On the Meaning of Victory

It's US election day today, eight days early for the US — and, based on various expressions of outrage, maybe only two days early. It's worth pondering what victory means, or even looks like.^†

The US is not — or, at least, not yet, not uniformly — a totalitarian regime in which voting against entrenched incumbents and/or "community leaders" ordinarily results in a late-night/early-morning visit by government operatives questioning one's loyalty and/or sanity (jackboots optional). That's not to say that there are no sore losers among the current officeholders (regardless of party or other stated loyalty/affiliation); it's only to say that most of the time, the self-righteous belief that all of the Important People have voted "correctly" does not, when contradicted by silly things like "actual ballot counts," devolve to violent refusal to accept that. However despicable the tactics in the campaigns, actual violence against the candidates/officeholders is rare enough to be remarkable, and usually based in what appears to be a side issue unrelated to "fitness for office."

Acton was fundamentally wrong — perhaps inevitably, given the first name by which he is known ("Lord"). Power itself does not tend to corrupt, nor absolute power doing so absolutely. It is, instead, the striving for power that corrupts. Virtually every political or quasipolitical figure viewed by either history or contemporaneous understanding as "corrupt" was corrupt before rising to power. In hereditary-power schemes, the dissolute heir is virtually the default condition, particularly during the "impatient to ascend" years from the early 20s to late 30s. It's certainly not "better" in electoral-succession schemes, let alone loyalistic schemes epitomized by the Soviet Union and all theocracies. The current US administration is doing a particularly fine job of demonstrating that "one gets what one pays for": Because there's no meaningful public support, private wealth can and does buy everything from the ear of the elected to a vice-grip on their gonads.

Starting in a few hours, various candidates will be proclaiming victory; some of them will even be correct, although some will turn out to be desperately denying that their obvious (self-regarding) superiority to their competitors has been narrowly disagreed with by a bunch of ill-informed "voters" who just don't recognize that superiority. That's certainly one meaning of victory: The selection of actual representatives, and occasionally direct-democracy ballot measures. This is not, however, a mere sporting event — or even "full season" — in which the results of each match have a clear winner (and loser(s)), with little or no effect on the actual progress of later matches. Representative government defines victory by how everyone plays the game; when policy and/or personal loyalty — or disdain — become more important than democracy itself, we all lose. That is, indeed, precisely what happened in the seventeenth and eighteenth centuries in the "parliamentary system" in the UK, ranging from rotten boroughs to familially-owned seats in "elected" bodies (a problem not unknown Over Here). The US broke from that then… and is backsliding.

Whatever you do today, if you're eligible, vote. Even if you vote "wrongly," even if the candidates for whom you voted and the ballot measures for which you voted all end up in the minority, by voting you've won individually and we've all won together. At least sort of, and that's certainly better than this.

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†  This blawg entry primarily references non-US sources. This is part of my point: It can do so without consequences.

The Revolution Will Not Be Podcasted

There remains a political undercurrent to everything, and the arts cannot escape.

Once again, no book is genuinely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

George Orwell, Why I Write (1946). Nor should they.

• One side aspect of "the arts" is the commercial part that actual creators handle somewhat (often entirely!) orthogonally to mudane reality. The struggle between influence and (noncreator understandings of) originality is just one starting point. (That that student of creative processes fell directly into the swamp of overt political influences should surprise no one.) When it verges on branding-friendly appropriation of descriptions it further masks the brain rot of commercial disdain for the differences between "creative process" and "creative output."
• Those differences are definitely at issue when oligopolists/monopsonists in the commercial aspects of the arts listen only to other oligopolists/monopsonists.^† The key question ignored by this article — and that ignorance is entirely consistent with the venue's prejudices — is how likely listening to only one critical element of a multisided transactional chain is to actually reveal much of anything. Publishers' interests and knowledge bases do not encompass those of their suppliers (the authors) or either the direct (libraries) or final (readers/library patrons) customers. In media res may have a place in some storytelling, but this article very much assumes the can opener without ever wondering how the food got in the can — or whether it needs to be reheated, used as ingredients in other cooking, or is past its shelf life after it's out of the can. Let alone whether it's nonnutritious junk.
• This problem is perhaps nowhere better illustrated than in proposed consolidation of access channels and its implications at both source and consumption endpoints. Clarkson's proposed solution to the "problem" of broadcaster "unprofitability" both ignores the freedom-of-expression non-Ricardian rent and embraces the colonial instinct of those already aligned with colonial powers on its way to proposing an increase in oligopolist/monopsonist power and structure… which is rather ironic given Clarkson's own past relations with an oligopolist/monopsonist in that very space that actually has an unusually broad and open conception of "gatekeeping." (Not broad and open enough, but "choosing the lesser evil" and all that…)
• There's that gatekeeper problem again. As Orwell notes in his underappreciated essay — widely cited, seldom contemplated — complete removal of "politics" from writing is impossible. Sometimes, however, the gatekeepers don't even try, even for writing about science and science-related issues. It's one, not-entirely-benign, thing for a publisher to engage with authors on purported style issues to maintain civility or some other purportedly unrelated-to-substance abstraction (that's never entirely independent of politics — or, indeed, of substance). It's much more disturbing when a publisher licenses a work (in a monopsonistic marketplace of ideas), and then attempts to impose its political preferences in opposition to the authors' own position that was known at acquisition time — for a children's book on a hot topic that's just short of 232° C to begin with.
• All of that is disturbing enough when we know who the gatekeepers are, and can at least contemplate the reasons the gatekeepers use their influence to start a war. It's much less clear when instead of a war they're "just" exploiting individuals, not excluding illusory creators busy following the long-con playbook ("enhance credibility, and pretermit outside inquiries, by establishing associations with and linkages to legitimate enterprises").

Looks like I didn't do so well at leaving the politics out, did I?

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†  A quick refresher: In the vocabulary of antitrust, a "monopolist" is a single marketplace vendor with control of the market (an "oligopolist" is a member of a group that does so, either by formal agreement or otherwise), usually measured by ability to inferredly control price and perhaps quantity in that market. A "monopsonist" is similar, but is instead a marketplace purchaser with the same kind of control; the antitrust literature doesn't fully contemplate "oligopsonist." Market role of a dominant player actually matters a lot, especially in any analysis of either the market's scope or quantification; the latter can easily result in multiple divide-by-zero-like errors. In this instance, because the library vendors act as both vendors and purchasers, they're in both parts of the transaction with distortive market power.

Barbarians (Three Different Ones)

At least they're human. Biologically human, anyway.

1.   Civilization ends at the Hudson River — everything to the east of it is a howling barbarian wilderness. It's dotted with quaint barbarian villages, especially in the self-appointed "greatest city in the world" — like the 1700 block of Broadway, most of the Avenue of the Americas, and virtually the entirety of Madison Avenue. That last is what's irritating me today.

Dear "geniuses" in the advertising industry: Is relentlessly depicting your prospective customers as clueless cretins in your commercials very civilized? Admittedly, you can share some of the blame with the barbarian village in Hartford, who really do treat their customers like clueless cretins. A sense of humor in commercials concerning products that are ultimately noncomparable until something goes badly wrong (and even then remain noncomparable because the circumstances of "going badly wrong" tend to be close to unique) is probably not a bad thing, either. At least not until commercials either use stereotypes as a basis for their humor… or try to create some of their own, like "young homeowners becoming their parents" (which, to someone who knows just how mechanically inept his own generation is, is scary for other reasons). And that last is particularly so because having homeowner's insurance is a condition of having a mortgage, so it's just as mandatory as automobile insurance. Humor need not rest on ridicule that relies on stereotypes, particularly not just short of bigotry (passssssssing… demographicsssssssssss… What does that say about who is worthy of being a young homeowner in the eyes of the insurance executives who blithely approved this campaign? Ridiculously obvious class issues are for another time.).

I only wish it was just insurance commercials. I'll refrain from analyzing either scripted or unscripted network television today (for one thing, it'd take too long)…

2.   Unfortunately, the barbarians just refuse to stay in the howling wilderness where they belong. We've even got them out here, trying to grant themselves tax breaks that were passed along with a state income tax whose lowest bracket begins at $1 million in annual income while getting rid of that tax.

Just about a century ago, Justice Holmes reminded us that "Taxes are what we pay for civilized society…" (Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting). It is simultaneously frustrating and enlightening that the cohorts that are most rabidly anti-tax disproportionately benefit from "civilized society," and especially "civilized society" as a lifelong upper/upper-middle-class Boston/Harvard man like Holmes would have contemplated it. They, and their own children, attend private schools; their workforces, all the way up to the accountants advising them on minimizing their tax burdens, not so much. They, and their own children, have platinum private health insurance plans; their workforces — especially their servants — not so much. Perhaps most to the point, they (and their children) don't volunteer for dangerous, low-paid public-service jobs like "military," "Peace Corps," "fireman," and "peace officer" that have as a primary mission focus protection of property interests. <SARCASM> Maybe — just maybe — minimizing their taxes is just "being smart" (as a well-known convicted felon who refuses to accept the fact of those convictions has remarked about his own record of tax compliance). So maybe this set of barbarians is just pruning their herd by ensuring that their peers who aren't "smart" will no longer qualify as members after paying "too much" in taxes. </SARCASM>

It's very much a chicken-and-egg problem: Is it uncivilized because it rejects partial mitigation of this state's regressive tax structure, and therefore is supported by the usual suspects? Or is it uncivilized because it's supported by the usual suspects, leading to the usual suspicion that it doesn't just reject mitigating regressive taxes, but celebrates and even enhances them? It doesn't really matter much: No on 645.

I want more civilization, not less. For those who follow me (however unwillingly!), too.

3.   And then there are the vote-suppression barbarians. You know, the ones who are so convinced of the permanent, irrefutable rightness of their policy preferences (just ignore the bigotry and corruption intertwined with them) that instead of working to persuade, they work to prevent those who might disagree with them from voting at all. Now that is barbarism!

These barbarians failed, at least up here in tree-hugger country. I got my ballot in the mail Friday; the attempts to prevent the Post Office from delivering any ballots unless states violated voter privacy by "cooperating" with the Geheinstaatssicherheitsbüro's no-factual-foundation demands failed. I'll put it in an official ballot drop box this afternoon, beyond the reach of any other Post Office shenanigans. I'll just sip my tea and wait for results.

One other advantage of vote-by-mail-with-extended-time systems: I don't have to respond to nosy pollsters and ill-informed "reporters," not even "What part of 'secret ballot' do you not understand?" — followed up, if necessary, by asking how many years they spent doing additional duty as a Voting Assistance Officer (which is, I should add, almost entirely voting by mail). Which rather, again, exposes who the real barbarians are.

Bad Parenting

One of the fundamental tensions in American (and, arguably, Western) culture and law is the five-way tug-of-war amongst privacy, freedom of speech, intellectual property, distrust of monopolies, and access to information. Every nation balances these differently; indeed, every decade balances them differently, and every information user¹ balances them differently. All too often, a display of balance for one user, during one decade, in one particular American (Western) culture, appears to other users as not plates spinning on a finger, but off it.

Thus, the parenting problem with one current set of problem children: Large-language-model generative-response systems, which I'll call "SuperEliza" for now.² Consider what parents do: Teach their children, and model behavior for their children (not always positively; an abusive alcholic parent is a model of what not to do). In no particular order, consider:

• The "parents"' disregard for the rights of others in information that is generally available, especially through mass "ingestion" of digitized textual material (both overtly, and admittedly, piratical³ and otherwise), rationalized by ignoring the second part of the Feist test: Even for those texts that are "factual," it is still necessary to consider whether the way those facts are expressed is "original" that necessarily informs any fair-use analysis. That's the difference between a recitative timeline of the last month before the beginning of the European conflict in 1914 and The Guns of August: One of the two is clearly copyrightable original expression, however much it is expressing "facts."
• The "parents" set their "children" loose with nothing resembling adult supervision. One would expect a "parent" — or a reasonably socialized parent, anyway — to at least yell at their "children" about vandalizing the neighbors' houses after three police visits…
• Those two instances are just at the input end, which is bad enough. Harmful output is worse. These "children" are either stupid or mean — perhaps both — and that's leaving aside the way they encourage misuse even when not formally "wrong" (and even if it turns out this accusation is false — which is certainly possible, even with all of these emdashes that I've used in my writing since the 80s — its very plausibility is itself problematic).
• Then there's the ownership of the product problem: Not of SuperEliza's responses to queries, but of SuperEliza him/her/their/itself. The irony that the reductio ad absurdem of "Information Wants to Be Free" is "there can be no legitimate ownership interest in information-based systems, any more than of the input" gets less attention than "when recess is over, you have to give the ball back to the playground monitor — it hasn't become 'yours' because you used it."

Perhaps, though, with these parents and their endemic disregard for the rights, property, and self-respect/identification of others (and Others), we shouldn't be surprised. As a group, "techbros" aren't… well… the best-socialized voluntary-membership group on the planet.⁴ And their companies are, if anything, worse; they're unruly children, too.

It's not just the parents' personalities, but their substitution of "volume" for "credibility with those who've actually studied the subject matter", the "more input" is better than "higher quality, even paid-for, input" choice that led to, well, every lawsuit over training materials. This is particularly apparent in output for anything related to biology. It's not quite so apparent, though — and dangerously so — when there's a lot of incorrect popular mythology about a subject that's not quite within regular, everyday experience. It's not that Joe the Plumber is stupid; it's that he doesn't actually know a lot about industrial-scale petroleum refineries, no matter how many pictures fo them appear on his social-media feed. The mythologies get turned into blithe, uncontrovertible, unreserved statements of "fact" based on the accessibility of the source materials.⁵

If one is going to ascribe a human characteristic like "intelligence expressed through language, music, or drawing" to the machines, some examination, some acknowledgement of how human "intelligence" develops — and is flawed, in substance or process — seems appropriate. The next stage will necessarily involve incorporating not just a direct response, but exercise of judgment (also a hallmark of human intelligence, let alone "superintelligence").

So we shouldn't be surprised that with this kind of parenting — and this kind of parents — we're seeing more Lord of the Flies than To Kill a Mockingbird. Both of which remain in copyright, so they shouldn't be part of any SuperEliza "training" dataset… but they're in the Bartz dataset…

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1. There's really no satisfactory shorthand for "the people who are in and around information, who consume information, who produce information, and who are affected by information and others' consumption and production of information." For the nonce, I'm adopting "user" because that's the first-in-time for individuals in the modern world, at least as to conscious interface. This carefully neglects the chicken/egg problem regarding where the initial dataset comes from.
2. It is possible that these systems will evolve toward true intelligence, which would require both the ability to pass the Turing Test with an expert in the field being discussed, and the ability to apply not just information and inferences from previously-known information to new disparate contexts, but determine and adapt methods of reasoning from the previously known to new, disparate contexts. We're not there yet. Notwithstanding an ignoramus's attempt to rebrand rename current-generation technology as "Superintelligence", the current branding of "artificial intelligence" isn't just puffery — because it's ultimately descriptive, it's fundamentally (and, arguably, intentionally) misleading. Current-generation systems, and those in the forseeable near future, far more resemble Eliza with a larger dataset and automated incrementing of that dataset than anything else. They can't develop new methods of reasoning, or spontaneously do anything. Fortunately, they can't send astronauts outside to fix a (nondefective) AE-35 unit, either. Plus, they're "SuperEliza" largely because the hardware is so much more capable.
3. One might argue that the settlement reserves that question; however, the settlement documents reserve not the question of whether knowingly pirated material was ingested, but whether the ingestion created liability because there was a potential fair-use defense that had been preliminarily ruled sufficient to avoid summary judgment in the infringed authors' favor. Compare Kadrey v. Meta Platforms, Inc., 788 F.Supp.3d 1026 (N.D. Cal. 2025) with Thomson Reuters Enter. Centre GmbH v. Ross Intelligence Inc., No. [20]25–2153 (3d Cir. 30 Sep 2026).
4. Back in the day, I was one of them. (Some would contest that my socialization is any better now.) I contend it just gives me insight into the only comparable voluntary-membership group: Authors.
5. That this bears a sad relationship to the "statements of facts" found in judicial opinions wrestling with nontraditional contexts is for another time. And it's not just when "science" is involved, either.

Misanthropic (9.7)

The Settlement Administrator has given claimants another extension. This morning, the official site states:

For claims where all claimants do not agree on the appropriate allocation for a work, claimants may submit additional information supporting their proposed allocation. The Settlement Administrator asks that claimants submit this information expeditiously and within 60 days of receiving access to the consolidated claim information. Please note that the 30-day period referenced in FAQ 26 (and referenced in the notices sent between September 2 and 4) has been extended to 60 days to permit Class Members more time to gather documents and attempt to resolve any disagreements. For the avoidance of doubt, this initial time period (originally 30 days and now 60 days) does not create a deadline by which all disagreements between co-claimants must be resolved. The dispute resolution process may, for some, take even longer than 60 days. Any works for which disputes are not resolved before the first distribution of Settlement payments will not be included in the first distribution and will instead be included in a subsequent distribution.

(It's about one scroll down on the site front page, on a regular laptop/desktop-sized monitor.)

This is sort of good news, but reconfirms some yuuuuuuuuuuge blindspots. In no particular order:

• The various forms of "disagreements" information provide no contact information for those with whom negotiation may be necessary, and very minimally identifies the basis for other claims. This is particularly problematic when there's been a claim made by a business entity that wasn't initially involved and the percentage claimed is stated as "default" — an author's IP holding entity, an anthology editor's estate, a publisher that was bought out… but none of those forseeably happened, right?
• There's no indication whatsoever of what constitutes appropriate "documentation" to submit. Consider an author's estate that has no contact with the agency, or worse that the agency has gone out of business (or is in active adverse litigation…), and the heirs otherwise have no clue where to look in the piles and piles of banker's boxers of papers for the formal reversion paperwork from a publisher that just claimed "default" on everything without checking its own records. Presuming, that is, that the reversion paperwork was ever formally done; especially in the early days of the century, there were more than a few instances of major commercial publishers of refusing to even respond to reversion demands based on the work going out of print. (Remember the "availability through POD keeps the work in print, even after we've remaindered all of the existing stock" nonsense?)
• There's no consideration of the problems with intestacy. I'm afraid that authors do die, all too often intestate. And sometimes sole-proprietor publishers have the same problems.
• The less said about checking/disclosing the status of publishers (or, for that matter, those IP holding entities) to "do business" because they're not in good standing, the better.
• Perhaps some acknowledgement of the "D" and "B" words ("divorce" and "bankruptcy"), and how those further complicate both communications and negotiations, might have been appropriate; I'm only aware of a metric buttload of such instances. And that presumes "finality" of any internal court/claims process…

There is, of course, a lot more.

These are obvious circumstances that should have been anticipated even long before the "parties" reached their settlement, but they didn't ask questions of those who might actually know something about the circumstances of authors who aren't presently appearing in The New Yorker (or never, like, coauthored anything). It's too early in the new academic year (another lacuna!) to assign grades, but this first draft is not encouraging, except in that reality has intruded yet again on the schedule of events.

Previously Calendared

It's that time of year again: All the quarterly and annual appointments piled up in a relatively short window. It's sort of like ripping the bandaid off instead of slowly and carefully peeling it off — hey, wait, there's another insurance form for that?

• In a rather short, sharp shock to the underlying meme of the fine arts — that "the original" is The Only Thing That Matters, meaning that to appreciate it or learn from it at all one must go to where it is to physically view it (with all of the subtle, and not so subtle, class/ethnic/nationality elements embedded in that journey), and that no copy ever allows for Appropriate Appreciation — the Rijksmuseum in Amsterdam has digitized its collection for free public access. The sideswipe at the memes of photography-licensing oligopoly, as distinct from the interests of actually engaging in original expression individual photographers, is also highly appropriate; particularly as that subculture is precisely the opposite of encouraging "Progress in the useful Arts."
• The contrast with the, well, dubious competence of the Anthropic claims process — in conception, design, and execution — is pretty obvious to those of us who've been inside the system for both creators and transferee-exploiters. On one hand, the lawyers involved were constrained by both lack of first-hand knowledge and the stated priorities of their clients; on the other, both general ethics and the specifics of class actions required more disinterested effort, in both conception and implementation, than is apparent… for fees on just the plaintiff's side exceeding the gross revenues of almost everyone involved.

  Which really, in the end, leads to the other half of "reform": Don't just criticize, but conceptualize and actually build something better that doesn't itself have large unintended consequences (at least not when predictable). That's the real problem with the "Information Wants to Be Free" movement (especially as exposed in "we refuse to pay anyone for data to train our large-language-model generative systems"): It doesn't — indeed, actively refuses to — engage with both the systemic and individual costs of information-creation mechanisms and environments.

  No, I'm not going to be specific until at least all of the briefs have been filed in the appeal. My concerns relate directly to the stated subjects of the appeals, and it would be inappropriate (not to mention would require taking the conduct of a few of the players outside for a spirited discussion and attitude adjustment assisted with a rhetorical 2x4). Suffice it to say that one of the nonparties has demonstrated that, at least until its entire leadership and senior staff changes, it can never satisfy Fed. R. Civ. Proc. 23(a)(4) due to its built-in blind spots (and borderline narcissism, but we are talking about the arts here…) — and that the concept of the "real party in interest" is also relevant to satisfying that part of the Rule.

• The rhetoric is building, and won't subside until well after 03 January 2027: Expect to hear more and more about "voter fraud" from ill-informed quarters (often with poorly-hidden conflicts of interest and narcissism well beyond anything found in the arts community). For a change, how about some validated data analyzed by, like, experienced nonpartisan interpreters of laboratory and other experimental data on the prevalence of voter fraud? Or, at least, voter fraud measured by its actual standards, and not "they didn't vote for me" (semipaywall).
• That last link sausage leads into contemplating both the ingredients and, perhaps more to the point, the cleanliness of the kitchen — and more likely the lack thereof. Direct election of anyone expected to exercise judgment within the bounds of a profession is incredibly stupid. We're at least smart enough not to do it for military officers (we don't directly elect unit commanders!); we shouldn't for health officials, judges, prosecutors (and Attorneys General), coroners, law-enforcement officials, etc. And especially for that last as to "sheriffs," who historically were not "cops" as we know them but armed tax-collectors and proxies for absentee liege lords (viz. the legendary Sheriff of Nottingham) who more often than not dealt only with writs and "major" crimes like stealing sheep, not driving a horse cart while intoxicated. In this context, direct electoral approval is worse than relying on (all-too-often evaded) professional regulation; the irony that the reason professional regulation often fails — twisted, conflicted concerns for "reputation of the profession" combined with a lingering internal sense of "there but for grace go I" — for the same reasons as "candidate reputation" must be acknowledged but shouldn't detain us for too long.

  But in present law, that remains (but shouldn't be) "constitutional" as consistent with "a Republican form of government." Something can be stupid without being overtly unconstitutional, though, and subjecting professional judgment in individual instances (often wound up with nonpublic information) to approval by direct election is at minimum stupid. We've got enough stupid in government (and any other "institution") without building its structure to elect more stupid.

Happy 239th Birthday

On September 17, 1787, the United States of America was born with the signing of the Constitution. The Declaration of Independence is the date of conception; the Articles of Confederation mark the first detected heartbeat; and ratification in 1789 is when the first breath was drawn (or maybe shortly thereafter when Congress was elected and first met).^†

OK, so it's an overextended metaphor, but illustrates well that we have a living Constitution. That you are reading this via the internet (even if someone else printed it for you and you never saw it on the actual blawg) demonstrates that pretty well; there are lots of failures of imagination in the document, particularly the narrow, literally-limited (or original-public-meaning limited) list of what is protected from government intrusion that didn't even contemplate electronic communication. These words, for example, have never become a "paper" while in my possession — not as you receive them, not in draft here. That's just a particularly easy example.

tl;dr Context matters, including our choices of what to call a "birthday." That we often celebrate when we yelled abuse at the sovereign instead of when we actually gave birth to something new bears some consideration, too.

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†  We'll just slide right by the later gender-fluidity-like incidents like the Reconstruction Amendments and Nineteenth Amendment. Bringing in the gender-reveal parties apparent in Shay's Rebellion would be going more than a bit too far. Let's just celebrate the real birthday, ok? Perhaps by using the fingers we have left after the uncontrolled fireworks at the FAKE birthday in July to vote?

Mismatched Capabilities

How does one actually build something when the tool available is a hammer and there are no nails — not even any screws — in the inventory?

• RIP Tom Ulen (nothing "official" yet). Yes, I actually maintain(ed) friendships inside the L&E movement, primarily among those like Tom who viewed economic analysis of law — and legal analysis of economics! — as a powerful tool and not an answer per se (or should that be per quod?). He (and his science-fiction fandom) will be missed.
• And as to the latter, just over sixty years ago American TV boldly went where no one had gone before, in particular because it relied upon truly independent freelancers (not mere outside contractors mislabelled as freelancers) telling unpredictable stories premised on surprise and not a single overarching premise (preapproved by the studio). Maybe Disney could learn something, whether for Marvel stuff (of which there are other "ownership" issues that are not well-known, even aside from Stan Lee), or a certain other franchise devoted to ill-conceived fan service since the mid-1980s, or… Oh, wait, that would be the definition of "Not Invented Here," wouldn't it? And the less said about the respect accorded the outside inventors/inventions by transferees and other exploiters, the better… especially when misidentified and poorly-conceived legal workarounds are involved. Since it's a new academic year, here's your homework… which you should be prepared to both criticize and embrace for very much the same reasons (and for many others not visible within its underlying weltanschauung).
• Or we could note that the biggest problem with many cultural debates (and institutions) is a distressing tendency toward binarism, epitomized by CP Snow's regrettable inability to count above two (not that Leavis was any better). "A clash between diametrically opposed alternative views" is almost always oversimplified nonsense, especially when the actual stakes are not those of the argument's subject (semipaywall) — things like "reputation" (and "casualties"). Sometimes everybody involved in these false-dichotomy debates is wrong; the Snow/Leavis controversy was fuelled in part by refusal to even contemplate "boundary conditions," as inherent in the very forum of the debate — both between Snow and Leavis, and in Snow's own conception.

  At present, the purported "debates" over the more-than-two-millennia-long snarl of the Levant in particular and Southwest Asia (the "Middle East") in general epitomize this, and especially so because many of the most vocal participants in those "debates" themselves have no stake in them. Let alone any knowledge of the region, or personal experience with the spillover elsewhere, or the concepts of "hidden agendas" and "undisclosed/overdiscounted conflicts of interest." For it to be meaningful, "Never Again" has to include everyone, else we're just seeing at a social level that those who were themselves abused (literally or by transferred identity) tend to become abusers; very much like, well, Northern Ireland. Meanwhile others exploit the distraction (and you should carefully ponder the meaning of "regime change" in all its multiplicity — and undisclosed conflicts of interest). That allied/proxy leader may — for now — be our bastard, but at his/her/their core still a bastard.

Briefing for a Descent Into the News

Unfortunately, there's no Virgil handy to guide us out afterward, either. Contemporary satirists just aren't enough.

• If you need any further demonstration that Disbarred Rudy has gone bonkers, consider his screed urging the present mayor of New York City to not attend Friday's 25th anniversary eulogies for an atrocity. That screed underlines precisely why Mamdani should participate. It's not just because "he's a nonwhite Muslim," or anything else pointing at Mamdani himself as somehow an "inappropriate" mourner; it's because the attitude of taking action and spewing hate against those Not Just Like Me is precisely the attitude that informed the terrorists. They didn't go after a directly-related target, but a massively multiemployer office building… that employed more than a few members of their own religion, but were somehow lumped in as "Americans." So, too, for the first responders.^† This ironic turn on "We have met the Enemy, and he is us" is no doubt beyond Rudy's narrow-minded consideration.
• As a further demonstration of endemic inability to look outside the box, to judge canonical literature texts by their covers… or to look at context, in the same way that the curriculum itself has been forced to look at context. (Initial aside: Even in 1980, there were paperback editions available… I had to buy one each semester. They fit much better in backpacks than did the casebound editions.) The fundamental problem is that Bauerlein believes that the canon represented by sole focus in even a survey course represents either "literature" or "the study of literature." That's not to say that one cannot impose some structure on the field — only that one cannot do so by preliminarily restricting the data set to material likely to reaffirm entrenched doctrine.

  Somewhat more snarkily, a significant part of any movement away from canon by students (and younger instructors) came from increasing recognition that none of them could, or did, share a first name with Byron: Lord (really, state his "Christian name" without looking it up…). The context in which literature lived mattered more and more as more students from "less-privileged" backgrounds made their way into the better schools, convinced that they needed to be employable immediately after graduation so they could begin paying back student loans. Too, just off campus (even at elite schools) the unwashed kept getting closer, kept becoming more a part of students' lives. And meanwhile, some darned fine writing was coming up from civilization — the parts of the US west of the Hudson (and here, it's also important to remember that nineteenth-century-and-earlier Europe is east of the Hudson…), particularly in comparison to what was being newly published from the mid-1960s onward in the barbarian wilderness to the east.

  Put another way, one absolutely, positively must study the Michelson-Morley experiment and its context to understand modern physics — even the parts that aren't about subatomic particles or the speed of light in a vacuum as a speed limit. The real point is that the experimental results ended up proving that its experimental design was futile; that, more than anything else, is the problem with taking the editorial efforts of Professor Abrams et al. as reflecting not a, but the, foundation of literature and literary study. One might also contrast Beowulf, Chaucer, and dare I say Spenser with even the nascent novels of Sterne and Fielding — let alone Cervantes and the chansons de geste that were already evolving from verse as printing made memorization from oral presentation less essential — but that might be gilding the lily; and it's worth unpacking that metaphor to compare to Bauerlein's explanation, particularly in the midst of the field of orchids and Nepenthe in which students today find themselves. Or, perhaps, it's just some hungry sailor mistaking a priceless tulip bulb for an onion.

  All of which I say with a fondness for (many of the) classics — but, simultaneously, recognition that the classics constitute a corrupted data set, and that due to social and technological factors we simply do not have (and can probably never obtain) the rest of the data. That more lawyers (not excluding judges!) could do with the kind of "close reading skill" Bauerlein describes — one that necessarily asks about context beyond the document, such as why Ophelia should repair to a nunnery — is for another time.

• But that's a different-academic-perspective disagreement with Professor Bauerlein, not the kind of fundamental skepticism I have regarding a certain copyright-related settlement now in the throes of maladministration. The official administrator can't escape some responsibility here, but today I'm just shaking my head at the ignorance — not much of a surprise, but definitely dismaying. I have no idea which lawyers told the President of the Authors' Guild that "less than 25% of claims had any issues at all, and that in most cases the problems stem from typographical errors or other mistakes that can be easily fixed and don’t involve actual disagreements" reflected an acceptable claims administration process — particularly when there's no need to prove initial entitlement (like in a medical mass tort) or uncertainty regarding the facial identity of potential claimants after the settlement class was narrowed inconsistently with governing precedent. Those lawyers clearly had never been involved with significant class-action settlements of this nature, where there's an admission of the relevant conduct (however "excused" it was earlier claimed) regarding a purported closed universe of claims against a specified settlement fund.

  The Authors' Guild's track record in "representing authors" is — generously — abysmal. Ms Rasenberger has not helped matters here, perhaps aided and abetted by PW's own abysmal track record… But that's nothing compared to the noncredible explanation offered by a commercial publisher's CEO for the claim of 100% of payments by that publisher, and in that he's far from unique. The directions for filing claims were not a model of clarity, nor were other explanations offered clear and consistent, but I haven't run into an author yet who didn't understand that "If the publisher still had rights on the relevant date, I write '50%' for my claim because I have to assume the publisher will make its claim for 50% unless I've already been told otherwise" — even without consulting a lawyer. Another failure to engage in "close reading," I suppose.

• Which is still superior to the purported "objective test result" standard for Army cadet officers. Yes, this is tinged a little bit with interservice rivalry; that said, we should be expecting all officers to be substantially more capable than reflected in the fiftieth percentile of, well, darned near any widespread standardized exam issued below the graduate-school level. Indeed, one of the "practical lessons" of officership is that low standards lead to low achievement… and when it comes to making decisions involving the use of force, "the middle of everyone" is a low standard.
• Which is probably less frightening than AIs answer[ing] questions about the course reading for medical, nursing, and allied-health-profession students. The vendor's identity fills me with even less confidence than the probability that this will turn out well for anyone other than the vendor.

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†  It's just not worth going in to the broader bigotry that has followed 9/11. Followed, but (unfortunately) was merely amplified by — not caused by.

Questionable Freshness

Some of these sausages are based on recent items; some… are not. At least it's not the latest antisocial-media influencer fad, the Taco Bell Diet. Maybe we can get some of those TPUSA youngsters complaining about $20 burritos to try the less-expensive ones there; that would move their explosive diarrhea to the correct orifice, anyway.

• A college president with only a bachelor's degree in political science from a third-tier university fired an English instructor for continuing to teach a story with an unreliable narrator in her English class. At least it wasn't a "biographical study" of a fictional character (that in some more-fashionable literature departments slides toward psychoanalyzing the author) (yes, that's foreshadowing for a future blawg entry). In the current political environment — something allegedly close to that college president's academic knowledge — one would think it very important to understand unreliable narrators… unless the point is to prevent students from obtaining such expertise.

  It should surprise precisely no one that this took place at a state institution in Florida. Apparently, Florida Man is more sophisticated than Florida Educational Administrator.

• But at least they're reading, right? That first sausage was about only a short story, so maybe — just maybe — it was within the capability of those students to read. I'd argue instead that there are three other causes: The relentless demand for replicable metrics in the education system, which drives the measuring devices (papers and exams) toward the clearest, simplest, least-ambiguous, and as a consequence shortest material.^† Then there's the absolute load of self-congratulatory crap that makes its way past the cultural/commercial gatekeepers (gatekeepers are necessary to at least some extent — just not these gatekeepers). Lurking underneath, there's the question of whether the teachers can or do read book-length works themselves; we surely don't incentivize those in the classroom already to do so, let alone incentivize those who do so to spend time in the classroom.
• And then there's the uncontrolled spew of social media, which is harmful enough even before considering darker enabling behavior. That, in turn, becomes one of the ingredients in the first sausage on this platter, and not just because social media is a target-rich environment for finding unreliable narrators.
• The obvious linkage among the preceding sausages is that in many ways, they all involved unreliable narrators — often in multiple layers. It can become even darker when courts intentionally ignore attempts to make the narrative reliable. That, in the end, is what lower-court "factfinding" does: It first turns individual pieces of evidence — often of varying reliability, and virtually always incomplete — into "facts." Too often, though, those facts (and/or the evidence behind them) are subordinated to ideology. Eppur si muove, figlia di puttana — which is not about any particular judge (or at least not out loud!), but about theocratic mindsets: Not final due to infallibility, but treated as infallible because they're final.

  I suppose it could be worse. It could be memoirs and not court records. Tell me, how many lies are acceptable in a memoir? Perhaps a few more than in legal decisions that themselves did inadequate fact-checking (as to the long-prior proceeding described there)…

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†  This is not yet another veiled criticism of the bar exam, and especially not the multiple-choice multistate bar exam (for both substantive law and ethics). Or at least it's not veiled.

Misanthropic (9)

I thought it prudent after the last entry to refrain from further comment on Bartz until after all appeals were timely filed. Two were:

• Edelson, PC v. Anthropic PBC, No. 26–5391 (9th Cir., filed 18 Aug 2026) identifies its subject matter as:

  [F]rom the Judgment entered on July 20, 2026 (dkt. 680), including all prior orders encompassed in that decision. Edelson PC and O+Z intend to focus their appeal on issues related to the Order Granting in Part Motion for Attorneys’ Fees, Reimbursement of Expenses.

  ("O+Z" is another law firm "aggrieved" by the fees/expenses allocations.) This appeal has a full and active docket at the Ninth Circuit.

• Cowan, DeBaets, Abrahams & Sheppard LLP v. Anthropic PBC, No. 26–5455 (9th Cir., filed 19 Aug 2026) identifies its subject matter as:

  [F]rom the Judgment entered on July 20, 2026 (ECF No. 680), solely relating to the District Court’s Order Granting in Part Motion for Attorneys’ Fees (and incorporated prior orders, including ECF No. 515; the “Order”).

  This appeal does not have a full and active docket at the Ninth Circuit as of this writing, indicating that it may have been administratively consolidated with the Edelson appeal. Or not, it's still early and there's no formal notation. Update 29 Aug: The docket now treats this as an associated case with the Edelson appeal.

First, one preliminary matter: The statements of intent to limit the appeals to the attorneys' fees and reimbursements serve two purposes. First, they demonstrate standing to appeal — a law firm stating it has a greater claim on reimbursements and fees has standing to appeal. Second, it limits the amount of any prospective appeal bond, should one be required — not the whole $1.5 billion stated value of the settlement, but whatever portion of attorney's fees are at issue (at least an order of magnitude smaller). However, those statements voluntarily limiting the respective appeals' scope are nonbinding because the Notices each reference the Judgment.¹ That puts the whole thing in play, and certainly for amici.

So what happens next? The overworked clerks in the District Court's office have to prepare, and supply to the appellant(s), the "appeal transcript" — a certified and indexed copy of all "relevant proceedings" below. And because the Edelson appeal specifically includes "all prior orders encompassed in that decision" — which, because it relates to a settlement, includes the prior maneuvering regarding fair use — that's nontrivial, even in this day of electronic submissions on disk instead of boxes and boxes and boxes of paper. This is due by 01 October… and unlikely to be completed by then, if only because by law criminal matters have priority.

Then comes the part in which lawyers cannot be distinguished from vampires, because they're indoors in the library/their desks during all daylight hours and much of the night too: The briefing (even California lawyers look pale!). In the Ninth Circuit, the appellant's brief is due 40 days afterward, currently set for 10 November but frequently extended either on application (see Cir. R. 31-2) or because the appeal transcript was late. Amicus briefs supporting the appellant will be due seven days later, on 17 November. The response brief is due 30 days after the due date for the appellant's brief, currently set for 10 December (and frequently extended), and amicus briefs in support of the defendant (or of neither party… a nontrivial probability in this case) seven days later, currently 17 December. The appellant's reply brief, if any (yeah, these law firms will pass up an opportunity to put more words in front of the judges), is due 21 days after the due date for the response brief, currently 30 December.

And then things get really chaotic: Assignment to a panel, determination of a need for oral argument, scheduling of oral argument, and then the decision. Meanwhile, any motions regarding the amount of appeal bond, stay of the order/judgment being appealed from, etc. are also in play. Lots to do! More on this when the briefs — and motions! — are in; typically, in the Ninth Circuit this means that unless the appeal is either expedited or horribly defective the decision on the appeal itself will be in late 2027 or 2028. Decisions on motions — stay motions and expediting motions in particular — will be sooner.

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1. This is slightly misleading. A Judgment must be a separate document under the Federal Rules of Civil Procedure, and there isn't one labelled "Judgment." The rules do, however, provide for appeals from nonfinal orders in some circumstances, and approval of a class settlement is sort of one and sort of the other (and appeals regarding classes Are Special anyway).

Go Badgers!

Badgers in the UK are demonstrating their commitment to public service by tearing up golf courses that — unlike parks and recreational areas accessible to the great unwashed — are being allowed to water their greens during the worst drought in England in a century. Just don't tell Bill Murray or he might get ideas.

• It was stolen from Count Binface! Send Lindell! Send Eastman! The Clacton electorate needs all the helplaughs it can get! (And yes, something similar could happen Over Here… but without the formally acknowledged gerrymandering and even rotten boroughs.)

  I suppose it could happen regarding election of a more corrupt, dumber, more assholish candidate. Hmm, let me think, are there any examples Over Here?

• It's not like anyone Over Here has ever misused government agencies against their political opponents. Well, not since the Sixties, anyway. No, we let the private sector do it and the government just buys the data. That's better, right?
• Meanwhile, the Ninth Circuit is howling at the moon. Again. In a "parody versus trademark tarnishment" decision. Again. Involving Jack Daniels and dog chew toys. Again. And, worse yet, on remand from the Supreme Court…

  While not trying to pretend this is necessarily easy, I find it distressingly amusing that in parody of trademark the Ninth Circuit has a better sense of humor than the Supreme Court, as apparent comparing the Supreme Court's… effort with the recent remand, while it's exactly the opposite (albeit not on remand) for "parody versus copyright infringement," comparing "big hairy women" to not-quite-telegenic judges or anything else in the Geisel oeuvre. And all the while, they're missing the real point on "parody versus satire," but that would require understanding literary history and not gun-control-effort history so it's clearly outside of judicial awareness.

  I'm really not sure what has happened to Jack Daniels in the last decade and a half. Once upon a time, that company (or at least its lawyer!) had a sense of humor and respect for First Amendment rights that overlap with commercial advantage regarding resemblance to the packaging of its (43% poo!) products. No more, it seems; one has to wonder if the graphic artist who created the most-recent version somehow got into senior management (graphic artists, as a group, don't handle parody/satire regarding their own works very gracefully). Or, perhaps, the board was just partaking of too many free in-house samples when they approved this lawsuit. This sort of nonsense, however — the overblown response, not the parody/satire — makes me want to buy some Bad Spaniels merch.