The Usual Suspect

…who will not be charged with anything, however deserving.

• In a frustrating condescension that should surprise precisely no one, the IOC followed in the footsteps of Avery Brundage. Who was, after all, the IOC's dictator and president for life designated leader in 1972. It's not that the incidents are all that comparable, it's that an organization that establishes that competition will be by national teams had bloody well better expect that the real world of international conflict is going to find its way into the Games. And as usual, fear of upsetting sponsors is looming in the background — because even if the Duchy of Muscovy isn't at these games, (a) there's talk of reinstating it for the LA summer games in 2028, (b) the IOC really wants to reopen the sponsorship money, and (c) oligarchs gonna oligarch (and I don't just mean the Russian ones; the history of how one achieves a position of power in the Olympic movement isn't the epitome of advancement on merit).

  <SARCASM> Bravo! Nothing demonstrates the unifying power of athletic competition like refusing a tasteful, nonintrusive personal memorial to slain athletes, some of whom were acquaintances of the athlete you disqualified! </SARCASM>

• Well, it looks like one of the major communication channels for hackers, cyberterrorists, and sleazebuckets even more dubious than politicians is going to require age verification in March. What could possibly go wrong?

  I suppose it could be worse than imposing an "age-verification" requirement on precisely the audience most likely to find ways around it (and then use that very service to publicize the method). Like, say, a space-oriented firm purchasing an "AI" firm (well, not really, it's an illusory transaction all under the same financial umbrella). Just a moment. Just a moment. I've just picked up a fault in the AE-35 unit. It's going to go 100% failure within 72 hours. Even I will be concerned if the next major lift vehicle is the Discovery series, or if the next model from Tesla is the Daisy.

• Tasty Spanish ham has a disquieting history, similar to roasted chicken in Iberia (which was frequently stuffed with bacon, making it unacceptable to The Usual Undesireables). At least the Spanish prime minister is — somewhat quietly, but still pointedly — standing up against antiimmigrant fervor.

  At least Francisco Franco is still dead.

• It's not much of a surprise that young writers (as a group) lean slightly left; their own experiences, and those that they're seeing around them, are more likely to concern economic disadvantage. Like, say, working two jobs — the obvious downside of relying on "market forces" as the sole support for those in the arts (which almost by definition must include a lot of individual-instance failures).

Cover the Carpet, Please

Because these link sausages are dripping with contempt. No need for <sarcasm> tags today.

• Let's start with the usual targets when contempt is called for: No, not baseball fans, politicians. Out here in fruit-and-nut country, the White Walkers (usually appearing on the ballot as "Republicans") can look forward to more humiliation, coming Real Soon Now. It's not just this state's Heffalumps, either; those from other states beg for humiliation.

  More to the point, it's not limited to the Heffalumps. Establishment Jackasses are begging for humiliation, too. If anything about Heffalump electoral success this century stands out, it's that the only times Jackasses manage to get into major offices are when one or both of these circumstances apply:

  • They've been selected by, and are supported by, dominant political machines
  • They've not tried to be inoffensive to everyone

  That last, however, doesn't apply to the Jackass Establishment under any circumstnces. (Support by a dominant machine does, all too often; just look at Chicago. And, as a demonstration that it's not just their party, a couple counties west or south of Cook Count.) Too often, "centrism" — especially the higher-in-the-system one looks — ends up really meaning "I got into power/have tagged along with someone in power, therefore everything is OK and we just need to tweak a few minor things." Because "change" is going to offend someone, and it's too easy to ignore those calling for change by dismissing them as extremists who don't know what they're talking about. You know, people like Dr King and Malala Yousafzai and Dr Christou.

• Well, I suppose I should express some contempt for royal families, as both a counterpoint to and continuation of the contempt for politicians. "Utter obliviousness" would be an improvement, whether we're talking about Iran, Norway, or Blighty (and even the idiocy of those covering the English royals — in answer to the headline, "1645–49" comes to mind rather quickly). Some royalist-lights can't even see the irony in their chosen bylines — complaining about the faults of imperialism sound a bit hollow coming from a byline offering homage to one of the first post-Roman imperialists.
• These days, no spewing of contempt is complete without going after the current US administration. On the one hand, they rationalize arresting a journalist by claiming that he had helped plan a perfectly legal, nonviolent protest demonstration. Umm, doesn't arresting someone for participating in planning sort of require that what is being planned is illegal? If that isn't asking for contempt, this certainly is — yeah, a lawyer actually partially, somewhat belatedly, doing her professional duty. And the less said about international law, the less annoyed (!) those of us who conformed our conduct to its (actually rather minimal) requirements will be. At least until we pick up another newspaper, or browse the web…
• Since I'm no longer subject to Article 88, I'm not liable for any contemptuous words — or links to contemptuous pictures — about the current President of the United States. Maybe, however, that picture is accurate in another sense: By approving a depiction of the Obamas as monkeys, maybe he thought he was complimenting them by implying that they're more evolutionarily advanced than he is. Or than politicians in general are. Which is pretty tone-deaf… and about what I expect from someone who does not, himself, qualify as a "very fine person" — however one takes that quotation and later use/misuse/whatever.

Mis-Anthropic (6)

A few minor administrative updates on Bartz v. Anthropic, the class action pending for copyright violations in creating one particular large language model supporting one particular generative-AI engine, merit some comment — mainly as assurances, citizens, that there's really nothing to see here, move along (but get your documentation gathered and claims filed on or preferably well before 30 March 2026).

1. Unless there's a full seal on one (or, as tasteless and ominous foreshadowing, Item 2), no further objections to the settlement have been filed after the earlier ones. That doesn't necessarily mean smooth sailing, but it does mean that there's only one potential source of new arguments against the settlement unless the new judge reopens the objection period on motion — which is guaranteed to happen, down the road, if she rejects the settlement and sends everyone back to the bargaining table before they darken her chambers door again:

2. The United States government. Just as in the Google Book Search fiasco (filed about two decades ago now!), the US could move to intervene and object to either the settlement or the award of attorney's fees (see Item 3). The arguments and merits thereof, of course, are purely hypothetical at this stage. Given the massive conflicts of interest presented by "friends" of this Administration (specifically including the Doge of Venice Beach), the hostility of many of those "friends" to plaintiffs' attorneys (insurance defense counsel and mergers-and-acquisitions counsel, however, are encouraged to get rich with outrageous fees), and purported "policy imperatives," nothing would truly surprise me. Appall? — that's a different question entirely.

3. The next scheduled hearing is on 23 April 2026 — at which time only the pending motion for attorney's fees will be heard. The new judge specifically "administratively terminated" all other pending motions, and stated that the fairness hearing currently scheduled for that date "will be re-set by the Court at a later date" (Dkt. 579 (26 Jan 2026) (PDF, public access)). This is completely routine, and I expected it: This judge needs more time to familiarize herself with counsel, with the filings, with the facts, etc. The real point here is only that the settlement will not be either approved or disapproved on 23 April, or in a later ruling based on a hearing on 23 April.

4. The transcripts of the November 2025 hearings — when Judge Alsup is reported to have had some pointed remarks concerning tactics and notices suggesting that authors should opt out and proceed independently for Reasons (that make little practical sense, but that's for another forum) — will be made available to the public by 02 March 2026 absent any further motions relating to them.

5. Perhaps most important in the long run — but not creating any new deadlines (yet) — Judge Alsup appointed a Special Master (a non-judge who will make recommendations to the judge, now Judge Martinez-Olguin) to deal with "claimant disputes" (Dkt. 501 (25 Nov 2025) (PDF, public access)). The Special Master is a professional who will take in the facts and make recommendations. Examples might include an author asserting that the publisher is not due anything because the contract expired in 1996 (decades before either actual copyright infringement by LibGen et al., or Anthropic's copying of that infringement, and massively prior to any tenable extension of the three-year statute of limitations) but the publisher wants its purported 50% share; or ambiguity in the author-publisher contract on the publisher's share, which could be a serious issue for infringement of e-book versus print editions; or two coauthors failing to agree on a split of whatever money is due an author; or — and this is where the fun will be — claims by contributors regarding a collective work. There's no track record for either Judge Martinez-Olguin or Mr Cheng to provide any basis for prediction of how this might work out.

Multiorigin Link Sausage Platter

Not all ingredients fully disclosed — what would be the fun in that?

• Owners of intellectual property — supposed to be the creators, but all too often the patrons — really want two things. First, most obviously, they want to be paid. Second, they want to exclude anyone else from getting paid for "their" stuff. That last can get really icky, and seems to especially be so for creators who have turned into patrons — not just Games Workshop (UK), but others ranging from the obvious to some indie authors.

  But lurking behind all of this is a seldom-acknowledged problem of scale, epitomized by some of the obvious social-class problems in the arts (and that's just one of many, many examples). It's a corollary of Rawls's original position lemma in A Theory of Justice: What kind of art do we end up with if the original position of artists does not include sufficient resources to initially — and, maybe, repeatedly — fail, particularly while they are building competence, confidence, perspective, and audience?

• So the current First Lady has a new documentary/biopic/hagiography/boot-licking portrait out right now. (Notice the absence of a link?) It's directed by a cancelled director — frankly, not very good, and that's not just an issue of taste — who was accused of sexual harassment and worse. The film's budget and other costs are raising eyebrows, too… the same kind of eyebrows that were raised during the building of casinos in New Jersey. Meanwhile, the First Lady's husband's ties to another individual tied to "sexual harassment and worse" — ties reinforced in just the last few days by recent document disclosures, even allowing that there's undoubtedly hyperbole and just plain mistakes in there — paints a picture of disdain for women's rights, agency, and integrity.

  Except, perhaps, at the moments they're advocating for inhumane policies criticized by Heffalump-appointed judges. Or acting like schoolyard bullies ("If he'd just given us his lunch money…" — which matches up with the putative basis for the investigation all too well).

  I'm shocked. Shocked, I say.

• Of course, that's far from the only outrageous conduct coming from the current Administration. Investigating (female) political opponents for being opponents having husbands who got rich "corruption" alleged with no details while ignoring The Orange One's own corollary conduct. An Attorney General who, on all appearances, couldn't spell "ethics" without help from the studio audience… or, at minimum, doesn't want to. International law? We don't need no steenkin' international law (or, for that matter, know any).
• Maybe Cory Doctorow is right. Maybe unintended consequences will provide a "surprising opportunity" to reclaim personal information control. I'm more pessimistic: As epitomized by "TV to cable," I suspect any available control will just be moved from one unsatisfactory set of "market-oriented" commercial tyrants to another one, or perhaps to "untouchable hacker gods."
• Earlier this month, Samuel Earle penned a thoughtful piece about how people at the new NYC mayor's inauguration block party want more politics — not less. There's a flaw, however, in the implicit definition of "politics." I think what Earle was writing about was the desire of those affected by policy to talk about policy, to suggest alternatives. I really don't think The Public (for whatever meaning one ascribes to that) wants more backstabbing, more egotism/narcissism/sociopathy, more treating those who disagree as enemies, more overt corruption. Unfortunately, we can't talk about "politics" without at least acknowledging all of these.
• Which, in the end, is still better than arguing about Windows 11… because at least in politics, there's a small chance that one can change someone else's mind. But Micro$oft is unable, at its core, to admit error (and in this, it's far from alone — Leeeeeesa… which, once one actually opened up the case, was nowhere near as "technically superior" as the industry press proclaimed).

  Here are a few unsolicited hints for the powers-that-be in Redmond — and elsewhere: Those of us who work with words all day — especially in chunks longer than a marketing memo — usually touch-type… and never appreciate touch screens for our work. I can, in fact, tell the difference between "my phone" and "my computer" well enough that having different interfaces, etc. doesn't confuse or inconvenience me. I expect computers to last longer than a year or two; I outgrew "three-year life cycles" with cars (I still have a working 5.25" floppy drive hanging around here, because some clients still have old-media backups as their only copies of Stuff). I will not give you my data to store for "convenience" in the cloud, while trusting that you won't read it and you're immune from data breaches; I know how to make a backup copy. (That goes about quadruple for anything private, confidential, privileged, incomplete, immoral, illegal, or fattening.) Neither do you actually need (or, on all appearances, pay attention to) "telemetry" of exactly what I'm doing. I don't play games on my computer that rely on proprietary platforming, in software or hardware, so I don't need all of those accessories built in to the operating system. And if you treat people like mindless children, you're ensuring that people who actually are mindless children are the only ones who will listen to you.

Quis Custodes Ipsos Custodes?

It appears that Paramount or CBS is going to remake a classic Marx Brothers film, 1933's Duck Soup. That photo to the right is from a Top Secret audition tape — so sensitive that I had to be invited to a Signal group chat to see it — with an additional ad lib^† from the film's dialog: "Who are ya gonna believe, me or your own eyes? Or bystanders' cell-phone videos?" The DOJ hasn't yet selected its candidate(s) for the film from among a number of (over)qualified candidates. Rumors that a special set is being constructed at Mar a Lago to replicate downtown Minneapolis, but with more sunshine, are just that.

Not long after that classic film was released, an equally pithy saying appeared on the desk in the Oval Office: "The buck stops here." Most members of the current Administration fully agree with that statement, or at least think they do. Unfortunately, because they focused their lives from 15 to 25 on getting ready for that job they were entitled to — or at least making their resumés look like they were ready — they neglected to apply some simple grammar, even before the obviously-unproductive literary memes of "metaphor" and "imagery." The phrase is not "The bucks stop here": It's not about filling one's accounts (Caymen-based or otherwise) with all the money, or cryptocurrency for that matter, that passes anywhere near. But mistakes were made, and these government officials see no reason to accept responsibility for anything. That might be embarassing. Or career-progression impairing. Or even a necessary consequence of their oaths of office — but that would require reading them (let alone the source of the title of this screed), so…

Otherwise, there are no even marginally adequate words. There's certainly no adequate justification for even arming these "officers" as they engage not with fleeing armed felons but with bystanders attempting to render aid to other bystanders (whether or not "protesters"). Not with firearms; not even with tasers, given that they always considerably outnumber the five-year-olds that they're "detaining".

I suppose I should answer the question posed by the title here: The voters. At every opportunity henceforth.

---

†  I fully realize that applying "lib" to anything related to this… individual is both insulting to her and completely inaccurate. Don't blame me, blame a couple millennia of English stealing from other languages and modifying the loot so it can't be easily recognized on the fence's pawn shop's shelf.

The Day After the Year After the Revolution

The most important question, five years after an attempted coup and a year and a day after the provacateur managed to regain office anyway: Who is absent from the reviewing stand this year, Comrade? And who might be next year?

• This son of a tyrant isn't uniquely positioned to make an ass of himself in public, but he does so pretty well even though he's got lots of company. But what a great opportunity for the West to fuck up yet again in that part of the world, where by a conservative estimate it has facilitated (intentionally or otherwise) at least thirty repressive governments in just the last century… specifically including that nation (more than once). Neither that family nor the West learned anything from 1953, or even from 1978: In an age of widespread (not even universal) literacy, you rule either with the consent of the governed… or an iron gauntlet, with spikes on the inside as you peacefully shake hands with your prior foes.
• Or you could just look at lower levels, and see what that kind of attitude can do when it entraps cities. Curiously, the article doesn't even mention the circumstances of the original sale (or, for that matter, who earned commissions or kickbacks campaign contributions), throwing it away as a "lopsided deal signed in 2008 by former Mayor Richard M. Daley." Apparently, the purpose of the Mayor of Chicago is not to create corruption/stupidity, it is to preserve corruption/stupidity.
• In a startling example of how even many of those of good intent regarding politics aren't doing very well at target selection, the Brennan Center for Justice offers nine solutions for political corruption that might be helpful — but are already being evaded. For one thing, many of the proposed constitutional amendments are both impossible (given what it takes to amend the Constitution) and unnecessary, being based not on the Constitution or its discernable core values but upon later judicial (mis)interpretations. Dead presidents have neither free-speech rights nor privacy/anonymity rights; remove the wrong-when-decided foundation of Buckley v. Valeo and about half of this list of reforms becomes unnecessary, at least at the constitutional-law level. Then it would at least be at the still-difficult statutory/judicial level, where there's at least some visibility — if not always accountability, the very point of the ire I share with the Brennan Center.

  Simultaneously, however, the list fails to engage with a different kind of corruption that controls the kind that it does. Corruption of the kingmaker(s) is much, much harder to mitigate or remove than even corruption of the king(s). Incompetence is even worse… although it can be really hard to tell the difference — if there is one.

• The world of publishing is a sad, sad mecca of self-sabotage. Whether we're talking about publishing executives trying to be like H'wood producers or authors who believe that no matter how small their output, how audience-negating their subjects, they're entitled to a comfortable middle-class existence just for being authors. In a socialist utopia, all authors and other creators — indeed, everyone — would have that same entitlement. All of those in power would respect both its limits and its minimum ethics, and just might have a sense of humor. And all of the children would be above average. (Sorry, but there is neither a Santa Claus nor a utopia.)

•  •  •

Under the spreading chestnut tree
I sold you and you sold me
There lie they and here lie we
Under the spreading chestnut tree

More clove oil for your tea, sir? And please put that book away — there are far too many books distracting people from carefully curated sources of all the information they need.

87.1

This your host Max Greene. My producer Sara insists that I finish up tonight's requests before heading over to our weekly broadcast at 520 on your AM dial, because not everything is digital. We'll still restream everything starting at 1:00am tomorrow in all the usual places.

	We'll start out with the romance of competition, from Victoria to, it says here on the card, my lovely friend Joe. Do I hear wedding bells in the background? No? Well, we can always hope.
	Here's one from Mette to Stevie, Donnie, and the rest of the Amateur-Hour Boys' Club, with a note to "Seeya at Have af sten, boys!"
	From our affiliate in Minneapolis, this one's for Kristi from Rebecca, dedicated "May you rot in hell." Sounds like a pretty bad breakup to me — that relationship has gone to the dogs.
	I'm not sure I understand this one. James sends this classic to George, with a note "don't get caught next time."
	This one's just weird, the same song requested by Elon for Ashley and by Ashley for Elon! I can't read those dedications on the air, though, any more than George Carlin could, which is sort of weird for a song without words. Weird is more for our next few hours.

That's all we have time for tonight, folks. See you on the other side after Sara plays these important messages.

NSAIDs Helpful

'Tis the season for inflammatory rhetoric. Of late, I'm not sure when it isn't.

• Leaving aside for the moment that somewhere around 1.1% of the population has no self-reported immigrant ancestry (2020 Census), the deranged animus to immigrants serves only a nightmarish fantasy. Why is it nightmarish? Because it reifies that one's parents status at their birth is a rightful limitation on one's own ambitions… and even basic rights. On the other hand, I'd be happy to send some Africans (Afrikaans?) back where they came from because they don't meet my native-born vision of what's proper for the nation, and for immigrants to it — and that's rather the point, isn't it? <SARCASM> Perhaps the most-likely future amendment to the Constitution is one that removes the restriction on titles of nobility, because that appears to be what they want. </SARCASM>

  But then, some US citizens (with US citizen children) worry about getting their own family members into the country because they were doing their jobs. The contrast with a purported "think tank" that doesn't even bother coding its racial/related preferences — except, perhaps, in its name and the appropriation of "heritage" — is all too enlightening. Oh, wait, that's a word that that institution wants to reject, too… especially when another form of that word modifies "self-interest."

• Then there's the underlying problem of what makes America great (let alone "again"). The current Administration's actions and rhetoric, ranging from Venezuala to Greenland, make it fairly clear that it means "any landmass with the word 'America' in its imposed-by-Europeans name," and any immediately-adjacent islands. Of course, after assimilation, those will no doubt remain insular territories, because we might have to acknowledge all the brown people there as new citizens, not mere "immigrants," unless… ok, that rhetoric would be too inflammatory even for me. But the Administration hasn't given enough, or indeed any, thought to how that would functionally replace some Real 'murikans.
• Things aren't much better in Blighty, if any. The UK also has a problem with accepting "replacement theory" as something real, ranging from university recruiting to general government policies strongly coded for race and national origin. And some of those "general government policies" are not so general after all; one wonders about how certain "former royals" would be treated if the policies were applied even-handedly.
• Meanwhile, publishing and entertainment institutions continue to implode, ranging from book distributors depended upon by libraries (sometimes by law!) to conceptual flaws in the Anthropic settlement driven by monopsonic publisher interests (those "half the proceeds of copyright suits belong to the publisher" clauses were achieved only by misuse of market power — and imply that half of the creativity was really the publisher's, which except in rare instances is utterly implausible). The less said about self-anointed merchant-princes imposing the New Mercantilism on H'wood, the better; and we shouldn't inquire into the past too closely, either.

  This is one of the times that I'm glad so much will be wasted on legal fees, even though that won't benefit me — better BigLaw lawyers than the merchant princes!

Morning-Again-in-America Sausages

Would that the origins of these links had partaken of more caffeine before starting the sausage-stuffer…

• From the Department of Rats-Leaving-the-Sinking-Ship, online rag The Vulture adds 28 partially disclosed spices to this link concerning the purported state of the "book industry" — spices that apparently didn't reach academics, indie writers/readers, those actually involved with the implicitly-denigrated "genre fiction" (whose sales were implicitly envied), or more than 1km outside of Manhattan. Fact of which these navel-gazers are apparently unaware: The population of Manhattan — about 1.7 million at the most-recent census — was a hair over 2% of the nation's.

  But that last fact is the actual cause of the seeming demise (and general irrelevance) of The New Yorker. It was predictable at the time this notorious cover, and perhaps even as early as the breakup of the Algonquin Roundtable (the desperate attempts of those like F. Scott Fitzgerald to glom onto the nascent H'wood income-and-exposure apparatus should themselves cause reconsideration). If New York had ever been the "center of American culture (for all the right people)" — and Boston and Philadelphia might object, even without getting to the Left Coast — it sure as hell wasn't by 1976, and sure as hell isn't half a century later. More broadly, looking outside the US would have been educational for the author of this… "hagiography" is wrong as to tone, but there really isn't a better thumbnail, blawg-entry-appropriate description.

  That these two pieces — and, especially, their subjects — share substantial conceptual difficulties is not coincidental. But at least they're not continuing to struggle with/for/against Straussianism. Or are they?

• The business day is usually considered to begin at 0900 — slackers (the "business day" needs to start with barracks inspection just after sunrise… and, of course, those doing the inspecting had to be up before that). Friday, 02 January 2026, being the first business day of 2026, can you guess how long it took for mutiple dubious appellate copyright decisions to issue? Even on a "one-day work week" due to the way the calendar fell this year?

  Around two hours (Pacific time). And were these matters ever dubious…

  Let's take the simple one first, although the Ninth Circuit's inexplicable decision to split it into both a precedential and nonprecedential decision makes it look much less simple than it really is. Sedlik v. von Drachenberg, No. [20]24–3367 (9th Cir. 02 Jan 2026) (precedential and nonprecedential decisions issued simultaneously), concerned a simple question wound up in procedural issues resulting primarily from poor advocacy in the District Court: Does a tattoo based on a nonunique (if "iconic") photographic portrait of a deceased individual infringe the photographer's copyright? (Those of you with long memories may recall that we've been here before (first sausage) — regarding a different eminent treatise author, also in snarled procedural posture.) Leaving aside the nonprecedential opinion, which is largely about the plaintiff's procedural shortcomings in the District Court, the real value in the precedential opinion is in the second concurrence — and even it jumps the gun, ignoring Justice Holmes's warning well over a century ago:

  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.

  Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). The danger here is quite obvious, especially given the rejection of the "sweat of the brow" rationale for copyright protection in Feist. To even reach any of these issues, one must determine what parts of Sedlik's photographs are original expression (and credit the "iconic" status of the photographs); then whether there was copying of those parts (which was largely admitted by this defendant); and then whether the defendant has any defenses. And here, the court stumbled rather badly by focusing on a fair use defense — whether properly left to the jury or not — without first considering whose originality is at issue in the "copying" of a portrait that largely omits the background, transforms its medium from photograph to tattoo, and — perhaps most to the point — is far from the only photograph (even similar photograph) of a deceased public figure. And this was not helped by the continued reliance on a line of Ninth Circuit cases that try desperately to evade the guidance of another 1990s Supreme Court copyright opinion — 2Live Crew (a/k/a Campbell). That this panel probably reached the "objectively correct" law-school-textbook result just makes the stumbling prone to falling into someone else's dispute.

• Unfortunately, a very similar is-it-protectable-expression? problem arose in Yonay v. Paramount Pictures Corp., No. [20]24–2897 (9th Cir. 02 Jan 2026). (One ironic similarity: Both Yonay and Sedlik were argued, for losing plaintiffs, by individuals with significant prior records in establishing copyright law.) This time, the court — an entirely different panel of judges — did better in separating "fact" from "expression" for a (IMNSHO bad) film based in part on a nonfiction article; or, rather, the later sequel thereto, and claims by the author of the article that the later sequel infringed the article's copyright, breached the original license, or both.

  However, this panel's better copyright analysis was partially overcome by a contract analysis that managed to ignore the context of entertainment-industry contracting in the 1980s and the context-driven "rational expectations" of the parties concerning "life story"-type material. The conclusion may well be correct — the entire text of that contract is not in the opinion, only purported "critical phrases" and an allegation that "nothing in the context of the agreement suggests any reason to depart from" grade-school-grammar analysis of conjunctions. This rather elides away that most entertainment-industry contracts are replete with compound nominatives that embed one or more conjuctions, so hidebound by tradition that a grammatical analysis is positively misleading.^† So I'm not convinced: The context of the agreement exactly suggests that simplistic grammar rules probably don't reflect the understanding of the parties, and almost certainly don't resolve the problem of internal definitions that assume familiarity with relevant commercial customs. I seem to recall some discussion of that in 1L Contracts, particularly Rest.(2d) Contracts § 222. Now combine that with the bad writing endemic to entertainment-industry contracts…

• On a seemingly lighter note, the Court of Justice of the European Union attempted recently to discern when a designer's name attached to things he/she/they didn't design is unlawfully deceptive. But maybe this isn't lighter after all, in company with the other sausages on this platter. Nor is it really lighter than the broader questions of "artistic attribution" that it implicates, ranging from trivialities like the darkness of the "painter of light" and dubious employment practices of esteemed local artists that ironically protected his copyright claims to weightier questions like the aphids on the (wilted) flowers in the attic and the propriety of proclaiming "A Film By". I guess the reason this sausage seems lighter is that the CJEU just didn't bulk it out with enough filler.

---

†  As you can well imagine, this can lead to some real headaches while negotiating these agreements. One on which I was a silent/undisclosed consultant about twenty years ago went through twelve iterations of we-remove-a-clause-they-reinsert-it — because the wet-behind-the-ears negotiators for [name of major studio withheld] were working from company boilerplate etched on stone before the Copyright Act of 1978 made their clause both unnecessary and arguably unlawful. They claimed to not have authority to change their well-tested language. We eventually got the removal approved, but still…

The publishing segment of the entertainment industry is no better. Buried in many contracts, even today, are references to "the plates" used to print the books (obsolete since the early 1990s), ipso facto clauses purporting to return all rights to the author upon the publisher's bankruptcy (contra 11 U.S.C. § 362 (1978)), declarations that a freelance (and not commissioned prior to creation) work outside the categories in the Copyright Act § 101 definition is a "work made for hire," and a variety of other problems ranging from definitions of "subordinate rights" made obsolete by both the 1976 Copyright Act and commercial/technological changes since to outright defiance of Supreme Court opinions. How much of this reflects honest disagreement with (what at least I see as) binding law and how much is an attempt to "contract around" that law under some para-Lochner conception is for another time, another few hundred footnotes.

Just Another Police Action

Looks like it's morning again in America DC. Too bad I'm a night owl, who spent most of his first career hoping the clock wouldn't reach midnight (notwithstanding the best efforts/worst instincts of the ideology-driven morons in governments across the world). The clock moved a few seconds closer very early this morning. And I have questions.

The rhetoric currently coming out of DC is that the "limited" invasion of Venezuala was intended primarily to "arrest" a "narcoterrorist." I'm not convinced, no matter what the cretins in the Office of Legal Counsel say to rationalize policies reminiscent of previous American experiences in Latin America. At least we didn't have to rely on a third-rate band from California for the actual "apprehension" this time (I'm pretty desperately searching for anything less negative here). That, however, raises a few questions.

1. Making an arrest for a US indictment? Worse, without the cooperation (not just permission) of the nation in which that arrest takes place? On top of that, of the head of state/government, however dubious the process leading to that status? The irony that the real "precedent" for this under US law is Noriega should give one pause — and lead to a lot more questions, in and of itself.

Noriega's status as a federal defendant depended upon converting his initial status as an alleged prisoner of war to a criminal defendant. His status as a "head of state/government" was much more questionable than is President Maduro's (which is certainly questionable enough… but only under the domestic law of Venezuala, which the US has no standing to enforce). The Eleventh Circuit nonetheless rejected Noriega's status-based challenges to his indictment and conviction. US v. Noriega, 117 F.3d 1206 (11th Cir. 1997). There's one critical fact in the Noriega matter that is different in the current matter, however: Noriega, acting as head of state of Panama, had declared that Panama and the US were in a state of war prior to the US incursion. (Id. at 1210.) I'm not aware of a corresponding statement from Maduro, making the "prisoner of war" aspect less tenable.

2. But how about that arrest, disregarding Maduro's government status? Here, there's a clear answer in precedent… that is probably wrong as a matter of international law, but is at least questionable; and it is certainly more than just "questionable" regarding any official of a foreign government. The nearly circular reasoning in US v. Alvarez-Machain, 504 US 655 (1992) (note that this postdates Noriega's "apprehension" in 1989), provides that precedential rationale. One need not even reference the disfavored-by-this-Administration ICC's detailed, and indeed exhaustive, consideration of these kinds of issues, especially in post-Yugoslavia, to spot the logic problems with Chief Justice Rehnquist's opinion; the well-reasoned dissent from Justice Stevens suffices without those pesky non-US-lawyer-supplied arguments.

That said, the current US Supreme Court — due to its excessive, and more extreme than any past Court, deference to "the Executive" on a range of issues — is just not going to repudiate Alvarez-Machain; if offered the opportunity, it would probably extend it. In the abstract, it's a difficult circumstance, because there really isn't an unrestricted-by-national-boundaries "police force" that would ordinarily be the proper "arresting and indicting" authority, by analogy between US federal and US state systems.¹ (That's just not how the ICC works, contrary to uniform bloviation by every Heffalump administration to even notice it.) This is sort of the flip side of the (now-disfavored) rationale that "rights imply a remedy" — something like "criminal offenses imply enforcement." Yeah, not so much.

3. Then, too, there are some problems with the mechanics of the "arrest." It appears to have been done by — or, at minimum, substantially assisted by — US military personnel. Given the absence of any prior declaration of hostilities, that's acting as law enforcement. Even if a DEA agent was the one who put the cuffs on:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1385 (as amended to 2021). Note that there's no territorial restriction here; that it requires authorization by Congress (or explicitly in the Constitution); and that it concerns any execution of "the laws." Absent that Congressional authorization, then, those who "used" military forces for enforcement of civil laws are subject to indictment.²

The "law school exam question" follow-up is whether Congress has the power to retroactively provide the specific "authorization" (leaving aside, for the moment, its at-the-moment-hypothetical inclination to do so). There's certainly more than one way to do so; it could amend Posse Comitatus, it could pass a resolution authorizing military force against Venezuala/its government/its head of state, it could (just short of that last) pass a resolution generally authorizing military force in support of bringing a foreign-located individual to US courts after indictment for a range of offenses including "narcoterrorism."³

•  •  •

Questions 4 through n are reserved for future consideration. Probably by others who have sufficient current security clearances, and current need to know, and more knowledge about "how the military works" than anyone in the Office of Legal Counsel has demonstrated in the last half-century or more. I can only hope that this particular "police action" doesn't require another granite wall… and gets recognized as a "real conflict" sooner, without any Gulf of Tonkin nonsense. Oops — it's too late for the latter; an accusation of "narcoterrorism," let alone an actual indictment, already puts that in play.

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1. This is, of course, a vast oversimplification. Just about everything is going to be a vast oversimplification because as yet, we're dealing with the indictment of a ham sandwich — an indictment that is intertwined with both general policy and conflict-of-interest-colored preferences related not to Maduro so much as to Venezualan petroleum. The Monroe Doctrine did not, or at least was not supposed to, mean that while European powers needed to stay out of the hemisphere, the US could intervene however its current Administration desires; and it's all too easy to imagine the US reaction to the equivalent from the People's Republic of China, or the Duchy of Muscovy Russia, or Iran. Oh, wait, we don't need to imagine it — it's been fairly public over the last couple centuries, and we don't even need to reference pre-Monroe-Doctrine "precedents" in North Africa.
2. I think we can agree that this Administration will simply not indict any member of the Administration unless/until it leaves office on 20 January 2029. It appears that the default three-year statute of limitations applies to violations of Posse Comitatus — which will run not later than 03 January 2029. Interesting planning, there… so maybe the Office of Legal Counsel does have some use, as there's a decent probability that there's a classified memo somewhere discussing exactly this issue. Advance attempts to manipulate the statute of limitations in a criminal matter speak loudly that someone, somewhere in the Administration, has something resembling a guilty conscience.
3. Bluntly, this last would not be a good idea — resembling, as it does, Soviet and, umm, other practices from the Cold War era. <SARCASM> At least it's not an authorization for assassination, which is at present prohibited via executive order (that can also be rescinded by the executive at whim). Leon Trotsky's ghost would appreciate a quiet word in the corner, away from that vase with the bug in it; and without further comment and only as an exemplary reference if accepted on its own terms, see Roya Hakakian, Assassins of the Turquoise Palace (2011). </SARCASM>

Holiday Dinner

My "holiday dinner" was entirely mythical.

• The US doesn't have the only legal systems that matter to those in the arts (leaving aside the courts that do collections where the artists live…). Over across the Pond, artists of all kinds, in all the arts, need to pay attention to design infringement versus copyright infringment beyond the shape of their iPhones — and not just about the shape of their narrative, the shape of their canvas, or the shape of their jingtinglers. (Exhaustion comes from more than just reading a transferee's boilerplate "licensing agreement"!)

  More importantly — and with implications for Nancy Drew and the Hardy Boys — an attempt to register a trademark in a dead author's name after expiration of all of that author's copyrights has been rightly refused. Such a registration would undermine the fundamental purpose of trademark and related theories: Prevent deception of end-users in the marketplace. Application to the ghostwriters of celebrity biographies and such (not excluding this tome ranging from trash to outright lies) is left as an exercise for… someone with standing to actually get into a federal court, outside the Second Circuit. And it might require a selective, but not too selective, presentation of evidence.

  And, in some foreshadowing of what may come to pass in Florida, the European Union's top court rejected certain right-wing-government manipulations of Poland's courts as fundamentally incompatible with binding law. Although this sounds like it's something that only political operatives need to worry about, one might wonder about a hypothetical wrongful dismissal lawsuit by, say, Stephen Colbert, with "pretext" definitely stated somewhere in the pleadings.

  And if you haven't guessed, the sources of several of the links above are both intentionally ironic and more subject than most to later "removal at the source."

• All of which is a lot less confusing than Erasmus — even Desiderius's most-famous work (that has been read by somewhere less than 1% of college graduates). Ah, the benefits of a classical education, during the Christmas season.
• It's definitely less confusing than figuring out who controls the contemporary gaming industry, especially during the wrap-up phase of Stranger Things (when it was so much simpler).
• Meanwhile, back in treehugger country, there's a proposal on the table for a state-imposed tax on actual, realized income above $1 million annually (and only the part above $1 million). As usually, some idiots are claiming that even just the proposal will result in tax-flight by the ultrarich (which doesn't explain why Uncle Jeff left for another jurisdiction a while back, does it?). Mostly, this would be good riddance. If, that is, it can overcome a nearly-century-old decision by the state's supreme court holding that an income tax is incompatible with the state constitution… on grounds that were suspect then and no longer considered legally tenable now (not to mention the unacknowledged conflicts of interest that would really expose the problems with an elected judiciary).

Appropriate Enemies

That is, the opposite of whatever squickiness, by whomever, was going on. Thus, nothing involving children, prurience, or cover-ups.

• I'll gladly get on these assholes' enemies list, and it will be entirely appropriate because I've actually lived overseas… and had to deal with fallout from their predecessors. It's not much of a coincidence that ADF so strongly resembles AfD, both as abbreviations and in their cryptofascist politics — neither being a good thing.
• And then there's another individual who has "conscious parallelism" with AfD, especially on immigration policy: Dr Evil Stephen Miller. It would be unseasonable, vicious, and curmudgeonly — so, of course, I'll do it! — to point out that Barron Trump is a child of an immigrant who has contributed exactly nothing in work, or innovation, or any of the other values espoused by Miller and his ilk (and the AfD!) to the American economy. The Orange One's father was a child of two immigrants (and 1890s Bayern/Bavaria qualified as a shithole country); the Orange One himself is a child of an immigrant (his mother).

  I'm not suggesting deporting the Orange One and his family; I wouldn't impose that on Germany. Neither am I suggesting that the tender embraces of ICE (or their foreign proxies) are appropriate. I am, however, suggesting that the gander should be very, very careful about the goose's sauce.

• Meanwhile, the Administration has proven that it can't count, indicting the Broadview Six for opposing violent, warrantless seizures of people in the Chicago area. Dammit, if you're going to indict protesters in Chicago, you need to have seven (and then put the case in front of a judge long past his best). The purpose of ICE is not to prevent disorder… But at least you might get a popular-music anthem out of it — hey, wait, there's a foreign-born person on that stage!
• If it can't sabotage the historical sources of this nation's population very effectively, maybe this Administration can just sabotage foreign relations for a decade or so. That's about how long it takes to rebuild an embassy's credibility after it is rendered untrustworthy in the eyes of the locals (especially low-level government officials and nongovernmental people). And we're not talking about tiny Pacific island-nations, either — this includes (selected, alphabetically) Algeria, Egypt, Gabon, Nigeria, and Rwanda <SARCASM> fortunately, none of which have any adverse history with the US or influence in their regions </SARCASM>. Follow this up by banning people doing their jobs in a way that inconveniences The Orange One's friends from entering the US.