17 January 2020

Snowed-In Link Sausage Platter

Although these link sausages are semi-frozen, they're ardently not semi-Frozen II. Especially since the 'net was out for a day.

Most of these frozen link sausages, however, represent my past coming back to haunt me.

  • Like, for example, textbooks reedited for the Texas market. And it's not just history textbooks, either; even PE textbooks and science textbooks have to be "adjusted" to accommodate the cultural sensitivity religious and ideological arrogance of some markets.
  • Then there's the fun of shell companies used to evade set-asides. I find this story slightly annoying because the LAT reporter rather wide-eyedly acts as if this is something new. It's been going on since approximately 45 seconds after the first "modern" set-aside program was established… in the 1940s, for veteran-owned companies. And there are criminal convictions to demonstrate it.
  • I've been bitching for about forty years that too few "reviews" were negative — that reviewers tend to be overly nice. Especially in the audio and audiovisual areas, reviews and reviewers are treated by everyone (including themselves) as adjuncts of the distributor's marketing department. My ire was set off by having seen the Oscar-winning film I shall not name, in its initial release, before reading any reviews of it… especially after having seen several other vastly superior films that "year" that were logrolled by AMPAS voter dumbness (and the misbegotten influence of the publicity whores, regardless of gender or preference). Now Phi Beta Kappa has noticed that this is a problem for books. Surprise!
  • Conversely, the ironic and somewhat misnamed The Critic misses the mark (by several years) and misidentifies the signifiers of the "death" of rock and roll (it was not later than, and perhaps epitomized by, the overblown nonsense and rejection of thought/development/reality sold as Frampton Comes Alive). Rock "died" in the sense that Mr Green suggests when love/lust ballads retook the center of discussion from broader awareness shortly after the fall of Saigon. And contrariwise, there were a lot of vastly superior musicians and songwriters after the Joisey Maroon's contribution cited in Mr Green's piece, all of whom continued to evolve matters in ways that Mr Green denies happened. To name four obvious examples in alphabetical order, Dire Straits/Mark Knopfler, Peter Gabriel, Janis Ian, and Richard Thompson were all producing evolutionary work that "developed" rock both before and after Green's critical date.

That's enough for now. Time to get back to building Evil Snowgoons of Impeachment, which will be promptly ignored by Senator Turtle in violation of the oath he just took on national TV.

07 January 2020

Rage-Flavored Link Sausage Platter

This first internet link-sausage platter of the year may, or may not, contain holiday-meal leftovers. I'm not telling; and I'm not specifying species (or planet of origin), either. Nor paying for any intrusive USDA inspectors (even under the currently laissez faire inspection system).

  • RWA continues to demonstrate that it's just like other creators' trade groups in the arts. Or even academia. I've only seen this up close a dozen times or so… and it doesn't get any better as leftovers.

    Maybe the politics are so vicious because the stakes are so low. So low, that is, to those who define "stakes" as "further accretion of money and political power" and not "creative life, or cultural participation, or personal identity." The irony that this distinction in identification itself has strong race, ethnicity, gender, and related discriminatory components hasn't yet sunk in… nor has the problem of an industry oligopolist owned by Sauron that is probably now less discriminatory than it was before he bought it (which should really, really frighten you).

  • If you've got a grim sense of humor — and if you don't, what are you doing here? — that leads right into The Observer's 2019 awards for sexism, narcissism, and generally going to the dogs. Which restrict themselves to corporatism, so they're not as scary as they could be.
  • For example, they're not as scary as pondering war crimes and the racist and religious bigotry therein. Almost universally in the West, but that's a topic that tends to get obscured by overfocus on dynasticism and the nation-state. Do you know who else was hurt or killed in that drone strike, or what property was damaged? Have you even seen any reporting on it? Have you ever seen grainy, declassified post-strike damage-assessment photographs that might raise those questions? Dammit, that's one of the differences between "military operation" and "assassination": The former gives a rat's nether regions about "collateral damage." Sometimes that's all it gives, but it starts the conversation…
  • And in the meantime, an overprivileged white woman plays the civility card in general (barely acknowledging that word) without pondering why there is rage resulting in incivility. Maybe — just maybe — the historical refusal of the privileged to actually change anything, or even listen and engage, when the nonprivileged use civility as their only means of communicating their displeasure, has something to do with it. A call for "civility" is a call for "all interrogations use only the good cop." Sometimes "good cop only" interrogation works to get good information, sometimes it doesn't. But it almost never works for indoctrination…

    McArdle claims that "This might be a fair answer if rage-filled invective worked. But anger and shaming only promote change in people who view each other as part of the same moral community — which is exactly what the scream teams no longer do." This betrays a flagrant ignorance of just how rage-filled (in a contemporaneous sense) the rhetoric of the Founding Fathers was, although they were well-educated enough (in our conception, history being written by the victors) to speak in terms we're not offended by. If McArdle's fellow-traveler/ally DeVos gets her way, though, the "underclass" will be educated just well enough to take those (non-existent) "good manufacturing jobs" — but not well enough to express their rage, fifteen years down the line when the manufacturers are bought out by private equity firms and the jobs disappear, in "civil" language.

    Besides, "rage-filled invective" does work on all evidence, or at least is a necessary part of the conversation to discomfit the comfortable enough so they listen and act. Only after there was public "rage-filled invective" from the black community did the white, privileged community begin to actually take steps to implement Brown's precepts, or establish the Voting Rights Act of 1965 or Civil Rights Act of 1964; only after Stonewall was there a growing, eventually widespread (if not universal) acceptance that treatment of the gay community might require some reconsideration; #MeToo (and anyone who claims that one can talk about sexual assault in a "civil" fashion has never been responsible for any aspect of the aftermath); and so on. So, as is all too typical, McArdle couldn't even get her factual predicate correct without twisting it through her preconceived ideology. And that, more than anything else, is why her variety of civility is so thoroughly and (pun intended) rightly rejected by the unprivileged as insulting, condescending, meaningless blather.

  • Then contrast McArdle's blather with a field guide to tyranny — presented in a civil forum, in civil language, that gets nowhere near (like not even on the same continent as) Rwanda and the Congo and Egypt and Libya. OK, I take that back a little bit: That "book review" by a white male author of a book by a white male author does deign to mention Mengistu in Ethiopia. Once. But not Ian Smith or the RSA. Or the "subcontinent." Or nineteenth-century Europe. Or the pre-eighteenth-century Vatican…
  • I've held off commenting on this for as long as I can, primarily because Reasons. Overdrive, the leading source of electronic materials in US libraries, has a long history of dubious, privacy-infringing, copyright-and-creators'-rights-disdaining activities (just for fun, turn on your packet sniffer and watch its "friendly" Libby app in action). And it's being sold to an even worse new owner. The history of KKR acquisitions doesn't make me optimistic at all… because all the data Overdrive has gathered/does gather is going to end up in someone else's database within 36-42 months. And it's someone even less well vetted for privacy (and, for that matter, intellectual property) policies than KKR — because that's KKR's business model.
  • Which really isn't any better than Silcon Valley entrepreneurship epitomized by Uber, whose founder's, umm, incivility has led to his jump-before-being-pushed permanent departure. Or, as the sausage preceding that one implies, governmental tyranny.
  • But you can't dance to it at the best of times, especially if you're utterly ignorant of the arts as a process and not a thing. Sadly, that last is a shot at Mr Caramanica, but much less so than at the legal community as a whole… let alone the private equity and venture capitalist types — in medieval/Renaissance terms, "patrons" — who control and disproportionately benefit from the commercial exploitation of that process.

03 January 2020

Bad Character

I think perhaps — just perhaps — the best rejoinder to the RWA foofery of late is some good writing and rhetoric from half a century ago. Beginning in Medea res (all puns intended… and, sadly, relevant; one of the benefits of a classical education):

But there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny, and they have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone.

And as we walk, we must make the pledge that we shall always march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating for whites only. We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

*  *  *  *

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

Martin Luther King, Jr., I Have a Dream (post-speech transcript, 28 Aug 1963) (audience interjections omitted, some typography corrected). Ms Tisdale et al., this is historically authentic use of, and source material for, now-disfavored language and concepts — not unguided "research" into tertiary-at-best, undocumented, noncontemporaneous source material (that may not even be in the target language).

Application to each of the following is left as an exercise for the student… or the writer:

  • The struggle of other ethnic groups than that referred to by a member thereof as "Negroes" fifty-odd years ago for recognition and appropriate treatment in contemporary rhetoric, not limited to category fiction
  • The struggle of disfavored groups other than those defined purely by ethnicity, such as LGBTQ and Jews and Muslims, for recognition and appropriate treatment in contemporary rhetoric, not limited to category fiction
  • The struggle of not-currently-recognized/defined but nonetheless disfavored groups, such as "real science nerds" and "social justice warriors," for recognition and appropriate treatment in contemporary rhetoric, not limited to category fiction
  • Outliers within disfavored groups and individuals at the intersection of multiple disfavored groups, such as mixed-race Chinese-American female lawyers who no longer practice law because they were disenchanted by a hostile work environment
  • The struggle of category romance qua a category against New York commercial-publishing-and-distribution preconceptions (established almost entirely by trust-fund and upper- and upper-middle-class white folk… in the 1960s)
  • The struggle of other disfavored forms/categories of writing against those same preconceptions
  • #MeToo

Dr King's point was that eliminating one form of bullying isn't enough if it's replaced by other bullying; that judgment is about individuals and not lazily/easily defined groups that perhaps share a characteristic (voluntary or otherwise) but are inherently diverse within themselves. In a more-abstract sense, having been a victim of bigotry on axis x does not excuse acting as a bigot (or even just a jerk advancing one's own commercial self-interest) on axis y, no matter what those axes are. And that Dr King was himself fallible and imperfect provides no excuse either.

Or, I suppose, the purported "leadership" in the romance community (not limited to RWA staff and board members!) could just continue to prove that writing and/or publishing romance fiction — overwhelmingly, at present, read by women — doesn't keep one from acting like a dick.

26 December 2019

Another Heidi Game

I was a young football fan, living in a city with no football team of its own, in November 1968. My excuse for watching the end of the only available game (including the closest team to Seattle at the time) was that there was family content scheduled to follow it: A new production of a so-called classic. But Heidi used old values to suppress football, in large part because existing ad structures favored the old-school family TV presence. That darkened my day; twenty minutes later, the screen crawl told me what had happened in those last few seconds.

This time, though, the shoe is on the other foot, although it's once again a case of marketing expediency (denied by everyone involved) lurking behind the old guard resisting change and, therefore, another foot-in-mouth problem. This time, it's an authors' group with some historical problems, focusing on a marketing category with even more problems. Bluntly, "romance" has historically been gender-, race-, religious-, ethnicity-, and class-insensitive on its good days.1 And virtually every day, that category is actively hostile to intellectual achievement, let alone intellectual immersion. Even, and perhaps especially, in its progenitors (off-site video).2

I think I've now sufficiently buried the lede. My ambition is, as with any law journal article, to have approximately half of the verbiage in the footnotes…

This is about RWA's mistreatment3 of "Courtney Milan."4 Milan has a significant history of calling out racist and other discriminatory language in written works. So far as I've been able to determine (see note 3), that's what she did this time… but the writers of those words — who claim that they had been written years ago, and were "historically accurate" as to the environment depicted in the works themselves — were unable to distinguish between the works and themselves. They filed complaints with RWA's Ethics Committee, claiming that Milan had violated RWA's purported ethics rules.5 The Ethics Committee, and ultimately RWA Board, agreed that Milan's conduct violated RWA's purported ethics rules. Of note here:

  • The publicly disclosed complainants are commercial competitors of Milan, but neither the RWA Board nor the Ethics Committee has acknowledged that at all.
  • Writers are not professionals and can't make themselves professionals. One can drum a writer out of a particular writer's group and its sponsored events, and then engage in whatever (probably unlawful) boycott or commercial pressure against that writer one can imagine, especially hyped up in antisocial media. But getting kicked out of that group does not prevent a writer from writing and publishing; it's not like yanking a doctor's license or dismissing a military officer from the service, where there is no alternative to being a "licensed" professional if one wants to engage in those activities. (Not even Blackwater et al.)
  • Virtually all public discussion has assumed a high intersection — virtually a union — between "words in an already-completed work of fiction" and "authorial bigotry." The irony that if, as the authors of the works Milan criticized contend, those works were in fact expressing historically authentic attitudes, those authors missed a chance to undermine those attitudes, has gone unremarked upon. In particular, this failure as endemic in the romance category has gone unremarked upon (see note 2).
  • Where, oh where, is there any bloody acknowledgement that "this is an example of something unsatisfactory" should lead to "then we must do better"? As a commissioned officer, I swore an oath to protect and defend the Constitution against all enemies, foreign and domestic. One must acknowledge that sometimes the Constitution is its own enemy; the need for the Nineteenth Amendment is an obvious one, as are "three-fifths of all other persons" and the Jim Crow laws that resulted because that clause was merely struck and not actively repudiated. <SARCASM> But no organization in the arts, or individual practitioner in the arts, really needs to acknowledge any portion of that problem. That would be too intellectual for artistes to contemplate.</SARCASM>

Everything that has appeared in public indicates a failure of both substance and process.

Sadly, this is not just an occasional flaw, but the default outcome, for organizations in the arts; not just, but especially, when there's an allegation of misconduct. There is no correlation whatsoever among outstanding accomplishment in the arts, leadership and managerial skills that apply in the arts… and the ability (and willingness) of those actively participating in the arts to recognize that when they're selecting leaders, only the latter matters. Not just the titular leader, <SARCASM> but the entire Board of the Upper Lower Middle East Side Ladies' Gardening Club </SARCASM>.6 It is perhaps even worse in the performing arts and related fields, as witness leadership failures in H'wood and music and live theatre; but it is bad enough among writers and photographers and… It is perhaps inevitable, given how difficult the concept of "critical distance" is to explain.7 Of course, that also requires the ability to recognize a conflict of interest — something also missing here.

What a great bloody holiday gift.

  1. In this, it is really not much different from other commercial fiction categories. The malign, bigoted influence of John Campbell on science fiction is a really obvious example. So, too, is the dearth until quite recently of women and non-Europeans (or at least non-Eurasians) in literary fiction, especially the "great novels of academia." And so on. There have, of course, always been exceptions; but that is precisely what they were, and they came from an even smaller subset of authors, usually with some significant amount of liberal guilt attached (e.g., Toni Morrison… at Princeton of all places).
  2. The racial diversity in this video satire (no, Justice Souter and clerks, this is not a "parody," but that particular tangent is for another time and a few hundred footnotes of its own) is an important subtext that withstands far more scrutiny than, say, the history of the RITAs. But the antiintellectualism is definitely prominent! Jane Austen's oeuvre is a part of the history of the novel, and of romance. But for these and many other reasons, her novels need to remain part of the historical record that merits study but not continued emulation. That is such an overtly intellectual argument, though, that both practitioners and fandom refuse to engage with it.
  3. I am explicitly not linking to anything from any of the parties because — as a simple websearch will demonstrate — the result is based at least in part on secret deliberations arising from secret evidence by an "Ethics Committee" of no apparent qualifications to judge the ethics of anything… except that the elected leadership of RWA approved the membership of that committee and initially approved its results. Linking to particular "documents" and "commentary" elevates their credibility in a fallacious way. Bad writers' group, no retcon or egoboo.
  4. I'm just going to acknowledge that this is a pseudonym; it's no secret who is behind it, and neither are her prior encounters with harassment, entitlement, and discrimination. I'm dropping the quotation marks hereafter because if Eric Blair wants to be George Orwell, or Mary Ann Evans wants to be George Eliot, it's not my place to object… especially given the pressures on my own authorial identity from my professional past (including previously published works of fiction and nonfiction that are at least indirectly relevant). Ironically, there will be commercial pressure from publishers who don't want this particular foofery interfering with their "genius-level" marketing plans to force Milan to adopt yet another pseudonym — and it's pressure that is even greater in romance than in most categories for some very historically suspicious reasons indeed. Irony: It's just like goldy and bronzy, but made out of iron. Or in this instance an alloy of antimony.
  5. I refuse to even link to that piece of insufficient, unenforceable garbage, which bears a disturbing resemblance to older legal discipline codes that also (without adequate labelling or distinction) mixed purportedly "mandatory" and purportedly "aspirational" elements. If you really want to encourage misuse of discretion (and unacknowledged reliance on unstated personal connections and entitlement), you can't do much better than that. Hint that should have been learned from the US experience in Korea and Vietnam, and the corresponding changes half a century ago in military ethics: "Aspirations" and "directives" don't mix, don't belong together, can't be enforced based on facts, and when enforced otherwise lead to self-destructive tribalism and loss of respect for individuals both internally and externally.
  6. See The Manchurian Candidate (1962).
  7. See, e.g., Wayne C. Booth, The Rhetoric of Fiction (2d ed. 1982); see generally Martha J. Reineke, Developing Critical Thinking (undated); cf., e.g., Matthew Feldman, Ezra Pound's Fascist Propaganda 1933–45 (2013). And yes, this is a quite unsubtle criticism of authors' organizations' typical, and frequently overt, rejection of literary scholarship as meaning a bloody thing. Application of that criticism to the problem of organizations in the arts rejecting scholarly work on effective organizational structure and operations (let alone following specific advice) is left as an exercise for the student.

24 December 2019


I make no representation regarding the greenhouse gas consequences of these coal-oven-baked internet link sausages.

  • As part of my own Quixotic quest against everything that is Dickens, I agree that — if one celebrates Winter Solstice holidays of any kind — James Joyce's story "The Dead" is the piece for the season, if only because it can't be reduced to a greeting card or put on as a high-school play.
  • The Grinch was truly a great guy, with the right attitude toward giving flooflunkers and electro whocarnio flooks as gifts without accompanying lessons. At least until his fatal-off-camera episode of hypercardia (no doubt brought on by a common virus against which his parents rejected vaccination).
  • Let's hear it for marketing using the Delos Corporation's ethics (or lack thereof) and objectives. There are exactly two times that my phone should ever allow my exact location to be retrieved by any third party: When I'm making an emergency call, and when I'm purposefully asking for directions because I can't spot landmarks or location well enough to use a bloody map. And that's just location; neverneverneverNEVER "storage contents," "calendar," "camera," or "contacts," and almost never "microphone." Especially for any appprogram that doesn't necessarily use one of those functions for its intended operation; an e-book or PDF reader, for example, has no rational basis for accessing either the microphone or contacts.
  • Speaking of which, Google has clearly changed its employee directive to "Don'tPlease Be Evil." A recent mandatory security update to my Android phone has resulted in the text-messaging application (the default for my phone and carrier) demanding access to my calendar and all body sensors. OK, "body sensors" and "text messaging" is just ridiculous. But the calendar application? That's… a problem. On one hand, text messaging involves invisible/silent push-and-pull-of-data access; it's built into the protocols. On the other hand, I have clients who are survivors of domestic abuse, and there is no [expletive deleted] way that I'm allowing any third party to know about an appointment at which one of those clients may be present. Combine that with the preceding item and you've got a recipe for stalkers sitting in the telephone of every lawyer, visiting social worker, and so on. (And yes, there's already an exploit available on the dark web, marketed to "private investigators and process servers." It's been a little over a week.) What makes it worse is that there is now a constant nag, every time I wake the phone, to turn on unlimited and uncontrolled permission to access those items. <SARCASM> But then, given the dudebro demographic among programmers, Google employees, and Google management, I shouldn't be surprised by the utter blindness to this obvious-to-anyone-who-thought-about-it problem. </SARCASM>
  • Those who've been reading this blawg for very long know full well that I sometimes tilt at windmills (but then, I've actually read Don Quixote, at least in a good scholarly translation). So perhaps it's a bit too on point to raise my eyebrows at these two doing so:

    James Holden of The Expanse, actually fighting windmills himself Donald J. Drumpf of the White House, actually blowing wind

    Especially the one on the right, after his all-too-revealing temper tantrum calling a teenaged girl names because she was named "Person of the Year" by a has-been magazine… instead of him.

    On balance, I think that teenaged girl has demonstrated more suitability for a career in diplomacy than has a recent US Ambassador to the UN.

Anyone coming down the chimney tonight is going to have to deal with the dog in a non-xtian household. Even if only delivering coal. You have been warned.

17 December 2019

Open War on American Democracy

American Democracy? Let me refresh your memory from a little bit more than three years ago:

Candidate Votes  
Hilary CLINTON (D) 65,853,516 48.2%
Donald TRUMP (R) 62,984,825 46.1%
all others 3,341,675 5.7%

Source: Federal Election Commission (pdf).

Please remind me how the loser of the popular vote being declared the winner is any kind of "democracy" at all. <SARCASM> Oh, that's right. The Electoral College, which was adopted to protect the fragile American democracy from demagogues (cf., e.g., The Federalist No. 85). How's that working right now? </SARCASM>

12 December 2019

Best of Luck, Blighty

The polls will open at just about the time I'm posting this. Your "election" is just about as rational as, well, the ones we former colonies have.

Vote your conscience; but your conscience needs to include "tactical voting if necessary to keep The Enemy out of Number 10." For me — and probably for anyone reading this blawg — The Enemy is Boris the Spider. For others it might be Can't-Bring-Himself-to-Reject-Antisemitism-in-Party-Activists Jeremy. And so on. Remember: This is not a single-issue election… except that it is, because one party (the Tories) is living half a century in the past:

Well I think they should attack the lower classes, first with bombs, and rockets destroying their homes, and then when they run helpless into the streets, mowing them down with machine guns. And then of course, releasing the vultures. I know these views aren't popular, but I have never courted popularity.

Man's Crisis of Identity in the Latter Half of the Twentieth Century, Monty Python's Flying Circus (16 Nov 1969). The irony of some of John Cleese's own insensitivity to others in recent statements is perhaps too much for a nominally Python-worshipping nation. But you still need to make your vote matter, and it will only do so if you cast it, even if you live in Dunny-on-the-Wold (before Edmund Blackadder becomes your local returns officer).

Come to think of it, you'd probably be better off with Baldrick as PM than any of the "realistic" candidates.

11 December 2019

Oooh — That's Different

Yesterday and today exposed a fissure in American intellectual property law that has gotten little, if any attention. In a not-strictly-legal development that nonetheless provides essential context, the Register of Copyright is leaving — yet again for a job with not an actual creator of copyrighted works, but a trade association for transferees and distributors of copyrighted works. This is another in an unbroken line of "post-position" demonstrations of agency capture of the Copyright Office: Senior (and not-so-senior) Copyright Office officials end up working for transferees and distributors of copyrighted works, either directly or (on occasion) at law firms and lobbying agencies that work only for those transferees and distributors.

Sadly, this isn't just the American Rule — it's pretty consistent worldwide. My utter lack of surprise arises because I followed the money (a phrase which is in the news now for different — but disturbingly related — reasons). If there were equivalent positions and even close to equivalent compensation available working directly for the creators of copyrighted works, there might be some chance that some of these officials would end up working for them after their (usually underpaid) government service.

Of course, there isn't just one "American Rule," as yesterday's argument at the Supreme Court in a patent case made quite clear. There is an "American Rule" regarding judicial review: That the right to judicial review is presumed unless there is a hypertechnically accurate removal of a particular class of decision made under specific authority from judicial review… and even then, if that decision that seems unreviewable was outside the authority of the decisionmaker, it may be judicially reviewed. This latter point, though, may not be entirely correct in this case, because expiration of a statute of limitations does not divest a decisionmaker of jurisdiction. Statutes of limitations (and repose and for filing) are generally treated as affirmative defenses, and therefore waivable if not properly raised… and at least potentially subject to equitable tolling (for example, an extension because there was fraud involved in concealing the wrongful act from the victim; interestingly, the Court decided this precise issue in a different opinion and context yesterday (pdf), ultimately holding that the actual reason for tolling wasn't adequately preserved).

Admittedly, this is a slightly odd example, being based just on what happened at oral argument and not on the Court's opinion. It's not odd because it's "civil procedure," though: Far, far more intellectual property dispute decisions turn on civil procedure than on the substance of intellectual property law. This is particularly true of copyright matters, especially in this time of Twiqbal plausibility overtaking the Conley notice-and-any-consistent-set-of-facts framework on motions to dismiss. Indeed, two of the few Supreme Court copyright decisions under the 1976 Act that got there after a trial concerned the subissue in the next paragraph (and not a direct challenge to the verdict itself)…

The more-familiar "American Rule," though, is that each party pays its own lawyers unless there is a specific, statutory, and unambiguous fee shifting provision that authorizes the more-familiar-in-the-rest-of-the-world "loser pays all the lawyers" system, on a case by case basis. In another patent case, the Supreme Court decided that this doesn't include the Patent Office's internal legal "fees" for its employee time in responding to challenges to its prior rejection of a patent application (pdf). The statute allows "expenses" to be shifted to the losing party, but the Court held that attorneys' fees are not "expenses." (Tell that to a bankrupt debtor some time, especially given the wording of the Bankruptcy Code.)

Both the Copyright Act (17 U.S.C. § 505) and the Patent Act (35 U.S.C. § 285) do include some fee-shifting provisions. The tension with the American Rule is obvious, though, and perhaps far more nature-of-the-parties dependant than the courts are willing to admit. Especially in Copyright Act fee-shifting matters, "David versus Goliath" is a big thumb on the scale when Goliath is seeking fees — at least when David is the copyright holder.

And isn't all of that special. At a broader level, it makes IP different from personal property1 and real property2. A little different, anyway.

  1. Most property theory treats intellectual property as a subset of personal property. I don't entirely buy this. The purported "rivalrousness failure" presumes that rivalrousness is a necessary component of a property right, and there are plenty of conceptions of property in the abstract for which rivalrousness is a post hoc consideration, not bound with the property rights. More important is that unlike almost all personal property — even intangible personal property like deposits in financial institutions — intellectual property does not have an objective, ascertainable value. Consider, for example, the "value" of Barrie's Peter Pan… and works derived from it. The statutory fact that it is "out of copyright" (at least outside the UK, and its status within the UK is "interesting" in the "curse" or "academic" sense of the word) certainly affects its value, but not its status as intellectual property.

    Calling it "intellectual property," though, at least gets it into courts and other dispute resolution. There's an increasing tendency in the US to interpret "case or controversy" as requiring either (or sometimes both) of "plaintiff has suffered an injury to his property, including his person" or "plaintiff has suffered an infringement of a right derived from the Constitution," or the courthouse door gets slammed shut for want of standing. This seeming dichotomy, though, reflects as much the certainty-of-enforceability problem with remedies as it does abstract notions of "justiciability," even using the declaratory-judgment workaround. But at least by calling it a "property" interest, "creative" (or "progress in the useful arts and sciences") rights get resolved — however artificially. The irony that "creativity" is the last thing that precedent-worshipping courts and lawyers should be entrusted with has largely escaped notice — probably because the West has all too efficiently limited nonlegalistic means of dispute resolution, and especially those that don't have an ascertainable monetary remedy.

  2. Which mostly has little to do with "real." <SARCASM> Maybe they mean "a man's home is his castle" and are importing the Spanish real without admitting it. </SARCASM>

04 December 2019

Link Sausage Platter (No Leftovers!)

A thoroughly miscellaneous, but disturbingly related, platter:

  • A little bit of holiday subversion for you: Limit your own ISP's tracking of your URL requests — and, at least as importantly, whatever one is sucking down that information at whatever coffee shop you're quickly connecting to for e-mail and antisocial media — by enabling DOH in your browser. The key word there is "limit"; this is no panacaea. I thoroughly expect one of the major ISPs (I would consider betting on Cox, but only if offered hefty odds; they're all sleazebuckets) to start quietly changing their terms of service to require use of the ISP's own address providers "for security and protection of intellectual property" within the next three months… if there isn't already something buried in there.

    This is also a subtle way to protest the commercial pushback against net neutrality. It's only a protest, though, because ultimately the origin of the actual traffic is available to the ISP… if it turns on certain aspects of its internal systems. Which might cost it money (if only for additional storage space for the header requests and processing power for managing it). Rather interestingly, DOH would have no effect at all on dedicated "apps" like Faceplant… which leads to interesting theoretical questions on property rights and rivalrousness (the latter of which is an illusory class-based construct to reify the superiority of land to all other forms of property, but that's for another time).

    Unfortunately, this has only a minimal privacy benefit, because it just shoves the data somewhere else. At least at present, though, that "somewhere else" is less prone to monetizing it. There's at least one or two additional layers of gauze between the IP address associated with a DNS request at a given DNS provider and knowing "who" that IP address is (even through a VPN). But at least it makes your own ISP work a little harder to profile your 'net activity. And monetize it.

  • Speaking of inappropriate tie-in, consider repair costs and life-cycle closure when buying electronic devices. It would be one thing if all of the parts of Apple devices were themselves proprietary, carefully quality controlled, and actually easily available. That's three strikes, especially given the particular manufacturing processes Apple has chosen.
  • Milan Kundera is a Czech citizen again. That I paid attention to this just shows that I'm old; damned few Millenials know who he is, let alone why his citizenship was revoked in the first place. It is both shocking and reassuring that they don't know about the Velvet Revolution… or its context… or the price (and sources) of all of those stains on the velvet. Ewwwww!
  • On the other hand, there are Nazis using bill mills out there. OK, I've just taken a step down the road toward Godwin's Law (hi Mike!), but sometimes that's the actual subject of discussion and not a smear attempt. Organized groups with common policy positions are far from unknown. In this instance, though, it's First Amendment camouflage for activities and policies that actively undermine the First Amendment (and civil liberties more generally)… even before getting into the we're-going-to-strike-the-first-blow-in-class-warfare aspects hiding just barely under the surface. Or, as to a number of the backroom leaders at ALEC, not hiding at all.

    I'm not saying "Given Torquemada, all Catholics are antisemitic"; rather, I'm saying that Catholicism must openly acknowledge the currents of antisemitism throughout its history and structure, epitomized by but not limited to Torquemada. And nobody is exempt from this examination; I'm mentioning Catholicism here because it's an easily documented exemplar. As to ALEC, if you allow the misnamed Allian(3 Def3nding Freed0m (to Violently Impose Old-Testament-Style Orthodoxy, Religious Tests, and Bigotry) to sponsor one of your events, you've got Torquemada in your midst. In this instance, knowing that particular company that you keep is enough — regardless of any hypothetical merits (or self-interest) of your "content."

  • And the company kept by too many scientists and scientific organizations included Jeffrey Epstein. What this really demonstrates is that neither government nor anyone else is willing to make adequate investment for profitability-not-guaranteed research. If research activities in the sciences (and elsewhere) were adequately supported without "must apply immediately" agendas, the entry point for the Epsteins (and ADFs) of this world would be much more limited… and obvious.
  • All of which is less disturbing than rabid space baboons. Personally, I think Ms Vaughn was too easy on the fundamental conceptual and script problems with this "film." Attempts to impose an overt spiritual skeleton on narratives about space and exploration pretty uniformly fail, especially when there's any attempt to explicate them or analogize them to contemporary-to-the-author/scriptwriter concerns. (Exhibit A: The last two seasons of Battlestar Galactica (2004).) Part of this is, I think, because so few authors — and even fewer scriptwriters — have enough sense of wonder at the Great Unknown; they feel obligated to bring in more, and ironically enough more familiar, Great Unknown because they don't trust the other filmmakers, critics, or the audience to see enough profundity.

    As to Ad Astra, it's clear that nobody who had ever had anything to do with maritime or aviation operations had a damned thing to do with supervising the baboon cage setup/scene/sequence, or indeed damned near anything else. The film ignores safety and communication systems and procedures that are extraordinarily routine even in non-experiment-related sea and air operations, not to mention all of the backups and session memos and everything else done by competent researchers in any context (and not just regarding the baboons). I'm hesitant to award a negative rating to an entire film over one scene/sequence. Hesitant but, in this instance, not unwilling… especially when the rest of the film, in Ursula K. Le Guin's immortal words of nearly half a century ago, could have been told at Poughkeepsie.

28 November 2019

The 2019 Turkey Awards

An annual tradition for two decades! This is my list of ridiculous people from 2019 (so far). Pass me one of those rolls, please:

  • The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to Fox News over its attacks on Greta Thunberg. The irony of using an ad hominem attack in this context is far, far too much… <SARCASM> especially given that one of the attackers is a blonde </SARCASM>. We'll leave aside for the moment that that particular individual doesn't appear to have taken a science or math course beyond minimum general-education requirements, yet continuously comments on purported "scientific consensus" issues that — all too conveniently — redefine the word "consensus" differently for every such issue.
  • The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to cooks who wash their turkeys but not their hands and then wonder, a couple of days later, why those who attended their feasts all have stomach bugs.
  • The Broken Wishbone Award for shattering dreams goes to Doug Evans. It has four eyes and can't see (except the color of one's skin). If this sort of conduct doesn't call an individual's fitness to practice law into question, I don't know what would. Well, according to most state disciplinary systems alcoholism, sex with clients, and stealing from clients would… but mere perversion of the course of justice, not so much.
  • The Golden Gristle Award for assertions far too difficult to digest (and prone to becoming stuck in one's teeth) goes to Macmillan USA/John Sargent and their assertions that at-publication library availability of e-books hurts publisher revenue — a fact-free (or at least timing-ignorant) presentation that makes one wonder just how little Sargent charged Old Toby for his soul. Some fairly simple math demonstrates this. Actual gross revenue to the publisher per copy of a new-issue-from-casebound e-book sold to end-users is less than $13 (minus, as never allowed for, production and fulfillment costs, but no further payments to the author on initial publication because the author's advance is sunk money); actual payment to the publisher for a "library license" for that same e-book is well over $60, a little over four times that; and the calendar shows that an e-book could be loaned for only four four-week periods during the proposed "embargo." And all of that presumes that e-book borrowers will purchase at all, which — as my earlier screed noted — is a mere presumption. <SARCASM> Great job demonstrating a plausible loss of revenue there, Mr Sargent. </SARCASM>
  • The Conspicuous Consumption Cranberry Relish Award for the most-outrageous example thereof goes to the asshole who purchased a "Salvator Mundi" for half a billion dollars. Followed closely by the asshole at a foundation (whose money comes from real-estate speculation) who decided that the University of Pennsylvania School of Law should be named after the foundation's benefactor, despite that benefactor's lack of connection to the study or practice of law.
  • The Crabapple Pie Award for marketing something sour as something sweet goes to Boris the Spider. Maybe for Brexit, maybe for immigration policy even more cruel and dysfunctional than Drumpf's, maybe for privatizing the National Health Service (which, for all its faults, is one helluva lot better than what is available to about 60% of the US population), maybe for continuing to associate with Rees-Mogg, maybe for damned near anything else he has said or done — let alone his Charles I antics in "proroguing Parliament" in an attempt to evade oversight (hmm, that reminds me of someone on this side of the Pond…). If anyone had any doubts that the Tories are the Mean Party, they should long have been erased.
  • The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to Franklin Graham. And that's just the nepotism-and-finance-and-bigotry spoilage; no #MeToo issues among evangelical leaders here, move along, folks, nothing to see there (n.b. supporting documentation neither public nor available online, which does not lead to a defensible conclusion that it doesn't exist).
  • The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to The Dishonorable Devin Nunes (R-CA). Conversely, because he's not ridiculous and therefore wouldn't ordinarily make his way to this holiday feast, Lt Col Vindman gets the Super-Tasty Kimche Award (so, so good in general with the leftovers… and especially in a hastily-thrown-together-in-the-field sandwich in the middle of a twelve-hour patrol or forty-eight-hour stint in the alert barn).
  • The Dried-Out Breastmeat Award for overcooking the books goes to the Association of Talent Agents (and their union-busting allies in Drumpf's DoJ, who seem to have forgotten about § 6 of the Clayton Act). The WGA is functionally engaging in a strike against employers who won't bargain in good faith on a working condition; calling it a "boycott" just raises the specter of "who's really an employee?" — a specter that is becoming more corporeal all the time, and the California Supreme Court has made that answer excrutiatingly clear for screenwriters. Hint: If your output is statutorily "work made for hire," you're almost certainly an employee.
  • The Rancid Drumstick Award for something that should be edible, but isn't, goes to the real Bond villains: FAANG. Which leads one to wonder whether "small/no government conservatives/libertarians" aren't really just anarchists, who should get all of the worshipful attention accorded Kropotkin.
  • The GMO Tofurkey Roast Award for a main-dish item that's supposed to be more wholesome, nutritious, and/or ethical, but merely hides something that's perhaps worse under that veneer of virtue, goes to overpromotion of soy as a substitute for other protein sources, whether (as is most common from the Amazon) soy meal for meat animals or as direct constituents of human protein sources. Soylent Rainforest, anyone?
  • Special Limited Time Offer! The Salmonella Carrot Medley (Artificial Color Added) Award for discrediting an office and a nation goes to this guy — hopefully, only through 2020. Although now that I think about it, he'll continue to do so long after he's left office under whatever circumstances that happens.

21 November 2019

Better Than "Just Fine"

Well, I was stuck in a waiting room midday Left Coast Time today, so I ended up involuntarily listening to Mr Nunes's "closing statement" screed regarding the impeachment hearings. And I'm not pleased.

I've lived through this before, and watched a service and service academy utterly fail before.1 All of the services learned from those failures, and strove (and continue to strive) to do better. There are going to be mistakes made by uniformed personnel; it's the nature of the business. But:

Mr Nunes, before you criticize the honor or integrity or motivation of a decorated career military officer, may I first examine your Department of Defense Form 214 showing your own honorable service? How about any close family member's DD–214? I'm not even demanding that it be honorable service as a commissioned officer; just honorable service around commissioned officers might be enough. Otherwise, sirrah, I must presume that you know nothing of which you speak. And I call on all veterans' organizations to refrain from endorsing Mr Nunes for office on that basis.2

Contrariwise, Lt Col Vindman, you'll be better than "just fine". Even if you're never promoted again — a distinct possibility due to the mechanics of the Defense Officer Personnel Management Act of 1974 (as amended), even before anticipating the pressure that will be exerted against confirming any future promotion in the Senate — you get to sleep at night because you did your duty, and you did it without regard to personal cost. For that, sir, I salute you.

  1. The United States Naval Academy failed in training two of the main figures (among others) of that fiasco, and the United States Navy failed in its duty to maintain good order and discipline by internally enforcing Article 133 of the Uniform Code of Military Justice, codified at 10 U.S.C. § 933, instead leaving it to civilians. Military officers do not get to overrule statutes, however inconvenient those statutes are, and the Boland Amendments were the governing statutory law at the time. And then they lied about it under oath. "But he's our bastard" is not even close to a sufficient rationale.
  2. Like that's going to happen; it's one of the reasons I'm not a member of any veterans' organization, and that I resigned from the Reserve Officers' Association in disgust while I was in law school even though I was still a reserve officer at the time.

19 November 2019

The Only Winners Will Be the Lawyers (Episode 47,519)

The Supreme Court recently agreed to hear one of the most "Why can't they both lose?" intellectual property disputes of recent years. And it's one that exposes the true, utterly-unenlightened-self-interest, financial and economic motivations for intellectual property litigation — misuse of intellectual property rights as a high-priced exception to the skepticism built into antitrust and unfair competition law1 toward monopolies. In short, they want to monopolize "the money," without any consideration of the consequences for anyone else — or even the very underlying purpose of the non-res that leads to the money.

Google, LLC v. Oracle America, Inc., No. [20]18–956 (cert. granted 15 Nov 2019), appears on its face to present the following questions for the Court — in its dubious wisdom and competence2 — to attempt to answer.

1. Whether copyright protection extends to a software interface.

2. Whether, as the jury found, [Google]'s use of a software interface in the context of creating a new computer program constitutes fair use.3

But these fundamentally assume aspects of the inquiry that are, in fact, central to not only the Federal Circuit's (and trial court's) analysis below, but to the very nature of copyright. Worse, that very nature of copyright is both explicated in a series of decisions beginning over a century ago and continuing to the present as to US conceptions, and increasing reliance on the same concept in international copyright law: The inability of "copyright" to extend from expression to idea.4 Instead, the inquiry should look something like this — stated as neutrally as possible, without the self-serving bits embedded in the questions as quoted above (or in the preamble that I'm not bothering with here, which is if anything worse).

A. Can a series of specifications for accessing useful functions in a general-purpose software system (that does not itself reproduce original expression) constitute original expression under Feist? This is the entry-point question (if the answer is no, the two others don't matter). By analogy to a clear work of art, this question asks whether quoting a couple of lines of dialog from Screenplay 1 in the body of Screenplay 2 — when Screenplay 1's quoted dialog consists of direct, even purely binary or numeric, responses to factual questions concerning a historical event, such as quotations from the Nuremberg transcripts embedded in a film — constitutes copying of original expression. If it does, we go to the next inquiry.

B. Does the casting of any original expression found in A as a specification constitute a reduction to fact distinct from any original expression, especially when any such original expression concerns a useful function? Here's where some knowledge of the history of science, and the process of scientific progress, would be useful — even in a "pure copyright" context. One clear example is the Szilard engine.5

C. For any specification to which the answer to B above is "no," what is the standard (and burden of proof) for determining that such a specification is nonetheless fair use? Here, I'm afraid, we're getting into the inept writing of the Copyright Act itself. Section 107 is misworded; no matter its rhetoric that fair uses "are not an infringement," fair use functions like — and the courts recognize that its function is — an affirmative defense, and treat it accordingly instead of as a "positive right" of the reuser. This makes perfect sense given the evidence that would be necessary for establishing each of the five established fair-use factors.6

And even after all of this, we haven't yet considered the underlying problem. Copyright is, fundamentally, a government-sponsored monopoly. It is a very narrow and limited monopoly on its face — but as this litigation demonstrates, even that narrowness can have immense (if unintended and indeed unimaginable to the Founders… or even drafters of the 1976 Act) consequences. The underlying problem does not lend itself well to two additional questions for the Supreme Court to answer in this case, because this case does not present a good vehicle for asking or answering them — either conceptually or on its particular record. Nonetheless, both questions lead to my impulse to want both sides in this particular case to lose.

P1. Does the initial provision of software interface instructions constitute an implied license for creating derivative works that comply with those interface instructions? This is both a larger and smaller question than "fair use," because it is intensely related to the nature of the source work. In this instance, Oracle is demanding quasi-trade-secret protection for something that it has disclosed to the public via the copyright registration, if nothing else.7 More to the point, software interface specifications are in the nature of a USAF Technical Order — the instruction manual for the methodology and parts used in performing aircraft repairs. The provider of that instruction manual has implicitly given at least some permission for users to copy/implement those procedures in order to comply with the bloody manual, which in turn relates to compliance with safety and interoperability standards established well outside the scope of either the manual or the aircraft in question. And if it is not a formal implied license (if there is such a thing), then there are surely implications of "misuse of copyright" in here that aren't just big-picture policy questions — they are intimately and inherently intertwined with the nature of the two parties now before the Court.

P2. Is "pursuit of copyright infringers" per se outside the scope of antitrust law and doctrine? And now we really are in big-picture land, but it's a picture that also implicates standing — standing to sue, and standing to be sued. So we can't really ignore it; at best we can evade it as not being squarely presented here.8 At a policy level, though, this presents something that is implicit in the source cited in note 5 but implicitly ignored: That we are at an enforced, actual equilibrium state. This is because the impulse to use any means to suppress competition implicit in Oracle's position — purportedly to maximize its own shareholder value — depends upon both the size of the overall "pie" and the relative market shares remaining not just constant, but thermodynamically closed. Leaving aside that if there's anything that is paradigmatically not a closed system it is "means of information exchange" (in this instance, a cell-phone's operating system), this also implicates the original-position problem with intellectual property and one of the differences between "copyright" and "patent": The issues related to the First Amendment inherent in the former and denigrated in the latter. Functionally, Oracle wants its copyrights to be enforceable like patents, and in particular to embrace patent law's general rejection of both "fair use" and "independent conception," without ever confronting the nonpatentability of the interface specifications. And it wants to do so because it wants to believe that it could have stood in Google's shoes and created — and fully exploited — the Android telephone operating system itself, without expenditure on infrastructure similar to what Google had already done.

They should both lose. Or the public at large, copyright law in general, and technology in particular will. And, of course, independent creators of original works of expression will lose no matter what, because their interests will be nowhere represented in any of the briefs — but will be profoundly affected by any decision (if only because that rationale will be misconstrued and misquoted to screw them).

  1. That skepticism is also inseparable from the US Constitution and from all other Enlightenment-era-origin governance systems. This is, itself, a 112-footnote argument I wrote in 2005 and haven't updated since — and utterly unfashionable, because it tries to use nonlegislative materials to cast light on legislative intent, and in turn (at a further remove) on the probable shared understandings of the small proportion of the population that actually engaged in writing governance documents. I was not confident that the research was "good enough" then, and given the excesses and blind spots of corpus linguistics (pdf) analysis as it has evolved in the last fifteen years, I'm even less confident. The problem with cl analysis ab initio is that it concerns itself with what has been preserved, and more to the point what was recorded in writing and preserved… at a time of far less than universal literacy. And that's before getting into the class-, race-, religious-, and nativist-related problems with the origin. Bluntly, no competent statistician (or chemist or physicist) would infer a damned thing about the entire population from this kind of self-selected sample — not even the "population" of "those thinking about governance," which is only a subpopulation that just thinks its opinions are the only ones that matter two and a half centuries later. Cf., e.g., Michael Dorf, Dicta and the Original Meaning of Article III, Dorf on Law (03 Jun 2019).

    But that's the sort of tangent that becomes useful only to those who already have tenure and therefore, in the bizarre political economy of "scholarship," can afford to be both provocative and wrong on a regular basis because such scholarship advances progress in the useful arts and sciences through the testing of ideas without regard to immediate financial benefit, and indeed by explicitly denying the utility of exclusive rights for scholarship. Especially since, in 2004–08, this sort of analysis was unpublishable — particularly originating from someone who could not benefit from the "named chair"/federal judge argument from authority (something that I have observed in action more than once). Pedigree and provenance matter. Indeed, even this tangent may be too much.

  2. See Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251 (1903). And, of course, there is even more dangerous a possibility relating to the sciences, to which "the judiciary" in particular and lawyers in general have even less exposure than the arts. See Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 570 U.S. ___, ___ (2013) (Scalia, J., concurring in part). And the irony that at this writing six and a half years later, this opinion is still not freely available to the public in its final form on the Court's own website gives one further pause on the competence of this Court to rule on the details of the Google-Oracle dispute — or even its context.
  3. Google v. Oracle questions presented (pdf) (accessed 19 Nov 2015). I have carefully omitted the self-serving, less than intellectually honest, incomplete, and misleading "preamble" to those questions, and question whether the attorney(s) who wrote that preamble themselves know what they're asking, understand the duty of candor toward the tribunal, or even care.
  4. See (in an order not approved by the Bluebook, but in which the chain of reasoning becomes clear!) White-Smith Music Publ. Co. v. Apollo Co., 209 U.S. 1 (1908); Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (citing 17 U.S.C. § 102); Feist Publns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

    Citing the extensive international (especially, but not only, European) parallel developments is beyond the scope of this blawg entry. One useful introduction is Andreas Rahmatian, Originality in UK Copyright Law: The Old "Skill and Labour" Doctrine Under Pressure, 44 Int'l Rev. Intel. Prop. and Competition L. 4 (2013), but this just implicates another problem with the Google-Oracle dispute: The failure to identify whose creativity/original expression is at issue, and the presumption that either or both of the parties have standing to assert those rights and/or responsibilities.

  5. See, e.g., Leo Szilard, On the Decrease of Entropy in a Thermodynamic System by the Intervention of Intelligent Beings, 9 J. Beh. Sci. 301 (1964, [questionable] translation).
  6. Five: The four ineptly-if-explicitly identified in § 107 and the overarching problem of "administrative practicability" that always, always lurks inside of any evaluation of the evidence offered and the evidence itself.

    Section 107 is a paradigmatic example of "always run the text of your proposed codification past those who actually litigate the question, not just policymakers." Two of the four factors inherently overlap, two of them will for most fictional works inherently point in opposite directions, and none of the four factors show any sensitivity to artistic process. Cf., e.g., Harold Bloom, The Anxiety of Influence: A Theory of Poetry (1975); Wayne C. Booth, The Rhetoric of Fiction (2d ed. 1983); Northrop Frye, Anatomy of Criticism: Four Essays (1957); Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson, and Fielding (1957).

  7. For those with decently long memories who were actually paying attention during the 1990s, this should sound an awful lot like the Scientology attempts to keep its inner documents both secret and protected by copyright. See, e.g., Religious Tech. Center v. Netcom On-Line Comm., 907 F.Supp. 1361 (N.D. Cal. 1995) (n.b. no endorsement of reasoning or factfinding intended). Whether we're actually talking about "maximizing shareholder value" as a religious text is for a slightly-less-sarcastic different forum; whether that's what is actually happening here… really is not.
  8. The opinions below blithely place both Oracle and Google entirely in the shoes of the individuals whose expression was at issue, on both sides of the v. That, however, seems an unwarranted leap, especially in light of the limitations on works made for hire (because software isn't one of the eligible categories as defined in § 101 of the Copyright Act) and relatively recent clarifications on the independent contractor/employee distinction. Particularly given the historical practices of both Google and Oracle with "independent contractors," I think the courts below — and even the parties themselves — were far too quick to presume that "Google" and "Oracle" truly stand in the shoes of the people involved. Cf., e.g., Dynamex Ops. West, Inc. v. Superior Court (Los Angeles Cty.), 4 Cal.5th 903 (2018).

    On this issue alone, I would be tempted to GVR (grant certioriari, vacate the judgment appealed from, and remand for further consideration/factfinding) this case for further factfinding. Perhaps that is because I primarily work with authors and other creators whose "independent contractor" status is so often abused, especially with unenforceable "work made for hire" agreements (I'm lookin' at you, Del Rey Books and Lucas Enterprises, or at least at your successors in interest). Given the Court's increasing emphasis on "standing must be resolved forever," I don't see that as entirely inconceivable. Entirely improbable, I'll grant (vacate, and remand).