25 May 2020

Spare a Thought This Memorial Day

… for the falling, not the fallen.

Not all casualties of war are fatal. Spare a thought for the dead, certainly; and it shouldn't be just on Memorial Day, although that's another argument entirely. But stop neglecting the disabled veteran, whether obviously so due to a missing limb, less obviously so due to a clear loss of mental faculties, or insidiously so from service-related substance abuse or invisible emotional scarring. Stop neglecting the veteran who has a disability that falls outside the horribly cramped definitions of "disability" and "service-related" that have been established over time, usually by and/or on behalf of people who never served and have no first-hand knowledge of what "military service" means. Stop neglecting the financial disabilities caused by transition, loss of health care, appallingly low pay, distrust of all kinds, and a variety of other social factors.

So please show some awareness. Don't add to the count of the fallen veterans by ignoring the falling ones.

24 May 2020

Undecorated

A couple of all-too-timely news items related to the calendar have me irritated. As usual.

On the one hand, we have "establishment of religion." Please explain to me, advocates of the unitary executive (and everyone else, for that matter), how providing an explicit excuse for xtian religious gatherings in violation of generally applicable public health directives — or even for all religious gatherings — is not an establishment of religion? After all, for damned good reasons, my equivalents of religious institutions (bookstores and libraries) are closed at present. For that matter, why bookstores and libraries are less "essential" than liquor and car parts stores is a question that deserves considerable thought. Admittedly, not all religious leaders are following along with the ardent antiscientific/antipublic-right meme that public display of piety matters more than anything else (especially more than deeds, although about equal to greed).

And then there's a little interservice snobbery in advance of Memorial Day. After some scattered celebrations beginning around the end of May in 1864, a "Decoration Day" was proclaimed in 1868 for 30 May, when citizens were encouraged to decorate the graves of soldiers who had died defending their country during the "recent rebellion" — that is, Union soldiers. Naturally, this was quickly appropriated to include all soldiers who had died during the Second War of American Secession, better known as the American Civil War… including Confederate soldiers, who had died not in defending their country but in rebelling against it. (Admittedly, this is a little bit of "history is writ by the winners," but what part of history — especially American Exceptionalism — isn't? I'm willing to forgive those from former Confederate states for their ancestors' errors… so long as they repudiate the errors instead of retconning them.) Unlike everyone in Europe, the US managed to avoid widescale conflict for half a century thereafter — the so-called "Spanish-American War" of 1898 involved fewer soldiers than any named battle of the conflict between Austrian and Germany in 1868.

Following the US initial involvement in the Second Thirty Years War in 1917, Decoration Day evolved into Memorial Day, for all US military casualties in defense of the nation (or, at least, in defense of declared/purported national interests; there was no threat to the nation discernable in Korea, or Vietnam, or the Arabian Gulf — at least the first time — let alone in Grenada or Panama or Beirut). There nonetheless remains the original whisper of "not for the opponent, not even for the opponent we forgave and have welcomed back." As far as the Department of the Army is concerned, though, that whisper is inaudible, given the number of Army installations named after ardent white supremecists and outright traitors (and neglecting, for the nonce, the symbology woven deeply into awards and statutuary within that Department). Fortunately, my Department (the Air Force) has mostly avoided that problem; but even the Navy has done better. Even the Navy. (All of which is one of the reasons that, back in the 70s, I thought for about 0.35 seconds before rejecting all "opportunities" for Army ROTC, or an offered-under-the-table appointment to West Point. Because it was obvious even then.)

And meanwhile, the death toll from COVID–19 is already nearly enough for two long black walls. <SARCASM> Apparently, however, warfare on the working and lower classes won't merit a memorial for the fallen — not even when it's being waged largely by white supremacists expounding manifest destiny. </SARCASM>

21 May 2020

Sausages to Links

Based on the Prince of Orange's performances of late, I'm tempted to say that — whatever its antiviral and/or antimicrobial merits — hydroxychloroquine is definitely a powerful hallucinogen.

  • Who established and benefits from the art "market" — which resembles the classic Prisoner's Dilemma theoretical game more than it does a "market"? The Prisoner's Dilemma game bears little resemblance to human behavior, which is a hint that perhaps — just perhaps — applying it to the "uber-rich" and their behavior reveals something entirely different.
  • As further evidence that something is seriously wrong with state regulation of attorneys, consider this problem. A lawyer is convicted of serious dishonesty offences in 2009. But he's a politician, so the "conviction" isn't a criminal trial — it's a nearly-unanimous (that is, including almost all members of his own party, too) impeachment and removal from office. It only took eleven and a half years to disbar him. (Hell, it took over two years after that conviction to just suspend him!)

    This is far from an isolated incident. It's not just Illinois; it's not just politicians; it's not just outright "corruption."

  • One of the fascinating — and/or amusing, especially if your sense of humor is as grim as mine — aspects of watching the social impact of COVID–19 is pondering (or snickering at) who claims to be the Special Snowflake today: The set of Special People who deserve Special Treatment so that they don't share the pain, or at least share less of it.

    One obvious, and particularly appalling, group is those claiming a right (or obligation) to large-group, in-person worship services. (Hey, ten men is enough, at least ancestrally!) The irony that this particular service is a "celebration" after a needless death seems to have escaped just about all of these maroons; if there's one thing that the New Testament stands for regardless of the quality of one's translation or scholarship, it is the primacy of faith and deeds over formal demonstrations thereof, let alone of formal ceremony.

    At least equally appalling, though, is the struggle between owners of real-property interests and, well, the rest of us. Whether Over There or Over Here, the common thread — however sympathetic, or not, the "mere tenants" are — is that the landlords "deserve" more accommodation, so as to ensure that the value of the land never goes down. This is as subtle as the US programs to assist mortgage-payors that ignore home-renters; which is to say, as subtle as a brick suppository. They were only making more tulip bulbs at a rate not all that different from the opening of "new land" to exploitation; Twain was wrong — just look at growth in Phoenix, Arizona over that last century and a half. It was always there; it just wasn't exploitable. All of which makes me wonder more than a bit about the place of brownfield reclamation in our economy, if we accept the landowners' premises at face value… and especially if we accept their behavior at face value.

  • And then there's this, in the tradition of honest government communications
         
    123 Main Street
    Anywhere, USA 37127
     
     
     

    notice date:
    notice number:
     

    D.J. DRUMPF
    HOLE 19
    1100 S OCEAN BLVD
    PALM BEACH, FL 33480-5004
     

    MAY 20, 2020
    1444–V
     
    name corrected to
    match family
    immigration records
     
      YOUR ECONOMIC IMPACT HAS ARRIVED  
     

    MY FELLOW 'MURIKAN:

    Our great country is experiencing an unprecedented public health and economic challenge as a result of the global coronavirus pandemic. Our top priority is my family's business interests. We are also working around the clock to exploit hardworking Americans like you as an additional benefit of the economic shutdown. We are fully committed to ensuring that you and your family continue to support my ambitions through this time.

    On March 27, 2020, Congress passed with overwhelming bipartisan support the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which I grudgingly signed into law because it didn't grant me my rightful share of the Treasury (all of it). I want to thank the United States House of Representatives and the United States Senate for working so quickly despite my Administration to fast-track this $2.2 trillion in much-needed economic relief to the American people, which I hope you'll spend on a certain sweatshop-produced clothing line available through failing union-busting retailers like Macy's (once they reopen before meeting CDC guidelines).

    This includes fast and direct publicity and self-aggrandizement for me. That you've paid for.

    I am pleased to notify you that despite the CARES Act, you are receiving an Economic Impact consisting of between three and five years of stagnant-at-best wages (or self-employment earnings) while bonuses paid to top corporate executives continue to rise. We hope this payment convinces you to vote for me again in November, even though my Administration worked behind the scenes to prevent this payment from going to those who need it most and further sabotaged the payment process at needless expense.

    Every citizen — but no unwashed immigrants — should take tremendous pride in the selfishness, risk-averseness and inherited wealth of our people. America’s drive, obstinacy, innovation and sheer nepotism have conquered or at least deflected attention from every previous challenge — and they will for this one too. Just as we have before, America will triumph yet again — and rise to new heights of greatness. Just ask Matthew Shepard, Emmett Till or the Lakota Sioux.

    We will do it together, as one nation (excluding those filthy immigrants), stronger than ever before.

    (dysfunctional EEG omitted)

    President Donald J. Trump

     

     

    …because you know he'll send one to himself, right? But I bet Baron isn't getting his share.

11 May 2020

Black-Border Internet Link Sausage Platter

Fortunately, not black pudding; just a near relative of its main ingredient.

  • For the narcissistic jackasses down in the Bay Area who think they're entitled to declare themselves a "library" because they're not charging people to download copyrighted material, a few words from someone who knew you. (I won't say "rest in peace," he didn't want "peace." At least not that kind.)

    If you had explored, purchased, and farmed a piece of land in, say, Central Texas in about 1880, how would you feel about an oil company coming along and taking all the oil for free, because (a) the public "needed" it, (b) it's separate and different from the actual dirt, and (c) you had already gotten what (the oil company claims) is a fair return? That the oil company had the power and ability to, in practice, make "all your oil are ours," did not give it the authority or right to do so. So, too, with digitized books, etc. And pointing out the difference between "ability" and "authority" is not standing in the way of Progress - particularly not "progress in the sciences and useful arts."

  • I'm incredibly pissed off at the aid and comfort being provided to enemies of the Constitution by the political appointee current leadership of the United States Department of Justice. (That's the less-inflammatory version.) One of the sorrier examples of Academy-related problem children from my first profession may skate due to incompetence, arrogance, and political opportunism by purported representatives of my second profession.

    Fortunately, I'm no longer subject to Article 88 (I'm aged out, too!), so I can just say that I hold Mr Barr and his henchbacteria beneath contempt. As I do their respective bar-regulation authorities and their refusal to enforce the requirement that attorneys must maintain independent legal judgment — independent of any nonlegal impetus. Oh, wait a minute — the DoJ is outside of the protected class identified in Article 88 in the first place, so there's no problem (just with Article 133). <SARCASM> Any relationship to the prosecution-provided defense theory underlying this "filing" is intentional… and intended as food for thought. </SARCASM>

  • Speaking of contempt, the contempt I have for subprime and predatory lenders is closely related to the contempt I have for their more-"legitimate" counterparts — especially those continuing to demand high positive returns from residential real-property investment during this public health crisis. The bottom line concerning the arrogant underpinning of the latter is that they're special snowflakes: Real-property investment is supposed to be essentially risk-free — it's the only property that's "real" — so those who invested in it seeking rents (pun intended) are morally exempt from sharing in the risks and costs borne by everyone else.

    Which, now that I think about it, explains a lot about subprime lending, too… especially when, as in discovery many years ago, one pierces the veil of ignorance to find the lenders' respective original positions (not to mention sources of funds, and their original and present ownership chains). All too often, subprime lending — whether real-property related or concerning anything else — is on terms that can't be refused.

04 May 2020

Fifty Nice Spring Days for John Mitchell

Half a century ago today, there was a horrifying event in American history from which we haven't learned very much.

No, this has nothing whatsoever to do with a Certain Film Franchise. Leaving aside that there's still more than half a decade remaining before its fiftieth birthday, I refuse to countenance the hijacking of this date by fanboys — and it's almost all boys — making a sophomoric pun. Nor that franchise's general disdain for civil rights, particularly in the prequel-that-shall-not-be-named (which, leaving box office aside, contains some disturbing parallels to a more thoroughly repudiated Disney film; admittedly, the Certain Film Franchise's own dark — whitebread? — side is/was mostly pre-Disney ownership, as is the fanboy foolishness). One wonders if the eleventh of September would be treated the same way; or, rather, one wonders how long until the eleventh of September is treated the same way.

Today, in central Ohio, was about the entitled and powerful refusing to accept that the group of people most likely to become casualties implementing their policies didn't agree with them, and killing nonviolent dissenters instead. That should be a lesson for the current power structure… but all too often, the purpose of the police (or National Guard improperly, and probably unlawfully, called in to act like police) is to preserve disordered thinking.

Have a nice day, John Mitchell. At least this time around, the four dead in Ohio will more likely be due to COVID–19 than the Establishment's inflexibility (and willingness to evade Posse Comitatus, but that's for another time). Wait a minute…

03 May 2020

Internet Bangers and Chips

possibly without the chips.

  • So nice to learn that BoJo's doctors were preparing in case "things went badly wrong" during his bout with COVID–19 (fortunately for them and him — but probably not for the UK as a whole — he recovered). Too bad there was no evidence whatsoever of his government doing so, because it doesn't have anything like the 25th Amendment; its continued insistance on an "unwritten constitution" has Problems.
  • As does its insistence on driving on the wrong side of the road. This is a classic example of "proximate cause versus first cause" in public health and safety: If the UK hadn't allowed a few aristocrats to keep it from following the then-emerging consensus a century ago, this particular instance might not have occurred… and UK motor-vehicle manufacturers would have been unable to extract billions of pounds in rents from UK citizens (while seriously harming their own export markets) over the years, but that's another story entirely.

    This implicates the non-uniformed services' attitude toward posting and preparing dependents given local conditions. When I was stationed Over There, even during the depths of the Reagan Administration, there were effective multimedia presentations (no PowerPoint, dank' sei gott) for everyone — even kids — on both driving-on-the-left in general and difficult areas near the base, near housing areas, near major shopping and cultural districts. (And I learned the expected, and workable, way to handle a roundabout, which is completely different from the way a Bostonian manages a traffic circle…) At least statistically, Americans and their dependents were less likely to be involved in vehicle mishaps than were the locals around that base, despite the significantly greater average driving distances and car-dependence. The less said about extending diplomatic immunity — and extraction — to a dependent of a non-confirmed-posting individual, the better. So this needless death is perhaps a little bit less about the individuals involved (even if it also involved a motorcycle, and do not get me started on motorcycle safety and young riders) than it seems to be.

  • All of which beats misogynist trolls attacking the author of a book about victim blaming. It appears that irony really is just like goldy and bronzy but made out of iron. Or antimony alloy. Or semiconductors.
  • Speaking of trolls, though: I am now officially, for the foreseeable future, boycotting AMC cinemas in the wake of the Trolls fiasco (aside: it was a bad movie that would have been a direct-to-VHS/DVD release a couple of decades ago, along with a whole bunch of other toy-selling efforts and just-barely-not-infringing low-budget ripoffs). This is bloody rent-seeking, buggywhip-manufacturer-whingeing, real-estate-speculating investor entitlement. The major self-aggrandizing, narcissistic, oligopolist ownership groups with their continued insistence on exclusivity, inhumane seating, and $5 sodas and $8 popcorn laced with things I'm allergic to, among other barriers to an actual positive audience experience, are much more like Queen Barb than they can contemplate. (The Pop Trolls are no better — quite possibly worse if one includes "B'way" in "Pop" as done in this film — and that film seriously softpedalled the arrogance and unjustified condescension coming out of N'ville. But that's for another time, with much more literary theory and stultifying references to fourth-wall permeability and sociopolitical reflection on who actually benefits from the marketability memes and barriers and discrimination.)

    That even so backwards an organization as AMPAS has allowed — even enabled, with the mandatory distribution of screeners that are the source of most early-leaked pirated copies! — at-home viewing as a basis for Oscar voting for over two decades should be a big expletive-deleted-to-maintain-general-audience-rating hint that "wide-screen purism" is inappropriate for general releases. If you're actually making a film that really depends upon IMAX projection or its equivalent, so be it; but exclusivity for the next generic rom-com or slasher flick or invincible-action-man thriller? Not so much. (Also, the MPAA and its undiluted malign influence on films and theatres can go anatomically-impossible-act-also-deleted-to-maintain-general-audience-rating with a splintered 2x4, too. But I'm an intellectual with an education in lit'rature and therefore not part of the core audience in the first place.)

    So AMC won't be getting any of my money as long as it is "boycotting" Universal releases. Not that it's going to make any discernable difference to its bottom line, as I'm not exactly a regular filmgoer; but Universal didn't say that all films would be released simultaneously VOD, either — just those for which it would make some sense (according to its own, dubious marketing plans). Ironically enough, that definitely includes the one-and-a-half-star film that set this dispute off.

    Any resemblance of this particular fiasco to commerical publishing's "adaptation" to e-books is both left for another time and waaaaaaaaaaay too close for comfort.

27 April 2020

Six Statutes in Search of an Author

This morning, the Supreme Court issued an opinion on copyrightability that came out right, but is nowhere near explicit and extreme enough. In Georgia v. Public Resource.org, Inc., No. [20]18–1150 (U.S. 27 Apr 2020, Roberts, C.J.) (PDF), the Court held that the Official Court of Georgia (Annotated) is not copyrightable work, and no fee may be charged for or other restriction placed upon reproducing it.

Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.

We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

(slip op. at 1–2, citation omitted, italics in original) This case has some surreal implications.

The obvious implication is that rent-seeking behavior by the legal-publishing segment is disfavored, at least as to official materials. This is a two-century-long tradition in the US (see, e.g., Wheaton v. Peters, 33 U.S. 591 (1834); cf. also, e.g., Matthew Bender & Co. v. West Publ. Co., 240 F.3d 116 (2d Cir. 2001) (n.b. one of the same publishers as in today's case, but on the "other" side!)). It is also inconsistent with the stated purpose of copyright law:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

(U.S. Const. Art. I § 8 cl.8) and, more to the point, inconsistent with the concept of the "rule of law." Not everyone is required to be a lawyer, but everyone is required to comport their conduct to the law's requirements. It is not acceptable to place the authoritative and binding statement of the law behind a paywall.

Also pretty clear, the Court is continuing to struggle with the concept of "who is, or can be, an Author"? Congress has not helped with its inane, inept, and frankly arrogant declaration that the patron of certain works is the Author of those works (see 17 U.S.C. § 201(b) (the work-for-hire doctrine); see also Public Resource.org, supra, slip op. at 9–10). This actually creates substantially more difficulty than it needs to, thanks to the interplay with another rent-seeking aspect of U.S. copyright law: The mandatory deposit of copies as a condition of registration, and the mandatory registration of copyright to get into court. That's what happens when those most affected by a statute — the actual, natural-person authors who create works and are the subject of the IP Clause — don't have a primary seat at the table during legislative drafting, ahead of mere distributors and transferees. Or, as in the case of the 1909 and 1976 Acts and the 1998 amendments to the 1976 Act, a seat at the table at all. So the efforts at privatization and commercialization, instead of tax-supported publication, are meaningless. Schade.

The surreal starts to raise its Daliesque head in more metaphysical questions regarding "what constitutes a Statement of the Legislature." Here, we're starting to get into questions verging on the metaphysical: Which subset speaks for an entire collective, and how? Is delegation possible? Is an ex post statement of "meaning" definitive as a matter of law, especially when that ex post statement concerns either the formalities of "legislative intent" or the darker, more dubious realm of "pretext and abuse of power"? Some of these questions must await another time, or another context; but even through questionable translations from Italian (which have recently fallen into the public domain through expiration of term), they're lurking in the play alluded to in the title of this piece.

And it gets even more distorted. Lurking inside of all of this is another contextual assumption regarding the natural-person individual authors of individual elements of the Official Code of Georgia (Annotated). Assume for the moment — as is the default at present — that some of the natural persons who created the annotations were independent contractors and not employees, or maybe even outright freelance "authors." The Court evades this issue, and it's not in the record; but one must ask whether those contractors' efforts could be work for hire. The Court itself denies that "annotation" standing alone is an eligible category, noting that it really means "annotation of a copyrightable work." Now throw in some Feistiness, as to whether there were only a limited number of (impliedly) nonoriginal ways to express the facts of the legal meaning in each annotation, and things get Interesting…

26 April 2020

Pre-Panic Internet Link Sausage Platter

Get 'em now before the meat-packing plants close. Which, historically anyway, might not be such a bad thing.

  • So glad to see that Disney (LucasFilm) is admitting that there's not actually any plot development in StarWars by hiring the creator of Russian Doll. The fun part is going to be telling the difference between the past contributions… and a writer/creator who has gotten (fully merited) awards for a series intentionally built around constantly redoing and reliving the past.
  • I've been saying for a looooooooooooooong time — ever since the heyday of William Proxmire (who was unable to distinguish "ridiculous" from "laboratory investigations I don't understand" precisely because he knew no laboratory science, despite being the son of a doctor) — that at least a year of fulfills-requirements-for-majors laboratory science should be required of all elected officials (and damned near all appointed officials). If we needed any proof that I was understating things, Thursday's Orange Alert should put them to rest. Post hoc assertions that "it was sarcastic" have been the refuge of the ignorant and authoritarian for a couple of millenia, so the attempted backtracking should get exactly as much credit as shining ultraviolet light on one's mesentary during surgery does (hint: not recommended). And the less said about injecting bleach, the better; no nonfatal doseage of bleach can wipe this administration from my memory.

    The ultimate problem with this occupant of 1600 Pennsylvania Avenue — and, for that matter, his entire party — is precisely the problem the fictional President Bartlet diagnosed in his opponent for reelection: "[Y]ou've turned being unengaged into a Zen-like thing." And then those pesky facts come up and bite the unengaged in very, very delicate locations (usually their egos).

  • And meanwhile, the Drumpfian staff can't come up with anything better to do with its time than trying to move a reporter who challenged some utter bullshit to the back row. If you're old enough to remember the early years of Saturday Night Live, you might ponder whether that would make things look mahhhvelous… and remember that in Drumpf's perception, it's definitely better to look good than to be good. That's why the tests (that nobody can get) are "beautiful."

19 April 2020

Once Upon a Time in the West

This is not a a spaghetti western. Neither is it classic rock. No, this is instead a tale of Manifest Destiny. And colonialism. And white male privilege.

The IWTBF ("Information Wants to Be Free"1) movement is doing exactly what the white American settlers did in spreading across the nation: Through a self-justifying mode of "might is right," displacing those who were there first — of right — through the use of superior technology and greater individual financial resources without regard to any externalities whatsoever.2 Indeed, the actual owners of those rights — the creators — are being consulted with the same level of respect, advance notice, and willingness to admit that another point of view might have validity as were the Native Americans3 (that is, none whatsoever). Things get a bit more disturbing when one compares the demographics of Kahle's organization, the major users of Kahle's organization… and creators of works stolen by Kahle's organization, whether directly or through a fencing operation that even Gideon's Pawn Shop would reject as too obviously stolen.

One doesn't get to ignore negative externalities just because there are some personal benefits to the actor (and sycophants). Not even by purporting to spread some of those benefits to others: It's economically inefficient to redistribute capital from those unable to resist (and who may not even know of the looting) to others just because the transactions/abilities theoretically exist. This really exposes the foundations of political economy in a way ignored by the MBA and finance communities. It's not about "rational self-interest"; it's about "enlightened self-interest." Adam Smith, for example, wrote foundational works in political economy as moral inquiries, and explicitly rejected the mere ability to cause a transaction as proper (or "efficient").

A library is my natural habitat (well, once all of the helpless swimmers have been "dealt with"). But a library properly purchases and/or licenses its collection, meaning that the creator gets paid. In short, libraries are not the wild, wild west — not even close (hell, in the current environment libraries pay substantially more for each copy of the works on their shelves than do consumers). I'm insulted by and resent the attempt to relabel outright piracy as a "library" that follows none of the rules that libraries do.4

So I'll head on back to the ranch. As a nonsmoker, I'm not chewing a cheroot; it's a dry, cool day, so I'm not wearing a ratty old poncho; but I'm not entirely unarmed, either, even if horseback is no longer an option.

P.S. What this says about how intellectual property and related issues are more about mercantilism than capitalism — and the, umm, non-backward-compatibility involved in imposing capitalist value systems and methods on working mercantilism without replacing the mercantilist systems, let alone allowing for transitional states — is for another time, another forum, another few hundred footnotes.


  1. Compare Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344–45 (1991) ("That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that '[n]o author may copyright his ideas or the facts he narrates.'") (internal citation omitted) with Harper & Row, Publ'rs, v. Nation Enters., 471 U.S. 539, 547 (1985) ("Creation of a nonfiction work, even a compilation of pure fact, entails originality") and New York Times Co. v. Tasini, 533 U.S. 483, 497–98 n.6 (2001) ("[E]ven if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under [17 U.S.C.] § 201(c). We may not invoke our conception of their interests to diminish those rights").

    The fundamental problem with IWTBF is that its advocates want to define everything as mere "information" — the uncopyrightable facts derided as such in Feist. Whether or not there's some justification for that due to the form it appears in, the relationship between Feist (which cites Nation Enterprises with approval) and Nation Enterprises rejects it as a universal proposition.

  2. The relationship between the series of tubes that became the internet and the railroad that sent the assassin to take the property it wanted because it would be cheaper than creating a railroad route that didn't infringe others' rights in Leone's film also bears some consideration. At some length, especially regarding the reification of intermediate, obtained-through-informational-asymmetry capital accretions as having superior rights.
  3. The less said about parallels to the East India Company, with its overt pirateprivateer fleet and direct government patronage and semiofficial approval of self-interested side trades by its officials (so long as the victims of the expected sharp dealing were non-Christians and preferably dark-skinned), the better. In many ways, it's an even closer parallel to this set of circumstances than was the manifest destiny of American westward expansion… especially since the 'net has already suffered two (and perhaps three) bouts of tulipomania.
  4. This is yet another flaw in the Copyright Act. Libraries have a number of privileges, not limited to § 108(g). However, nowhere in the Copyright Act — indeed, nowhere in the United States Code — is there a clear, unamibiguous definition of what a "library" is.

17 April 2020

Unaltered Working Conditions

One must wonder how much social distancing is being enforced in sweatshops turning out protective masks these days; I suspect about as much as at the Triangle Shirtwaist Factory. But although I've been working in some variety of a "home office" (which has, at times, included more than one hospital bed) for a couple of decades, I'm still discovering stuff.

  • At least someone has found a real use for Barbie. I strongly suspect that it's a use that Mattel would object to, vehemently… as I attended the oral argument in this matter (I was arguing the very next case, and there's a disturbing echo a couple of links down the platter). And, in any event, Sarah Williamson is — if anything — understating the problem, which is also about class: Not so much artists, but definitely collection curators, are from an extremely restricted set of backgrounds. "Just showing good taste over the years" is nowhere near good enough… or, as anyone who has ever lifted an eyebrow at LA's MOCA, NYC's MOMA, or the Tate Gallery might well agree, even relevant. And that recursively feeds back into Barbie, a toy not exactly targetted at the class of individuals likely to casually visit a museum of fine art (let alone work at it).
  • Which is reflected in the distorted market for "fine art" that in the best of times — and these are far from the best of times — does not enable more than a handful of artists to actually earn a living from fine art. Especially if they work in clay and stone, which are rather non-fine-arts materials. These days at least, given the prominence of inexplicably renowned crappy found-object sculpture (covered in, as I remarked long, long ago in a gallery review, "Sears' Best" black latex paint).
  • One can also wallow in the mire of the full COVID–19 bill. And that commentary comes nowhere close to the damage done to logistics systems, especially if ignorant ideologues get their way.
  • Now, a history lesson. There's a viciously entertaining precedent for Drumpf's proclamation of his authority to adjourn Congress on his own motion: Charles I of England, who adjourned Parliament in 1629. Now in those pre-Internet days, politics moved a little slower; there wasn't a 24-hour news cycle — indeed, lacking a First Amendment or lesser-and-inadequate free speech right, there wasn't a "news cycle" at all — but even the UK won't prorogue at whim any more. So it took just short of two decades to end Charles I's administration. (I supposed that's the ultimate in term limits.) In this kinder, gentler time — ha! — I suspect whatever consequences there are would be much quicker. Even with this Court, this Senate Majority Leader, and this version of the Big Lie (which doesn't even bother to get the small things right).
  • But that's not the worst big lie today. Here's an exemplar, right at the top of the Chicago Sun-Times home page (and it's far from the only, or even most-intrusive, version of this lie):

    YOU'RE HIDING SOME OF THE GOOD STUFF.
    It looks like you're using an ad-blocker. Ads help support quality journalism and make it possible for us to keep bringing you the hardest-working news.

    Well, I've been seeing that message whether or not I have an ad-blocker running. For at least six months. But that's because I manually block access to both tracking cookies and the sites that attempt to track views and clicks persistently (that is, after leaving the page).

    It's not the ads themselves I object to (at least, not most of the time). I read paper magazines and newspapers, and watch TV on a stupid TV (if that isn't redundant; the key is that it's not an internet-enabled "smart" TV), and occasionally see the sides of buses and billboards. There are a few ads out there that I find offensive… but I just choose not to pay attention to them. It's the tracking I object to. Mark I of Facebookia (and his friends at Cambridge Analytica, who carelessly got caught) is just, well, the convenient face of this problem. And given what I do — protecting creators' rights, which necessarily involves going to some pretty dodgy 'net neighborhoods, like the piracy haven that calls itself the Internet Archive (which allows hidden JavaScript injectors to reside inside of "scanned" material) — the irony that what might get tracked from me if I wasn't blocking that tracking would thoroughly mislead any real advertiser seems to have escaped notice. In this, I'm far from alone, even utilizing social distancing.

    That major media outlets — including newspapers and their equivalents attempting to portray themselves as Third Estate watchdogs and the heirs of Woodstein — are lying by misusing the term "ad" (which has a well-established meaning) for these exercises in data-gathering does their credibility no good at all. They should ask themselves if part of the public's distrust of them is because almost everyone knows that calling a page segment that attempts to place seventeen trackers (that's the count this morning at the Sun-Times) by the misleading name "ad" is a lie.

    So bugger off on your whingeing. Go rake some muck — even the FauxNooz variety might bear a closer relationship to truthfulness (or at least to truthiness). And stop taking advantage of people being stuck at home — working or otherwise — to intrude even more deeply into their private affairs. If the media was really interested in "public service," it would turn off (or block at its own servers) the tracking in all ads it displays.

09 April 2020

Justice for Nothin' and Your Links for Free

Naturally, the "free-est" link at the end is nothing but. And rather highly footnoted (there will be an online quiz).

  • For an appetizer course that's a bit on the lighter side, I'm always amused when screenwriters and other entertainment figures display their ignorance about copyright. Bluntly, the real reason that recipes are so full of things other than, ya know, the ingredient list and spare directions, is that the ingredient list and spare directions are not copyrightable. No matter how original the result of the recipe! Instead, the ability to protect what is in cookbooks and commercial journalism food columns and so on is what began driving this meme, all the way back in the 1950s when the noncopyrightability of the recipes per se filtered into proto-BigMedia offices and the papers (and cookbook publishers) began experimenting with ways to make them farther from merger of information with expression. Feist put the nail in the coffin of the old-fashioned Junior League cookbook style.
  • On a more serious note, COVID–19 is masking continued problems with refugees. Not just in the US, either. One wonders how many of Boris the Spider's caregivers are non-UK citizens, or have been non-UK citizens. Especially the ones beneath his notice, like circulating nurses and respiratory therapists and respirator-repair technicians and pharmacists and…
  • Getting a bit closer to the headline, study music (seriously, which necessarily means not on the bloody dance floor) for better brain function and lifelong health. And "seriously" doesn't mean education-free.
  • The Washington Supreme Court issued its opinion in Rocha v. King County, No. 96990–6 (Wa. 09 Apr 2020) (pdf), concerning the criminally low rate of jury pay. Pun intended… which, more than anything else, explains why legislatures everywhere don't do anything about the second-most-important duty of every citizen.1 In Rocha, the fundamental finding was that jury pay is so low that it's essentially a violation of someone's rights… but the courts have no authority to require the legislature (or subordinate government units) to appropriate funds for, or even establish, a higher rate. In this, the court is unfortunately correct, but primarily because of the cramped precedent regarding courts' ability to direct legislatures to spend anything.2

    The obvious bit of class warfare lurking in this issue is the "all taxes bad, especially when they 'redistribute' income even indirectly" meme that is also so obviously a problem right now. (If nothing else, the lack of ventilators and trained personnel to operate them and protective gear for healthcare workers and first-responders illustrates that.) Actually paying jurors the equivalent of the minimum wage3 would increase jury costs by a factor of at least ten… because in Washington State, almost all jurors are paid $10 a day (not hour) plus a purported expense reimbursement that actually manages somewhat less than 70% before considering the costs of childcare (which are not reimbursed). And that's just a back-of-the-envelope calculation for that minimal increase.

    The more-subtle one is the question of who actually wants a jury. Bluntly, the general perception on the part of the upper class, the property-owning-upper-middle-class, tax activists,4 and corporate actors is that juries will almost always be requested/required by the great unwashed. In some sense, that's because those groups don't see themselves as ever being criminal defendants… and when they are, they'll have (very expensive) counsel to blunt the unwarranted attack on their reputations, or to work out a Club Fed plea agreement in those instances that they can't evade responsibility.5 It's those great unwashed who "disproportionately" want/need juries — and not just on the criminal side, but in Buffalo Creek and Woburn and Hinkley. So by suppressing jury pay, the "taxes are for lesser beings" classes get a threefold benefit beyond the lower taxes:6 They prevent a "redistribution" to a broad spectrum of society that hasn't already proven "deserving," functionally restricting jury duty to those disproportionately more like them (or at least less like the truly unwashed); they ensure that those most in need of juries do not have juries like them;7 and they subtly put a thumb on the scale of the actual outcome because the juries — being nonrepresentative — are more likely to sympathize with their concerns when the evidence is close, the advocacy is winning-is-all-that-matters-and-truth-be-damned, and the judiciary8 is desperately trying to responsibly stay within its budget and thereby find ways to minimize jury trials through dubious jurisdictional, procedural, and less-insightful-than-one-might-expect evaluations of evidence before trial (and even afterward).

    It's buck-passing (literally) for the Washington Supreme Court to say it can't fix the problem. At some point, though, this is going to constitute "Constitutional structural defect." On this record, we're not there… yet. But we're closer than I want to be. What this opinion really does demonstrate, though, is a fundamental negative externality directly caused by the upper-class-friendly tax-minimizer lemma that "user fees" are always an adequate substitute for general collective measures.


  1. The more important one? Constitutionally — and this is a really poor decision that should be amended — the one that happens on the first Tuesday after the first Monday in November, and marks the actual distinction between the rebelling colonies and its imperialistic colonizer. Fortunately, I live in a vote-by-mail state (and the ballots are even prepaid), not Wisconsin (pdf).
  2. The obvious alternatives might well be worse; I'm noting this as a failure mode in the least-bad analysis, not as a demand for judicial supremacy. In any event, though, the facts presented and legal analysis inadvertently expose two threads of underlying class warfare that have been ongoing for centuries in every nation that empanels juries.
  3. Which was miscalculated by the Washington Supreme Court. The Court failed to acknowledge that any remedy would be prospective (not retrospective) and therefore must concern current minimum wage levels. The Court also misstated that the expected workday for minimum-wage workers is seven — and not eight — hours, even though the sentiment was about right; and anyone who doesn't think that jurors are thinking about their service over lunch has never actually performed jury service, not even military-court service.
  4. "Taxes are what we pay for civilized society". CompaƱia General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 US 87, 100 (Holmes, J., dissenting). Especially in this time of public health emergencies, I want a more civilized society; when one of my doctors was fired for fulfilling what he saw as an ethical duty and the guy who fired him had not — according to several other workers in that part of the hospital — been seen in the ER for months and thus had no first-hand knowledge to refute the complaints (and thus little first-hand basis for his own claim that Dr Lin's statements were rife with falsehoods), even a privatized "nonprofit" healthcare system (nonprofit? with the endemic siphoning of revenues for nonhealthcare services by "sponsors" and nonprovider-executive salaries?) doesn't qualify as "civilized."
  5. We'll ignore the horrific incidence of drunk drivers, domestic abusers, sexual predators, and similar miscreants in there; we just don't talk about them. Right, Harvey and Jeffrey and Teddy and Eliot?
  6. Which might add as much as $25 — that is, one day's maximum pay under current Washington law — to the total annual tax bill for most taxpayers. Or about the cost of a BluRay about a jury (almost none of which is going to the people who actually made the film, or wrote the play).
  7. I do not wonder whether Mr Eyman has any concern about future social distancing on overcrowded public transit; it's pretty damned obvious that Mr Eyman had never been on the 240 route from the Eastside into the UW in his life, let alone lost the hours spent waiting for overcrowded late buses. <SARCASM> But I do wonder whether he'll want a jury if he's indicted for bankruptcy fraud or campaign finance fraud. Although any jury defects will be richly deserved if sympathetic jurors are excused because they can't even get to the court (a serious problem if you've ever seen either the King County or Snohomish County state court traffic/parking patterns, or the US District Court in Seattle), let alone afford to serve.</SARCASM>
  8. Which is itself rather class-selective — especially in the federal system, unfortunately. Contrary to the self-serving BS put forth by many of the elite law schools, economic priors matter a lot to even getting admitted, let alone the offered financial aid (which seldom, if ever, even considers family status… let alone adequately). And these days, getting onto the federal bench (in particular) essentially requires a "top-twelve" law school or law review leadership at one of the next twenty or so schools (which leaves no time for in-term "work-study," let alone families). Been there, got the documentation; and I'm far from alone.

03 April 2020

Life in the Time of COVID–19

It was inevitable: The scent of bitter almonds always reminded him of the fate of unrequited love. Dr. Juvnal Urbino noticed it as soon as he entered the still-darkened house where he had hurried on an urgent call to attend a case that for him had lost all urgency many years before. The Antillean refugee Jeremiah de Saint-Amour, disabled war veteran, photographer of children, and his most-sympathetic opponent in chess, had escaped the torments of memory with the aromatic fumes of gold cyanide.

— Gabriel Garcia Marquez (trans. Grossman)

But what memories might torment those, like the new Administration spokesbacterium on the current pandemic, who have never displayed a hint of conscience to be tormented, in any context at all? Although one should certainly expect a private physician to be expected to make a house call… if only to keep things, well, private.

  • And meanwhile, religious assholes continue to put us all at risk. The obvious target is fundagelical xtians who have already demonstrated refusal to acknowledge that health care is not congruent with religious snits and bigotry. But this is an equal-opportunity pandemic, and it's not just fundagelical xtians. Dammit, "enabling spread of disease" so as to show respect to someone who can't acknowledge that respect because they're dead? The pride — the fundamental absence of humility — in these arrogant ignoramuses with their implicit claim that their personal beliefs outweigh my minimal personal safety bears some careful consideration under lots of core religious authority — both New Testament and Old. And the less said about gun nuts who think they need firepower to protect their hoarded toilet paper, the better.
  • The world of sport has had dubious amusement galore, both related to the pandemic and otherwise. The Olympic Committee (sorry, guys, you do not get to escape your past so easily with a PR-stunt name change) is whingeing that it needs a bailout too. Frankly, Ms Jenkins is far too restrained in her criticism of the failure to support actual athletes, although a more appropriate response might just be too long for the wordcount she was allotted. Olympic committees worldwide — and the USOC is among the worst — have been populated by and dedicated to upper-class dominion with the occasional condescending nod toward middle-class sensitivities since the modern Olympic movement got its start in the 1890s. "Support of the athletes" has always been behind the gold medal of "support of the Committee," the silver medal of "support of the Committee's patrons," and the bronze medal of "support of the Committee's overpaid permanent staff" — going back to not later than the 1904 St. Louis Games. Supporting the actual athletes doesn't even get on the podium.
  • And meanwhile, the attorneys for US Soccer in the ongoing equal-pay dispute with the four-times-in-three-decades-world-champion US Women's National Team have moved to withdraw. Without accusing particular attorneys — or at least not too much — of failing in their ethical duties, one must ask a preliminary question: What does it say about the hierarchy at US Soccer that it hired a law firm known for union-busting to deal with a pay dispute of this nature? And just what did they expect would happen as they built and hoarded their reserves without paying the players who made those reserves possible anything close to fair compensation, let alone "equal"?
  • The pandemic also leads to other foolishness. The so-called "Internet Archive" is sponsoring massive internet piracy. The hypocrisy is just astounding: If it really was about "information wants to be free," the Internet Archive would just have its many denizens create summaries of material for educational and informative purposes, not copy the exact expression. Instead, this reflects the meme "it's easier to ask forgiveness than get permission," which meme presumes that either would be forthcoming in the first place for more than sufficient reason.

    Needless to say, Mr Butler's inbox is going to be getting full very shortly. The DMCA, at 17 U.S.C. § 512(c)(2), does not treat FormMail (or more contemporary recoded equivalents, whether masquerading as "database entry systems" or whatever) as sufficient or necessary, but read together with (3) requires a "service provider" to both accept notices by direct e-mail and read the bloody notices that are not in the exact form that the FormMail-equivalent system would provide… especially when those notices provide more information than the FormMail-equivalent system requests, such as the specific basis for rejecting claims of fair use. There must then be a timely written response within the scope of the statute… and not within the aspirations of "governing" memes. (Sadly, the Internet Archive isn't alone in this — the notoriously difficult to use YouTube notification system is just one other example.)