21 November 2019

Better Than "Just Fine"

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

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

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

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

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

19 November 2019

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

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

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

1. Whether copyright protection extends to a software interface.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 November 2019

Pre-Black-Friday Internet Link Sausages

Followed shortly thereafter by black pudding (the real ancestor of internet link sausages, and much scarier than the D&D monster), Cyber Monday, and imminent collapse of the ecosystem.

13 November 2019

Guiltier Than a Ham Sandwich (and Just About as Kosher)

It's been said — somewhat sarcastically, but also somewhat understatedly — that a decent prosecutor can convince a grand jury to indict a ham sandwich. Since the impeachment process in the House of Representatives is highly analogous to grand jury proceedings — if with considerably more rights and protections for the prospective accused — today's show was enlightening. If this really was a grand jury, Drumpf would have been indicted by the end of the day. Remember, the standard for indictment is probable cause, and the witnesses today established probable cause that Drumpf did, directly or by proxy, interfere — in furtherance of his personal interests — with spending authorized by the United States Congress and with the performance of sworn duty by officers of the United States (both principal and inferior), and did so in violation of his own oath of office.

But it's not a grand jury. Unlike in a grand jury proceeding, advocates for the prospective accused have the right to ask questions of their own. And present their own witnesses. And even be voting members of the body that will make the final decision. So those claiming that this is an unfair process should consider what it's like being some poor schmuck from Detroit who doesn't have those advantages. Or, often, a lawyer who met him more than half an hour before the hearing (although, on the evidence both of recent statements and shenanigans over a quarter of a century ago, maybe said schmuck should be glad that public defender isn't… Drumpf's personal fixerlawyer). Maybe even consider the racial and economic disparities for why they're there in the first place… in each place in the first place.

And I don't want to hear any grousing about the mayonnaise (it's always the mayonnaise). Right now: It's a ham sandwich, and it probably is a months-old plastic-wrapped monstrosity from one of the machines in the courthouse basement.

That's guilty, guilty, guilty! (Doonesbury reference entirely intentional; have a nice day, Jeff Sessions Bill Barr John Mitchell).

09 November 2019

I Sentence You to Be Exposed Before Your Peers

It's been thirty years now. Meanwhile, some jerk with bad hair and a potty mouth is building an even bigger one (improperly using Other People's Money) to compensate for his tiny… hands. And intellect. And moral sense (not congruent with or even parallel to even grievously flawed "judeochristian concepts of morality," but which instead includes greed, corruption, bribery, ego, and complete disrespect for originating cultures — or any other culture for that matter, let alone dissent within "his own").

It was even more fun from the other side ("fun" being an acronym for "fouled-up nonsense" or something like that). And that is something that antiimmigration activists would greatly to prefer evade acknowledging is an issue of any kind, let alone actually thinking about it.

08 November 2019

No Time for Sargent

It's not often that one can legitimately call an "official" major corporation CEO communication "inherently deceptive and based on fantasy or science fiction only." OK, it's not routine that one can do so — not even in the entertainment industry — thanks to SEC disclosure rules. But there's a recent opportunity; and I have both personal knowledge and verifiable data to do it.

In this instance, for public consumption I'm relying upon (hack! phhhhht!) PW's account of Macmillan "CEO" John Sargent's presentation to state librarians on discriminatory e-book distribution.1 So, why do I think Sargent was being deceptive? In no particular order:

  • Anecdotally (apparently according to Sargent himself!), eight percent of science fiction and fantasy fans who couldn't get an e-book promptly from the library would instead go out and buy it. So it really is based on fantasy and science fiction! One wonders what kind of anecdotal "evidence" this is — whether it's based on a random sample of fannish statements of intent, actual general sales figures (but see below), comparative library purchase figures and circulation statistics (but see below), or as is most likely self-selected fannish responses based on a self-selected subset of fen.
  • Well, how about reproducibility?2 A nonscientific, nonreplicable sampling indicates an increase of between 12 and 15% in publicly stated "user views" of library-embargoed Tor titles over the past year at relatively safe pirate venues… and a disproportionate (compared to other similar imprints, and even generally) increase in the number of pirate handles associated with library-embargoed Tor titles over the past year. This has been a distinctly, but due to the poor quality of the dataset not statistically validatable, greater increase for library-embargoed Tor books than for other similar and dissimilar imprints. The conclusion one can draw is that an unknown but probably substantial proportion of the vaunted 8% were interested in acquiring the Tor titles, not necessarily buying them. And demonstrated with their actions (not unverifiable, anecdotal statements of intent) that that is precisely what they would do.
  • All of Sargent's bloviation assumes that experiences with Tor are relevant to other imprints. Leaving aside the self-selected hoitytoityness of FS&G, one must question the differences in "library dependence" across imprints. And not just the early-modern ideal of the American public lending library, either; consider school libraries. And consider that Holt — another major Macmillan imprint — depends much more on library sales than does Tor… and isn't even in the same industry as Tor.3 For one thing, sales at Holt (and Picador and even FS&G) are not nearly so tied to longrunning series and, well, fannishness. That's not a criticism of fannishness and fan culture — it's an acknowledgement that the sales imperatives and readership acquisition desires for book seven of a series are different from those of an otherwise-equal author within that category who is not writing in series, or even closely relatedly (think David McCullough). Neither is inherently better than the other, or more profitable than the other; one is a 7874 and the other is a B-52G, and despite both being multiengined jet aircraft manufactured by the same corporate parent there's not much in common.
  • As a follow-on to the preceding point, carefully consider the assertion (quoting the PW piece's summary of another summary) that

    [Sargent] likened the e-book marketplace to that for major motion pictures in that new releases have the greatest value in their first few weeks and their initial release should allow for the greatest return on both creative and business investment. The availability of e-books through libraries, which may be perceived as being free, is, in Macmillan’s opinion, the major driver in the consumer decline.

    which rather self-refutes the argument. Bluntly, if this were actually a valid consideration, the combination of revenues from DVD sales and post-release streaming/broadcast/etc. would not frequently exceed the initial release revenue… when one allows for the avoided costs in that back end (such as "distribution fees"). It also implicitly assumes that every Macmillan title is a superhero blockbuster. It ignores cult films. Or "indie productions" over at, say, Picador ("Fox Searchlight").

    More subtly, it ignores the more-valid comparison. Library sales — thanks to the discriminatory terms offered to libraries — are a helluva lot closer to "iMax 3D" with a $25 ticket than to no sale at all, as implied both in the PW piece's summary and the continuing rhetoric coming out of Macmillan. There is one, and only one, market segment in which "discounting" of library sales as "insignificant" has any validity at all, and it's not category trade fiction: It's textbooks (at least in the 1990s version of the market, and those who came up selling textbooks in the 1990s are now in charge of overall sales and marketing at more than one Big Five publisher).

  • Then, too, there's the implicit assumption that there is not a significant proportion of library sales made that are to the converse of the trumpeted 8%: Library or nothing. Those who are in longterm care facilities and can't store, and possibly can't even manipulate, casebound first-printing books (especially long ones). Those who don't have money for direct purchases, like early teens who don't have jobs (or late teens whose after-school jobs go to family support) or those on other fixed incomes. The irony that these people are probably more concentrated among Tor readers than for, say, Picador, has escaped Sargent's notice.
  • Last for now, but far from least, is the unquantified rejoinder to that purported "8% increase" buried in the middle of the article (whose organization, one might add, reflects PW's own biases and agendas much more than one might wish). It's very simple: "Library availability builds readership." But for library availability, I wouldn't be reading FS&G author Scott Turow's underrated alternate-history legal thrillers. More to the point, libraries made Tolkein (gee, who was the original US publisher…? Ok, there have been corporate-control shenanigans since, but still…).

    By completely failing to acknowledge even the possibility that library availability drives some unknown and unknowable nonzero proportion of sales, Sargent is engaging in a pollution-control analysis that includes only the cost to the factories of installing new sulfur-dioxide scrubbers on their stacks without even trying to consider the public-health benefits (and costs avoided, monetary and otherwise). This isn't just intellectually dishonest; it's a system-inefficient imposition of an externality on another party (ponder the second paragraph of note 1 above).

Bluntly, this is so delusional that I can't really say it's a "lie." Lying requires actual knowledge that what one is saying is untruthful and deceptive. I'm not certain that mere ignorance and/or self-deception, even when willful, qualifies, so I'm explicitly not calling Mr Sargent a liar. Fraud goes just a bit farther, in that it also requires intent that the listener reasonably rely on those statements, so I'm explicitly not calling Mr Sargent a con artist, either. I am, however, explicitly calling him out for putting forth bullshit. Admittedly, that would qualify him for high office in the current environment, but I (and at least two of my three readers) have higher aspirations than that. And he doesn't even have the excuse of making a presentation to pump up the stock price before an IPO…

  1. Ordinarily, I wouldn't do so, especially since this particular account omits a lot more than it discusses. What is says, however, is consistent with what I'm hearing in back channels on this particular subtopic.

    Speaking of deception, though, it's just a little bit deceptive to call Sargent a "CEO," since that implies that Macmillan is an independent company. Macmillan is anything but an independent company; it is a mere operating division of a multinational multimedia conglomerate based in Germany — and therefore not subject to SEC disclosure rules. And, to make it even more interesting, Holtzbrinck isn't precisely analogous to any contemporary US structure; probably the closest is Koch Industries. but even closer would have been Standard Oil in 1906. Neither of which is a vote of confidence in truthfulness, transparency, or even acknowledgement of "public interest" as a factor in "enlightened self-interest."

  2. First, a disclaimer: The following analysis in this point is based on a nonscientific, almost-certainly nonreproducible sample of relatively-safe-to-visit e-book pirate sites. This is something I do on behalf of clients: Watching for the low-hanging, actually-DMCA-noticeable poisoned apples in the e-book pirate community. This includes several Tor authors for a variety of reasons, including historical nonresponsiveness by the publisher.
  3. The profit-loss aka cost-sales documents used at title acquisition demonstrate this pretty unmistakeably.
  4. I'm carefully neglecting the 737MAX in Tor's lineup — a longrunning series that if one sawed all the spines off and laid the pages end to end would never reach a conclusion, and is even less intellectually honest than that. If one changes the slur "gooks" to "orcs" in this song it still makes sense (and maintains prosody), but explaining why requires literary theory and not marketing analysis.

05 November 2019

Practice Run

It's US Election Day today. (It should be next Monday, but actually honoring veterans for the reason for their service doesn't seem to be a priority.) So get your behind out and vote.

Unless you've already voted, absentee or by mail or whatever. For those who don't live in Chicago, "early" is fine, "multiple times in the same election" is out of bounds. (If you do live in Chicago, you know the rules.)

Consider this your one-year training exercise for the Big Event in November 2020.

27 October 2019

Miscellaneous Electoral Foolishness

It's election time. Out here, we got our ballots last week and mail them in before 05 November. Since I've voted already, I have a few comments for the chatteringpolitical class. Don't expect me to be nice.

  • I try very hard to avoid the ad hominem fallacy in electoral politics. It's sort of a corollary of "a stopped clock is right at least once a day" (it might be a 24-hour clock!). I make an exception, however, for rabid "antitax" advocates, whose actual position is uniformly "let's you and him pay for the services and infrastructure that disproportionately benefit me." Especially when said advocates are in contempt of court — again — for longstanding campaign problems.

    So bite me, Tim Eyman. I voted in favor of "maintaining" all of the targeted taxes that your initiative a while back put on the ballot as entirely misleading "advisory measures." I voted against your wet-dream Initiative 976, which would (among other things) destroy public transportation throughout Puget Sound. Because it's not 2327Z, so the clock is not showing the correct time. (BTW, Mr Eyman, I'd love to see your DD214 or Peace Corps equivalent demonstrating that you successfully completed an actual term of public service.)

  • If you're running for reelection as county sheriff — a position that should be for qualified nonpartisan professionals selected and supervised by elected officials, and not for direct election, just like judges and prosecutors should be — in a community with an increasing proportion of non-WASPs, you'd be highly advised to (a) ensure that your campaign photo doesn't look like you just took off your hood and (b) deemphasize the coded "qualifications" that scream "disciple of Bull Connor" to anyone who knows diddly-squat about the historical not-quite-but-nearly uniform misconduct of American sheriff's offices regarding civil rights and equal protection.
  • If you're running for mayor in a college town, you should strongly consider not putting coded "no immigrants need apply" language in your campaign literature, and you should probably not include coded "I work for the 1%, for inherited wealth, and for real-estate developers" language and positions everywhere. Bonus: This miscreant claimed that he's going to avoid engaging in partisan politics in a community (and county!) in which almost all offices are nonpartisan… meaning that he's going to drag partisan politics in.
  • If you're running for county executive, you probably shouldn't trumpet your objective to increase housing supply in the face of longstanding, severe water-treatment issues in the county, other significant infrastructure and public-access problems — especially when you're being endorsed by the 1%ers, the real-estate developers, and the Chamber of Commerce (which, around here, acts like we're in Pleasantville, especially including its demographics). That you did so by explicitly citing a need for more rental properties without regard to making it possible for renters to move "up the ladder" is just a bonus.
  • Nobody should ever be running for a position supervising elections. Ever. Does the concept of "conflict of interest" even matter?
  • Even if you're running unopposed for office, you should take advantage of the opportunity afforded by state law to provide a free statement for the voter pamphlet. Otherwise, snarky SOBs like me might write in a vote for "Leave Vacant — Candidate Refused to Confirm Qualifications."

17 October 2019

Up in (and Down With) Smoke

I invite y'all to consider the following:

In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:

(1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect, if known.

(3) The state of current scientific knowledge regarding the drug or other substance.

(4) Its history and current pattern of abuse.

(5) The scope, duration, and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psychic or physiological dependence liability.

(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

(21 U.S.C. § 811(c)) as to tobacco. Not just "vaping," but as to all forms. Without regard to the environmental consequences of tobacco farming or the impoverishment wreaked by tobacco products upon addicts.

So, why then isn't tobacco even hinted at for inclusion on Schedule I (highly subject to abuse, no medical use)? Might it be the number of enthusiastic campaign contributors whose fortunes trace (clearly and easily) back to slaveholders in regions critical to the Southern Strategy? Have I satisfactorily demonstrated that I can write a rhetorical question without adequate caffeination?

All seriousness aside, placing tobacco (and tobacco products) on Schedule I would be the intellectually honest thing to do. But, since we're talking about "drug policy," we're not going anywhere near intellectual honesty anyway, so never mind. <SARCASM> After all, it's as much a moral question as anything else, and it just isn't possible that Real 'Murikans from the Deep South would engage in immoral conduct that is nonetheless extremely profitable. </SARCASM>

13 October 2019

Too Long in the Smoker

Sometimes Life gets in the way of the sausages. And sometimes they just need a little bit more time in the smoker to let the flavors blend.

  • Mythology abounds in literature. Not just in its subject matter, but in how to write in the first place. That three-word mantra — which I shall not repeat here, as my own background in literature is sufficient to refute it as universal, as should have been apparent to anyone who actually "did the homework" (instead of relying upon "talent") not later than Booth's The Rhetoric of Fiction — simultaneously overvalues and devalues both context and words. It draws too many of the wrong lessons from Joyce's (and other Joycean) experiments, to begin with.
  • Almost as many wrong lessons as Clive James seems to have drawn from magical realism. The real problem here is that one doesn't know what Mr James means by "overrated"… or, for that matter, "magical realism." Does he mean just the South American political subtext variety (and imitators), epitomized by Garcia Marquez, Fuentes, and Vargas Llosa? Do Europeans, or immigrants to Europe like Rushdie, "do" magical realism? How about Yanqui? Is there a gender issue here (as seems implied in other interviews with James over the years, although it's always difficult to tell how much of that is the interviewer inserting his/her preconceptions)? Does "overrated" mean that he would now disapprove of Olga Tokarczuk's Nobel Prize in Literature while approving of Handke's (the opposite of the general bent among the literati, at least as has appeared in public)?

    Perhaps it's just an extension of a poem Mr James wrote quite a number of years back. In media res,

    The book of my enemy has been remaindered
    And I rejoice.
    It has gone with bowed head like a defeated legion
    Beneath the yoke.
    What avail him now his awards and prizes,
    The praise expended upon his meticulous technique,
    His individual new voice?

    Would that Mr James had been confronted with this contrast. But that would be telling, not showing…

  • Which, I suppose is all slightly better than prison censorship, and that link to a non-US-based source is entirely (and archly) intentional. What we have heah is failyah to communicate. Of course, there is no marketplace of ideas in prison — leaving aside the problem of a "marketplace" that is oligopolistic or worse (and who is acting like a well-adjusted adult in that pairing?).
  • I'm not sure which is more fun: Watching Brexit prove that the sun set on the Empire decades ago, or further disclosure of this Administration's links to Soviet-era intelligence tactics and people. But then, I have a very sick and twisted sense of humor. (I have to, to keep despair somewhat manageable.)
  • Speaking of dubious intelligence techniques and assets, don't forget the private sphere, which provides a refutation worthy of Marsh. Governments can and do succumb to temptations to misuse power; that doesn't always mean that the so-called private sector is better.
  • As Domino's Pizza has more than adequately demonstrated. Admittedly, this isn't just blaming a bad pizza company that misuses "franchising" to push risk generated at the national level onto local investors, mistreats the employees, and historically refuses to take responsibility for the consequences of 30-minute-or-less delivery "guarantees" without regard to, say, safe driving in neighborhoods with kids. No, this is about the misbegotten dominance of "design" over "content." Perhaps every marketing dork should be required to take a three-credit-hour seminar with Edward Tufte… and so should most state attorneys general.

    The less said about contemporary Flash-influenced menus in fast-food restaurants, and their disrespect for those who have even moderate visual impairments like bifocals, the better. Actually, I'd love to say even more… but I'd be shouted down by the marketing dorks, because there are a lot more of them (and they have an interest in "encouraging" lazy choices by consumers rather than the subjectively best ones).

04 October 2019

Unfit for Command

Once upon a time, I said, with many witnesses:

I, having been appointed a second lieutenant in the United States Air Force, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter.

And again at each promotion and assumption of command (that's eight offhand).

It is not bearing true faith and allegiance to the Constitution of the United States to request a foreign head of state to investigate one of one's own domestic political opponents, regardless of purpose or context. It is not bearing true faith and allegiance to the Constitution of the United States to double down by suggesting — in public — that another, more potentially hostile, foreign head of state should also do so in response to objections made when the first request becomes publicly known (and not denied).

You, Orangeskull, have violated the oath of office required of every commissioned officer. You are also the commander in chief of all of those commissioned officers. (Neither you nor any member of your family, however — and virtually none of your non-familial inner circle — have ever worn a military uniform, so Article 133 does not now apply, and never has applied, to you or them. More's the pity.) You are unfit to command, yet you continue to exercise command authority — a high crime or misdemeanor in itself.

One of those principles behind the Constitution that officers of the United States are sworn to "support and defend… against all enemies, foreign and domestic" is civilian control of the military. So I guess you weasel out of that one anyway. But the obvious corollary is that you, as a civilian, cannot undermine those officers in the performance of that solemn duty by blatantly violating it yourself.

28 September 2019

Dear Real 'murikan:

Not everyone who gets in your way in the grocery store is intentionally inconveniencing you.

I might have stopped on the left because I've just avoided running over a kid (but he was brown, so you probably wouldn't care even if you'd seen it). Or because I'm trying not to run into an all-'murikan towering endcap overfilled to boxes-spilling-off level with crap I'm allergic to (I intend to have a discussion with the store manager about that at a later date). Or because the left side of the aisle, just around the corner, is where I'm returning the cart, and I'm adjusting my bags so I can pick them up quickly. Or because I'm tired after running other errands and I'm catching my breath before braving a parking lot full of suburban assault vehicles crammed carelessly into spaces marked "Compact Car Only." Or maybe more than one, even all, of these reasons.

So don't tell me "Get on the right, just like driving, it's really simple" with contempt in your voice and a sneer on your face under your MAGA hat as I wave you past. Don't take your anger that Orangeskull just might be called to account out on those you think are different from you or are inconveniencing you. Maybe I should just look over my shoulder to where you go in the store and demand of the store manager that he call for a white-trash pickup on that aisle — a wet one, next to the PBR.

If this had been the only obvious-right-wing acting-out shoved in my face while I was out shopping today, I might not have said anything. I'm ignoring the possibly impaired driver weaving in and out of traffic in the pickup truck plastered with NRA and Drumpf stickers, and … well, the list is too damned long. This was just the last — primarily because it was the last place I went before returning home. And I'm a male veteran who pretty much looks the part, so I don't get as much of this as some others do.