16 August 2017

The Alt-Center's Share of the Blame

So President Cheeto is now counterfactually blaming the "alt-left" (whatever that is) for violence by fascists. Leaving aside for the moment that that's blaming Heather Heyer for putting dents in her murderer's car bumper, where's the blame for the alt-center — the chickenshit attitude shared by so many that, flying a purported flag of compromise, refuses to condemn extremist views (usually with hidden agendas) for fear of being seen to condemn any individual… or for fear of upsetting advertisers or media-magnate owners or inhibiting access to self-interested "insiders" for future stories? Who think that allowing all sides in an argument to speak also means granting all sides in an argument credibility and refusing to make any decision that is not some finely balanced "compromise"?

This is where "the media" — and especially the "post-mainsteam" media — has to accept some share of the blame. Until something outrageous happens, we're stuck with false journalistic evenhandedness: The refusal to say "This is an accurate report of the reprehensible and wrongful views stated by X," and really meaning it and defending the basis for declaring those views "wrong," at the obvious risk of being wrong oneself. Every newspaper story in the Nazi-Zeitung or Sinclair Broadcasting editorial (broadcast on the only commercial VHF station in town, one might add) surrounding the 2010 census that adopted a veneer of pride over East Central Illinois being projected to remain considerably "whiter" than the rest of the state, or the rest of the country, through 2030. Every newspaper and local-media (and even Big Media) story about global warming that states the views of denialists without noting that none of the "science" put forth by denialists has stood up to a single mathematical analysis. Every report on the successes of recasting American high schools as job-training centers for today's low-skill manufacturing systems that fails to acknowledge the need to retrain in a decade and a half when those manufacturing jobs become obsolete and these well-trained workers don't have sufficient education (or, because the companies that exploited them underpaid them due to union-busting among other things, resources) to shift to new careers without going through a couple of years of poverty. More to the point, every monument and monograph and monologue that celebrates the "heroism" and "skill" and "leadership" of some foolish ancestor or hero — whether Chiang Kai-Shek or Mao Tse-Tung is irrelevant — in complete isolation from what he or she or they fought over, and their unenlightened immediate personal interests in that struggle, or sheer stupidity in just showing solidarity with the tribe when the tribe was wrong.

History teaches that it's an almost fatal error to equate "opponent" with "stupid"; to refuse to accept that the Germans might be smart enough to spot your Maginot Line fortifications and rebuild their forces and tactics to negate them. History also teaches that it's an almost fatal error to equate "skilled" or "brave" with "right," because behind the Wehrmacht (which, admittedly, was fighting a pretty stupid — however individually brave — opponent whose equipment and tactics were mired in those that provided advantages to the ossified ruling structure) came the SS, and everybody who was actually looking knew it by 1940. That we've learned that we have to be careful about condemning different views and perspectives as "wrong" doesn't mean that, after careful consideration, we can no longer do so: It means that we have to engage in that careful consideration, and both act on the careful consideration once it's been performed and reconsider when new evidence comes in that we ourselves might have been wrong. For example, we should have learned that "but he's our bastard, and he's anticommunist" is not a sufficient or workable rationale for propping up a tyrant long before the 1960s and 1970s. And 1980s and 1990s. And stopped doing it.

This is the failure of the alt-center: Rather than engage in that consideration, it substitutes providing a platform and walking away to wallow in its own self-satisfied isolationism. The alt-center considers its role complete once it allows everyone to have their say… but doesn't actually listen. It especially doesn't listen when someone points out that Islam's treatment of women is wrong — and parallel to the West's treatment of women less than two centuries ago. Really: You think that, after removing linguistic tics and localism and bringing the wider context back in, Pride and Prejudice and Jane Eyre represent something that doesn't play out in Jiddah (or Jakarta) today, including the mistreatment? Or refugees in the Levant (it's not just Syrian, and it's not just now). Or anything else. Refusing to decide is a decision. Being in the "center" because one is interested in compromise is different from the alt-center, which remains undecided because it doesn't want to do the hard work of research and self-examination and consideration, avoids all conflict however appropriate, and would rather just enhance the power and money it already has, and think it can avoid the risk of being wrong by not taking the risk of being right.

And so: This blawg can be safely added to the list of anti-Cheeto websites; I encourage you to visit it using a VPN to protect yourselves from either the Cheeto forces or any other set of extremists — most especially, data brokers. More damningly in the current environment, it can hopefully be added to the list of the anti-stupid websites that the financial basis of the modern media (both "commercial" and "alt-") disdains.

11 August 2017

Bad Shampoo

Of late, it has been mostly "lather, rinse, repeat" from a couple of weeks ago.

  • But meanwhile, the organized bar remains afraid of reform while relying on a bar exam that doesn't even try to probe the ability to acquire or assimilate facts as its sole competence standard. Not even in Blighty (PDF) (not because there was no discipline, but because it was nowhere near sufficient based upon the statement of facts). But it has nothing whatsoever to do with the racial, religious, gender, and class makeup of the leadership of the bar, either Over Here or Over There (do I really need to tag that as sarcasm?).
  • Color me shocked that the same old pre-harvest sour grapes award bullshit is popping up for the so-called "Dragon Awards" as has for the Hugos. If this fiasco isn't a pretty public demonstration that relying solely on popular voting in the arts at both the nomination and selection stages of a time-limited award is insane and self-defeating, I don't know what is… especially when one looks at the nominee list with some minimal measure of sophistication, such as actually having taken and passed a university literature class — any university literature class. Even if such education is no panacaea. (Disclosure: Due to my IP-and-corporate-governance-relates representation over a decade ago of an individual peripherally involved, I am persona non grata at that convention and not all that surprised just on the basis of what I learned about various personalities and their advisors.)
  • Both of which are reflected in current acknowledgements of problems with peer review… and it's even worse in trade publishing. With the exception of a single journal of which I'm aware — there might be more, I'm not omniscient, but I don't think it's widespread, and certainly not at top-tier journals — at least in academic journals the sales-and-marketing dorks (who uniformly have not read the works at issue… either those under consideration or those already published) aren't determining publishing decisions.

At this rate, though, I'm going to start checking shampoo for its efficacy regarding fallout before buying any more.

29 July 2017

A Stoned-Reince Plowboy?

Really, now. I suppose it could have been worse, given the close-to-unprintable nickname the roughly contemporary Marine "John Kelly" I knew had… but comparison of the service histories indicates it wasn't. (Oh, my, if it was, the personality match with the designated occupant would have been frighteningly close, and might have exceeded critical mass.) At least he'll be no Alexander Haig: New White House Chief of Staff John Kelly is not an academy grad, having obtained something approaching a real education as an undergrad.

But let's ignore politics for a moment. Several disturbing data points on trends in the distributive arts indirectly reinforce that We Have A Problem.

  • On one tentacle, as anyone who has ever tried to get past distributive gatekeepers (who, one might add, are seldom themselves practitioners in the distributive arts — book editors and publishing oligarchs are seldom novelists; theatre impresarios are seldom playwrights or actors or directors; "label" A&R reps are seldom musicians or composers; and so on — let alone perceptive, qualified critics, but that's an argument for another time indeed) could tell you, the distributive arts directly reflect "history is written by the winners" in a rather disturbing way, and usually a blunt-instrument way. Instead of looking at and thinking about the implications of the pox scars on the faces of those few Renaissance-era portraits that were not consciously idealized (or thinking about the idealization itself), we're thinking only about gross-form issues like melanin content and gender. However deserving these gross-form issues are of more attention, they are not deserving of sole attention: Cultural myopia is not cured by changing which small thing is in one's focal plane to the exclusion of all else.
  • On a second tentacle, funding trends in the distributive arts bloody well epitomize The Problem. Keep in mind, too, that this blog piece concerns itself only with a subset of the distributive arts: Collaborative live scripted performance in a formal setting. Things are actually much, much worse elsewhere. Not for every individual, obviously… but making general, non-ethics-based policy that ignores virtually everyone below +2σ on a separate curve (financial success) that is mostly orthogonal to anything related to "merit" seems just a bit shortsighted, does it not?
  • And then there's the another aspect of special-snowflakism relating to the distributive arts: The place of education. It's a complex interplay of competing interests — much more complex than this otherwise reasonably balanced explanation of a current issue in Canada implies, or even acknowledges. As just one example, consider the obvious precatory question: Might York University (in this instance) — a government-financed entity — be more amenable to paying requested/appropriate permission fees if the government provided a reasonable budget specifically for doing so? More to the point, how much of those permission fees ever make their way back to the creators of the works? Thirty percent would be an astoundingly high outlier for permissions from printed works, after deducting all of the other parties' shares and expenses; it's much worse in photography and other parts of the arts, let alone film and music.

But how is any of this actually distinct from politics, you ask? Indeed, there are political undercurrents, ranging from "what level and mechanism of support should society provide to practitioners in the arts — not just the headliners, but the support staff — between blockbusters?" to "what level and mechanism of support should practitioners in the arts reasonably expect at any time?" <SARCASM> Perhaps going to the doctor to treat even "inexpensive" chronic conditions — like, say, moderate myopia — isn't too much to ask for those expected to see for others. </SARCASM>

26 July 2017

Unfit to Serve

As if we needed more proof after his experience with privileged-class draft-dodging, the current resident at 1600 Pennsylvania Avenue demonstrated that he has not just all the best words, but all the best bigotry, by summarily declaring that transgender people may no longer serve in "his" military. The actual announcement displays both bigotry and substantive ignorance:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow {break} [t]ransgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming {break} victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you

Which leads to a number of interesting questions, in the order raised by a word-by-word attempt to understand this:

  • Which generals? Are these only generals who you've personally selected for promotion or their positions, or all generals? And did you ask any admirals? How about judge advocate generals and surgeon generals? In short, who are "my" generals… and who are the generals who aren't?
  • Who are these "military experts," and what is the source of their expertise? More to the point, how many of them have ever had command authority, or given a death notification, or even sent an individual into harm's way to achieve "decisive and overwhelming victory"?
  • Speaking of which, define "victory" of any kind — let alone "decisive" and/or "overwhelming" — given that military officers swear to "support and defend the Constitution of the United States against all enemies, foreign and domestic," and not any particular policy or moral creed other than the Constitution itself.
  • Does "in any capacity in the U.S. Military" include civilian capacities? If so, did you consult any service secretaries, or civil service leaders, or labor lawyers? And were they "yours"?
  • Please be more specific on how those "tremendous medical costs" are unique compared to any other definable condition in the military — for example, the cost of protein and vitamin supplements for vegan members of the military, let alone the obvious question of, umm, softness on a clear determinant of victory. Or fluoridation, Mandrake. Well, at least I can identify one of "his" generals…
  • Disruption. I think there was disruption forty-nine years (to the day) before that tweet. I just wonder what General Powell thinks of that. Or immigrants like General Shalikashvili.

I'm not a member of your targetted group for exclusion… this time. At least I was adjudged fit to serve and confirmed by the Senate. You, sirrah, are unfit to serve. Really: You said so yourself in evading the draft.

25 July 2017

Simulated Feeding Frenzy

Life — and actually following the rules, both in letter and in spirit, on inappropriate publicity concerning pending matters and other live disputes (unlike the other side) — has gotten in the way of blawgging of late. So, too, has the careful gift-wrapping of smoking guns for those who are supposed to deal with them (but usually don't).

But that's not as bad as offering a celebrity-laden feature for Family Home Movie Week and then just simulating it. Once upon a time, that channel and its relatives had some fun items… but for the last couple of years, Lawyer Week hasn't been one of them. Perhaps it's just proof that not all publicity is good, which is something that the unethical, unprofessional, unfit-to-practice disgraces to cartilaginous ichthyoids referred to in the preceding paragraph should have considered first. Perhaps it's just too much fear of sharks among the sharks. (Although it's just the leaders of the profession who've been at the top of the food chain since before the dinosaurs.)

16 July 2017

Unreliable Narrators Making Sausages in The Jungle

This platter of uneven link sausages is about unreliable narrators — or, more likely, just the wrong narrators.

  • First up, there's yet another instance of an arrogant entitled asshole speaking primarily for interests that are not — and can never be — registered voters. Parts of his griping make sense on the surface, but one must look carefully at the undisclosed premise:

    "The United States of America has to start to focus on policy which is good for all Americans, and that is infrastructure, regulation, taxation, education," Dimon said. "Why you guys don’t write about it every day is completely beyond me. And, like, who cares about fixed-income trading in the last two weeks of June? I mean, seriously."

    Hugh Son, "Dimon Says Being an American Abroad Is 'Almost an Embarrassment'," Bloomberg (14 Jul 2017/0641EDT).

    Consider for a moment that at least according to public biographical sketches that don't appear to have been refuted anywhere, neither Dimon nor his immediate ancestors (nor, for that matter, any member of his immediate family) has ever stepped outside the world of investment banking in his lifetime. That is, his experience is entirely as a next-quarterly-report-oriented "steward" of other peoples' money. And this reveals at least part of that undisclosed premise: That the further passive accumulation of wealth and capital by and on behalf of those who've previously accumulated it — disproportionately, and perhaps primarily when considering who actually gives it voice, by inheritance founded on whose family got "there" first, lawfully or otherwise — leads inexorably to all that "is good for all Americans."

    Bullshit.

    Perhaps looking at the history of his own bank (and other banks at which he's worked) regarding the nineteenth-century slave trade, arms dealing, and so on might have been relevant to helping determine what "is good for all Americans." His list, though, displays an inherent bias in favor of capital accumulation without regard to the source of that capital, the methods of accumulation, or the later deployment of that capital. It's not that this is never a valid position (at least in consideration and the abstract), but that it's never the only valid position. It simply cannot be stated as fact.

    Some day, someone who has even a basic, nonmathematical understanding of thermodynamics is going to rise to a position to comment on Society from a perch endowed with the patina of economic success. And then maybe he or she will be able to understand — even if dimly and incompletely — an even moderately mathematically based (as in "basic undergraduate chemical engineering/physical chemistry/molecular biology") explanation of how the universe has long ago disproven that premise. Not this time, though: Apparently, rising to the top at a major bank, getting fired, and then rising to the top at another one is adequate understanding of things that banks "never get involved in" but that make post-Napoleonic banks possible in the first place. (And we'll leave the history of benefitting from unlawful monopolies in both chains of banks for this particular speaker for another time…)

  • And then there's the intersection between Dimon's drivel and the purported "tax reform" movement endorsed by the Drumpf administration (for whatever value the current proposal(s) on the table have). Dimon's speech — and so, so many speeches, papers, and other pontifications coming from both the Drumpf Administration and the Heffalumps in general — claims that the US tax burden on corporations is excessive. Consider for a moment that places where the "tax burden" is less all too often increases total "government costs" by
    (a) not providing realistic government services necessary to a corporation, such as a working law-enforcement-and-courts system that ends up requiring a corporation with significant assets to either pay through the nose for insurance or hire a private army (or at least battalion) for internal security and/or
    (b) increased bribes to government officials to make up for their lower salaries.

    The major "studies" being bandied about concerning comparative corporate tax burden at best minimize (a) and completely ignore (b)…

  • {written preannouncement} If any character in all of fiction is inherently gender- (and race-, and probably even species-!) fluid, it's Doctor Who. One cannot even argue that the character is inherently "dominated by the social mores of upbringing as a male," since "as a male" seems to have so little connection to "Timelord" in the first place… and is certainly attenuated by the thirteenth complete-body replacement (more realistically, if "male" has any relevance here despite being used by A Certain Bigoted Subset as a touchstone, at latest by the eighth complete-body replacement)! Those who are not gender-fluid, though, are management "responsible" for commercially exploiting the Doctor, virtually all of whom have a Y chromosome. And so… {written postannouncement} the male showrunners and male hierarchy approved as the new Doctor Who a female secondary-character actor brought over from the showrunner's prior (uneven) series. I predict internet shitstorms for a week, followed by occasional rumblings until the three weeks prior to the scheduled in-role unveiling at the end of the year. The shitstorms are going to come from all sides, because almost everyone involved thinks they own the whole thing, ranging from subsets of fandom to marketing dorks. And none of it will focus on gender or other measures of diversity in the writing rooms, or in production, or anywhere else offscreen… but we can safely ignore the man (it's almost always a man) behind the curtain.
  • Speaking of fictional characters, how 'bout those press briefings? Does anyone actually recognize any of the speakers (or even subjects) as being anything other than fictional characters? And would things be better otherwise?

10 July 2017

Unexpected Chunkiness

There's a piece of real meat in each link sausage on this platter. It's just not the piece (or often species) of meat that the respective wurstmeisters think is in there… which is one reason even the sausage-makers don't watch sausages being made.

  • I have to admire the rhetorical strategy of a piece at The Economist that manages to use a semiobscure literary referent in an attack on Labour's "bourgeois dream" but never confronts the fundamental economic failures of the English system (inherited wealth and real-property rights that depend upon factional conflicts in the fourteenth and fifteenth centuries), let alone the elephant in the room: the Rawlsian original position/veil of ignorance analysis. This seems short-sighted, given that the underlying currents in Lanchester's novel are of injustice more than of personal status per se (instead of as a complex second-order consequence underlying injustice)… or, perhaps, it's just another instance of the question — and the questioner's preconceptions — shaping the answer. The piece is an interesting sub-explanation that sustains some small measure of credibility and further thought, but once one gets outside of Islington (whether by Tube or by living elsewhere) it rather falls apart.
  • Another piece at The Economist also misses the point by failing to get inside the motivation — and Rawlsian subversion — of progressive rock as having continuing value by failing to note who were the leading exponents of progressive rock: Almost entirely musically-inclined public-school boys whose musical ambition was thwarted by the internal politics of the classical-music establishment of the 1960s and 1970s. Prog rock is as much a meritocratic reaction to the facile hypocrisy of "we say we want merit in our orchestras, but really it's merit from the right sort of families spiced with the occasional bit of upward mobility backed by something off-kilter" that one can see around the edges in such too-often-dismissed works as Hilary and Jackie: The prog rock musicians came from a social class in which there was actual place and freedom to practice, which didn't happen in American small-towns or ghettoes and/or European public housing. And the classical music world had its own markers for privilege, in-clubs, factionalism, and so on; the boys at the Charterhouse School sure as hell knew that, including the son of a captain in the Royal Navy (and noted industrialist) and a descendant of the Lord Mayor of London who formed Genesis as much because the acceptable careers mapped out for them by their families did not fit their own ambitions as anything else. And the less said about representativeness in the arts, the better.
  • It's really sad when it takes a columnist who focuses on the fashion industry to excoriate nepotism and celebrity-worship in print publishing, and especially in art-related print publishing. It is not, however, unexpected: The portions of the press that cover "the press" are, to say the least, just slightly handicapped by conflicts of interest, special-snowflakism for the print-based parts of the entertainment industry, the emperor's new clothes, and not-invented-here syndrome.
  • Artists are dangerous. Just ask any immigration lawyer… and, if you can get an honest one into an off-site location over a tasty beverage of choice with no witnesses, ask an immigration official about how foreign artists (and writers and musicians and actors) unjustly take jobs away from locals. Sadly, it doesn't matter much what nation(s)!
  • Renaissance-era memoirists are even more dangerous. Then there's the problem of Samuel Pepys, and of Jonathan Swift, and into the Enlightenment of John Locke, and the distinction between "memoir" and "journal" (let alone the issues raised by satire and parody).

04 July 2017

Feuerwerken (Rhetorical and Otherwise)

The US celebrates this date every year as a day for family and friends gathering, probably overcooking some meat on the barbecue and overindulging in watered-down "beer," and watching some "fireworks" either in person or badly broadcast from high-interest public places (usually hosted by fools). Politically, our current officeholders make it look like we got started on the DUIs and maimed hands months early.

The President-Who-Thinks-He's-King-George-II (and that's not just another bad H'wood sequel) doesn't really give a rat's ass about policies, except insofar as the dog-whistling he uses in support of what passes for an "agenda" can enhance the personal power of himself and his close friends. He's got plenty of time to watch cable news and then attack a woman for purportedly doing her purported job after alleged surgery of a nature significant only to misogynistic asshats. He does not, however, have enough time to offer any explanation of why his bigoted immigration executive orders actually have any more basis in legitimate national security issues than "trust me, it's about national security and not my unconstitutional animus against Muslims and those who might have Muslim family members."

Illinois is about to flirt ever more closely with (and perhaps actually sleep with!) junk-bond status, thanks to a history of nepotism in government that would have shamed the UK Parliament of two-and-a-half centuries ago. And that goes for both parties (even if the Jackasses are more nationally known and identifiable as such). Contrary to the bullshit showing up in some news sources, this isn't about "excessive union contracts" or about "pensions"; the structural problems with Illinois government have resulted from those parts of its "employment" practices that were not unionized and do not contribute significantly to the pension-fund deficit. This is, instead, more illusory subregional city-versus-commercial-agriculture bullshit that partially masks a disturbing racist legacy and regressive tax base. Note that the chief obstructionist is not a "career politician," but a purported "businessman" whose background is not really in business (actually producing or providing a single damned thing), but in the (Maxwell's) Demonology of so-called venture capitalism (which, in practice, too often descends into class-based private banking… particularly at the firms he was associated with). That should sound all too familiar regarding the first example above…

Then there's the Sherriff of NottinghamMaricopa, who is actually far more expert at dog-whistle politics than either of the two preceding examples (both of whom are in their respective first-ever-at-any-level terms in office). I'd propose requiring him to wear pink underwear and/or overalls, but I still subscribe to the laws of war and their prohibition on humiliating prisoners. I think I'll just settle for pointing out that he's a child of immigrants himself… from a region renowned at that time for immigration fraud; he's sort of a Dreamer, although his variety of dream is a nightmare for almost everyone else.

We've become a nation united — so to speak — under the rule of men. Particularly odious men, who are in power in large part because what passes for "opposition" and "alternatives" has the same damned flaws in the candidates it puts forth (the chief self-aggrandizing obstructionist in Illinois certainly isn't the only self-aggrandizing obstructionist in Illinois). Gender is an issue here, but certainly not the only one; take a look at just how few veterans, or non-Northwest-European-Caucasians, or individuals who've exceeded lower-class parental status, there are in actual positions of power, both absolutely and proportionally. Largely — but not always — the Jackasses one finds on the ballot just didn't inherit as much wealth or other sources of power as did the Heffalumps. Intense discussions of policy and nuance do not occur in soundbites except when paralleling — or parodying — Godwin's Law, whether intentionally or otherwise.

The contrast with this nation's tradition of celebrating giving the finger to the king — that is, declaring as "victory" the declaration itself instead of the hard-earned, still-evolving result — is a bit much for me every year, but especially this one. It might be just the calendar, as mid-September is historically harvest time in much of the nation (presuming that continued reification of eighteenth-century-model seasonal agriculture continues to make any sense). But if we actually gave a damn about the Rule of Law instead of the Rule of Men, none of the examples listed above would be more than outliers, horrible and exceptional examples of Murphy's Law in action. Lord Acton was wrong: It's not power that corrupts, or absolute power that corrupts absolutely; it's the striving for power from a sense of entitlement that corrupts. Of course, that first name ("Lord") is a big bloody hint of why he couldn't see his error: He was born to power. It took a century (and somewhat less inherited privilege) for another Englishman — using a fictional character as a mouthpiece — to come closer: The object of power is power. And that is not at all consistent with any part of the Declaration of Independence.

29 June 2017

Pre-Holiday-Barbecue Link Sausage Platter

To keep the vegetarian from crawling out of the marinade for my usual (last year, obviously, was an exception!) "vegetarian barbecue" on Give the King the Finger (Instead of Celebrating Actual Victory) Day, I've made up this tasty platter of link sausages.

OK, "tasty" might be false advertising. If, that is, this blawg counts as advertising, which leads directly into the first sausage:

  • This blawg's only feline friend the IPKat (no, cats are not ordinarily welcome at my barbecues; they tend to be trip hazards around the open flames) notes that "lack of borders" works both ways for Google search results, at least in Canada. And at least founded on a prior judgment and evidence of fraudulent intent. This has a couple of implications that nobody will really like… but they are perhaps-inevitable consequences of "the entire world is not the Internet, no matter what entrepreneurs would prefer."

    Perhaps most oozing-fatty-barbecueishly delicious, this is another instance of petard-hoisting. Google — not to mention its allies, both formal and otherwise — has long run a global business, obtaining revenue globally and funneling it (or not, depending upon the tax consequences!) to Itself, which is in turn a Frankenstein's jurisdictional monster. However, Google has also long attempted to evade the consequences of entering other markets; not just those taxes mentioned in the preceding sentence, either. Here, there's a specific court judgment (with, admittedly, the flaw that the defendant abandoned the defense, resulting in what US practice would call a "default judgment") regarding a specific misuse of information with a limited remedy that Google attempted to evade on purely territorial-jurisdiction grounds: That a judgment related to conduct in British Columbia — or even more broadly in Canada — could not justify a worldwide removal of search results. This isn't just a desire to have one's cake and eat it too; it is an arrogant claim that the baker is entitled to the flour without paying for it in the first place, in order to bake the damned cake without engaging in appropriate health practices (whether "required by regulations" or otherwise). In short, Google's position is that it's entitled to the benefits of a worldwide reach without any consequences whatsoever… except, perhaps, to its own market share.

    There is, of course, a significant danger here: the Ehrenfeld problem. It is not really raised in this case; although I am troubled by the fact that it's based upon undefended allegations, those allegations appear both prima facie and factually valid and sound, leaving only possible abstract defenses of "justification" and "improper claim of ownership." It is, nonetheless, an uninvited guest at the barbecue, because relying upon a final legal position presumes due process in a disturbing way… and, more to the point, presumes the practicalities (such as paying for counsel, let alone finding available counsel) implied by "final legal position," and not just for obvious circumstances like defamation and infringement of intellectual property.

    I'm not going to pretend that this is an easily evaded conundrum. The whole point is that it is a conundrum that doesn't have easy, entrepreneurially-friendly, ideologically-simple analysis or resolution. Life is nearly as hard as that bit of last summer's potato salad under the grill lid.

  • Which, in the broader sense, leads to the propriety of publishing depending on, well, something that's supposedly better when hard: a portion of the male anatomy. Of course, that region has no grey cells in it, so thinking with it is contraindicated in the first place…
  • … but is perhaps better than thinking solely with one's wallet concerning the most-profitable part of publishing. Leaving aside that anything associated with Robert Maxwell needs at least as much skepticism as anything associated with Sauron and his minions, it remains fascinating (and frustrating) to me that "publishing" continues to be treated as a single monolithic structure despite being composed of thirteen distinct industries. "Publishing" is no more monolithic than "self-propelled wheeled vehicles" (ranging from motorcycles and automobiles through carnival rides, construction equipment, and fire trucks, to armored cars) is, and almost certainly less so.

    One might ponder just how this sausage is connected to the preceding one:

  • But perhaps that might be too frustrating if one actually reads anything, let alone what is on offer from commercial publishers. Frankly, about two-thirds of the names in that graphic (across several categories) don't qualify as "intellectuals" in any sense of the term; "has done bachelor's degree" doesn't make one an intellectual! Neither does "has bachelor's (or even graduate) degree leading to Speaking From Authority on unrelated subjects," as is uniformly the case with the individuals identified in the graphic as "Right," "Explainers," and "newer lights from Silicon Valley."

    It's not that a bachelor's degree (or graduate degree) is a prerequisite to "clear thinking" — it's that the definition of "intellectual" implicit in the entire article is simultaneously both condescending (and sneering, not to mention argument from authority) and the worship of formal qualifications and/or entrepreneurial nonfailure rates, most of which are parental-social-class-selective in form (and too often in substance). Not to mention the irony of both the source of this article and the preceding link sausage as forms of the Argument From Authority in and of themselves.

22 June 2017

Coal in the Stocking Year-Round

Just a short note on a recent matter that epitomizes SLAPP (Strategic Lawsuits Against Public Participation):

On Sunday evening, John Oliver spent most of his Last Week Tonight broadcast on coal. The broadcast included both satirical and factual criticism of one particular coal magnate. Said magnate has now — as Oliver predicted he would, and consistent with his past (mis)conduct (and his attorneys' (mis)conduct, compare W. Va. R. Prof. Cond. 3.1 with New York Times v. Sullivan, 403 U.S. 713 (1971)) — filed a libel suit.

<SARCASM> There's an obvious factual problem with the claim that Oliver engaged in "ruthless character assassination" (Cmplt. ¶ 51): There was Ruth involved. Associate Justice Ruth Bader Ginsburg, that is, as one of the majority in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), a matter mentioned during Oliver's broadcast segment. Indeed, it's easy to argue that Oliver was cleary with that Ruth, because the gravamen of the Last Week Tonight segment was that self-aggrandizing, self-interested magnates in the coal industry have engaged in substantial conduct to the prejudice of good government… and that is precisely what was at issue in Caperton.

Besides, that plaintiff (who will not get the dubious privilege of being named on this fine blawg) might not need his oxygen tank to survive (Cmplt. ¶ 5) if there were fewer coal particulates in the air. </SARCASM>

Frankly, given the respective track records, I have more confidence that Oliver and his team of comedy-oriented writers accurately stated the facts, and more to the point refrained from distorting third-party documents like the Federal Mine Safety and Health Administrations investigation of the Crandall Canyon Mine collapse, than I do in the counsel who filed this SLAPP action.

19 June 2017

Presolstice Sausage Platter

No real theme here today, just a couple of semirandom sausages each more resembling a "rope" than a "link" sausage. Sort of; I think this metaphor is getting a wee bit overstretched.

  • I have to laugh at the earnestness and colossal ignorance found in a piece trying to explain Marvel's recent "cancellation" of its Black Panther comics:

    Quite simply, World of Wakanda wasn’t selling well enough — but the solution isn’t as simple as going to your local comic store and buying more copies of Gay’s books. That’s because, in Marvel’s eyes, the number of copies of World of Wakanda that were sold in comic book stores was decided months ago. Considering the numerous ways and formats in which we are now able consume different kinds of pop culture, from books to music to television shows to movies, the comic book industry is unique in that it still relies on an outdated method of distribution.

    Every major US comic book company — Marvel, DC, Image, etc. — relies on one company, Diamond Comic Distributors, to print and ship their books to independent retailers, a.k.a. the owners of comic book shops. Diamond sells comics to comic book shops as final sale, meaning owners aren’t allowed to return or exchange books that didn’t sell. This is in contrast to traditional book retailers, which can sell back the books they weren’t able to sell.

    "Marvel canceled Roxane Gay and Ta-Nehisi Coates’s Black Panther comics. The problem goes beyond Marvel" (16 Jun 2017) (italics in original, hyperlinks omitted, inept quasijournalistic paragraphing corrected).

    This particular screed — as reasonable-sounding and generally accurate as it is — misses reality by implicitly claiming that "books to music to television shows to movies" are all distributed so inherently differently from and superior to comics that it's just the distribution system at fault. Not so much; a nonexhaustive list, in no particular order—

    • Just try getting digital works into the library market (which is not exactly trivial, and especially so for teen/YA material like many digitized comics) without being on Overdrive. Just try. Better yet, go to your local library and request an e-book from a major university press that is not obviously a purely academic work and see what reason you're given for the library's refusal to acquire that work — say, any of Michael Klarman's well-written, accessible works on the history of the US Constitution, published by the Oxford University Press.
    • The later-in-the-piece description of "pre-ordering" still describes exactly how commercial publishers treat all works. The only distinction — and it's a narrowing distinction given the recent wave of reconsolidation — is that book distribution is oligopolistic, not monopolistic. Otherwise, the tyranny of pre-orders is exactly the same… and it's actually even worse in non-comic periodicals.
    • Holding up the returnability of books as a feature, not a bug, is more than slightly insane, especially for trade nonfiction… if only because the timing of "returns" and "returnability" was set in the 1930s, ignoring countless changes in both production and fulfillment technology/practices and financial systems that should have collapsed the timelines (but haven't because that would be to the publishers' disadvantage — the current system favors them because it delays and reduces payments to authors). And it's not only that.
    • It's really no better for music. Perhaps you might recall, a few years ago, that an antitrust consent decree was entered against the major distributors of CDs… and if you really think things are better in listenable/downloadable distribution, you haven't been paying attention. The details differ slightly, but that's about it.
    • Television is a laughable distinction, again being an oligopoly-with-conscious-parallelism instead of monopoly issue. Realistically, even "cord-cutters" are still stovepiped through a very small range of distributors, at remarkably similar prices when recalculated on a per-viewer-hour-expended basis.
    • Movies? Really? Does this writer understand a damned thing about film distribution, whether first-run or otherwise, whether archly-commercial-aspiring-blockbuster or anything else?

    Overall, this article gets a C-. It accurately notes problems in comic distribution (and that's leaving aside any particular perfidy at Diamond itself, which is nontrivial but difficult to demonstrate at article length). It stumbles, however, in trying to overdistinguish those problems from the rest of the distributed-copies-of-entertainment industry so as to make its own chosen subject seem unique and important. It ultimately founders in its ignorance of the nondistinctiveness of oligopolies (especially once conscious parallelism is considered) and monopolies, and particularly so in the distribution as opposed to manufacturing phase of an industry.

  • In an interesting decision this morning, the Supreme Court decided that if it's ok for Paul Cohen to wear a jacket proclaiming "Fuck the Draft" in a courthouse (despite posted rules demanding decorum), it's ok for a music group led by a man of East Asian ancestry to call itself "The Slants"… and register the trademark in the name. Frankly, Matal v. Tam is not a hard case: As the Court held (PDF slip op.), the Lanham Act's prohibition of registering marks that "disparage… or bring into contemp[t] or disrepute" anyone (whether alive or not) facially violates the First Amendment. (The court failed to note that sometimes this is more subtle, such as the Aunt Jemima mark, than "mere word marks" can easily communicate.) On this point, the court was 8–0; there was only a nominal plurality for part of the reasoning, but all eight judges (the matter was argued before Justice Gorsuch was even nominated) affirmed the Federal Circuit's judgment below rejecting § 1052(a).

    The key point (which is not all that clear in the opinion) is that although a mark and its registration by themselves constitute commercial speech, the government's actions in registering (or refusing to register) a mark are most emphatically not. The government's actions are, instead, intertwined with the First Amendment's prior-restraint-on-speech issues… because registering a mark is as much, itself, about the markholder's own speech as anything else. Tam obviously makes possible the registration of such marks as "Jailbird Hillary" or "Lying Donald" so long as they meet the other requirements of the Lanham Act (use in commerce, first use, etc.). On the other hand, there's something darker in here, too, given the intertwining of commercial, "moral," and political speech in things like branding and advertising of contraceptives… or the converse.

    Of course, the NFL and its intransigent Washington-DC-based franchise will welcome this decision as some kind of vindication. That ignores that whether something is constitutional (or not) often has very little to do with whether it is a good idea (or not)…

14 June 2017

Three Left Feet

The courts have been busy on intellectual property matters of late — not just Over There, but Over Here (and Over Yonder, too).

  • First, there's a two-part, two-decision, two-jurisdiction dance (in 13:8 time) concerning piracy and attempts to screw copyright holders in the name of "information access." By Google specifically, and "the internet means everything expressible digitally must be free" advocates in general.

    Part 1 is simple and directly concerns Google. Google has a long history of posting verbatim, unredacted takedown requests to Chilling Effects (now known as Lumen), which semiassiduous pirates (among others) then search to find interesting material for piracy (or, for takedowns related to defamation and/or invasion of privacy, blackmail/extortion/direct shaming). After all, if the URL is quoted in the takedown request — as is required by the takedown rules, whether for copyright, for trademark, or for other rights — the notice substitutes for a Google search result that is being challenged, doesn't it? Apparently, the German courts have caught on that Google is merely using the takedown request itself as both a shaming device (to deter takedown notices) and, more to the point here, an ersatz search result. Amusingly — to those of us with grim senses of humor — the injunction notice (PDF image file) does precisely what it demands Google do: It fully redacts the identifying information so that it is not itself an ersatz search result. The IPKat has a useful, plain-English summary… as far as it goes.

    But that just leads to Part 2, which also goes to ersatz piracy: Link-and-search sites that claim not to have any infringing material, just the links/metadata to find it elsewhere. The Court of Justice of the European Union didn't like this dance any better than did the Oberlandesgericht M√ľnchen from Part 1. I recommend the IPKat's useful, plain-English summary over the CJEU's infelicitous translated opinion, but the result is the same: "Link sites" induce copyright infringement and are therefore blockable (notwithstanding GS Media' notice concepts) under core European and Berne Convention doctrines. And the links offered in this sausage are with malice aforethought and an acute appreciation for the well-hoisted petard.

  • In Design Basics, LLC v. Lexington Homes, Inc., No. [20]16–3817 (7th Cir. 06 Jun 2017), Judge Hamilton attempts yet again to grapple with "the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single-family homes… [while] administering intellectual property law to discourage so-called intellectual property 'trolls' while protecting genuine creativity" (slip op. at 1). Judge Hamilton is not entirely successful, but that's not his fault at all: It is, if anything, the fault of the parties, their lawyers, and to a lesser extent the poor writing in the Copyright Act itself.

    The case actually turns on the fundamental distinction between copyright and patent law. In copyright law, there is no "copying" without actual access to the source work; put another way, "independent conception" is a complete defense. In patent law, however, the patent application itself is as a matter of law universally known, so "independent conception" is not a defense. But the court did not stop there, because it took the opportunity to smack down transferee misuse of enforcement actions as a "revenue model." Perhaps what this Design Basics matter (as Judge Hamilton's opinion notes, in the last decade Design Basics has been plaintiff in over 100 copyright-infringement actions) demonstrates more than anything else — particularly when read together with the Sherlock Holmes matters — is that if you're a troll, you need to stay away from the Seventh Circuit because the judges will turn you to stone. Gleefully.

    The policy-level matter that "troll" litigation exposes is one that the various affected industries, the various legislatures, and indeed damned near everyone else have evaded even mentioning: Transfer of ownership (not just rights) from those whose personal efforts led to "Progress in the useful Arts and sciences" to those whose personal efforts consist solely of exploiting that "Progress" for financial advantage, usually via a portfolio of similar increments of "Progress" originating from multiple creators. This is a problem across both copyright and patent law. It is also a problem with treating intellectual works as "mere" property, with the underlying assumption that they are therefore freely alienable because all property "must" be. I point this out precisely because applying fourteenth-century notions of the immutable characteristics of tangible property seems to be putting the cart before the breeding rights to the horse.

Over Yonder is going to have to wait for a better copy of the opinion...