12 July 2024

Suboptimal Reality Orientation

Any discussion of what "optimal" would look like is for another time. So, too, is the difference between "initial perception" and "desired/actually achieved result," which rather unites these sausages.

  • Sometimes the minutiae of corporate accounting overwhelms everything else about a company. This can most obviously arise from major mergers and acquisitions, either overtly due to mispricing and misvaluation or more subtly from reverse cultural imperialism. The key commonality in both instances is the malign influence not of the particulars of Dodge v. Ford, but the failure to examine what "shareholder wealth maximization" actually means — and over what time period. Year-over-year results (whether used to set securities prices or management compensation) just don't make a lot of sense for projects that by their very nature have decade-long development cycles before their success or failure can be adjudged, and it's even more nonsensical when to the end-user that item is not obtained/used for "profit" (or anything resembling "wealth maximization").

    Application of this concept to the ongoing and future Paramount fiasco is left as an exercise for the student — and the shareholder-litigation partners at white-shoe law firms. None of whom will reflect on the difference between "wealth maximization" and "immediate gratification of impulsive greed."

  • With all due respect, General Olson, you've gotten the problem almost exactly backward. The difficulty is not with excessive demands for recusal of judges who have picayune, attenuated financial interests in a matter that might appear before them. It is, instead, with the difficulty of removing judges who won't give a fair, on-the-facts hearing to a matter due to extralegal ideological prejudice… and the difficulty of finding a suitable replacement judge who will, given partisan appointment processes (federal and state, appellate and trial, literally appointed and elected). Even the specific mischaracterized example cited by General Olson in his opinion piece reflects the problem: Judge Willett's writings, both judicial and extrajudicial, reflect fundamental animus against the very purpose and existence of the subject agency, such that a reasonable person might question his impartiality. In practice, however, that is not the standard; instead, actually obtaining recusal virtually requires finding an "adverse financial interest."

    The irony that a standard — perhaps not a rule, as family members can't be directly subjected to it — that judges shall place all of their investments into either a blind trust or an index fund, together with some relief from forced-sale tax consequences, would pretermit most of these arguments has escaped almost everyone. Then, it would undermine the "I'm smarter than the Average Investor" perception, too… even though both history and math demonstrate otherwise (absent insider knowledge of precisely the kind that would cause a reasonable person to question impartiality).

  • It's election season, so I suppose I have to acknowledge various bloviations. Citizenship and immigration (and hence voter eligibility) is an obvious one, especially when cranked far to the right via fact-free racial and ethnic proxies. (Why yes, I am making an accusation here. Go ahead: Sue me.) It could, of course, be worse — as one candidate for the Big Job at present would make it. <SARCASM> Maybe we should just send all of the white people back where they came from, because they're all descendants of immigrants. </SARCASM>

    Far more disturbing, though, is the utter failure to consider what "representative democracy" is in continued whingeing over how to declare victory that ultimately assumes that the prejudices expressed by a candidate cannot be changed by persuasion and facts, even as to unanticipated and/or peripheral matters, once in office. That is, that loyalty to a faction (closely resembling theocratic reasoning) necessarily overcomes reality every time. Perhaps that explains the overt factionalism and inability to bloody listen that is even more apparent in parliamentary systems (prevalent in Europe) than divided-executive systems (the US, and only a few other examples). Devices like the so-called Hastert Rule further mask the problem, preventing even debate and persuasion — the very core of representative democracy (at least among those who know how much they don't know, eschewing the theocratic impulse).

  • If that's not depressing enough, go bomb hospitals (sadly, elsewhere too) in furtherance of the worst impulses (and routine practices) of Stalin, the Gang of Four, Pinochet, and Big Brother. Or maybe that's Nixon's list of enemies for the 21st century; unfortunately, I'm nowhere near prominent enough to be included, although my non-film-based Bacon number to some who no doubt are is not more than two…

08 July 2024

Immoral Rights

Because there's nothing "moral" about…

  • …authorship of Boléro asserted by the successors in interest, not the actual claimant(s). Especially not when attempting to improperly extend a copyright that had otherwise expired. The heirs to Ravel's estate (Ravel being the normally-and-by-consensus credited author/composer of Boléro) joined the heirs of Alexandre Benois (a stage designer who purportedly collaborated with Ravel on the production of Boléro) in asserting that Benois was a coauthor — which they claim would have extended copyright in the composition from already-expired 2016 to 2039 due to the differing dates of death. Unlike the US, France is uniform in measuring copyright from the date of death of the last-surviving author, with no foofery about pre-1978 works or works for hire. This claim failed, because — overdone rhetoric notwithstanding — absent other proof, especially documentary proof because all of the competent witnesses have been dead for years, there was nothing to establish collaboration on the composition.

    Indeed, at most there might have been a claim for the particular production, but even that would have been difficult given post-production declarations and the "Girl From Ipanema" problem: Absent proof of contribution to the copyrightable expression, there's no coauthorship claim in the first place. Sorrynotsorry, absent proof one can't ordinarily contemplate the stage designer as credibly contributing to the expression in a musical composition performed on that stage. This is distinct from the problem of early-on collaborators on films/screenplays, or books, or musical compositions (like this one), whose expression does survive being later cut out of authorship credit, and from the Raymond Carver/Gordon Lish problem involving the actual expression.

    What this really reflects is — yet again — transferees and patrons mistaking process for product in both creation of copyrightable materials and the copyrights (and related rights) themselves. But that discussion is for another forum and involves being not particularly nice to the author(s) of more than one copyright treatise; sometimes reality does intrude on the law (notwithstanding self-inflicted wounds where it… didn't).

  • It could have been worse, I suppose. Benois's heirs could have tried to create a postmortem-by-half-a-century digital persona to enhance publicity efforts. They could have taken the estate's proceeds and invested in performance venues without regard to actual performers' and composers' rights and revenues. They could have cropped photographs and omitted the photographer's name (or memeified them without permission or acknowledgement).

    Of course they might have: They're transferees, operating independently of actual creators (and, so far as I can determine, without any guidance from their purported creator, let alone the composer). The "creators" of 17 U.S.C. § 201(b) are invited to go perform anatomically impossible acts upon themselves, having only understood income streams from the product — neither the product itself nor the process that went into creating the product. Or, even more than understood, cared about.

  • From the Department of Phlogiston Studies comes this off-key "scientific study" of melodic sophistication since 1950 that ignores the presence of the ether — in this instance, the etheric airwaves. Neither that article nor the paper it discusses {partial $} engages with changing means of music consumption over the same period. For example, the 1950s mark the rise of the car radio — with all of the limitations in sophistication imposed by poor-range speakers and AM radio. And let's not forget the successor technology with all of its limitations: 8-track! (It also elides the problem with "melodic sophistication" being intertwined with, and not independent of, both vocal capability and lyrical integration. Not to mention the reduced emphasis on, well, actual musicianship, especially by "lead singers"…) In short, capability is an independent dimension not engaged with here.
  • The Chapter 11 (reorganization) plan of the Romance Writers of America was confirmed (approved), without objection, by the United States Bankruptcy Court for the Southern District of Texas this afternoon. In re Romance Writers of America, Inc., No. [20]24–32447 (Bankr. S.D. Tex.), dkt. 77 (08 Jul 2024) (no link, behind the PACER paywall; look for it on RECAP in a couple of weeks). On the one hand, this means there will be a national trade organization for both writers and fans of romance fiction going forward… unless they screw up compliance with the plan. On the other hand, the public accusations of DEI-problems-bordering-on-outright-bigotry substantially understated the reality. And this for a writing-category organization founded by a Black woman…

05 July 2024

Not in the Record

I am going to do something up front here that the worst decision issued by the Supreme Court in the last few weeks — and it had substantial competition for that dubious distinction — couldn't be bothered to do: State my a priori assumption so that it may be accepted — or tested. That a priori assumption is:

The exercise of the judicial power (U.S. Const. Art. 3 § 1), whether by a court of review or a court of first instance, requires that each fact relied upon in that exercise be of record — admitted evidence, reliance upon established consensus propositions not otherwise refuted, or binding legislative findings of fact that have met the same standards.

The decision in Trump v. United States, No. [20]23–939 (01 Jul 2024) (PDF >100 pages), is inconsistent with that premise.

The majority opinion presumes that absent immunity, a President will be impaired in performing the official acts necessary to the office's function by fear of later prosecution. Chief Justice Roberts rather buried the lede:

The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 U.S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U.S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance, 591 U.S., at 800. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive. The Federalist No. 70, at 471–472.

Trump at 21 logical/13 literal (brackets in original). The critical phrase — one resembling the nail for want of which the kingdom was lost — is in the middle of the second sentence of that passage: "…may instead opt for another, apprehensive that criminal penalties may befall him…"1 This premise fails on both logic and the vast breadth of historical evidence. It's not that I dissent: It's that reality does. This hypothesis is not fact, and is not based on any evidence in the record — quite the contrary.

Consider, for a moment, the behavioral mechanism assumed to be in operation: That the potential for criminal penalties is both necessary and sufficient to restrict an otherwise-contemplated action by the President. But it didn't deter President Nixon from both conspiring to cover up a crime2 and engaging in unlawful electronic recording.3 It didn't deter other officials from multiple schemes violating multiple statutes in the 1980s. In a broader sense, it hasn't deterred any of the war crimes committed across the world since the close of the Nuremberg proceedings (more than a few by, or in conspiracy led by, heads of government/state). Further instances are not necessary to refute the purported behavioral impetus as either necessary or sufficient. The flip side is, of course, worse: What do those entrusted with absolute power not subject to later examination or question do with it? Didn't the US just celebrate a "holiday" yesterday exemplifying that problem?4

Also relevant but neglected, consider the particular conduct alleged in this matter: Fomenting of violent insurrection opposing election results and interference with operation of the electoral system — both with a conflict of interest that would require recusal of a judge.5 If anything, election integrity requires rejection of conflicts of interest more than any other aspect of a representative democracy.6 Indeed, this is precisely the kind of action for which any representative democracy should demand that officeholders "opt for another" "course of action." This bit of questioning of authority in the context of a court of law considering criminal penalties, of speaking truth to power, is anything but "routinely subject[ing conduct] to scrutiny in criminal prosecution[]" — despite past opportunity. <SARCASM> Oh, wait, actually reading the indictment isn't necessary to advise such broad immunity principles. </SARCASM>

Our system embedding separation of powers; our rejection 248 years ago this week of a tyrant wielding absolute power not subject to later examination; the reality that those with great power are not deterred from exercising it "just" by criminal penalties — all counsel against immunity. Instead, any deterrence must come from their own character and their respect for the form and the substance of Constitutional government. Better still, we should elect candidates of such character that "deterrence" would be superfluous; and, when we don't, we must remain open to retrospective corrective actions not to deter them — but to deter others.


  1. To even reach this flaw, one must pretend — as did Chief Justice Roberts and the majority — that there is no legitimate relationship between "ends" and "means" relevant to exercise of executive powers, once one determines that those powers are being exercised in an official capacity. The entire point of the Nuremberg proceedings is that as a matter of international law and basic humanity, that is not correct. Indeed, the secession of the colonies from the United Kingdom two and a half centuries ago demonstrates that as a matter of basic principles of governance and the Rights of Man, that is not correct. Once one acknowledges that "ends" and "means" are not completely independent — that desired (or even acceptable) ends limit the means that can be employed; that means employed limit the ends that can actually be achieved — a purported right to never be questioned becomes untenable, and especially so when the means subject to question facially appear criminal in substance. The true protection available to a President who, on perceived grounds of necessity, engages in otherwise-criminal conduct (or conspiracy) in implementing an exclusive Presidential power is not immunity, but a vigorous defense.
  2. Cf., e.g., 18 U.S.C. § 4 (1948, amd. 1994). There is little question that if the person so charged is him/herself a "judge or other person in civil or military authority," illusory reporting to one's self is not sufficient.
  3. Cf. 18 U.S.C. ch. 119 (1968 as amd.).
  4. Ironically, the nation that inspired this, and even the very concept of a fair and free election of the head of government and head of state, went to the polls yesterday (on the mistaken anniversary celebrated by the US) and replaced its head of government.
  5. 28 U.S.C. § 455. Indeed, as to this particular electoral issue, virtually all of the mandatory grounds for recusal laid out in subsection (b) would apply, and regarding any hypothetical interference with elections at least (1), (2), (3), and (5)(i) in even the most innocent of circumstances. If, that is, there can be "innocent circumstances" for overturning the result of an electoral count based on the candidate's personal perception that it was impossible to lose without an evidentiary basis for that belief. (Darn, that pesky "facts not in evidence" problem again…) Even that discounts conflict-of-interest problems; and there can be no clearer quid pro quo than "altering election results" leading to "continuing in electoral office," at any level.
  6. Cf., e.g., 18 U.S.C. §§ 595, 610, 2383. As to that last item: The entire point of secession from the United Kingdom was to deny the legitimacy of l'etat c'est moi — the person is not the office.

02 July 2024

Precedent

Yesterday's self-inflicted wound by the Supreme Court — and should the Republic survive another quarter century, the decision in Trump v. United States, No. [20]23–939 (U.S. 01 Jul 2024) (PDF, large file), will be viewable only as a self-inflicted wound similar to Dred Scott, Plessy, and Korematsu — reflected the worst kind of tunnel vision. I won't waste my time and effort on a detailed analysis, especially since this blawg is far from the appropriate forum. Two points that will probably be neglected do deserve at least some mention (if only so I can say "I told you so!" later).

1. The majority opinion cites with great approval, on several occasions, short passages from Justice Robert Jackson. Most of them, however, missed the point; missed Justice Jackson's other role, one specifically dealing with high-official misconduct (the Chief Executive in question was, umm, not available to be tried — but would have been so tried if possible).

At the very outset, let us dispose of the contention that to put these men to trial is to do them an injustice entitling them to some special consideration. These defendants may be hard pressed but they are not ill used. Let us see what alternative they would have to being tried.

More than a majority of these prisoners surrendered to or were tracked down by the forces of the United States. Could they expect us to make American custody a shelter for our enemies against the just wrath of our Allies? Did we spend American lives to capture them only to save them from punishment? Under the principles of the Moscow Declaration, those suspected war criminals who are not to be tried internationally must be turned over to individual governments for trial at the scene of their outrages. Many less responsible and less culpable American-held prisoners have been and will continue to be turned over to other United Nations for local trial. If these defendants should succeed, for any reason, in escaping the condemnation of this Tribunal, or if they obstruct or abort this trial, those who are American-held prisoners will be delivered up to our continental Allies. For these defendants, however, we have set up an International Tribunal and have undertaken the burden of participating in a complicated effort to give them fair and dispassionate hearings. That is the best-known protection to any man with a defense worthy of being heard.

If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. But they do have a fair opportunity to defend themselves-a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.

When I say that we do not ask for convictions unless we prove [the] crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is a natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants’ positions. It is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.

Opening Statement to the International Military Tribunal ("Nuremberg Trial") (21 Nov 1945).

2. Leaving aside other examples of "official acts" by heads of government as excessively inflammatory — just in the last century, Iosef Dzhugashvili, Saloth Sâr, Augusto Pinochet, and our semipuppet Ferdinand Marcos — the Court needlessly conflated "immunity" with "absolute defense." Further, it did/does so precisely by ignoring another American text, also seeking legal process concerning purported "official acts."

[T]he present King of Great Britain…

…has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people[;]

…has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within[;]

…has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries[;]

…has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance[;]

…has has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

United States Declaration of Independence (02-04 Jul 1776) (in part, in this order).1

The near decade of warfare thereafter — in structure, function, and intent a civil war — demonstrates rather well that whether particular acts of a head of state are "official acts" or "the establishment of an absolute Tyranny over these States" cannot be judged in advance. They are simply not amenable to the broad, overreaching conception of "absolute immunity," because conduct that has the purported end of an "official act" may clearly be done through inappropriate means — means that entirely swallow the official-act ends.

•  •  •

Perhaps this Court had a failure of the imagination. Perhaps this Court failed to engage with the pervasiveness of post hoc rationalizations among tyrants. Perhaps this Court abstracted its reasoning too far from the particular "official acts" at issue, without ever considering when conflicts of interest and overt abuses of power make those acts less than official even when cloaked in officialdom. Perhaps most of all this Court failed to engage with history of both itself and of this nation.

Perhaps.

Regardless, this decision is wrong on the date of issue.


  1. That bit of racism at the end is also part of our history in this nation. It's definitely worthy of remembrance, now, two hundred forty-eight years later almost to the day.

28 June 2024

But I Want the Pony!

Well… last night's "debate" was appalling. Jon Stewart was far too easy on both candidates, and didn't even get to the parties and power brokers. That "debate" was also precisely what I expected, and proof that The West Wing was pure fantasy. Leo was both right and wrong in his objection to choosing between the lesser of who cares (starting at 0:55 in the clip):

  • The American public very well might elect "a good man" as President…
  • …but only if the major-party apparatus allowed that "good man" to appear on the ballot.

That could happen only when the major-party apparatus is significantly coopted down to state and possibly local level, whether by infighting or anything else — and it's far from guaranteed in that event (viz. 1980, 2000, and 2016 for one of the parties). Even when we hypothetically get "a good man," we forget all of the friends he brings along with him. Jimmy Carter individually was probably "a good man," but thanks to the perfidy of senior officials in his administration — Bert Lance being only the most obvious problem — we'll never know how that might have made government better. His successors were worse — pretty uniformly in the nearly half-century since, all things considered. Apparently, the electorate didn't actually learn anything from Watergate; the party apparatus of both parties, however, did (just not what they should have if they actually read the oath of office before screening candidates for the ballot).

The West Wing wasn't just a fantasy of good governance, of a government composed of men and women operating in good faith through persuasion and recognition that "agreement to disagree" is a necessary component of representative democracy, even when the opposition is obviously "wrong." It was an unstated fantasy of how such a government might be elected (and selected), as epitomized by the last season and a half of the show. A particularly unrealistic fantasy: Everyone got the pony in the end, even the conservatives. The closest we're going to get to a pony this time around is an old nag, long past any usefulness, found in a glue bottle.

25 June 2024

Get Off My Lawn!

Two days from now, we'll have a lying contest in which one of the contestants has multiple felony convictions for not lying well enough…

  • It's not entirely my generation's fault that Thursday night will epitomize Hobson's Choice. Just mostly. Bluntly, it's my generation that is now (and has been this century) controlling the smoke-filled back rooms, at least to the extent that within each party no candidate viewed as actually dangerous or transformative has a chance of getting approved. And won't give up that control, or even effectively train successors. That's right: The party leaderships are selfish old sheep with all of the foresight of, well, sheep.

    The civil rights era became electorally possible due to an awful outside influence: The forced exposure to, and often demise in, the rest of the world of Establishment figures (or at least family members) in the Second Thirty Years' War. That forced the Establishment of the 50s and early 60s to share actual responsibility and power with the kids… who have refused to do so themselves. Combine that with medical advances enabling a greater proportion of us old farts to maintain visible activity levels, and the consequences are pretty dire and pretty obvious.

    My contempt for my "betters" in my generation (and the one preceding) comes from knowing too many of them… and hearing them express themselves in unguarded moments while thoroughly camouflaged. Sometimes not so camouflaged, either.

  • Criminal sentencing is hard. The offense is what gets the conviction in the first place; the sentence, however, is upon an individual. Since I wasn't in the courtroom, didn't hear the evidence, etc., etc., etc., I can't go too far in substituting my judgment for Judge Kendall's regarding business as usual in Chicago politics. (When the Trib implicitly criticizes seeming leniency regarding Illinois party Establishment — either party — you know things are really chaotic.) The fundamental problem is that the sentencing options available did not/do not include anything likely to be truly effective… which in the end would probably be worse. Although I really do think they should now (and should have a decade ago when the recordings became public) take away his law license.
  • Speaking of things that essentially reduce to "personal self-aggrandizement as an excuse for bad faith," consider the related problems of bad faith in trademark applications and enforcement and large-language-model shenanigans. Both concern disrespect for others' rights — sometimes through intentional ignorance, sometimes through intentional devaluation — implemented through bullying and exploitation of unequal original positions, through forgetting the word that comes before "self-interest" (and completely forgetting the context and intent of Adam Smith's works of moral philosophy that have been appropriated by those who largely haven't read them). Like bankers.
  • All of which pales compared to foolishness in the world's largest "democracy" that makes America First look benign. Over Here — despite the best efforts of various entitled bigots, such as the most-virulent antiimmigration activists (virtually none of whom have any native ancestry) — we've largely grown out of imprisoning those who question basic assumptions, at least in the last century, since rejecting sedition as a criminal offense. Oh, that pesky First Amendment hiding an anti-science agenda put forth by/in support of nonscientists
  • …leading directly into failure in the arts, like finding selling one's paintings truly challenging. Of course, the definition of "fail" matters an awful lot!

16 June 2024

Link Sausages Out of Hiding

And not just because they're past their sell-by dates.

  • Two recent items about "property disputes" places other than the US lead toward the man behind the curtain. In England, tenants (renters, mostly) can ordinarily be evicted at the end of their lease without explanation (and we're not going to get into how lease durations get manipulated Over There). Conversely, in Mexico a town is having to maintain a militia against avocado growers (and we'll leave aside for the moment the corollary US problem with almond farming for "almond milk").

    What links these stories is never stated: Absentee landlords. Not just "any landlord," like the family that moved across town to a bigger house and instead of selling the old one rents it out; those landlords remain part of the community. Instead, it's strictly the rents — Ricardian, non-Ricardian, Schumpeterian, or indeterminate (an "apartment" is about the location and improvement to land… and is ordinarily an end use, not a generator of other economic activity) (and forgetting for the moment the exceedingly large logical hole in the concepts). More to the point, it's the rents that generate above-market/above-expectations returns… and who, precisely, demands those returns.

  • From the might-as-well-be-daily-since-it's-election-season list of hypocrisies coming out of a certain convicted felon's mouth and handlers, we'll set aside the now obvious problem with claiming it was purely persecution for a moment and consider how to manage draft deferments this time around — because that is indeed the logical problem. We'll leave aside for the moment that neither That Individual nor damned near any of his advisors, or MAGAts in general, have themselves participated in "military service" (that's for the hoi polloi). But not for too long, because there's going to be a set of special snowflakes who demand some kind of deferment or alternative just because they're special… and let's just say that the Black kid from Harlem, the Hispanic kid from Hialeah, the Palestinian kid from Dearborn, and the white kid from Fishtown aren't going to be treated even-handedly (regardless of gender issues).

    The fundamental problem is the equation of "national service" with "military service." It isn't, and shouldn't, be that way; nurses, teachers, and firefighters are obvious counterexamples. Not, however, entrepreneurs, preachers, sales/marketing associates, or investment analysts — and that's where things will become Interesting (however dumb).

  • At least that's not quite so archly hypocritical as letters of support for Ed Burke's sentencing phase. <SARCASM> He's obviously a very kindly neighbor to his supporters. </SARCASM> I practiced in Chicago, so I know the "neighbors," too, and they're not exactly the people from whom I think one should be seeking approval. That's not to say Burke is an unremitting font of evil (although he is a Chicago politician, so the possibility is certainly there…); it is only to say that whatever positive character he might have is contradicted by the crime(s) of which he was convicted — and that this kind of reliance on "character" is another, one-level-removed failure to take responsibility and/or recognize, and learn from, failures of judgment. It's not that character is irrelevant to individualized sentencing — it's that this kind of attestation of character is close to irrelevant to individualized sentencing for this kind of offense, amounting to at best a post hoc rationalization and invocation of "there but for grace go I" (a sentencing pathway really not available to an impoverished "habitual shoplifter").
  • The business in and around culture and the arts is always good for a laugh. If, that is, you've got a cynical and grim sense of humor. One might by pondering commercial-cultural icons becoming subject of horror films as the copyrights expire (and that lack of expiration explains a lot about Peter Pan…). Then, perhaps, consider banning books about book banning and purported bestseller lists and their biases (of which "second-string conservative screeds particularly common to manipulation" is far from the most striking). Or, for that matter, consider above-market executive salaries at arts agencies during "reductions in force" applying only to those most likely to, well, actually say something controversial… <SARCASM> or to have actually done "national service"… </SARCASM>

11 June 2024

Congratulations, Graduates

… and welcome to a cold, hard world that will do its best to squash whatever dreams, humanity, integrity, and common sense you have left. For you college graduates, don't forget those student loan payments, which will just accelerate the decline of Western civilization — and your self-respect.

  • In a bit of trademark news that brings a (rather vicious) smile to my face — the sort of smile that precedes "My, what big teeth you have" — McDonald's lost another European trademark battle, even more seriously than another instance of IP bullying that appears in every casebook on US copyright law. One's eyebrows should have been raised anyway, but "Big Mac" as a chicken sandwich or restaurant name is an almost textbook example of trademark overreach. Schade.
  • In This Style, 11/6 (note the date today…) did, after all, originate with a haberdasher probably driven insane by the toxic chemicals used in Victorian-era hat manufacture. What that says about this company is for another time… and probably a couple Big Macs.
  • That's less objectionable, though, than the "I inherited it so of course I deserve an above-market-value sale price that will accrue to me and not the shareholders" issues surrounding Paramount. Hint: This is about the arts. Even if you're solely focused on the business side, you don't "deserve" more just because you inherited it and are living decades in the past (besides which, you'll never notice a few hundred million in funny money here and there given what you'd realize from even a substantially below-market-value sale of something to which you provided exactly $0 in capital contributions). We're just not going to get into… damn, confidentiality and nondisparagement agreements. So I can't say what I really think, or more than just "think." I do, however, have to acknowledge that at least Paramount/Viacom/National Amusements isn't a bank (which is searching pretty damned hard for something less disreputable about the whole thing).
  • Paramount's marketing has, for the last couple of decades (if not longer), and throughout the entire group of "related companies," been just about as effective and cost-efficient as, say, the average indie author. Especially when those efforts are not focused on marketing that the author can actually control.
  • My marketing efforts would probably be blank spaces — I dissent from the intellectual dishonesty of accepted marketing memes. (And I dissent from damned near everyone involving the context of the underlying dispute.) But hats off to the museum for using the dissent as a means of dialog, which — regardless of the content of that dialog — is a good thing in the arts.
  • <SARCASM> But I've never seen, experienced, or struggled against suppression of dissent. It's post-Vietnam now: We don't do that any more. Or at least don't get caught doing that any more. </SARCASM>

05 June 2024

I Stand With Losers Tomorrow

These losers, on the eightieth anniversary. Not this (bonespur-ridden, draft-dodging) loser (which notwithstanding protests similar to "I never said 'Lock her up!'" was confirmed through multiple sources). But then, I volunteered…

  • Why anyone would want to reelect that creep is beyond me. It's apparently not beyond billionaires. That reminds me of one of the few lines from F. Scott Fitzgerald that I can agree with: "Let me tell you about the very rich. They are different from you and me" (which also evades the question of who are "the very rich," but that's definitely for another time). And not just because they have more money — because they appear to have less ethics.
  • Methinks there are a few repeat offenders involved in the preceding sausage. Oh, wait, not that kind… maybe. Certainly this kind, though.
  • Not to mention this kind: Overenthusiastic defenders of theocracy (which leads, historically and probably inevitably, to failed states and disdain for the rule of law). "Genocide" isn't the only war crime — just the most serious one, requiring proof of intent far beyond mere "atrocity" or "overt and intentional disregard of Protocol II even by nonsignatories."
  • How about something a little less rabid, like the music business? Some borderline theft, maybe some more than borderline (attempted) theft, some residual bigotry and invasions of privacy… ok, I take it back. It's just as rabid, just maybe with a little bit lower stakes.

30 May 2024

Aspiring Illinois Governor

… because that's the political office for which Drumpf is now best qualified, as a convicted felon. Since 1945, half of the elected governors — there was one instance of a Lieutenant Governor assuming the office after the Governor accepted appointment as a federal appellate judge before a later indictment, so he's been excluded — are convicted felons, impeached and removed together with later felony charges, or indicted/still subject to indictment… and the rest are pretty dubious at best. (The irony of this record in the home of "Honest Abe" is not lost on me.) It's not too early to move and get onto the ballot for the next election, which isn't until 2026!

Doonesbury, 29 May 1973 (posted for purposes of commentary)

One down. At least three to go. That said, I think there's little chance of his attire matching his skin tone: For security reasons if nothing else, I doubt an actual custodial sentence will be imposed (regardless of the impending appeal process). One wonders, though, if he'll be adding home monitoring ankle bracelets (made with child labor one bench over from the soccer balls sewn with ten-year-olds' teeth) to his "collection" at Macy's.

I'm afraid my schadenfreude quotient for the quarter has been exceeded.

23 May 2024

Tortured Sausages Department

It's election season: I'm afraid there's no poetry (or poets) here.

  • The gummint — and not just teh feds — finally filed the (anticipated) antitrust complaint against LiveNation/TicketBastard today (PDF, 128 pages). Keep in mind that this is:

    • Only an accusation,
    • That includes neither actual evidence nor a response,
    • In a highly technical (and all-too-often easily distorted) area of law,
    • In the context of what is largely a first-world problem (however culturally important): Live large-scale performances, almost entirely of popular music,

    which nonetheless pleases me a great deal. If the money was flowing through to either the performers or the frontline staff (especially those dealing with mobs of screaming fans… and cleaning up after them), that might be different. If the actual result was a uniformly better and safer concert experience, that might be different. It's not; and it's hiding some particularly dark conflicts of interest and quadruple dealing, some of which is going to get into the record (and much of which will not for Reasons).

    This is yet another First Amendment rent that has instead been treated as a safely-ignorable externality. I did warn you that there's no poetry here.

  • As confusing as that link sausage was (and if ever there's a part of the law that no one should want to see made, it's unfair-competition law), consider staff changes in other parts of the entertainment industry — which bear a disturbing resemblance to many other hypercorporatist personnel changes in larger businesses. On one hand, there's something to be said for adapting an organization's leadership skillsets to conditions faced by that organization; on the other hand, that gets a bit awkward when outsiders (or conflicted interests) impose not different conditions but weltanschauung on the organization — especially relating to how the organization's success will be measured. (Not that I've ever seen that before, not even after having sort-of-survived the end of the Cold War — on the inside.)
  • That's especially so when the imposed weltanschuung is "ownership" in culture and the arts. It's particularly ironic when the fight is between the designated successor to conquistas of two millennia past and a present-day museum, an ocean away, endowed by the particularly dubious oil barons. And even then, it devolves to conflicted courts of questionable jurisdiction talking past each other. No poetry here, either — just my sick sense of humor.
  • My sick sense of humor, however, slides close to exceptionally gleeful schadenfreude when a court stands up — again — to a serial human-rights violator who managed to get selected to high government office. I'd suggest recalibrating policy preferences, but that would definitely be an unrealistic expectation, especially given the sociopathy and narcissism that seem necessary résumé entries for "high government office" these days. Which is not to say that's never been a problem in the past; it's just that it has evolved from a bug to a feature.
  • Or we could just ponder less-expected places to find bigoted fascists and their aftermath — like anatomy books.
  • Last, and far from least: Go Gladis! Once I saw the word "yacht" in the story, I knew whose side I was on…

09 May 2024

Hens' Teeth

Well, the Supreme Court agrees with me about something: New York City is not the center of the universe. At least not as far as copyright damages are concerned. Today's decision in Warner Chappell Music, Inc. v. Nealy held that:

In this case, we assume without deciding that a claim is timely under that provision if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened. We then consider whether a claim satisfying that rule is subject to another time-based limit—this one, preventing the recovery of damages for any infringement that occurred more than three years before a lawsuit’s filing. We hold that no such limit on damages exists. The Copyright Act entitles a copyright owner to recover damages for any timely claim.

Warner Chappell Music, Inc. v. Nealy, No. [20]22–1078 (U.S. 09 May 2024) (PDF), slip op. at 1.

Nealy matters to authors and other creators in several ways, some of which aren't all that obvious — and buried in footnotes. Starting with the obvious ones:

  • The Court explicitly sided with jurisprudence from the Ninth Circuit on copyright matters against that from the Second Circuit. This has been a trend since the 1976 Act came into force — not uniform, often not explicit, but conflicts between the Ninth and Second Circuits on copyright matters have a very distinct tilt toward the Left Coast once they reach the Supreme Court. (Interestingly, that also extends to civil-procedure matters embedded in copyright disputes; for example, although it was far from explicit, the Court came down hard on the side of the Ninth Circuit's treatment of summary judgment burdens for defenses in Grokster.)
  • In a broader sense, the Court held that limitations on remedies — and probably not just in the Copyright Act — are not presumed from statutes of limitations on causes of action, particularly not when a discovery rule is at issue. This particularly makes sense when late discovery (and late steps in chains of events) are at issue; one obvious example is the employee not selected for a promotion carrying a significant pay bump who does not discover an unlawful discriminatory reason for the selection for five years thereafter (well after the statute of limitations). That matters to authors, composers, and other freelancers with day jobs…

    But it also matters in a piracy context. Indeed, that's closely analogous to Nealy's situation — at least at this stage of the proceedings, he was unable to discover the infringement while incarcerated. That's not all that different from an author with no access to a behind-a-paywall/membership-required pirate site, or no awareness of a cheap pirated printed edition being sold in stores on the opposite coast.

  • The ability to reach back to the original date of infringement for a remedy also shifts the balance slightly in favor of the creator for perhaps the most important purpose of all: Settlement. The vast majority of copyright claims are settled, either before or during litigation.

But the most important things may be buried in two footnotes.

Scholars have speculated about “exceptional case[s]” in which a copyright plaintiff could get some benefit out of a discovery rule even when combined with a three-year damages bar. 3 M. Nimmer & D. Nimmer, Copyright §12.05[B][2][c][ii] (2023). Suffice to say that assuming those cases exist at all, they are as rare as hen’s [sic] teeth.

Id. at 6 n.2. It pleases me to see one of the (far too many) speculations in what has all too often been treated by the Courts of Appeal and especially the District Courts as the Restatement (0th) of Copyright smacked down as unrelated to reality.

There was also advice that applies in all appeals — not just copyright matters.

[E]ven supposing Warner Chappell’s petition had urged us to opine on the discovery rule, our reformulation of the question presented should have put an end to such arguments. “The Court decides which questions to consider through well-established procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system.”

Id. at 5 n.1 (citation omitted). The short, snarky version of this is "Answer the question(s) specified for review, even if that's not what you really want to answer." Especially when the client already has a reputation for overreaching copyright management (and this is just one rather well-known example).

Nealy is good for actual creators. It may also prove good for some transferees. It's bad for "don't notice me!" and difficult-to-identify infringers. Schade.

I anticipate some lobbying to amend the Copyright Act to put a specific time limit on remedies…