21 September 2016

Pigs2Men

No, not some obscure boy band notable mainly for walking on its hind legs:

Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.

Nor even providers of link sausage ingredients. Well, not just ingredients...

  • Wellywellywellywellywell: The European Commission has decided that the future of the arts lies with artists and not distributors in its new single-digital-market copyright reform proposal (PDF). This has been rumored for a while, but I didn't want to rely on rumors — I'm not a tabloid journalist. One might say that this is Kirtsaeng I's Eurotrash progeny... except that it undervalues the potential for Schumpeterian creative destruction.

    Needless to say, not everyone — and especially not incumbent exchange operators (to borrow a disturbingly appropriate term from telephone-company deregulation) — is happy. Schade: The biggest "losers" will be the family-held/controlled media empires, which are largely agents for (or at least direct descendants of) fascism, and I don't even need to limit myself to Sauron's empire or English language or even the printed word to say that. Nobody is really asking in public whether media empires are the 21st century buggywhip manufacturers — perhaps because this time the incumbents are controlling the means of even having a conversation.

    But if they really want to make a difference, they have to NAFTAize it. The arts really are not an Old World/New World sort of thing... regardless of language barriers, or for that matter the entrenched financial interests behind Festung Europa (or, for that matter, Festung Amerika).

  • But a current exhibition at the V&A in London focused on the late 1960s and the interface between "popular culture" and "politics" may cut just a little bit too close to the interests of the public-school crowd. Perhaps Prospero gives a little bit too much credit to "Revolution," neglecting the six or seven other versions also left on the recording-studio floor... but the general point remains valid, and yet again Schumpeterian. Next up: The influence of the Monterrey Jazz Festival on electioneering in the 1980s (don't snicker too much, it's actually pretty apparent).
  • I am shocked — shocked, I say — to see irrefutable evidence of greed and fraud at the heart of megabanking. And gutless leadership, which is encouraged in a disturbingly ironic fashion by the very legal structures that make megabanks possible. Having guts means at minimum telling shareholders "No, I will not break the law, or foster a culture of lawbreaking, so as to increase your dividends by a penny per quarter per share."

    The Securities Exchange Act and Securities Act — our primary (not only) protections against investor fraud — distinguish between "shareholder" and "stakeholder" by never acknowledging the existence of nonshareholder stakeholders, and demand that management have allegiance only to shareholders. This is reinforced by Delaware law on corporation governance and function. The law's denial that once a business becomes large enough to meet exchange rating, it is also large enough to have thousands (or millions or tens of millions) of stakeholders who are not shareholders, has been refuted time after time. However, the unenlightened self-interest inherent in capital-appreciation primacy in corporate governance is both inconsistent with reality and basic math (hint: the concepts of limits and boundary values, both of which are rocket science... and first-year calculus).

  • Last, and far from least, a general election note. Remember to vote downballot, too. Indeed, there's an excellent argument that what happens regarding the Senate is actually far more important than what happens regarding the White House. (Nothing will happen in the House thanks to partisan gerrymandering.) Remember, also, that you're voting not just for the candidate on your ballot, but for all of his friends: A vote for a relatively moderate Heffalump like Mark Kirk is also a vote for retaining the obstructionism of Mitch McConnell and John Cornyn, while conversely a vote for a relatively conservative Jackass like Bill Nelson is also a vote for retaining the, well, obstructionism of Harry Reid and Dick Durbin.

    Indirectly, this is my way of throwing my hands up at all of the choices on the ballot (including the major-minor parties) for the Presidency. Determining exactly who is the least of the evils among a career politician with a long history of blindness to the problems of self-interest, a racist union-busting slumlord with no concept of the Rawlsian original position, a purported "doctor" who is antiscience (except, perhaps, regarding global warming), and a pro-gun-nut former governor who hasn't the foggiest clue about international affairs or history is really appalling. I really don't think choosing among the rack, the bastinada, waterboarding, and the Iron Maiden for the next four years is what the Founders had in mind. It would be nice to have a choice that is not an obvious instrument of torture, but the political class hasn't seen fit to give us one.

19 September 2016

In Medea Res

Not your Medea. My Medea.

  • After a night during which the Emmys congratulated themselves for racial diversity while ignoring the reality of TV's overt bias in favor of stupidity over any other single factor, the two lead film critics for the NYT ponder why H'wood is "separate and unequal" while missing the point. Both narratives also ignore the factor that could change things. Randy Newman was right: It's money that matters.

    The financial imperatives did not create racism (or anything else) in H'wood, but they are sure as hell the largest barrier to changing anything — especially the overemphasis on appealing to wide audiences (usually dumbed down to the minimal educational attainment of second- and third-generation management) with everything. However, a system that demands large returns for everything, even with the occasional nod to the "Sundance type of film" that still earns more money for its producers than for anyone else, is an active impediment to change. Even to change that the system itself acknowledges as necessary... or, more often, can't even recognize because it's outside some decades-old Psych 101 textbook's contemplation of "normal." Quickly: Name a character in American film/TV who takes pride and joy in intellectual/artistic achievement — instead of, or at least not manifested as, either overt sexual conquest/gender-appropriate nurturing or immediate financial/political rewards — who is not ridiculed for doing so... especially given the default poor-"social adjustment" compensation demanded of each and every one of those characters (yes, my readers, Chuck Lorre must be destroyed).

    I didn't think you could.

  • But one part of the entertainment industry is even more ignored than intellectuals... and it's dying, or at least changing into something unrecognizable. Yet it's the reason for the Internet! At least that's what the song claims (although my recollection is that 8x8 Star Trek came first and was much more of a drain on time-share systems back in the day).
  • Here's a quirk of the way European law on copyright infringements operates — and, more particularly, concerning what our Supreme Court illogically called "secondary infringement" over here in the Grokster matter (illogically because it is contrasted not to "primary infringement," but to "direct infringement," Grokster, 545 U.S. at 930–34). The Court of Justice of the European Union ruled late last week that free wireless providers are not liable as infringers, but may be required to password-protect their networks at the request of content owners.

    In McFadden v. Sony Music Ent. (Germany) GMBh, No. C-484/14 (15 Sep 2016), music-shop owner McFadden provided free, no-password/unsecured wifi in and near his shop. Someone — the opinion explicitly disclaims knowledge of who — used that to download a recording from somewhere on the net in which Sony claimed a copyright. Sony issued a demand to McFadden, and he sued for a declaration of no liability (¶¶ 22–28). After the usual convoluted chain of lower-court proceedings, the CJEU determined that even though the operator of the wireless service is not liable to the content claimant for infringement,1 the content claimant nonetheless can obtain an injunction requiring the operator of the wireless service to slap a password on the network (¶¶ 79, 90–101).

    And, unfortunately, bad writing and technical ineptitude have undermined this opinion ab initio.2 The opinion indicates only that the network must be password-protected, and hints that password protection somehow involves users revealing their identities as an appropriate part of the balance (¶ 96, which makes a little more sense in the German than in the English version — but not enough more sense). It's quite apparent that nobody at the CJEU has ever been to a coffee shop that posted the wifi username and password on a note by the cash register... or just kept the router's defaults in effect...

    What does this mean for authors? Not much — yet. One must sarcastically wonder whether username "Geist" with password "Passwort" is going to be the next major piracy infringer targeted by Sony, which will lead to more litigation over the relationship between the strength of network security and potential liability by/injunctions against service providers. <SARCASM> I really look forward to this set of judges trying to unravel that conundrum... especially when combining the slow pace of litigation with rapid changes in security models. Two-factor authentication requirements, anyone? </SARCASM>


  1. Unfortunately, the strange nature of European opinions originating in civil-law jurisdictions like Germany (where this case originated) — which are replete with internal cross-references, jargon, and refusal to ever say which party prevailed — interfaces with a really poor English translation, and not much better writing in the German (presumable) original. Thus, it's impossible to point to a reasonably small portion of the opinion that makes this point. I'm afraid you'll just have to trust me...
  2. That's bad schoolboy/legal Latin for "from the beginning" or "at its beginning" — used here with malice aforethought as an ironic illustration of the poor communications skills employed in writing this opinion (see especially ¶¶ 79, 101).

09 September 2016

No Meatless Link Sausages

... because there's at least some meat in each one.

  • Left unsaid in this article is the second-order aspect of responding to genius: Not just how to identify it, but how to respond once it's identified. And there's a disturbing corollary, too: If the "10,000 hours of practice" meme is wrong (and it surely is — every politician running for office today has more than 10,000 hours of practice at lying, and yet they're not fooling anyone but instead relying on their opponents being perceived as the "greater evil"), what does that say about those to whom we've delegated the coaching/teaching role in that practice?
  • Worse yet, there's the corresponding problem of the "successful" shaming of the arts, which after all are not amenable to standardized testing. Or career advice from octogenarians (but happy 50th anniversary to Star Trek anyway, even if recent efforts have largely been... disappointing).
  • Speaking of lying politicians, no morning-show host should ever "moderate" a serious election event ever again. Either that, or we've got to switch our "hosts" to those who work later in the day. Hey, that's not a bad idea: Jon Stewart and Larry Wilmore are currently unemployed, and so is (at least one of) Stephen Colbert...
  • Lots of copyright-related legal action across The Pond lately, much of it of direct concern to US authors.

    Most of the major pirate e-book repositories are now (purportedly) based in Europe, so the standard for when a link site contributes to infringement matters. In GS Media BV v. Sanoma Media BV, No. C–160/15 (08 Sep 2016), the European Court of Justice opined that holding a link site liable requires both that the link site obtain profit from the fact of hosting the links (and not from incidental activity or direct association with other profit-making activities; needless to say, US law is slightly different, requiring only that the infringing activity be a significant draw for general profitability) and that the link site be actually aware of the infringement and infringing material (related, but slightly different, factual inquiries). This is important to US authors and makes sending DMCA notices — even to Europe — more urgent: That's how one gives a link site, or whomever else, actual knowledge of both the infringement and the infringing material, so that the next author to come along isn't just shooting ostriches.

    And then there's the parody problem. US courts have largely gotten it wrong by overly restricting what constitutes a parody. The purportedly humorless Germans have done much better (official opinion auf deutsch (PDF), well-executed summary in English), primarily by avoiding the "target of" trap that Justice Souter fell into in 2Live Crew (and that has virtually no theoretical support in literary/arts scholarship) with the corollary that "satire" — if, that is, it is discernably different in principle — is not protected under Justice Souter's reasoning. Lurking behind this is a horrible mess arising from ex ante/ex post problems combined with serious retconning of "what did the artist intend?" that is even less amenable to judicial resolution than anything else in the arts... if that is possible. Regardless, the German approach is much closer to defensible.

  • And then there's the fashion industry. Leave aside its impulse to make me into its bloody billboard with obtrusive external branding (the label goes on the inside, thank you). Leave aside that so much of its output cannot be worn to actually do any work in (go ahead, Italian suit designers — wear a ventless jacket all day in court, with constant sit-stand-sit cycles and leaning and gesturing, and see if you don't pop a button). Forget the absence of pockets, usable forms of which are disappearing from men's clothing (look at polo-shirt selections of late) and never were in women's clothing. Just consider the selections available for women who aren't gymnasts or ballerinas (or, at minimum, don't play competitive tennis).

    And then ponder the gender issues raised by the alleged proportion of gay men in the fashion industries combined with their treatment of real women. Or not, because by now your head probably hurts from trying to resolve the contradictions.

  • Last, and far from least, a pissed-off note on current efforts to "encourage" use of two-factor authentication. If it actually provided better security in practice, it might be a better choice than secure-username-and-strong-password systems; there's very little evidence that actual users make it more secure, though. But crippling the purported better security by directly linking it to, say, the inherently insecure (and easy to forge/intercept) cell phone system and number isn't just insane and stupid and counterproductive — it's a transparent effort to create a further profit center with the ability to sell cell-phone data on, or misuse it to direct advertising directly to customers. I do not and will not participate in that sort of silliness.

30 August 2016

But This Is My Trackball Hand

RIP Dr Frahnkensteen.

  • This year's ridiculous list of "the world's largest publishers" from PW continues the silly agglomeration of "income" across radically different publishing industries. Examples: Why should one compare Reed-Elsevier — a substantial proportion of whose income comes from advertising-supported (or even -profited) periodicals, and to put not too fine a point on it vanity-press publications — with, say, Lagardère dba Hachette Livre, which has little participation in those industries. And any such list that entirely neglects the Government Printing Office is just a little bit silly.

    This is a classic example of trying to make one's subject seem more important by consolidating it with irrelevancies. That it's been published during the height of election season, months after the end of the reporting period, shouldn't surprise anyone...

  • MNUFC's new goalkeeperAnother example from the Seemed Like a Great Name at the Time Department: Minnesota United Football Club joins MLS in 2017, which is a good thing. The official abbreviation, however, is not: MNUFC. One wonders if there's a spot on the staff for poor Wikus, perhaps in community relations. At least Roy Keane's complaint about prawn-sandwich-eating "fans" at Manchester United would then be less likely to resonate...
  • From across the Pond, another consideration of who is liable in the internet piracy chain providing a perspective entirely foreign to Silicon Valley — and not just because it doesn't put advertising dollars first.

18 August 2016

Deep-Fried Internet Link Sausages

... County Fair Edition. Just regular old link sausages, but this time popping with even more questionable ingredients (and trans fats)!

  • A charmingly naïve piece at Law.com asks "Why Won’t Law Firms Innovate? Clients Don’t Make Them" Good question. Wrong answer, as disclosed by the unstated problem:

    But it is law in particular that seems to have stagnated in the face of disruptive changes in the market. In a survey at the Managing Partner Forum conference, 66% of attendees said that law firm strategy has not changed at all in light of disruptive change. Further, in the Altman Weil 2016 Law Firms in Transition survey, 59% of firm leaders expressed an unwillingness to change because clients do not require it, and 56% said they are not motivated economically to implement any changes.

    (fake paragraphing and hyperlinks omitted) What this does not say is that law firms don't see a professional obligation to provide the best possible service and advice to their clients — that is, that innovation appears, in the eyes of these law-firm leaders, to be completely unrelated to the quality of their counsel.

    Umm, not so much. I've used the "innovative" step of quickly reading the first paragraphs of precedential appellate decisions on a daily basis (on a heavy decision day, that's less than 20 minutes) to alter contract language and even briefs due that very day. And it cost my clients exactly nothing to do so, because I "innovatively" used Teh Internets and free resources officially from the court that are not Wexis (Wexis is inordinately expensive, I might add... and based on free use of databases of older decisions compiled by military typists in the 1970s, but that's an ugly story for another time). A professional doesn't wait for the client to ask for it or make it (more/inordinately) profitable, or for some regulatory organization to tell him (almost always him) that he must do it; a professional does it because it's the right — professional — thing to do.

    No, this is not a veiled accusation that BigLaw leadership is inadequately professional: It's pretty damned explicit.

  • Epicurious.comI found Dory. And she was delicious. OK, so it's not an elegant preparation, but in my condition I'm not up for culinary exertions. Just for the fish. (OK, so cartoon Dory is a Tang, but searching for "tang recipe" can be... disturbing.)
  • The esteemed Linda Greenhouse raises an important point about courts beginning to question legislative purposes, especially regarding controversial rights-related legislation. Personally, I don't think the courts go nearly far enough in doing so; they try too hard to "respect" coordinate branches of government, while ignoring the disrespect for the courts implicit in far too many of the worst instances. Ms Greenhouse cites to the notoriously inept Palmer case as representative, but both she — and the courts — have failed to engage with a problem that is explicitly within the competence of the courts: The distinction between fact and process. Indeed, if courts applied the same standard to legislative "factfinding" as they do to jury verdicts (whether there enough evidence in front of the jury to allow a rational jury to reach that decision, and at a higher level of abstraction whether the evidence in front of the jury was the procedurally proper evidence), courts would have far less need to ever consider motive... precisely because bad motive so often leads to procedural errors that are explicitly within judicial competence. Judges are actually pretty good at spotting someone stacking the deck (even if less so when there's Science involved, they're still better than most people). And yes, kids, it is possible to make judgments about the quality/propriety of the fact-gathering process in a religious-doctrine context... without simultaneously judging the validity of the religious doctrine qua doctrine.
  • Here's what the Arab Spring has to look forward to: illusory postcolonial "democracy" still dominated by dictators. As a disturbing parallel, it's not enough to say shah mat! in the face of the Pahlevi regime's clear abuses — one must pay attention to what might/will follow, which might/will be worse.

16 August 2016

Not the 420 News

On one hand, the Ninth Circuit ruled today that if Congress says don't spend money prosecuting medical marijuana "offenders" who followed state law, that's binding on the Department of Justice (PDF). (Echoes of the Boland Amendments are not so much intentional as unavoidable... and lead to questions that should be asked of all candidates for federal office, especially in the face of increasing quasipartisan polarization.) And the case name is just a bit too delicious to be entirely coincidental.

On the other hand, the DEA has refused to recognize recent (as in this century, not as in last week) scientific work on potential medical benefits of that same weedlike substance and kept marijuana on Schedule 1, because it allegedly has no medical value. <SARCASM> I'm thoroughly convinced that no moral judgments regarding "hippies" and/or "intoxicating side effects" influenced this decision. Meanwhile, tobacco — a "product" with far lower potential medical value than marijuana, and a far higher scientifically verified connection to harm — is not scheduled at all. </SARCASM> Of course, there are some treaty obligations making things harder... but it would have been much more intellectually honest to say so.

* * *

As of today, there are eleven weeks remaining until we won't have to hear more 2016 campaigning (there will be plenty of campaign news, though, and I give things about two weeks before the first 2018 campaign announcements). Fortunately, if things go completely combover, I'm only a few kilometers from the border, even if I'm not medically fit to travel. That said, there's something other than single-payer healthcare north of that border from which the US could learn: How not to be a sore loser.

Only a few months ago, Justin Trudeau and his centrist party put a beatdown on the right-wing opposition. (Sound familiar? That's what we're looking at this year.) One thing that did not happen north of the border — though it's exactly what I expect to happen here — is bad sportsmanship by the losing parties. A few individuals went off the deep end, true enough; but one did not see the Tories proclaiming the end of the world, or even of their own individual careers, combined with vicious rhetoric essentially boiling down to "don't blame me when things go bad" (the barely-adult version of "I told you so!" that dominates in electoral politics across the West). Indeed, one hasn't even seen significant public displays of defiance from parts of the government that remained in Tory control, whether federally or provincially. The contrast with the defiance — in both words and (mis)deeds — from Heffalump leaders after the 2012 election is astounding.

The relationship of the preceding to the Boland Amendments (and officer misconduct that confirmed for me that the Naval Academy was doing a really bad job in the 1960s... which the Navy itself refused to do anything about) is left as an exercise for the body politic.

11 August 2016

The Census-Taker's Tale

Dear Mr Oliver,

Your main story this week — extolling the virtues of local journalism — may have been just a bit overenthusiastic about the "local" part. It's one thing entirely to praise the Portland Oregonian and its investigative staff, but it hardly counts as a "local" paper to most Americans. For one thing, the Portland metropolitan area's population of slightly less than 2.4 million is twice that of Birmingham, England; that it's a quarter of the size of London hardly makes it "local" so much as "geographically separated from the national government." Instead, "local" publications in the US

  • Make the early 1980s Grauniad look a paragoon of accurate proofreading
  • Employ headline writers who think "Trump Stirs Things Up" (in yesterday's local paper... on the front page) just might be informative
  • Manage to simultaneously employ racial slurs and advocate cannibalism: "It comes with a variety of types of meat, including round-eye, brisket and chicken, but vegetarians don't despair, there's an option for you, too," in a review of a Vietnamese restaurant (no confirmation of either fava beans or chianti on the menu, though)

Perhaps part of the recognition problem is that you grew up in a nation that really has not had significant "local journalism" during your lifetime. One could see what passed for local journalism committing anti-immigrant seppuku in East Anglia and Northampton and Leicester in the mid-to-late 1980s as even the Grauniad itself moved to London from Manchester. And you didn't grow up with the Ratched (or Wretched) Chronicle (dead over three decades now, don't bother looking for it), or the American-Psycho, or the Post-Intelligibility — or any of the Indiana "newspapers" owned by the Quayle family, let alone the Nazi-Zeitung — as the "local paper."

And then there are the ads in local papers, which tend to be just slightly less credible than those appearing in national publications appearing in the checkout lanes at supermarkets. I'll pause while y'all shudder.

Yes, there's a crisis in journalism in the US, because the audience hasn't figured out the difference between "information" and "expression" (nor has the advertising industry yet admitted that it's a parasite, not a symbiote). But "local journalists" are not the bearers of the flame for any reasonable value of "local." Too often, local papers are poorly-executed fantasies of becoming SauronMurdoch... who, one should recall, got his start with Australian local papers.

06 August 2016

Wet Cleanup on Aisle 6

Yeah, I've been eviscerating lawyers across the v. from me again, and this time I got a little sloppy. Pass me the mop, please...

  • As bad and corrupt as is FIFA, the IOC is worse. Which does not, by any means, excuse anything or anyone: It's just money, politics, spite, and neocolonial arrogance.
  • I'm irritated at bad science related to cooking. There's an article in today's WaPo on a purported "brisket controversy" between smoking and sous vide that is utterly stupid because it doesn't even consider — let alone test or control for — the major difference: The ingredients. News flash, you jerks: High-end Harris Ranch beef, and in particular the "less-expensive" cuts of Harris Ranch (and other west-coast-available beef), is not the same as its market equivalent in Kansas City or Houston or Raleigh (let alone in the arrogant-foodie centers). Neither are the environmental conditions... and if you don't think that ambient air conditions matter to long-smoking, you haven't paid attention; high-altitude dry air, to name an obvious variable, is not your tasty-smokehouse-brisket friend. The argument reminds me of Alton Brown's notorious recipe for ribs done in the oven in aluminum foil — and the pseudocontroversy over whether it's ever appropriate (in 2007) to say "ribs" without "barbecue."

    Go ahead. Argue your positions from an abstraction having nothing to do with the reality of the ingredients or conditions facing either the average home cook or a smokehouse restaurant. You'll sound just like the arrogant morons running for office.

  • Speaking of whom: I wouldn't trust Ms Clinton (or Mr Johnson or Ms/Dr Stein) to properly handle any aspect — whether the initial contact or later — of a death notification concerning military personnel. I would trust Mr Drumpf even less. And unlike any of them, I say this from a different perspective: I've had to do it. Contrary to isolationist retconning, the period between the fall of Saigon and Desert Storm was most emphatically not military-casualty free. Not one of the candidates has yet demonstrated compassion when there weren't cameras there for the photo op; Drumpf has demonstrated pretty definitively that he perhaps has more in common with a seventeenth-century Elector who figleafed politicoreligious ideology behind naked personal ambition (and, simultaneously, the converse) without regard to body counts or collateral damage.

    At least Drumpf now has something in common with Bill Shatner (aside from hairpieces, that is): Screaming "Khaaaaan!"

28 July 2016

Ruling Class Link Sausage Appetizer Platter

I'm carefully ignoring the political conventions as the sound and fury of tales told by idiots, signifying nothing. Nobody will really learn a damned thing from either convention that can't be learned observing the antics in nursery school just before nap time. That's what the election itself is and will be — a snoozefest. And that's a good thing; there won't be overt and organized physical violence, or widespread "result recalibration" (not even in Chicago any more), or that sort of thing. Unlike emerging democracies, we've moved that sort of silliness to before the actual election...

  • Here's an expensive and wasteful link sausage: The real price of entrusting leadership in the arts to the all-too-often corrupt, incompetent, and/or otherwise unfit-for-the-role relatives of Old (or at least Big) Money. When I was living there, the San Francisco Bay-area arts "community" (which was not much of a community) was crippled by this problem, especially for any art form that is pre-internet; the museums were an obvious problem, but so were classical music, opera, and so on. Bluntly, if one did not have Money, one was not welcome at these institutions; being panhandled by a Board member at intermission was just a symptom. At a much higher level, the Billington regime at the Library of Congress epitomizes the problem of designated leaders who rely upon their personal connections to The Money as both their only job qualification and only effort for the institution. Maybe I should move again, a few kilometers north of here... but then everything would revolve around hockey night.
  • Yet more proof that listening exclusively to transferees and distributors on copyright policy and practice will mire one in iniquity comes from photographic "licensing." Whether this is actually worse than museums trying to claim copyright in photographs taken of their collections is beside the point: It's wrong to charge licensing fees and assert infringement by those who don't pay them for photographs "dedicated" to the public domain.1

    There is a disturbing contrast with failures to renew, or registration errors, or other third-party mistakes that give cheapasses hiding behind "information wants to be free" rhetoric that applies at most (if ever concerning copyright, as distinct from access) to information — not original expression as expression — cover to argue that art and fiction of the 1940s through early 1960s is now public domain. Yet another consequence (quite probably intentional, sad to say) of the foolishness of the 1909 Act... and a hint to the photography houses that they can no longer rely on the 1909 Act for their business model. It's only been forty years since the 1976 Act was passed!

  • In line with some deeply and fundamentally flawed "recommendations" concerning a "small claims copyright procedure" issued by the Copyright Office under the prior regime, Rep. Jeffries has introduced a bill with typical lawyerly prolixity to establish a small-claims "alternative dispute resolution" system for copyrights. We'll ignore for the moment that the predictable side effect — which will occur on the close order of Planck time after the effective date of implementation of any even analogous system — will be the overwhelming of the system by porn purveyors seeking to blackmail "illict downloaders." We'll also ignore that my comments are restricted by multiple actual (not potential) conflicts... and my professional and personal disdain for those who are most-publicly pushing in favor of such a system. Instead, my opposition arises from fundamental flaws and mistaken assumptions in the very concept, especially — but not exclusively by any means — the failure of the last forty or so legislative sessions to provide the federal judiciary what it needs to do its job(s), combined with an increasing reliance on "user fees" without regard to second-order effects.

    And from the number of trees that will die just from printing the bill, and the necessary forms to implement it. The key to understanding this bill is to ask a Latinate question: Cui bono? If you have trouble understanding that, consider the next link sausage.

  • Here's what is really wrong with the American education system: We don't demand enough classroom achievement... from the teachers. A newspaper story notes that this may be improving, though; "average" SAT scores among new teaching hires in 2008 climbed seven points to 46th percentile in math. I'm not thrilled; the implication that initial hires in 2000 were below the 40th percentile in math is frightening, particularly since so many teachers in the American system have at least partial math-teaching duties. The less said about measuring preparation in literature and the rest of the arts, the better.

  1. I put scare quotes around that word because it points at a lacuna in the 1976 Act, and the Berne Convention: Neither really provides for putting already-existing materials voluntarily into the public domain. There's an argument that doing so would be a synthetic contract action in which the author sells the work to the public for a price of zero, but that's contorting the statute (and even the Berne Convention) in a way that is inconsistent with the constitutional language. Too, if it's a "synthetic contract," it's a mere transfer of rights... subject to rescission/termination under § 203 or § 304(c), potentially by the author's heirs.

    And that's leaving the quasimonopolistic rentseeking by the photography houses and their underpayment of photographers aside for another time. These are not paragons of virtue under the best of circumstances.

22 July 2016

Es war kein Münchner Bierhalle...?

Yet again, we're stuck with the media obsessing about talent-challenged thin-skinned reliant-on-the-uncredited-skills-of-others narcissists unable to accept that not everything is about them. I'm not sure whether I'm more annoyed by the utterly predictable and seemingly choreographed Nashville v. LA bullshit in popular music, the utterly predictable and seemingly inevitable clash of egos and sour grapes in broadcast propaganda, or the utterly predictable infantile histrionics over which "unsuitable" candidate gets to have access to The Football for the next four years.

Regardless of who "wins" any of these contests, someone is going to need a new communications director. I suggest that these two are leading candidates:

As mere comedians, they have more respect for the facts — and get them wrong a helluva lot less often — than any of the purportedly serious men (and they're almost all men) running political communications for the Establishment today. And do not kid yourselves: All of the candidates with multi-million-dollar media buys and war chests and polling operations are Establishment, however much they try to distinguish themselves with meaningless (and inaccurate) labels that seem non-Establishment.