14 February 2017

Your Dominoes Will Fall in 30 Minutes or Less

If you're reading this heavily overintellectualized blawg, you've probably heard of the "domino theory" in international relations — a (frankly misbegotten and culturally arrogant) model of how the commies would take over our allies. We're less than a month into a different attempt to impose a dictatorship, and dominoes are already falling the other way... or, at least, we can say so for amusement's sake.

  • The most-definitive domino — not the first in time to begin falling, but the first to make definitive thud in public — is Trump's National Security Advisor, who resigned because even before the inauguration he was unable to resist an opportunity to show others how Important he was. Which, unfortunately, is not inconsistent with... ok, that's perilously close to my NDA, which will outlast the heat-death of the universe.
  • Another domino is falling very softly, and I thoroughly expect that after the next stage of oral argument the Drumpf administration will attempt to make it go away by replacing the policy. Briefing continues even now on the purportedly "urgent" need to ignore due process in excluding certain religions from entering the US. By the way, under the wording of that policy, Saul-who-became-Paul would be excluded... he met the definition of "Syrian refugee," and because he started organized xtianity only after entering Syria he couldn't have been a member...
  • Then there's poor little Ivanka, whose less-than-haute-couture brand failed to support profit expectations and was axed by Nordstrom. This is only an indirect domino, representing (similar to the National Security Advisor, who does not now and never will get the privilege at this blawg of being mentioned by name) a rejection of another attempt to impose branding on reality instead of vice versa.
  • One domino that isn't falling yet is the legacy of a New England governor two centuries ago: partisan gerrymandering. And here, I'm afraid, the courts have — to use the technical term — fucked up with their own allegiance to domino theory, by holding that mere partisanship in elections is a "political question" and therefore not within the competency of the courts. The problem with this theory is that by the time it gets to the courts, there is no one left to answer it who is not a far worse danger to separation of powers and representative democracy... so by abrogating purported "political questions" when they relate to electoral process, the courts are actually undermining judicial independence.

    Bush v. Gore presented a clear, partisan, political question. However, much as I hate to say it given the consequences (which included needless casualties and a near-Depression), it's a very close legal question, because it involved the exercise of a particular executive-branch elected official's discretion when that official had sworn to uphold the law. I understand and acknowledge on those facts (however much I disagree with it based on facts that have only become known since the proceedings) the rationale that absent a smoking gun of intentional disloyalty, the courts simply should not have intervened. Gerrymandering, however, is different precisely because its very nature undermines the rule of law in favor of the rule of factions. And although that is, in some sense, "political" and therefore purportedly beyond the capacity of the courts to deal with, it is "political" in a process and structural capacity in that — unlike the exercise of discretion in Bush v. Gore — it seeks to suppress the dissent that is the foundation of democratic institutions by pre-electoral rpressive action concerning legislative (and not executive) selection. If there's one unbroken thread of reasoning in all of US electoral law, it's that all interests are entitled to representation in law-passing parts of the government... and that everyone has an equal right to vote on the single winner of elections for the law-refining-and-implementing part of the government. And that's why partisan gerrymandering is not a "political question"; the clothing of the "political question" is cross-dressing of a much nastier beast.

And now off to the doctor for another post-surgical follow-up. I don't have time (or energy) this morning to show how "domino theory" is affecting intellectual property law and/or authors'/musicians'/artists' rights... plus, as the Emperor of Austria noted once, that would have too many notes. (Of course, he was wrong, but that's for another time — even if an entirely ironic counterpoint to the current refusal to footnote anything coming from 1600 Pennsylvania Avenue.)

10 February 2017

Friday Roundup

… sprayed on the weeds without regard for environmental regulations because, in this new to-be-made-grated-again America, we can just ignore regulations and laws that get in the way of profit, right?

09 February 2017

Two Bad Dudes and a Nasty Woman

… passed the Bar. And now they're so-called "judges" on the United States Court of Appeals for the Ninth Circuit — with life tenure on good behavior… Let me start over.

A unanimous per curiam decision of a panel consisting of one Heffalump appointee and two Jackass appointees grabbed Trump's immigration decree by the…

No, that's really not any better, is it? Let's try again:

Mr Drumpf got some unwanted publicity today when the Ninth Circuit panel basically told us that they expected more from first-year law students than they got from his Department of Justice appointees. There are lots of juicy quotes, and even more juicy implications, in the per curiam (jointly written and not "authored" by a single judge) opinion rejecting Drumpf's demand to stay the temporary restraining order issued against the incredibly bigoted new "immigration policy" last Friday in Seattle. Here's the one that tells us that there was a problem with the government's positions that 1Ls would be expected to avoid:

[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties… and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”)

Washington v. Trump, No. [20]17–35105 (9th Cir. 09 Feb 2017) (per curiam), slip op. at 13–15 (emphasis in original) (PDF).

The panel's citations to Boumediene and Hamdi — one of the notorious Detainee Trilogy cases in which reviewability was pretty firmly established — are telling. So, too, are the citations to Quirin, to Milligan, to Aptheker, and to Endo — all four of which make appearances in one or both of the basic constitutional law course taken by every law student and the slightly-more-advanced federal courts course taken by law students with any aspiration to litigate in federal court. (One might speculate that this panel is subtly setting things up so that the Supreme Court can finally get around to overturning Korematsu v. US, 323 U.S. 214 (1944), a "self-inflicted wound.") All that would have been really necessary to complete the humiliation of the unprepared Department of Justice advocates would have been a citation to that two-century-old chestnut Marbury v. Madison, 5 U.S. 137 (1803)… or, perhaps, to the Seventh Circuit's recent excoriation of then-Governor Pence.

And it gets better once the panel actually reaches the merits.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.

Washington v. Trump, slip op. at 26–27 (footnotes omitted).

Another bad day at the office, Mr. Drumpf. See you in court.

03 February 2017

Another Judge Denies Himself Future Promotability

… by doing his bloody job. And it's not some namby-pamby liberal, either: The Hon. James Robart was appointed by George III.

The temporary restraining order (PDF) specifically states that the states of Washington and Minnesota have satisfied both possible rationales for issuing a temporary restraining order: The Winter test (likely to succeed on the merits, irreparable harm without order, balance of equities in favor of order, and order is in the public interest) and the Cottrell test (serious questions on the merits and the impact of the to-be-restained action is extreme, along with irreparable injury and public interest balancing in favor of the order). More to the point, Judge Robart concludes his relatively short order as follows:

Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country's laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a [temporary restraining order] against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country's citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described [temporary restraining order] is necessary, and the States' motion (Dkt. ## 2, 19) is therefore GRANTED.

State of Washington v. Trump, No. [20]17cv141, Dkt. 52 (W.D. Wash. 03 Feb 2017) at 6–7.

Thank you, Judge Robart, for doing your job, and making a hard decision (either way). The way you did it virtually guarantees that you will never be elevated to a higher judicial office, either on the Court of Appeals or Supreme Court — just as the Hon. John E. Jones III did in Kitzmiller.

31 January 2017

Unwisely Sticking My Head Above the Parapets

... primarily because there's live fire coming from every possible direction, including from inside the damned castle.

Once upon a time, I raised my right hand and said the following:

I, ____, having been appointed a Second Lieutenant in the United States Air Force, do solemnly affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter.

The oath taken by attorneys is similar, in that there is no reference at all to loyalty to any individual, or to any set of policies excepting only supporting and defending the Constitution (including also the respective state constitutions, which is yet another reason that states should get out of the lawyer-regulation business... but that's for another time, and it's a "should").

Instead, certain elements are acting as if a vulture fund has successfully engaged in a hostile takeover of a firm that has no legal or moral obligation to consider what the military calls "collateral damage" and what economists refer to as "externalities." A word of warning, based on history: The vast majority of prosecutions for "war crimes" have arisen from ignoring various aspects of "collateral damage" doctrine in preference to "mission accomplishment"... all too often of a self-serving "mission." Similarly, a plurality (and possibly a majority) of successful corporate prosecutions under the rule of law have concerned attempts to ignore externalities... all too often in pursuit not of building the value of the corporation, but of corporate officers and directors. And, almost by definition, governments in the United States aren't supposed to be about personal benefit, but about public service; how that works out in practice is incredibly complex, but the inability of current federal officeholders to vote/declare themselves a raise is a big hint.

And so, in the Monday Night Massacre, a lawyer got fired for holding to her oath. The administration was legally entitled to fire Ms Yates; the wisdom of doing so is a separate issue, as are both the wisdom and right of Ms Yates to speak and act as she did. As a West Wing character noted concerning Bartlet doing the "right thing" and invoking the 25th Amendment during the horribly contrived kidnapping crisis, "A truly self-sacrificing act usually involves some sacrifice." And even just following orders may be that self-sacrificing act, if not now then in the future. Few people remember that the lawyer who did follow orders and fire Special Prosecutor Archibald Cox during the Watergate investigation was the individual whose later Supreme Court nomination led to the arch partisanship of all judicial nominations: Robert Bork, then the Solicitor General. (Ironically enough, the Solicitor General would no longer be at that place in the chain of command!).

13 January 2017

Agency Capture and the Copyright Office

There's an "argument" going on right now — resembling the posturing of silverback gorillas more than an argument — concerning whether the Copyright Office is a captured agency. On one side, there are "info free" warriors and allies, such as the so-called "Public Knowledge" group (a deceptively deceptive name, with multiple layers of ideological presumptions in it), claiming that the Copyright Office has been agency-captured by "copyright holders" to the detriment of the public at large. The opposition has been sniping around the edges, pointing at all of the problems — and, admittedly, they're serious ones — with the factual support offered for that position, but failing to engage with the underlying question of whether there has been a capture at all.

And then this happens: The recently-ousted Register gets a new job as CEO of the Association of American Publishers, continuing the long tradition of senior Copyright Office officials (and even not-so-senior) sliding easily into well-paying jobs specifically in the distributor/transferee segment of the entertainment industry. This exposes the meaninglessness of the posturing described in the first paragraph, because "copyright rights" is not a two-sided battle. It isn't even necessarily a battle... but it definitely has more than two sides. At minimum, copyright necessarily involves the rights of:

  • The actual, natural-person creators of copyrighted works;
  • The distributors and, where present, transferee-owners of those works after their creation;
  • Reusers of those works, who create useful derivatives within the framework of copyright (whether licensed or not, fair use or not,... legally or not);
  • End users of those works

The regulatory capture is the second area. And Ms Pallante's new job — which will fit in quite well with her advocacy over the years — is a pretty clear piece of evidence that capture has been successful. Ironically enough, because the Copyright Office is an arm of Congress, its employees are exempt from most of the "revolving-door" restrictions... which might have inhibited this particular embarassment if the Copyright Office had been in the Department of Commerce where it belongs, along with the Patent and Trademark Office.

03 January 2017

No New Year's Treats for Me!

Last entry for a while (for some value of "while") <TooMuchMedicalInformation> due to impending Stuff tomorrow </TooMuchMedicalInformation>

  • Vanity presses have a long, dishonorable, disgusting tradition, even in academia. Bluntly, "page charges" turn most academic journals into vanity presses. Indeed, most authors for esteemed journals like Cell and Nature and The Lancet can expect never to be compensated by payment to them for their writings (whether one-time fees or royalties), except as an incidental knock-on effect of obtaining tenure or an academic promotion. Instead, they pay to be published — usually into four figures for even a short academic article. The academic divisions of most commercial publishers are the major profit centers for the entire corporation; for example, 2015's results for Pearson indicate a profit margin several times that of any trade division, whether by percentage or actual revenue.

    But this is not the worst aspect of the academic vanity-press deception, and hasn't been for quite some time. Even the NYT has finally come to the party (fashionably late — over twelve years — and a little hungover), although this article still soft-pedals matters.

  • This blawg's only feline friend the IPKat (sorry, kitty, you spent most of yesterday afternoon being an asshole about the groceries on the counter where you're not supposed to be in the first place, so you're not this blawg's friend) notes — for non-US readers — the annual "Public Domain Day" based on Berne Convention copyright duration. The irony that most of Gertrude Stein's most-influential works remain in US copyright, but not international copyright (when that influence is disproportionately apparent among subsets of non-US university students), is perhaps a bit much to ponder at the moment.
  • Without accepting — indeed, largely rejecting — the (less than overwhelming) normative asides, Terry Hart has posted a useful guide to copyright issues and persons likely to pop up in the US during the first few months of 2017. My "largely rejecting" comes from the silent assumption of a two-sided struggle between Big Media and Big Redistributor as the true nexus of copyright conflicts; it's much more Balkanized than that (with the expected consequences of Balkanization).

    The biggest example of which — and just because it's across the Pond doesn't mean it won't affect US copyright issues — is Brexit, and its effect on both EU copyright uniformity and directly upon UK copyright law. Anyone who can't see this one coming isn't looking… and we need not wait for Article 50 to actually get triggered for it to create problems, as different departments within the EU are already Balkanizing on copyright-related issues!

28 December 2016

The Finish Line Approacheth

It's not here yet, though: The yobbos "in charge" have a few more days for mischief.

  • 2016 is an annus horribilis for the arts, as are too many years. RIP Richard Adams (and no, "it" wasn't a children's book, any more than is Animal Farm). And not just the arts, either: Even The Economist has joined the wake.
  • Naturally, it takes a foreign newspaper to accurately describe our current administration, and where a Clinton II administration would have found itself: centrist. And whether one calls my sort of thinking "progressive" or "liberal" (they are not the same thing, but expecting mere journalism majors in the US to understand — or even care — would be insufficient in the face of the fairly relentless capitalism-tinged-with-conservatism of big-media ownership and executives), the Grauniad goes off the rails with its assertion that Bernie Sanders could now prove a leader of "progressive politics" in the US. It's an unfortunate fact that — unlike in parliamentary systems — a losing Presidential candidate over here is Mr (or Ms) Irrelevant for the foreseeable future, and doubly so if he/she couldn't earn his/her party's nomination and doesn't end up with a cabinet position as a consolation prize. And in the end, it's probably a good thing: Mr Sanders is a social democrat, which is preferable to what passes for the Jackasses' ideology… but not by much, not for long, and his age is an even-more serious impediment to leading a movement (and understanding the concerns of those not in his age group) than it is to leading a government.
  • So the hypernaturalist "theatre and music critics" east of the Hudson wonder "is it even possible to revive The Mikado in today's racial-identity environment?" Of course it is, you idiots savant. Isn't HBO's production of A Game of Thrones a hint that even Pish-Tush would understand? Or, perhaps, tilting windmills with Candide might prove educational... especially if it included any publishing history of either Candide or tilting at windmills (which has little to do with tilting of cows). If you really want a specific indication that a fantastical (or science fictional) environment is relevant to discussion of racism and tribalism, consider the utter lack of "elfface" or "dwarfface" or "hobbitface" (or "orcface") discussions surrounding Jackson's Tolkein films. Or, for that matter, Vulcans and Klingons. And The Mikado is, if nothing else, an utterly fantastical inversion of not so much "Anglo-Japanese" as purely English court manners and politics...
  • Speaking of idiots savant, consider the contemporary economist, who is rapidly descending toward the hypermathematical aspirations of accountancy — where everyone knows the cost of everything but the value of nothing. This is not because mathematics is irrelevant; it is primarily because the parts of mathematics dealing with "boundary conditions" (and, for that matter, "undefined function domains") are ignored for doctrinal — not intrinsic — reasons.
  • It's bad enough that "don't be evil" is an utter crock of bovine execrement as a corporate motto… either aspirationally or practically (and perhaps most especially at any company whose revenue stream depends upon its invisibility). But prohibiting your employees from writing novels even peripherally set in something resembling your company is — perhaps too expectedly — evil.
  • From the world of copyright: The Swedish Supreme Court has ruled that under Swedish and EU law, sports broadcasts are not original enough to be protected by copyright. Which leads to interesting questions by comparison, such as the Zapruder film… and I make no pretense that I have the answer, or even that there is a definitive answer, or even coherent rules. Originality is like pornography: I know it when I see it; you know it when you see it; and we may not agree, let alone on whether it's "good" porn. And, of course, that's the point of Progress in the Useful Arts and Sciences: It can only be measured, when it can be measured at all, with 20/40 hindsight.

25 December 2016

Broadway "Miracle" of 2016…???

In a sad example of just how little people in the arts really assimilate about the way the rest of society works (for good or ill), a piece at American Theatre laments overpricing of live-theatre tickets in New York City by comparison to the early 1980s (when I, but for a difference in scholarships offered, very well might have been rubbing shoulders with him in the audience). There are three fatal, fundamental problems with the lament — none of which, sadly, take away from its ultimate conclusion that the ticket prices are class-selective of the audience, and that that is a bad thing:

  • The main problem is the assumption that all of the money is going to the theatre companies themselves. Umm, not so much. The modern ticket-broker's (and other intermediaries') take is in excess of 40% of the ticket price, versus around 10% in 1984 (as measured in the only apparently reliable study I've seen, and that's from memory as my stuff is in storage). Using his own numbers, that means that a $25 ticket in 1984 would have returned $22.50 to the theatre company (and let's set aside the dubious and increasingly murky distinction between the owner of the theatre facility and the "owner" of the theatre company, shall we?). If inflation were the only issue, the theatre company would need to price its ticket at not his proclaimed $58 to receive an inflation-adjusted equivalent of $22.50, but around $90.
  • And that assumes that the product is otherwise identical. Instead, we've got the "safer cars" problem. Comparing a 2016 car to one of 1962 is laughable; the 1962 Chevy has no airbags (or seatbelts), no crumple protection, no full-on safety glass, no cruise control, no electronics system, vastly poorer fuel efficiency, and tires that wear out three to five times as early. And that's just the obvious stuff. Similarly, the facilities and infrastructure now — hinted at in Professor Jones's comments about the public safety in/around the theatres in the early 1980s… or lack thereof — with wheelchair-accessible seating (well, purportedly), fewer rats in the bathrooms, nontoxic paint and insulation, etc., are of better value to the public, but at a higher immediate price for just the "packaging." That is necessarily going to be reflected in more than just "inflation," which after all assumes that the two prices being compared are for not just equivalent, but identical, items. And in this sense, comparing theatre price changes to cinema price changes is highly instructive…
  • Perhaps most insidious, though, there's a significant class/race/gender issue with the people who work in theatre — the flip side of Professor Jones's concern that high ticket prices "limit accessibility." And he's right to be concerned that audiences are being unduly restricted by high ticket prices… but forgetting that low ticket prices unduly restrict the participants to those actors, musicians, stagehands, janitors, theatre staff, etc. who can afford to continue making art while earnings are below starvation (the subtext in All That Jazz is not irrelevant). More to my personal concerns, it also explains a lot about the demographics of employment at commercial publishers…

In short, Professor Jones, you've expressed a valid concern: Overly high ticket prices are unduly restricting accessibility to "legitimate theatre" in New York, and indeed elsewhere (especially once you drop that condescending tag of "legitimate"). But you've forgotten the Rent involved in remaining hyperfocused on a city built by, on, and around speculation in real estate — as yuuuuuuugely apparent in its, umm, leading citizen. The context doesn't just matter: It's the entire third act.

21 December 2016

Musing on Link Sausage Casings

Just a few link sausages waiting for multiple surgeons to play with my insides in a couple of weeks. The irony that "link sausages" historically have involved some of those same body parts (ordinarily from different species) may be too much for casual consumption.

  • The Economist tries desperately to prescribe how to make sense of 2016 while utterly failing to acknowledge the fundamental precept:

    Democracy and liberalism are processes, not things

    And because they are processes, they (a) involve complex starting states, (b) involve intermediate products (often toxic or otherwise dangerous!), and (c) do not have pure outcomes. Just like comparing the oversimplification of most high-school chemistry textbooks to even basic organic chemistry labwork — the basic class, taken by legions of chemists and biologists and pre-meds in their sophomore years — let alone a living cell's processes.

    2H2O + Na+ ⇋ 2H2 + O2 + Na+
    (plus a big bang!)


    C6H12O6 + 3O2 + heat ⇁ 6CO2 + 6H2O
    (primary reaction only, no enzymes, no intermediates shown)

    This is just a glimpse, of course... and assumes pure reagents to start with! And there ain't nothin' pure about the starting state, reactants, or environment of "politics," as implied in a different piece at The Economist.

  • But I suppose it beats the Russian Revolution, which remains a mystery perhaps most of all in Russia.
  • Meanwhile, in a further demonstration that courts — as inconvenient, persnickity, slow, and expensive as they are — are a critical bulwark against short-term selfishness and reification of power structures, the Court of Justice of the European Union has ruled that European governments may not force telecoms to retain all user data for later use in even antiterrorism contexts. (No link to the opinion because there are technical issues at the moment.) Instead, the CJEU has demanded some kind of particularized showing as to particular subscribers for particular periods.
  • In further proof that PW simply should not be believed when writing about "copyright issues," consider this headline:

    Australian Publishing Is Losing the Copyright Fight

    That should concern an actual copyright issue, right? Not so much: It's about territorial exclusivity to legitimate imports of legal copies printed outside of Australia. This is not about copyright, you bloody fools. You arrogant shitheads, who spew forth that the publishing industries "speak for" or "on behalf of" copyright holders, when for trade publishing the publishing industries hold substantially less than half of the copyrights... and most of those improperly.

    And yet these are the arrogant shitheads listened to by the US Register of Copyright on policy matters — in exclusion of the actual creators, actual holders, and heirs thereof — so maybe it is about copyright. Just not in the way implied or intended...

  • ... or consistent with the Progress of the useful Arts and Sciences as stated in the US Constitution and supported by other research. Note to the MBA types out there: You should seriously consider understanding the concept of a Markov chain before you try to break processes down and analyze individual components for their purported profitability. I'm just sayin.'
  • And then there's the problem of "What is there instead of copyright?" Historically, it's been censorship. Information may want to be free, but those with power want to control information... and usually have the tools to do so. Copyright is a least-bad solution, or at least the least-bad solution that has been developed (or, to my incomplete-but-extensive knowledge, proposed).
  • Tenure is not a substitute, especially in the face of institutional imperatives that demonstrate that people and power get in the way of utopian visions pretty regularly.

06 December 2016

It's the Economics, Stupid?

Here's an interesting bit of cultural criticism from The Economist's arts column that — either ignorantly or ironically — completely ignores the two neoclassical-economics pink elephants dancing in the room.

Why do executives and viewers continue to fall into the trap of never-ending narratives?

The obvious reason is money, and to ignore the business side of this creative industry would be naive. It is likely that some die-hard Gilmore Girls fans subscribed to Netflix simply to catch up on the lives of Rory, Emily and Lorelai (pictured). Fantastic Beasts and Where to Find Them, the first of five Harry Potter spin-offs, took $75m at the American box office and £15.3m in Britain in its opening weekend. Star Wars: The Force Awakens (2015) has grossed more than $2bn worldwide. The DC and Marvel universes continue to spawn films regardless of how poorly conceived they are, simply because they make a profit. After all, Batman v Superman (2016) was dubbed “the most incoherent blockbuster in years” and still enjoyed the eighth-biggest opening weekend of all time.

Thanks to this flow of cash and viewers, networks seem unable to quit while they’re ahead. A fifth series of House of Cards is in the works, despite a clear decline in quality since season two and rumours that Kevin Spacey—the drama’s lynchpin—is planning to leave. Narcos, which had a natural ending with the death of Pablo Escobar, is instead continuing into a third season with a renewed focus on the Cali Cartel. There are whisperings that Game of Thrones, a show that HBO has said that it would happily keep on air forever, might get a prequel. Networks use declining viewing figures as the impetus to cancel a show, not the coming of a natural and logical conclusion.

"Is This Era One of “Peak TV” or Weak TV?" (05 Dec 2016; typography corrected). The two elephants are pretty easy to spot, though: Amortization of sunk costs and market definition.

Entertainment-industry figures are fond of whingeing about the increased costs of later seasons of serial works, pointing particularly at "outrageous" fees demanded by on-screen talent. They're quite a bit less public, however, about all of the costs foregone by these continuations, particularly since those costs are often buried in the parts of accounting statements that turn big successes into ventures that don't generate any "net profits" to be shared with "net profits" participants. It's not just the advertising/publicity/marketing, although that's far from insignificant; it's more mundane things like reuse of material and benefits for other products (e.g., all of those crossover episodes on the CW last week), infrastructure, stability of personnel (and, correspondingly, less need to invest in training those personnel for specific work), and — in the biggest grab of all — increasing use of "shares in the production" as means to maintain the loyalty of key personnel, both on-screen and off... remembering, all the while, that there won't be any net profits.

The second elephant is a bit harder to explain, at least as it's sort of hinted at in the article. One of the big fears in the entertainment industry is stated very simply: "Despite all of our experience, knowledge, research, and drunk-or-otherwise-intoxicated guesswork, we don't really know who is, or the size of, the audience for a new work." Exhibit A: Jupiter Ascending. Exhibit B: Firefly. Exhibit C: Buffy the Vampire Slayer (film or TV, take your pick). Exhibits D through ZZZZZZZ: fill in the blanks. A serial work, however, tremendously reduces that guesswork... and neoclassical economics as they have evolved today equate "uncertainty" with "risk." In a way, this makes sense, but only at the extremes: Spending $100M on a CGI-laden feature with appeal limited to half-a-dozen hard-core quantum physics nerds makes no more economic sense than does limiting the budget of a production pretty well guaranteed to outdraw the Super Bowl to $22M. The same goes for publishing: The beta statistic tells us that an $8M advance for a political memoir is stupid, but that so is a $5K advance for a wide-appeal novel (or, at least, one that would have wide appeal if not relegated to a ghetto). That is, the beta statistic is a valid decisional device only outside the bulk of the bell curve (something that business-school gurus and neoclassical economists who had actually studied stochastic processes and Markov chain analysis — instead of p-hacking — would have understood).

Then, too, there's the unstated assumption that economics is, in fact, the prime factor, with little acknowledgment of ego-feeding. <SARCASM> But no decisions are ever made in the entertainment industry that are driven by ego. Right, Mr West? Right, Mr Lucas? </SARCASM> Or, as in the instance of the article's nom de web, survival...

29 November 2016

Leftover Turkey Link Sausages

There may have been no Turkey Awards, but that doesn't mean I can't scrounge for leftover sausage makings...

  • In a fascinating bit of arrogance, some communities are advocating a tax on video streaming to make up for loss of tax revenue from cord-cutting. There are two unjustified layers of assumptions in here, both revealed in this passage:

    Public officials have argued that taxation rules need to be revised to account for changing technologies. It is unfair, some say, that people who get video through cable television are taxed while those who have shifted over to internet streaming services are not.

    The first — and most obvious — a priori assumption is that the existing administratively-convenient system is both "fair" and appropriate. A system of taxing specific consumption channels for necessities (more on that in a moment) is easy, but actually inherently unfair. Consider, for a moment, whether these cities impose a similar tax on those who rent DVDs (yes, some people still do, whether locally or by mail) or even borrow them from the library... and, more to the point, whether that "similar tax" is equivalent. No, this is instead the reification of current budgetary levels combined with general unwillingness of the public (usually instigated by heavy beneficiaries of indirect services who don't want to pay for them) to shift to an objectively-fairer system that is more difficult for the privileged to evade.

    More critically, these kinds of "taxes" — and those on telephone service, cable TV, etc. — raise First Amendment concerns, especially when revenues are not earmarked for support of First Amendment activities. That, however, is an inquiry that nobody is really willing to undertake.

  • This blawg's only feline friend the IPKat notes that the Court of Justice of the European Union has held that one may not resell a backup disk of a computer programme. In one sense, this seems a perfectly reasonable check on probable fraud: Purchase of a single copy, followed by a Fonovisa-like duplication effort. On the other, I think it also gives too much weight to claims that when one "buys" a program one is only obtaining a nontransferrable license. If the original was destroyed or damaged through no fault of the user, but the user had made an authorized backup copy, there's no good reason to prevent the user from substituting the perfectly valid backup copy in a later third-party transaction... except, that is, if one hasn't figured out that software "licensing" is a Ricardian rental scheme that is fundamentally inconsistent with freedom of information transfer (whether under American or European precepts). And the implications for the preceding link sausage are left as exercises for the student.
  • The Supreme Court issued its first signed opinion of the term before the end of November, on a criminal matter of seeming technicality that is actually much more foundational to Western notions of justice and finality. (And, frankly, to poor lawyering below.) In Bravo-Fernandez et al. v. US, No. [20]15–537 (29 Nov 2016) (PDF), the Court unanimously held that certain reversals of convictions for unrelated legal errors (that is, of procedure, not of insufficient evidence) cannot be bootstrapped into a double-jeopardy bar to reprosecution on the same charge.

    But what this really discloses is that both the advocates below and the judge below failed in their duty to properly guide the jury... through, at least as implied in this opinion, using a general-verdict form ("guilty/not guilty", charge by charge) instead of a findings-of-fact form ("did the defendants offer an unlawful bribe to X?" plus "was the bribe offered to X for the explicit purpose of influencing award of a government contract?"). This was fundamental error by both counsel and the judge, completely separate from what any of the appellate courts even bothered to review... but it is an error embedded in over three hundred years of common-law jury instructions, and longer than that in the civil law. It comes from the foundational assumption that the trier of fact is simultaneously applying law, in contrast to the scientific method. This is not to say that no "mercy" or "discretion" is to be applied to facts (there's no mercy in the Second Law of Thermodynamics!); it is to say that determining the data going into that application should not be mixed into the application itself, once one know what the significant data must consist of. That latter guidance is what the lawyers and judge — and the jury form — are supposed to provide to the lab techs (jurors). And remember, in a criminal trial the techs only get one run at the data... unlike scientific contexts which require replication (unless you're dealing with health supplements, apparently).

  • Finally, a side note on a sadly amusing issue in the entertainment world — an issue that recent family gatherings for post-election Thanksgiving meals should have put into the spotlight. The well-regarded quarterback of the Green Bay Packers has been extensively psychoanalyzed by amateurs regarding his purported "family estrangement" and how that might be affecting his play. The implication in all of these articles and soundbites is that Mr Rodgers is somehow unjustified in whatever "noncommunication" he has been engaged in. Leaving aside for the moment the dubious qualifications of those doing the "analysis" (if one may even associate that term with the drivel I've seen), nobody is considering the obvious inquiry: Maybe — just maybe — Rodgers is rightly avoiding one or more assholes. Far be it from any family member — ever, anywhere — to have expectations of being "taken care of" by successful athletes and entertainers. More darkly, far be it from any family — anywhere — to avoid including a never-shuts-up racist bigot who ruins every family gathering... a not-irrelevant hypothesis given that Mr Rodgers' significant other is mixed-race (and talented and a real threat to the purity of NeanderthalAnglo-Saxon values). And none of it is anyone else's business; it's not at all like letting one's gonads do the thinking on national security (and that miscreant is an involuntary member of my "family" — the family of commissioned line officers).