15 May 2018

National Erratic Driving Day

…should be established as the day before Mother's Day. And it's not just restricted to motorized vehicles, either; shopping carts can participate, too! <SARCASM> Or maybe it's just the preview of Auto-Body Repair Day. </SARCASM> But all of this shopping (even sharks have mothers) leads to thoughts on jurisprudence.

Really.

Due to the inequities of sales tax collection, and the Supreme Court's decision yesterday on sport gambling that previews the chaos to come.

Currently, sales taxes and the Internet are Balkanized by Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Quill held that a seller lacking a physical presence in State B was not obligated to collect sales tax for goods and services shipped to residents of State B — on constitutional, not statutory, grounds. Yesterday's decision in Murphy v. NCAA, No. [20]16–476 (PDF), previews a forthcoming decision challenging the result in Quill on a parallel path — the combination of Congressional power and statutory construction — in a way that implies that at least the result of Quill will remain in place (at least for the present) when the Court issues its decision in South Dakota v. Wayfair, Inc. ("Wayfair") (useful discussion of the progress of oral argument with which I nonetheless fundamentally disagree) in the next few weeks.

The common issue is the so-called "anticommandeering doctrine." Murphy held that as a constitutional matter and through interpretation of the specifics of the statute at issue, Congress cannot demand that states actually do something that is within the respective states' purview. (This is arguably a minor narrowing of "necessary and proper" as it relates to the Commerce Clause, but that's getting much too theoretical and tangential even for me.) The point is that states have even less ability to commandeer each other, or more relevantly here, citizens of another state for the mere purpose of tax collection that is already constitutionally suspect under Quill. No matter how much society and commerce have "evolved" — ironically, that very argument was rejected in Quill itself, see 504 U.S. at 310–16 — there remains, nonetheless, the "distinct sovereigns" problem embedded in both the constitution and every domestic Commerce Clause decision in the past century and a half.

Consistency with Murphy will require that at most the Court reverse Wayfair on the ground that there's no tenable Congressional act authorizing state-to-state sales tax commandeering. After all, under the UCC, the sale is completed in the seller's jurisdiction, at the moment the agreement is reached (or, at latest, the moment the shipment is consigned to a carrier). And if there's one aspect of commerce that has truly "changed" since the long-ago days of Bellas discussed in Quill, it is the adoption of the UCC in the states. And the Court need not even reach the constitutional issue; under the (generally misbegotten and intellectually dishonest) "constitutional avoidance canon," all it need do is point out that the federal statutory scheme is no more acceptable than that in Murphy and save the constitutional issues for another case. <SARCASM> Preferably one not involving a state with a fifty-year history of encouraging banks and credit-card issuers to base themselves there so as to evade usury restrictions imposed in other states. But that, of course, has nothing to do with state-versus-state commandeering. </SARCASM>

Then, too, there's the "not all stupidity is unconstitutional" problem — for yet another day. Sales taxes, and for that matter value-added taxes, are stupid, regressive, anti-union elements of undeclared class warfare by the idle rich against everyone else, especially when not accompanied by equivalent-level nonresidential (or, better yet, extravagent-residential) asset taxes. Fortunately for that class of individuals (which included almost all of the Founding Fathers), there's no "wisdom" component of the Constitution falling within the Judicial Power…

04 May 2018

Have a Nice Day, John Mitchell

… which is a particularly difficult echo after reading this piece on military officers and unlawful orders — today. Which I find both incredibly naïve and incredibly dismissive of the officer corps; but then, I lived through Iran-Contra, and it amazes me how little the public understands the anger of my generation of officers at that bullshit. Sure, there are exceptions, and possibly getting selected to flag rank would favor them; but the consensus was… otherwise, especially once the "lying to Congress in support of a particular ideological agenda with no valid military purpose" part became unmistakeably clear.

30 April 2018

The Big Reveal

There was a big reveal last night on WestWorld (Season 2, Episode 2, "Reunion") Well, not really: It was implicit from the very first episode of the first season, obvious after the third episode, and inevitable after the sixth.

<SPOILER ALERT> Delos — the "corporation" that owns WestWorld, although it's as much a true "corporation" in apparent operation as is Harriman Enterprises, whose namesake is also "Delos" — is the result of merging FaceBook, Cambridge Analytica, and Apple… with a little bit less self-deception/disingenuousness regarding "nobility of purpose" (or even "sociopathy"). In one of the flashback scenes, William the Younger admitted that WestWorld would involve pervasive monitoring of Guests, taking advantage of the fact that the Guests think nobody will be watching. He implied that it would be for marketing and advertising… but Logan's escapades during the episode demonstrate that obtaining material for blackmail is at least as important, especially considering the scope of the purported "market" for WestWorld (the 0.1%ers).

I'm shocked. Shocked, I say.

23 April 2018

Six Copyrightable Works in Search of "the" Author

Part 0: Crass Introductory Remarks

One would think that the judiciary was capable of learning from the past, especially when implored to avoid a particular class of errors by a giant (however flawed, and however later passed by) of the past. One would probably be wrong, as evidenced by the judiciary's — hell, the entire profession of law's — failure to acknowledge an observation by Oliver Wendell Holmes, Jr. more than a century ago, cautioning the judiciary (and the law!) against the Dunning-Kruger effect1 regarding the arts:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.2

And even here — in recognizing the profession's fallibility in judging the product of artistic endeavor — Holmes fails to acknowledge the profession's utter ignorance regarding process, which is particularly ironic given Manet as an example. Holmes can hardly be blamed for neglecting the interplay between the First Amendment and the arts, which is admittedly an aspect of law entirely ignored in US jurisprudence for another quarter of a century thereafter; more-recent practitioners, however, don't have that excuse.

I do not pretend to omniscience on these matters, especially the farther one gets from my own experiences in studying and creating both artistic works and artistic processes (which are two entirely different classes). But I'm at least aware of the limitations and differences and problems with post hoc rationalizations that seem to have escaped both the artists/creators and the legal profession.3 That is, I think I've got the minimal humility necessary for daily function in and around the arts — which cannot be said for certain judges and treatise authors… Over the next few months, I'll be irregularly posting some more-detailed musings on six egregious errors in copyright doctrine that result directly from the failure to distinguish between "process" and "thing," and how those errors relate to identifying "the" author of a work. Sadly, each of these errors was not only preventable, but predictable.

What I've found most frustrating over the years — especially when dealing with "Information Wants to Be Free" (IWTBF) advocates and virtually every tech entrepreneuer or groupie — is that understanding process as an integral element of the arts is also necessary to understanding both the expression (and information!) in the arts and virtually everything about these six problems. It is not sufficient; it is merely necessary.


  1. See generally, e.g., Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments, 77 J. Personality & Soc. Psych. 1121 (1999) abstract, text behind paywall. The less said about the judicially imposed Dunning-Kruger effect concerning jury verdicts, the better… although the probability that there's at least one member of a jury familiar with artistic process is greater than that among the lawyers and judges who tried the case.

    author's note on citation format In a not-so-subtle rebellion against the Bluebook and in recognition of legally enforceable rights in at least part of the arts community, I am adopting use of the ampersand ("&") to connect authors who each worked on an integrated whole, and the simple conjunctive ("and") for editors or other sources of collective works who contributed to a whole but not individual discrete elements. Plus it will screw up some less-sophisticated web crawlers that have trouble with operator overloading of the ampersand in HTML.

  2. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted).
  3. For an introduction to the endowment effect in general, see Daniel Kahneman, Jack L. Knetsch, & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Perspectives 193 (1991) PDF.

    As these musings progress, the "it's mine" problem will become more and more central, as will the different varieties of "ownership" at issue in the arts — particularly when they overlap but the decisional frame being used favors, and perhaps even considers, only one of the varieties. Cf. David P. Stern/NASA, (22) Frames of Reference: The Basics, From Stargazers to Starships (2006, retrieved 2018). (This reference to basic physics and basic reasoning is an intentional self-referential smack at the limited educational background of the legal profession, cf. note 1 supra.)

13 April 2018

Still Life

No, I'm not going to inflict a "still life" drawing upon you. I may be a law school graduate, but I'm not, you know, evil.

Once Life has achieved stillness, though, there will be renewed activity here. Including, I'm afraid, calling out an entire state's judiciary for abrogation of its fundamental proclaimed duty of "regulating and administering the profession of law." And I say this as the victim who couldn't get even a real inquiry started. My old mentor, colleague, and friend the recently and untimely deceased Ron Rotunda agreed, more quietly than he thought most appropriate but out of a sense that he should perhaps allow the courts and the bar to self-reform.

And, of course, more intellectual property and stuff of concern to creators, more politics, more art, more everything.

But at present, life is a kaleidoscope or kinescope and not still.

04 April 2018

A Half Century of Futility

I think he'd be terribly disappointed; I know I am. And was: The gleefulness of some of the adults around me (which made its way to the west coast in time for the evening news) at the assassination of a man who was clearly no threat to them is a clear memory and the overt beginning of political awareness for me. The content of character I see in "public service" resembles nothing upon which Dr King would wish to judge anyone.

Fifty years ago today, a bullet on the balcony of the Lorraine Motel made Black Lives Matter inevitable. Not necessarily at this time; not necessarily in detail. Nonviolent protest was met with violence, with advocacy of violence, with ignorance and fear, with the assumptions of the zero-sum game during the greatest quarter century of constant and relentless "pie expansion" in Western history. I'm actually writing this in parts and somewhat in advance (due to an impending move, I can't be certain of 'net bandwidth), but I predict one thing that both disgusts and disheartens me: Too much effort, too much time, and too many column-inches will have been devoted to the recent death of another in a line of dubious evangelists who should be despised for oh-so-genteely and oh-so-deniably preaching exclusion of the Other (and too many who go much, much farther… regardless of the particular religion in question) than will be devoted to this anniversary of the death of a religious leader1 who did not stoop to dehumanizing those who didn't agree with him (or, at least during his lifetime, allow his close associates to do so). We can count on Sinclair Media — which is disproportionately present (not solely, just disproportionately) in so-called "Trump Country" — to continue its tradition of cloaked undermining that isn't quite hate speech or dog-whistling; after all, the local station in Chambanana did for the fortieth anniversary… and we'll get to see Sinclair's "must run" nonsense here on the west coast within the next hour or so (if it didn't run last hour). <SARCASM> It's not like Sinclair Media is headquartered in a former slave state (and very near a major slave marketplace) or anything like that. </SARCASM>


  1. Religious leaders do not cross the line to impropriety by advocating rights (unless, that is, they are rights founded solely in religious doctrine and inconsistent with other such doctrine, such as anti-abortion protesters who nonetheless endorse the death penalty). Dr King seldom made that kind of error… in distinct contrast to some of his successors, who have screwed up further by using their religious status as levers into policy positions and debates that have little, if anything, to do with rights. Although the Constitution prohibits any "religious test" for office, I would just as soon bar any active member of a religious hierarchy from political office (and vice versa) — if nothing else, the past few thousand years of history have demonstrated that's a volatile combination that inevitably paves a path toward bigotry. Such as many of the fifteenth- through seventeenth-century rationales put forth for enslaving Africans.

14 March 2018

RIP Dr Hawking

… whose contributions to astrophysics are too immense to be described in a short blawg post, and that leaves aside his contributions as a popularizer/communicator of science. And it was all possible due to nationalized healthcare — Hawking said so himself.

Dr Hawking would have been "uninsurable" under US standards after his diagnosis half a century ago. Even if he had been able to get "insurance," the cost would have been astronomical (and may well have blocked him from getting a job, because the law on employment disability for people with noncongenital medical conditions has black-hole-sized loopholes and complete loss of information); the exclusions for "experimental treatments" would have been devastating; and he would have had to spend half his waking hours with insurance forms and on interminable telephone holds.

It's not that nationalized healthcare caused his brilliance. It's that it was one of several necessary conditions for his brilliance to flourish.

So the next time you're worrying about how the US is falling behind in the sciences, think about Dr Hawking's career. In particular, consider that we do not and cannot know about US-based scientists — or artists or anyone else — who failed to achieve their potential because, well, "Coverage Denied."

A very bad way to begin Pi Day — the death of the Lucasian Professor of Mathematics.

08 March 2018

Dear DMCA Notice Agent

No, I will not use your purportedly convenient online form to report a copyright infringement, because (numbering for later reference only):

  1. Your form is not a method authorized by the statute, 17 U.S.C. § 512, for copyright infringement takedown notices. Sure, the statute was put in place twenty years ago… but formmail was around then (I had had one on my personal website for three years!), and the legislative history implies — doesn't state, admittedly — that it was proposed as a possible means of providing notice and rejected. Thus, using that form might not fulfill my own responsibilities for notification under the statute… and might provide a loophole for you to later argue that not all of the formalities had been fulfilled and that therefore a notice (or counternotice) was ineffective.
  2. Your form doesn't provide me a record copy of what I sent and when. Even though your form requires me to enter an e-mail address in order to use it, and it would be less than trivial to run a three-line sendmail script on the output to send me a record copy. And, of course, if I don't get that record copy, I have a reasonable inference that you didn't actually receive my notice, and can take steps shortly to ensure that you did get it.
  3. Your form usually includes demands for information not required by statute, whether we're talking about a copyright infringement or some other IP infringement (often trademark). Some of these common bullshit demands — which seem made not to actually process notices, or even to validate the seriousness of the notices, but to discourage actual filing of notices by making the notice more administratively annoying and difficult than the statutes require — include demands to provide:

    • A registration number, whether for copyrights or trademarks
    • An example of a protected work being used in commerce, whether for copyright or trademarks
    • A daytime telephone number for response, when the relevant statutes all require written responses
    • A certification that the IP holder has attempted to deal directly with the (usually anonymous or pseudonymous) infringer with some kind of prior notice
  4. Your form is written and assumes that only one type of IP is at issue in any single notice.
  5. Your form is processed in a manner to affirmatively avoid "red flag" information reaching your tiny little brains.
  6. Your form does not allow a single notice regarding multiple works.
  7. Your form is inaccessible unless I have an existing account on your system.
  8. Your form improperly attempts to collect canvas data or set tracking cookies (or, indeed, depends upon any kind of cookie or other session-identification measure).

No, instead, forms like those at most online service providers (as that term is defined in the DMCA) are at best there to deter complete, effective notices from being filed. That is, the service providers don't want to hear it and therefore make it needlessly difficult. (Ever tried to cut and paste URLs into an online form, and make sure that the pasted version is complete… especially when it's more than 80 characters long?) In short, as they're currently implemented, they're bad-faith attempts to avoid inconveniencing the "paying" customers — the users of the online service providers' services. And any lawyers who participate in these schemes should seriously consider their ethical obligations under Rules of Professional Conduct 3.1, 3.4, and 4.1 — especially regarding items 3, 5, 7, and 8 above (which by their presence imply that the online service provider will not timely process a notice otherwise).

So: Bite me. You're going to get e-mails (with return receipts), faxes, and physical letters, sent to the address stated at the Copyright Office notwithstanding anything else buried on page 37 of the terms of service. And sometimes those notices are going to be pretty bloody harsh and warn you up front that you're outside the safe harbor, especially if (like two major "marketplace" providers) you won't respond unless the complainant proves he/she is already a member of your marketplace.

03 March 2018

A Computer With a Keyboard Is Not a Cell Phone

… and the bloody marketing "geniuses" at a certain computing monstrosity in Redmond should remember that one of the reasons that those of us who touch-type are Apple-averse is that we, well, touch-type, and use keyboards on computers for more than dust-bunny storage. If you want to add some new features for the kids who can't qwerty, fine; don't take away features that we rely upon.

Like menu bars accessible from the keyboard.

Like alphabetically-sorted contacts and chat/instant messaging contact lists.

Like accessing actual help facilities using your own imposed standard {F1}.

Like removing the "away" status and forcing everying to either "active" or "do not disturb."

And while you're at it, don't by default show more information to other users in the new version of the program than was shown by default in the older version of the program, especially when the new version is an essentially mandatory security upgrade (due in part to SPECTRE and MELTDOWN, but without the Bond girls to deal with SPECTRE — if I have to deal with a phony criminal conspiracy that isn't actually as scary as the real ones, at least grant me some airbrushed eye candy instead of bigger bloody emoticons).

I passed eighth-grade typing. Just because neither any executive at Apple nor anybody in your own marketing department did — or actually works with and edits words for a living, instead living by soundbites — does not mean it's a good idea to reduce accessibility under the Americans With Disabilities Act. For example, this program is now no longer usable at all by the visually impaired, precisely because it no longer has keyboard-accessible menu bars and predictable alphabetical lists of chat "partners." Indeed, one cannot even use it to place an outgoing voice call any longer without full and clear access to a touchscreen or trackball/mouse/trackpad. One wonders if anyone from legal even saw your plans… or, perhaps, whether you bloody geniuses listened if they did and raised any objections.

0/10.

24 February 2018

Marco Rubio Link Sausages

… spiced with NATO-standard-calibre 5.56mm rounds, downpowered for the civilian market. Which, of course, didn't make a damned bit of difference to seventeen direct and hundreds of indirect victims of those rounds in Parkland, Florida. Unfortunately, this isn't really a link sausage platter. It is, instead, the same old rancid dish with several variations.

  • It's both fascinating and mildly disturbing how easily a high-school junior took down a Fox political commentator for, well, being stupid and ignorant. <SARCASM> Of course, at the founding of the American republic, neither of them would have had a voice because they lack Y chromosomes, so that smack talk about "children" (and how they should speak to purported "adults" who can't be bothered to get publicly available facts straight) is just a little bit much. </SARCASM>
  • Don't arm teachers for the same reason that guards and staff in mental hospitals are unarmed (and that guards don't carry firearms on cell blocks in prisons). Almost nobody who is calling for "arming teachers" has any experience in a post-1960s public high school large enough for eleven-a-side football — nor with dealing with the overtly "mentally disturbed." In any event, most mental institutions are probably less disturbed (and less infested with cliques and bullying) than most high schools…
  • It's fascinating how right-wing assholes are excoriating the FBI for internally evaluating the facial validity of a called-in tip regarding a possible future action — and (in this instance mistakenly and without following established procedure) deciding that tip did not justify an arrest or even further investigation as otherwise required by its procedures — while simultaneously protesting that calls for the FBI and its former director Robert H. Mueller III to do so regarding actual, past actions in the electoral-misconduct probe would be a gross miscarriage of justice and violation of due process rights. Leaving aside that this is a distraction from determining actual cause, instead of a chance of avoidance that would not have dealt with that actual cause: Goose, meet gander. But preferably not tied up seminaked on a couch.
  • All of which beats playing NRA bingo with Theophilus E. Connor's true heir. I'm becoming less and less certain that the rhyming of "NRA" and "KKK" is entirely coincidental… especially given not so much NRA membership demographics, but who actually speaks for it.
  • Finally, a note on the substantive rationale for "individual gun rights:" In July 1776, there was no Second Amendment in effect in North America. Instead, at the risk of arrest and execution, patriots pledged their lives, their fortunes, and their sacred honor in pursuit of liberty against specific actions — not policy disagreements — that after due consideration of alternatives were decried as tyranny. Those who claim that individuals need an unfettered right bear to firearms useful only against persons are unwilling to make that same pledge… or run the same risks. I won't call them "cowards," because that's actually a different inquiry entirely; I will, however, call them hypocrites. The means of revolution are merely a temper tantrum when not employed in furtherance of an actual, explicit rationale against a target that has already demonstrated that it will employ unlawful means against dissent and refuses to even listen to that dissent.

17 February 2018

Shut Up and Drivel

Earlier this week, the Fourth Circuit demonstrated yet again that it understands "separation of powers" better than does the guy at 1600 Pennsylvania who keeps proclaiming that he has unfettered executive power. In the latest iteration of the IRAP/Islamic exclusion fiasco (PDF) warning: 285 pages!, the court took up its obligation to view evidence… and presumed that the President said what he means and means what he said. That is, that he's not just another politician.

In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

IRAP v. Trump, No. 17–2231 (4th Cir. 15 Feb 2018), slip op. at 42 (internal citations omitted). As the court later discusses, it essentially has no choice in considering the repeated, persistent statements made by the President that make clear that regardless of any other motivations, a specifically prohibited miasma of religious bigotry (I don't have to be as polite as the court) forms not just a cloud near, but the entire atmosphere of, the Islamic exclusion order. Id., slip op. at 45–52.

The court respected separation of powers by taking Trump at his word, not based on the "he really meant to say" post hoc rationalizations and spin doctoring from the, umm, communications "professionals." (Of course, if they were truly professionals, there would be an enforceable code of ethics…) But the court respected him, took him at his word, and therefore had no choice. Because, after all, courts are not legislative bodies entitled to rely solely upon ideological and policy preferences: They are confined by the facts and the record and the specific dispute before them.

I suppose it beats telling men who grew up in segregated areas and saw classmates succumb to — at minimum — the continuing vestiges of "three-fifths of all other persons" to "shut up and dribble" because just being citizens doesn't entitle them to have opinions, if you're a talk-show host whose own education was segregated in a rather different manner. But not by much.

10 February 2018

Which Politburo Member Is Absent From the Reviewing Stand, Comrade?

…which is the real question that we must ask if Drumpf gets his large-scale military parade. A year ago, we might have been asking about whether Scaramoucci was off doing the fandango instead of the parade; last week, it might have been which top aide has been thrown under the bus this week (and it will be next week, but predicting which one is not exactly easy).

As a veteran, I magnanimously allow —

Later on, of course, we'll be asking questions about how the official photographs of the event were altered, particularly if Sublieutenant Ogilvy is recognized for his sterling contributions to some purported victory that, in the broader scheme of things, turns out to have been either wholly invented or utterly irrelevant to the battle for control of the Malibar front. Meanwhile, the Two Minutes Hate (of Immigrants) will continue, and we will remain at war with Eastasia (we have always been at war with Eastasia).