13 January 2017

Agency Capture and the Copyright Office

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

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

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

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

03 January 2017

No New Year's Treats for Me!

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

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

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

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

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

28 December 2016

The Finish Line Approacheth

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

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

25 December 2016

Broadway "Miracle" of 2016…???

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

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

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

21 December 2016

Musing on Link Sausage Casings

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

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

    Democracy and liberalism are processes, not things

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

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


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

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

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

    Australian Publishing Is Losing the Copyright Fight

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

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

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

06 December 2016

It's the Economics, Stupid?

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

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

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

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

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

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

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

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

29 November 2016

Leftover Turkey Link Sausages

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

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

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

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

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

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

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

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

24 November 2016

No Turkey Awards for 2016

There are no Turkey Awards this year. For the first time in four decades, I'm not involved in cooking my meal (thanks to those life/health issues I noted a few months back). I have even less energy for Turkey Awards this year after one of the most astoundingly falsehood-filled election seasons in the post-war era, both Over Here and Over There... and that's actually less difficult and discouraging than the waves of incontinent bullshit in entertainment and the arts.

The platter is empty. See you here next year.

19 November 2016

Fertilizing the Rosebush

We're in for an interesting time. As an acquaintance of mine noted recently (quoted with permission, reparagraphing and ellipsis mine):

I can't quite shake off a sense of cowardice. The idea that when things get truly terrible I'll fall in line and trade self-care for selfishness.…

I don't despair, though. There is much good to do, now and over the next four years, even if one single person cannot possibly do enough. Donating money and calling Congressional representatives and protesting in the streets and subscribing to newspapers and answering calls to action all help. Making art and taking it in. Reading books and writing, too. None of those things may detract from the innate, awful, creeping cowardice, but at least they distract for a while. And then, in struggle and by sheer force of will, that cowering fear can be turned into something more meaningful. Because heroes don't set out to be heroic. They do what needs to be done.

This is precisely what democracy is supposed to do: promote nonviolent protest and working for change, and taking personal responsibility for both the actions and the consequences. It is, after all, exactly how the Founders attempted to conduct themselves prior to the First War of American Secession (from 1774 to 1783; the second one, from 1861 to 1865, was much less honorable in all respects). At least to date this time, there has not been insurrection even rising to the level of that expected after an "undeserved" loss at a college football game.

Especially, perhaps, when it is done nondisruptively — and respectfully — along with entertainment. Contrary to the bloviation I'm seeing from certain nutcase media sources, the cast of Hamilton did not insult, or even call out, the Vice President elect by stating the following after the end of the performance (and requesting that the audience refrain from booing, which was just about as successful as it would be at a Yankees game):

Vice President-elect Pence, we welcome you, and we truly thank you for joining us here at Hamilton: An American Musical. We really do. We, sir, we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope this show has inspired you to uphold our American values and work on behalf of all of us. All of us. Again, we truly thank you truly for (sharing) this show, this wonderful American story told by a diverse group of men and women of different colors, creeds and orientations.

(typography corrected) It's far more "polite" than three Republican appointees were to Mr Pence on a related issue quite recently… Perhaps you should just allow some smooth piano music to accompany your protest; it's almost exactly as threatening (until, that is, you listen to the lyrics). And it's well-groomed white guys (ok, well-groomed allowing for the '80s hair).

It could, of course, be worse. We could continue to call centrists "liberals" just because they're not the right variety of arch-conservatives, very much as seventeenth-century Catholics denied that Calvinists were Christians... and vice versa. Or, in the present, like many Shi'a deny that Sufis are Muslim, and like even fully observant American Orthodox Jews are too secular to earn a hearing from perhaps 20% of the Knesset. We need not limit ourselves to religion, however; the echoes of the Army-McCarthy hearings, 1920s-40s Germany, and Edwardian/Georgian England in what passes for political discourse have become deafening to the point that nuance is no longer tolerated. There just isn't a lot of space between excoriating a position as "politically correct," "pinko," and "objectively fascist" — all too often, even in the positions themselves.

"Nuance" is acceptable only when subverting national politics for personal benefit. It is class-and-ancestry-selecting, for example, that "depletion allowances" are available only to owners of large tracts of real property, but not to owners or creators of intellectual property. Explaining why requires both nuance and math (not particularly complex math — just complex enough that it can't be represented in HTML very easily), and also connects back to the non-depletion-allowance-claiming authorship of Hamilton. That's just one example, but note the linguistic bias in calling land (particularly in light of how land ownership has evolved/devolved) the only kind of property that is "real."

And so I look forward to four years of minority government desperately proclaiming that it has a mandate, while simultaneously suppressing the hell out of opposing points of view. The best fertilizer for roses is ground-up bones, which sounds about right; those flowers have thorns for more than one reason.

16 November 2016

SOFIA's [Non]Choice Rejected

You may recall my outrage at the arrogance of the Bibliothèque Nationale's seizure of electronic rights for "out of print" books a while back. Earlier today, the Court of Justice of the European Union smacked down that arrogance, ruling that

43. It does not follow from the decision to refer that that [French] legislation offers a mechanism ensuring authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use.

44. This is all the more true considering that such legislation is aimed at books which, while having been published and commercially distributed in the past, are so no longer. That particular context precludes the conclusion that it can reasonably be presumed that, without opposition on their part, every author of these ‘forgotten’ books is, however, in favour of the ‘resurrection’ of their works, in view of their commercial use in a digital format.

45. Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.

* * *

52. Having regard to all of the foregoing considerations, the answer to the question is that Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

Soulier v. Ministre de la Culture et de la Communication [of France], No. C–301/15 (CJEU 16 Nov 2016).

Backtracking a bit and expanding on what the CJEU did not say, in 2012 the French legislature amended its intellectual property law to allow its designated authors-rights society, SOFIA (think of ASCAP or BMI), to authorize and accept rights payments for digital editions of out-of-print-in-France books. The mechanism was classic opt-out-with-obscurity, as so often proposed by the information-wants-to-be-free-and-everything-is-merely-information warriors. The Bibliothèque Nationale would publish a list of works proposed for unrestricted digitization on its website — without an index, without translation to the author's native tongue other than French — and, if six months later, there was no objection formally posed that included documentary proof that the objector had all rights, the work would be released for digitization. SOFIA would collect any rights fees generated on behalf of the authors, should they later make a separate claim to SOFIA (although to my admittedly imperfect knowledge, no such payments have been made to any non-EU author and virtually none outside of France).

Today's opinion basically says:

  • Your objective of making materials accessible despite commercial barriers imposed by parties other than the authors — publisher profitability, bookstore profitability, limited shelf space in bookstores and libraries, etc. — is acceptable. (¶ 45) But:
  • You cannot simultaneously take away authors' rights in doing so. (¶ 45) The authors' rights control over cultural and informational "imperatives," however important they are to the interests of the State. (¶¶ 29–34, 52)
  • You may designate a collecting society for administrative convenience, but such a society does not have authority to give permission for republication. (¶¶ 35, 48)
  • The publisher of a print edition does not inherently have the right to either approve or block a digital edition (¶¶ 47–49, 51), presumably (the Court is silent here) depending on specific contractual terms and not on assumptions embedded in general legislation.
  • You must give authors specific prior notice (¶¶ 38–39), act only upon formal approval (even if implicit) (¶¶ 35–37), and without needless formalities or artifical barriers (¶¶ 51) or requiring a non-author's acquiescence regarding this choice (id.).

Needless to say, this is a very pro-author decision. It is imperfect, as it fails to engage with the obvious problem of coauthors (for a work written by three individuals, how many must assent?), let alone who has the right to deal with a collective work (who can assent for, say, The Science Fiction Hall of Fame, Volume I, consisting of protectable works by 27 authors including the editorial matter) or a joint work published under a single authorial identity (e.g., Ellery Queen, James S.A. Corey). It will, no doubt, result in endless gnashing of teeth from those frustrated by books they "want right now" remaining out of print and not digitized, but the Court's answer to that is that the author's rights are paramount against the concerns of others (¶ 52).

What I expect to happen next, though, is another attempt to end-run around this problem. This is fundamentally the same problem as raised by the Google Books matters, if different enough in facts and law that the answers don't look all that compatible. And for some kinds of things, there's a legitimate claim of cultural priority over the resistance of authors' heirs (e.g., works that remain out of print because the authors' heirs — for whatever reason, but most-commonly religious — disagree with their content, such as those of John M. Ford). The mechanism will be important, and there's a gaping hole in the CJEU's reasoning: Voluntary membership in SOFIA might be construed as a delegation of the right to assent for this purpose, if that were part of the formal disclosures provided to an author upon joining. (Involuntary-membership circumstances such as the bumbling Copyright Clearance Center — which purportedly operates only for shorter works in periodicals anyway — seem excluded by the Court's reasoning.)

12 November 2016

No Mandate for Evil

To only slightly modify Mr Queen's objection:

Party leaders, you have failed this polity.

And that was the real problem with this election, from the top of the ticket all the way to the bottom.

There's a necessary generational shift in politics — it's a function of demographics. Each generation, however, tries too damned hard to hold onto power, refusing to relinquish it to the next one. Consider, for example, the problem with my generation — the Baby Boomers. The presidency passed to a 'boomer in 1992, and will remain in the hands of a 'boomer until at least 2020. Compare that twenty-eight-year duration to the eighteen-year-duration of the 'boom itself... and then remember that a substantial number of the power brokers among the 'boomer "generation" were born during its first half-dozen years (including both major-party presidential candidates!), so even within the generation the power brokers skew old. And that has led directly to an unwillingness — perhaps even inability — to either listen to or let go in favor of those uppity kids... many of whom are pushing fifty and have adult- or nearly-adult children of their own.

Thread One: Women's "issues" most relevant to a seventy-year-old white daughter of privilege and machine politics are not the same as those most relevant to a woman in her twenties or thirties, and therefore probably have different solutions and different priorities. There's some overlap, but not congruence. What passed for a strategy by the Jackasses pretended that there were no distinctions, and that Hillary could also "represent" immigrant communities, etc.

Thread Two: Business "issues" most relevant to a seventy-year-old slumlord/real-estate developer who inherited or was otherwise gifted substantial initial capital with no need for repayment (who has had virtually no longterm net success in anything not directly related to real estate, as reflected in the multiple bankruptcies) are not the same as those most relevant to a startup entrepreneur, regardless of that entrepreneur's business line or education or immigration status or anything else, and therefore probably have different solutions and different priorities. There's some overlap, but not congruence. What passed for a strategy by the Heffalumps pretended that there were no distinctions, and that The Donald could also "represent" high-school-educated labor being priced out of the only jobs they knew how to perform by cheaper foreign labor, etc.

Thread Three: The established "third parties" were no better. For example, the Greens pretended (having learned nothing from the Heffalumps) that an antiscience — and specifically antivaccine-friendly — "doctor" could represent views on things like defense policy and civil rights with any predictability. The Libertarians were, if anything, worse, putting forth an ignoramus on world affairs (that had already made its appearance in "debates" during primary season) for the most-important world affairs post anywhere.

The key point is that the grey-hair gatekeepers imposed their idea of gravitas... meaning members of my g-g-generation, or their close-in-age protegés. And more to the point, seldom listening to people who aren't in my g-g-generation — or to "class traitors" (like me) who are part of that g-g-generation and pleading with them to do so. (This is one of the many reasons that I will have nothing to do with the AARP. Ever.) Instead, all three threads ended up mired in factionalism. That's what the voting behavior represented. It's also the most compelling explanation for the continued state of politics below the national level: Just say "Daley" or "Madigan" or "Thompson" to anyone in Chicago with political awareness greater than that of the average snail darter (and Chicago is far from unique, just more overt).

Leaving aside for the moment whether our Constitution was imperfectly designed to denigrate factionalism (if nothing else, the Attainder Clause, Art. I § 9, should be a big hint that this was at least under consideration) — thereby making proponents of factionalism unfaithful to the designs of the founders — ask yourself a question that the parties clearly did not:

When the electorate cares more about issues than factions, but is offered only factions in the guise of identity politics, how will it behave?

Well, we just got our answer: The electorate will focus on soundbites from one or two of the issues plus the personality/reputation of the candidates, and hope for the best (or least-worst) on everything else... and split pretty much right down the middle. And anyone who claims there's a "mandate" for anything is lying just like they did about the purported "Bush mandate" in 2004. The Donald's ticket received 60.27 million votes, 47.3%, out of about 127.5 million votes cast — less than a majority, less than Hillary. (That's an argument for another time.) That's no mandate. And it's even less of a mandate as a percentage of registered voters (25.0% of 241 million), let alone population (18.6% of 324.6 million). The Donald may have won the election under our peculiar rules... but neither he nor "his" party have a "mandate".

The whole point of democracy and representative government is to not just tolerate, but embrace, dissent. (That doesn't include rioting before anything actually happens in one of the whitest major cities in America.) Unfortunately, the Heffalumps institutionally have a century-plus history of refusing to accept dissent as an essential part of governance and government, so I'm afraid we're in for a bad time. That's not to say that the Jackasses have been paragons of virtue — just that they're less evil. But when one chooses the lesser evil, it behooves one to remember that it was still a choice of evil.

09 November 2016

Surviving on the Dollar Menu

The dollar menu at McZorgle's never has tasty, nutritious menu choices. And when you force people to choose from only what is on the dollar menu, it's really difficult to predict their choices. Predicting the result — hypertension from excess salt, the occasional disease outbreak from improper handling, weight gain from poor nutrition profile — is much easier...

To put things another way, those who have skeletons in their closets need to avoid basing their electoral (or other selection... such as marketing) strategy on exposing the skeletons in the other candidates' closets. In particular, this means that gatekeepers themselves need to be not necessarily above reproach, but at least relatively clean. In this election, that goes for all four parties that made national ballots for the presidency; my own ballot1 involved choosing the least of the evils offered from among Chicken McMaggots, sleazeburgers, spraypainted-green side "salads," and similarly unappetizing choices. It also applies to the entertainment industry — if the gatekeepers for, say, "popular music" were both more competent and more honorable, both their suppliers and customers would be less restive.

Of course, the gatekeepers aren't going to blame themselves. They're not going to get out of the way and let others set the menu — they're just going to tweak things by providing a new dipping sauce for the McMaggots or adding sesame seeds to the bun of the sleazeburger. And that's because it's not in the personal, immediate, unenlightened self-interest of the individuals who act as gatekeepers to take any risk of diminishing their own personal power bases. This nation survived — in consecutive terms — Woodrow Wilson, Warren Harding, Calvin Coolidge, and Herbert Hoover. It was unpleasant (and racist, isolationist, antiimmigrant, and "pro-business" meaning "pro-fraud") but survivable. More recently, Italy survived Berlusconi. Times are a bit more dangerous now (a Trump presidency absolutely ensures we will not meet the climate-change challenge, instead of providing the 30% or so chance of doing so offered by two of his competitors), so survival will be dicier.

  1. For exit pollsters, et al.: What part of "secret ballot" did you not understand? With no even arguably liberal-and-sane candidate to choose from...