness (like I really need one):

  • So H'wood is getting a holy slap this year, eh? Meanwhile, a bunch of arrogant undereducated narcissists are fighting to control Disney with no clear idea of how to make its financial results better. How's this for an idea: You can't serve everyone if you only serve the lowest common denominator, which is precisely what each of the major "Disney divisions" have done since, oh, the beginning of time (usually defined as "went public"); can you imagine being a fly on the wall at a preproduction meeting for a remake of Fantasia?
  • A successful, non-career-oriented meeting like that would require competence in both math and reading (not to mention having actually read something outside said producers' safe zone). That's highly unlikely: You can take a teenaged mogul to the classroom, but you can't make him think, regardless of gender identity/fluidity/meaning. Or, on the evidence of what H'wood churns out, grow up (ever).

    Which leads back to the problem with Ms Hyde's piece from the preceding sausage: She's not old enough to have been through the same process in 1979, 1980, 1981, and 1982; those four winners are essentially unwatchable dreck, and didn't belong on the same ballot as multiple other nominees each year. Not to mention other, even-more-worthy films that were shut out because they didn't appeal to the excrutiatingly whitebread (not even sourdough!) tastemakers of the time.

  • Meanwhile, about half a century too late for me, libraries are becoming a hangout for kewl kids. Now, if they'll actually sit down and read something, for like the rest of their lives, maybe the lowest common denominator will no longer lead to a divide-by-zero error. They might even learn that they're wealthy (very much like in one of pro-socialism Orwell's letters in which he proposed proportionately limiting personal wealth to a degree that had never been achieved since the Domesday Book; was roundly criticized retrospectively in when those letters were published in the 1970s for ignorance and embracing inequality; and sort of got his "wish" around 2017 or so).
  • And yet further meanwhile, the Department of Silly Self-Contradictory Spicings is serving up these mini-cocktail weenies:

    • The tasty/reputation question of who invented butter chicken is due to be decided by a court in India. The decision will probably be a monument to bad taste, Westernized values in some distorted version of "intellectual property," and be just as definitive and helpful to potential diners as determining the true origin of chicken tikka masala (and believe me, that fight isn't over).
    • The imponderable irony of Ring no longer cooperating with Sarumanpolice warrantless video requests. But the Eye will still be there — just for data brokers, not cops.
    • Sometimes one has to stretch a bit to label a political candidate as "woke" and therefore unacceptable to the right-wing powerbrokers… in Iran. Why, oh why, does this remind me of GOP politics?
    • Nothing under my signature will be at issue because a decade prior to DADT I had other priorities — like wrestling with repercussions of nonconsensual heterosexual conduct as teh wimmin were being brought into the military — that led me to essentially ignore ¶ 5–26(h) (the predecessor of DADT). I had no time or energy for witch hunts.
  • Or we could just time-warp back to a century and a half ago, and see wealthy white powerbrokers being bigots and fomenting a secession movement — slavery then, marginally less overt national-origin-of-parents eugenics now. That statue in New York's harbor says that we welcome cheap immigrant labor, and these anti-immigrant fools — themselves descendants of immigrants — forget that the labor models taught in MBA and entrepreneurship courses demand minimizing labor expenses… It's still eugenics however cloaked in different labels: Three generations of willful ignorance is enough!

21 January 2024

Nonconsensus Link Sausage Platter

This platter of link sausages has been thoroughly p-hacked because I'm making an ideological point.

  • We just can't seem to get away from the malign influence of eighteenth-century English privilege as expressed in not just the common law, but in particular aspects of it. Despite the US having the First Amendment — which, for all of its problems, seems superior to the conceivable alternatives, and certainly to those actually implemented anywhere — the English system still acts to suppress speech… even from Americans that would be allowable, and even encouraged, Over Here (notwithstanding ex post amelioration of adverse foreign judgments concerning that very type of speech).

    Even former colonies overtly hostile to England are in on it. The upper classes and ultra-nouveau-rich are being quite effective at maintaining parts of the colonial systems that benefit them. What that implies about how much they really have separated themselves from the colonial system is rather disturbing.

  • Then there's the eternal question faced by dissenters within a government: How many wrongs make it right? More to the point, how many of those convinced that the wrongs they are engaging in create an on-balance right are prepared to pay the price… especially when that price rises to the level of lives, fortunes, and sacred honor? (Consideration of the current unpleasantness in Gaza in this context is for another time and forum.)
  • Not this (dysfunctional) forum, however. With all due respect to Mr Wolfe, he has missed the forest of "who has a credible professional platform concerning interpreting not just the Constitution, but all law?" for the trees of "who should sit on this particular court?" This dataset bias problem is restriction of the pool of future Supreme Court justices, and most other judges, by not later than the third undergraduate year… when, prior to the 26th Amendment, they weren't even eligible to vote. This is a restriction in practice and effect through the law-school admission process: The vast majority of judges (and all potential Supreme Court justices nominated since the Depression-era "switch in time that by effect, if not necessarily by intent, changed a fundamental assumption in Supreme Court litigation) went straight from their undergraduate educations to law school — and law-school admission decisions (and financial-aid decisions), especially since draft deferment to keep away from Vietnam became a "thing," very mechanically sort opportunities on undergraduate GPA as of the fall-of-the-senior-year application period. Even the NFL does a better job of not relying solely upon seventeen-year-old five-star recruits to college teams for its future on-field leaders than does the law.
  • All of the above feed into the impulse to make all decisions seem "objective," often through reasoning based on purported algorithms. There's a fundamental problem with doing so: Distorted datasets. Consider the coffee-shop design example in that article in the context of who is being excluded — by design — from the dataset upon which the algoritm operates. Obviously, non-coffee-drinkers (or, at least, those who don't drink tea either), and specifically non-Western-context coffee drinkers. There are also economic, health, and temporal biases in play — not just the excrutiatingly obvious "poverty line," but "wheelchair and other limited-mobility access" and "productive remote worker in another time zone" subpopulations that don't get into the dataset even as outliers.

    Why does this matter right now? Dewey Defeats Truman points the way — and so does my mail. Prerestriction of membership in datasets on the basis of presumed correlations, epitomized by my inability for four decades to get the various Heffalump fundraisers to remove me from their mailing lists as a "probable donor" because I was a commissioned officer, results in gathering data that will reinforce those very presumed correlations. (They obviously don't read this blawg, which is rather the point.) That's especially so when there's an unconsidered and intentional barrier to the data: I refuse to participate in "polling" because I not only value the secret ballot, but despise any candidate who will change his/her/their (fundamentally unreliable) campaign rhetoric to appeal to me Because Numbers and not Because Persuasion.

    It's not just for politics, either. Misuse of probabilistic analysis of flawed datasets influences what music reaches me without significant, well-above-"budget" effort, what art I might purchase (or even see, since museums follow a similar path), and — returning to the other end of this sausage — espresso versus other means of brewing coffee. Intentionally, and even accidentally, excluding outliers from the dataset means not just that the outliers won't be served, but that the "analysts" will not consider them. (Go ahead: Find a romantic ballad or personal-relationship revenge song fitting any "data-driven" hit-making model on one of the top few albums of all time.)

14 January 2024

Fooling Some of the People All of the Time

So, tomorrow Iowa demonstrates its contempt for the electoral process with in-person caucuses held on (ordinarily) business days that are also school nights, in the midst of a major weather event. The results and orientation shouldn't be all that surprising: The Iowan political process gave us the horror show of the Dishon. Steve King (the other one, who was reelected six times after spewing racial abuse at/about then-Senator Obama that could not possibly be excused as either "partisan" or "ideological"). Meanwhile, some in 'bama want to have a football-coach-v-football-coach contest for the Senate, which shows even more contempt for the electoral process. Color me Cynically Unsurprised (closely approximating Pantone 280C Union Jack Blue, but without the commercial branding… or a Manifest Destiny accent in Pantone 11-001 TPX Bright White).

  • Maybe we just need more superheroes in politics. Or at least fewer supervillains. Not. Gonna. Happen.
  • At this stage, I'd probably settle for less overtly commercial exploitation of purported "advice" — even, and perhaps especially, when it comes to advice on cooking steak from a Food Network columnist in what is probably an undisclosed advertorial on CNN. Putting enough salt on a steak to choke a small horse is not helpful, leaving aside the health issues and cultural preferences — especially since many cuts need more than just salt and pepper, and even more complete meals need other accents. Not to mention that "method of cooking" matters one helluva lot more than that article implies (including the question of just how dry the surface of the meat that is away from the heat source should be), as do cooking equipment (broiler, grill pan, skillet? three entirely different cooking methods, times, and appropriate temperatures), heat source (old-school electric, induction electric, and actual flame all require different techniques — and choices of lubricating fats if any), and desired degree of doneness (treatment differs radically for a blue/rare Wagyu bone-in ribeye than for a however-good medium-rare supermarket flank steak than for a no-remaining-pink-for-the-diner's-religious-requirements eye of round).

    No doubt Ms Thompson would blame "bad recipes" for any bad results after following her inane, incomplete suggestions; I'm actually shocked that she didn't take the opportunity to try to sell more marginal-quality overpriced Food Network-branded cookware, or recommend particular episodes from one of the sore-loser hosts. That advertorial is a net of only three, or perhaps four, "mistakes" to avoid after subtracting the mistakes it introduces (like insisting on Food Network steak knives when some cuts, preparations, entire meals demand carving into bite-sized pieces in the kitchen before serving). I'm not sure which is worse for American culture: NYC-based commercial publishing or NYC-based food/restaurant evaluations/advice.

  • As offensive as that article was, it's nowhere near as offensive as using "comity" for a dictator's attempts to suppress criticism (in ways unlawful in the new nation) as a rationale against granting citizenship to a political refugee — in Canada, no less. Really? Whatever happened to considering whether the purportedly "criminal" conduct in nation A even could have led to prosecution in nation B? One wonders if an Iranian teenager who refused to wear her hijab, served her sentence, and then escaped would get the same treatment…
  • Music is under "threat," too, whether from inept and often self-serving canon bullshit (and, to be excrutiatingly clear, almost none of the advocates for various versions of "canon" are themselves either competent composers/writers or musicians — which doesn't make what they have to say meaningless, merely underinclusive) or commercial practices inconsistent with the actual intent and text of the respective copyright statutes (and, to be excrutiatingly clear, there isn't a good basis consistent with post-piano-roll understandings of copyright — here or elsewhere — to tie actual ownership of the authorial right to possession of the master recordings, any more than there ever was to the in-camera exposed film). Purity is apparently necessary, which is rather ironic in that music more than any other form of the arts embraces impure cross-fertilization, whether popular or snobby or anything else.
  • Speaking of "necessarily embracing impure cross-fertilization," Eliza has to learn from something. Part of the problem with the entire conversation is that one word — "learn." Virtually all of the stated positions assume that meat-processor (that is, human) learning is completely analogous to electronic-processor learning. There's a key difference though: The meat need not make a copy to learn; the silicon/whatever-other-material Von Neumann processor, however, must, in the processor registers that are inherent in Von Neumann processors.

    Maybe a future quantum or other system will not copy data into and through registers in order to assimilate its contents; until then, one cannot claim that no copy is made in non-meat-processor learning. This doesn't mean that "all uses of copyrighted materials in machine learning necessarily result in liability for copyright infringement," because the fact-intensive fair-use inquiry could still excuse any infringement. What it does mean, though, is that with present technology one must engage in that fact-intensive analysis and not deny that copying is involved at all. And precisely because it is a fact-intensive inquiry, it is not amenable to a bright-line rule that will either prohibit or excuse all use of copyrighted material to enhance Eliza's conversations.

07 January 2024

Three Years Later

I still dare call it treason. (Migraines do not respect precise anniversary dates.) Or if not within the strict confines of "treason" — which is admittedly, and perhaps vehemently so, something that requires clear proof of acts notwithstanding state of mind, and the evidence is not yet of record however convinced I am that the forthcoming trials will do so — then an attempted coup nonetheless falls within the broader scope of "insurrection."

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

U.S. Const. Amd XIV § 3 (no corrections or changes made). So there; and not just as to the ballot for President.


   Which is not to say, at all, that if this text were presented to me as a student exercise today, I wouldn't exhaust all the ink in a red pen on it. It lacks definitions, and mixes technical and common-to-the-social-class-of-the-drafters language that may mean/have meant something slightly different to the voter in the street (let alone the ESL/other-immigrant voter in the street); it's poorly punctuated; the order of incidences of disabilitydisqualification is neither historically nor military-theoretically appropriate; it revolves around a single run-on sentence that should instead be a nonnarrative list; and the wording of the mechanism for lifting the disqualification leaves just enough doubt as to what has to be demonstrated to disabledisqualify to allow allies of those disableddisqualified to argue about it. This is a zero draft.

And this rather snide quasieditorial comment is also a rather snarky rejoinder to advocates of "original public meaning" originalism who presume that all source texts were created by fabulously competent writers who said what they meant and meant what they said, and further neither understand nor simultaneously impose contemporaneous-to-the-writers nonvocabulary written-word understandings. Silly things like the now-disfavored use of precatory clauses (see, e.g., U.S. Const. Art. I § 8; id. Amd. II). Silly things that turn "original public meaning originalism" into a moderately-well-disguised exercise in translation, with all of the pitfalls of obtaining directions to a nunnery using an Ordnance Survey map of London from 1987 (I happen to have one on my bookshelf; and it has a number of clear, relevant locations, for Bethlehem if not for Jerusalem).