21 April 2019

After Forty Years

… and in the spirit of the season, this is still one of the most accurate depictions of Middle Eastern (not just Israeli) politics available for general audiences.

Perhaps the staffers at the Whitesupremecists House would benefit from a close viewing, as it has much more insight than they've demonstrated regarding anything in the region. And that song at the end will make great background music for reading the Mueller Report (redacted PDF). They're going to need to look on the bright side of life… even those who are too stupid, too ignorant, or perhaps both, to be convicted of perjury (a criminal offense which requires proof beyond a reasonable doubt that the accused knowingly swore to a material statement that he or she knew at that time to be false). Consider this guy.

Speaking of the Mueller Report, it has one significant flaw: The redactions weren't done by anyone familiar with redacting raw intelligence materials. One need not resort to inverse steganography to infer at least some of the material, and an analyst with more-detailed contextual knowledge could do even more. But that's for another time.

17 April 2019

Outraged Link Sausages

Just a small platter of link sausages today, so heavily flavored with outrage that each stands alone.

  • One need say very little other than "Yo-yo Ma rules!" I really don't care if Donna never shuts up about it, because there's plenty of Josh's reaction to go around.

    And if Drumpf's father really had been born in Germany (nope, grandfather; bad enough that his father was born in the Bronx, in 1905, as that's on the wrong side of the Hudson and therefore uncivilized), he'd be a child of immigrants, right? With parents who came over taking advantage of ridiculously racist quotas that trapped at least thousands of Jews in Shoah territory, perhaps including relatives of his son-in-law; what a great thing to ponder for Passover. And under nineteenth-century standards, maybe his grandparents were seeking asylum, which would certainly foreshadow other mischief.

  • Yet another instance of the "original" being overpriced just because it's "fine art," leaving one to wonder exactly which proportion of society gets to play these games in the first place, and whether the artists benefit. Let's see, a $450 million price tag restricts things to…?
  • Last for now, the continuing foolishness in the film/TV industry. At least one actor-screenwriter seems to understand what's really going on. The real problem is quite simple, actually, and demonstrates that the spokesbacterium for the Association of Talent Agents is either fundamentally dishonest or fundamentally stupid (maybe both):

    Asking the other side in a negotiation to "compromise" on ethics isn't about compromise at all.

    I would be very, very skeptical indeed if my representative in a negotiation suggested that the way to reach a business agreement was to remove one party's ethical considerations from the negotiation. It would certainly make me wonder what other ethical considerations he or she was ignoring… things like "accuracy of accounting" being obvious, but other things like "won't appropriate ideas in violation of Desny in favor of more-lucrative joint clients" being perhaps more important.

    Bluntly, packaging appears to be an unfair trade practice and probably violates labor law even for non-unionized writers, as I've been arguing for a couple of decades. Apparently, the Guild agrees with me and has the additional advantage of having labor statutes specific to unionized workforces in mind. Naturally, the literary agents' trade association has been silentbecause it's next. Right, T___ M___? Right, Full Fathom Five, llc?

    And maybe without packaging we won't be stuck with crap like… well, too damned much that's produced, for starters. Yeah, they'll find another way to screw it up, but at least they might be from competent scripts.

13 April 2019

Well-Merited Pink Slips

So the WGA and Association of Talent Agents have reached an impasse over the ATA's inherent conflicts of interest. The WGA has directed its union members to fire agencies and agents who won't sign a no-conflict-of-interest agreement.

To the general public, this sounds like a union just trying to enforce a closed shop that it doesn't deserve for greedy members. What the public forgets, though, is that most unions didn't arise due (solely) to compensation issues; indeed, most unions in industry arose due to working conditions and other management abuses, and only after some progress had been made on working conditions did pay become the issue most ballied about. In this particular instance, the agencies continue to demonstrate that they just don't understand the actual subject of the grievance:

“Unfortunately, not to our surprise, the WGA did not accept our offer, did not provide counterproposals and refused to negotiate further. We’re prepared to continue to fight for the best interests of writers and all artists,” said Karen Stuart, the executive director of the Assn. of Talent Agents, the organization that represents the agencies.

This tone-deaf response demonstrates, quite specifically, exactly what the WGA is objecting to: Failure of the agents and agencies to place the interests of their writer-clients first. "All artists" my fungus-ridden left big toenail (oops, don't have one to be fungus-ridden, never mind). When you are representing Janilla Youngwriter, you may not subordinate Jenilla's interests (financial and otherwise) to those of your other client Kenneth Establishedwriter; even the veriest moron understands that. Equally, though, you may not negotiate reduced compensation for Janilla as part of a package that also benefits Oliver Oldwhiteactor, Don Director, Peter Producer, Paul Producer, and not incidentally the Agency as a production partner (even if not credited as such in the formal credits1).

Yes, it's the way H'wood has operated for half a century… since about the time a previous antitrust action took cinemas away from the film studios, which was a last straw in attacking one aspect of abuse of market power in H'wood. This finalized the shift in "where the money is" to include more than just the studios. That historical reliance — what old-school contract scholars call "the settled expectations of the parties" — doesn't, in either economic or moral senses, matter. After all, whitewashing and whiteface are historical reliance, too, some more subtle than Al Jolson (such as casting Hispanic Henry Silva as a North Korean assassin with virtually no comment). The Black List was and remains historical reliance. <SARCASM> So is/was the respect offered the Don… and market value at slave auctions… and the divine right of kings. None of which we've really escaped on current evidence. </SARCASM>

The agencies attempted to raise a smokescreen by claiming that the WGA's stopgap would violate California's Talent Agencies Act by getting persons who haven't registered as "agents" to procure work for writers.2 There are exactly no qualifications for doing so other than "character and responsibility of the applicant and premises" (see Cal. Labor Code § 1700.7) and identifying the persons and business entities involved along with fingerprints (id. § 1700.6)… and agreement not to take outside investment (id. § 1700.30) or fee divisions that create a facial conflict of interest (id. § 1700.39), and Guild agreements limit the fee to 10% plus allowable expenses. (Given the behavior of some agents — not to mention utter incompetence with contract negotiations — the lack of qualifications shouldn't surprise anyone. And it's more regulation than literary agencies!) And a license costs a whole $25 filing fee plus $275 a year (id. § 1700.12).

The agencies continue to demonstrate that they couldn't spell "conflict of interest" if spotted the first dozen letters or so. However much I believe the WGA has been coopted and fails to fully work on behalf of writers in general, this time the WGA is both ethically and economically in the right. Now someone tell me again about H'wood being a pinko-liberal system when so much power is held by agencies acting like nineteenth-century robber barons and twentieth-century zaibatsu?

  1. I am not going to defend the crediting practices in H'wood. Neither am I going to attack them in detail — at least not today. Their quantification and quantization are fundamentally dishonest and disrespectful of art… and that's one of their good points. This particular practice is an example: ATA agencies taking what is functionally a producer's credit while not being disclosed as such.
  2. The agencies' analysis is fatally flawed for a number of technical reasons and one extremely simple one: Neither the statute nor the case law prohibits an "unregistered" third party from assisting Talent with contract negotiation once an agreement in principle has already been reached to employ that Talent. And it can't. Besides, that's arguably the practice of law, which is outside the scope of the Labor Code entirely.

    The letterhead of the threat letter is itself highly revealing, but that's the insiderest of inside baseball.

06 April 2019

Who Controls the Past Controls the Future

Link sausages long past their sell-by dates.

  • One of the myths of American politics is that former military officers are uniformly pro-use-of-force right-wingers, these days almost always Heffalumps. "These days," naturally, extends back to the 1960s; before that, not so much with the party identity. It's a myth with much less basis in reality than most. Officers' pasts change their perceptions of the present… and the future. And see? I didn't even need to use myself as a counterexample this time.
  • Speaking of outright myths, consider photographs of fairies… which, when you come right down to it, represents misuse of myth for personal advantage and enrichment. In that sense, "Fairies Living at the Bottom of the Garden" is an interesting precursor of the "prosperity gospel" movement, isn't it? (And this auction is, itself, a fascinating and unintended indictment of the visual-arts myth that an "original" has inherently greater value than a faithful authorized copy.)
  • Then there's the myth of the predictability of future scholarship, and how advances change scholarship. A look into the past demonstrates this pretty definitively: What was the (or even the most-important-among-several) change in "scholarship" that led to the acceptability of postmodernism as a scholarly focus? (Hint: It's not found anywhere in the humanities, but was imported into the humanities by smart people studying the past of another field of scholarship who understood less about it than they thought they did.)
  • All of which beats misuse of the 1%er music of the past. Look, I'm a serious classical music listener and once more than that… but I knew perfectly well, even four decades ago, that we're dealing with music that has survived largely unaltered for a couple of centuries (or thereabouts) because the difficulty of transcribing musical thoughts was subsidized — patronized — by the 1% of its time. Even the classical composers who, beginning in the nineteenth century (with extraordinarily rare exceptions before then), acknowledged their debts to folk music — Brahms, Chopin, and Liszt being among the most prominent — transformed the material into a form acceptable to the 1%.
  • And then there's the past of bad law profession practices (especially, but not only, billing) and the past of bad accounting/managerial mythmaking (automation is always cheaper than paying people to do the job right the first time, and just about everything can be divorced from human judgment and skill) that are potentially destroying the future of e-commerce platforms. This particular story (which resurfaced recently) reflects two horrifying failures by Amazon that are reflected all across e-commerce; Etsy, eBay, et al. are actually far worse. Not only does the overautomation of responses to complaints about IP piracy make it easy for schemes like this one to work (especially in velocity-driven contexts), but it makes it much more difficult for actual rightsholders who are victims to take down the pirates.

    But it's not efficient to pay young lawyers to sit around waiting for complaints, let alone give them the training that they can't get in law school or anywhere else to actually recognize and evaluate validity, soundness, etc. It's not even efficient to pay somewhat experienced paralegals to work under the supervision of a young lawyer. So it doesn't get done… meaning that Amazon is externalizing a cost inherent in its business model, which is by definition a market failure — not a demonstration of how everything should be run on private profit principles that spread the benefits unequally in favor of preexisting capital inputs. That is, again, an idea from the past, but almost nobody actually reads the source material and instead of relying on the invisible hand, relies on the invisible middle finger.

04 April 2019

Who Controls the Present Controls the Past

Fifty-one years ago today on a Memphis hotel balcony, the real reason that so-called "partisan gerrymandering" is — to use the technical term — inextricably intertwined with civil rights in general and racial discrimination in particular became excrutiatingly obvious. Trying to pretend that it's just about "partisan advantage" is at best egregious self-deception… because every single proxy that is used to predict/predetermine partisan allegiance is racially (and otherwise civil-rights-violating) disparate.

Claiming that partisan gerrymandering is not "justiciable" because it is a "political question" is fundamentally dishonest for a simple reason: In this nation, partisanship is infected with racial disparity now, and always has been. Just ask Nancy Reagan. It's not that there are no individuals who "don't fit" the profile, in the kind of tokenism that no one can really defend with a straight face. It's that when one looks at those who are not seeking elective office, things become just a little bit… obvious.

Dr King's legacy would be best honored by throwing out all gerrymandering of any kind. The pretense that a "political question" is "nonjusticiable" can be pushed down the road (however intellectually dishonest that pretense is itself); the narrower question of proxies, however, cannot.

27 March 2019

Information Wants to Be WHAT?

The EU Parliament has passed "sweeping" changes to the European copyright directive, which in turn requires individual European nations to amend their laws. Sort of. And depending on who is a "European country" in the near future. But that just leads to the critical underlying question:

If information isn't already free, who pays for it?

The universal answer is "someone else has to pay, and the actual human creators get the lowest share because distribution has a more-accepted accounting basis and therefore can claim the highest proportion of the revenue." (Which is not to say that distribution doesn't have legitimate costs of its own, like paying bookstore employees and library staff. Paying exhorbitant returns to venture-capital investors in "talent agencies" that are betraying their own clients, not so much.)

The distributors who latch on to advertising (and data-gathering) revenues like leeches don't want to pay. They hide their motives behind their plaintive cries that the internet will be harmed by having to pay for what they show in return for advertising (and data-gathering) revenues. Curiously, the nonprofit distributors out there, like those who operate university campus web portals, aren't complaining.

The transferees who make money (regardless of how) from derivative works don't want to pay. Neither do some of those who leech off the creativity of others appropriate others' works as a substantial basis of their own. (n.b. The less said about the distraction of satire, parody, and inspiration here, the better — those legitimate issues, especially the first and last one, just demonstrate that "art" and "commerce" are only barely-intersecting sets, let alone congruent.)

The transferees who make money from direct distribution (like publishers) and authorized/intended derivative works (like film studios) are complaining. A lot. Not much of that money is making its way back to the actual, human creators, though.

So, as a modest proposal — with more than a little bit of reality behind it: Every American already has the right to read almost anything in the Library of Congress's collection. One just has to show up. (It's a little bit more complex than that in these days of Mystery Security Theatre 2001, but not that much.) For free. Hell, the Library doesn't even have to pay for its acquisitions, except for the cost of shelving them!

Including the e-books. Because the Copyright Office demands deposit copies for them too.

So the Library of Congress (and, for that matter, all national libraries) should offer public access to those items, too. And pay the actual creators for that access. Because, at the bottom, that exposes the two missing words at the end of "Information Wants to Be Free": "to Me". The problem is the characterization of "information" (whether "art" or yesterday's securities pricing is immaterial) as appropriate for fees for individual access. (Ownership of a copy is a different question. Related, but different… especially once one looks into subfields in which "the original" has a greater perceived value than a copy.) Because at its core, "Information Wants to Be Free" actually means "I want the Library of Congress operating 24/7, a block from my residence, at no transactional cost to me." That costs money. But someone else should pay for it.

20 March 2019

Spring Is Here

So it's official. And that means it's time for the official spring song!

19 March 2019

[Completely Missing] Their Shot

Charter Communications has filed a petition for a writ of certiorari (PDF) in a racial-discrimination-in-contracting suit with a black-owned/oriented/audience-optimized set of cable channels. Here's a summary of its argument from a normally reliable source. Presuming that Mr Gardner's summary is somewhere close to what's in the brief, it demonstrates all too well that Justice Holmes was right in Bleistein: One cannot trust lawyers with the arts. added 21 Mar Gardner's description is accurate, on the issue discussed in this post. The petition is trying desperately to make an entirely different point, but missed egregiously on this one. The petition also misses by essentially claiming that summary judgment standards provability must be applied to a motion to dismiss, a common means of attacking civil rights-related complaints in more contexts than I can conveniently count.

In this particular instance, that means "Don't equate creative decisions and their First Amendment implications with commercial-distribution decisions and their First Amendment implications." Choosing to cast George Washington in Hamilton only with black actors, see Petition at 26, is nowhere near an oligopolist choosing to exclude already-completed expressive works from participating in a regulated marketplace. (Besides — it's not like there are no other opportunities to be cast as George Washington if you're white…) These aren't even the same parts of "freedom of expression."

Shame on the lawyers who filed this petition for even trying to compare the two issues. Perhaps they should try reading The Lathe of Heaven, in particular the section about George's Gordian Knot solution to racism. Perhaps they should just try reading. <SARCASM> And I'm not going to try to guess the racial demographics of the law firms involved… or of Charter Communications' management and Board of Directors. </SARCASM> More to the point, perhaps this says something rather unfavorable about the rest of the brief.

A more-accurate analogy — although imperfect, as all analogies are — would be if Overdrive refused to negotiate in good faith to carry any e-books published by a mid-sized, black-owned/oriented publisher. This would be especially problematic because Overdrive is an oligopolist in the library e-book marketplace. And that's what Charter is doing: It is an oligopolist regarding those markets for which it has regulatory monopolies or limited-competition agreements to provide cable service. Now, if Charter wants to argue that on the merits the particular deal that Entertainment Studios Network demanded was economically unattractive, that's a different thing… and it's a proper defense on the merits of the case. But Charter has gone overboard, seeking dismissal precisely to keep such a defense out of the record, and to claim that its business decisions can never be examined for inappropriate racial animus. Hmm, let me think back nearly thirty years to the basic course in Constitutional Law; I don't think there's any room at that inn.

And, of course, trying to scream "reverse discrimination in casting Hamilton means potential discrimination in a common carrier's carrying decisions can never be questioned" rather misses the shot on both "common carrier" and Hamilton itself, doesn't it?

11 March 2019

No Mo' WaPo

There will be no more links from or to the Washington Post's online edition here for at least a while, for a simple reason.

It's not the "ads." It's the tracking that comes along with them.

Since you've started hiding half of the content part of the page with a demand to turn off ad-blockers and helpfully suggested (incomplete and nonworking) instructions for turning off the ad-blockers — customized by browser, indicating that you're collecting data even for this — I'm voluntarily hiding the rest of the page by not going there at all until you grow up. Just because there are some really good values available at pawn shops doesn't mean I can or should ignore the stolen merchandise that's there (and not labelled!)… or the dubious ethics of how the rest of the merchandise got there and became available for purchase in the first place.

I don't care if my screen is filled with Heffalump attack ads, male-enhancement pill ads, and fifty-seven varieties of ads for writing schemeools. I do care if you're aggregating any data whatsoever regarding what I'm seeing, whether other ads or the content. I do care if you're trying to determine which articles catch my attention — or not — without any determination of why I'm scrolling the page (like, say, a dog nudging my elbow for an article randomly referenced elsewhere). I do care that you're trying to see where I go next. And that's before getting to both the untrustworthiness of your ad "partners"… and the untrustworthiness of your security measures for your database(s) of collected user information, which are far more extensive and intrusive than any "sanitized" or "aggregated" data you provide those same untrustworthy "partners." The irony that the WaPo became a "national" newspaper almost entirely on the basis of anonymous sourcing seems to have escaped y'all. And my tastes in film, or even news stories — especially in this isolationist era — are no more relevant than Robert Bork's… except to those who would misuse the data.

So bite me. I won't be biting your ads. If you can't do the data collection you want from the print edition, you won't be getting me to help you do it from an electronic edition.

09 March 2019


Capt Carol Danvers, USAF, is a social justice warrior. That's not much of a surprise, is it, dudebros and white supremacists and fundamentalists-of-all-religions? All that warrioring keeps her from smiling like an aspiring cheerleader. So you've driven down a movie rating without seeing it.

So am I. I don't smile much… especially around dudebros. And white supremacists. And fundamentalists of all religions.

So was George S. Patton. He didn't smile much, either, around anyone.

Wait a minute, I hear you whinge from across the 'net and through your podcasts and ad-supported YouTube channels. George Patton sure as hell wasn't an SJW!

Yes he was; all three of us were; thousands in uniform were and are. Everyone who gives a solemn oath to support and defend the Constitution of the United States against all enemies, foreign and domestic… before promising to obey the lawful orders of the President and the officers appointed over them… is a social justice warrior. Whether by the measure of the eighteenth century or the twenty-first, a document that separates government so that no one branch of government is primary; that guarantees every person the equal protection of the law; that guarantees every criminal defendant the right to a fair trial, and if it's a serious matter before a jury of the defendant's peers; that rejects titles and trappings of nobility; that guarantees the right to freely worship (or not, and I know that last is a sticking point for some of you jerks) — is a bloody social justice manifesto. And that's just a start.

Sure, the commissioned officer corps has had its failures and flaws, ranging from Douglas expletive-deleted MacArthur through Curtis LeMay to more recent examples. But then, dudebros, some of your kind have turned on you, too.

Most of us don't smile too much. Probably because we know all too well that our oaths have put us in harm's way, and required us to order others into harm's way, precisely so that you dudebros can continue to spew your poison (without having played the game or paid the price yourselves — not always as high as lives, fortunes, or sacred honor; maybe just a few years as a low-paid citizen soldier). That you have the right and ability to criticize SJWs is due to the sacrifices of SJWs in the past quarter of a millennium. So don't expect us to smile about it when you attack us or our families or our very reason for being SJWs in the first place. Or our entertainment and freedom of speech.

04 March 2019

Unanimously Founded on Bad Writing

…but not the Court's own bad writing. Two civil procedure decisions masquerading as copyright matters were decided by the Supreme Court this morning. One of them is unexceptional (literally) and relatively quickly explained. The other… not so much, exposing a century of Congressional greed and incompetence, with inadequate consideration of the practical consequences and sources of information on them (especially in a time in which more and more individuals and small businesses are copyright claimants and defendants).

First up, the easy one. In Rimini St., Inc. v. Oracle USA, Inc., No. [20]17–01625 (04 Mar 2019) (PDF), the Court held that despite goofy language in the Copyright Act (obviously inserted by a combination of nonlitigation-aware staff attorneys and lobbyists), "full costs" (17 U.S.C. § 505) means "costs as provided in the general litigation statute at 28 U.S.C. § 1821 and § 1920." This case concerned primarily expert witness fees, which are not explicitly included in § 505 (unlike, say, 42 U.S.C. § 6972(e), also enacted in 1976, showing that at least some Congressional committees knew how to include expert witnesses… but in conjunction with attorneys' fees). In a unanimous opinion, Justice Kavanaugh declared that "expert witnesses" are not "costs" unless explicitly so stated… and because § 505 does not explicitly include expert witness fees (as consistent with prior decisions in other contexts), the word "full" does not suffice. Oracle's purported historical arguments were rejected as unsupported by the actual historical record. What I found most frustrating about Oracle's various briefs in this case, both at certiorari stage and on the merits, is a refusal to directly engage with the opposing argument. There is a good argument to be made that expert witness fees should be recoverable routinely when a matter must be tried to an inexpert jury… but it's at least as much a policy matter for Congress as it is a single-case-that-sets-precedent matter for the Court.

The Court might as well (and perhaps should) have pointed out that § 505 already makes copyright claimants special snowflakes by allowing them — under appropriate circumstances — to recover their reasonable attorneys' fees, not just the "costs" recoverable by any winning party under § 1920. But this just means that the next round of copyright statute revisions will include probably-stealth-mode lobbying to explicitly add expert witness fees to § 505 — a change that ultimately benefits almost exclusively transferees who are well insured, whichever side of the dispute they're on. A freelance author/artist/musician/composer much below the wealth of a Stephen King simply cannot afford expert witness fees as either a winner or a loser. I therefore call for rejecting such a change, unless accompanied by removal of copyright matters from a jury's provenance, preferably to a special master with specific expertise (which would require constitutional gyrations).

Now the harder decision. Justice Ginsburg for a unanimous Court came to a defensible conclusion in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, No. [20]17–00571 (04 Mar 2019) (PDF) that a litigant may not file a copyright action until the Registrar actually acts on the application. This "must register" requirement (17 U.S.C. § 411) is a holdover from prior law, particularly the 1909 Act, and it has two fundamental problems with its premises before getting to the factual and doctrinal issues.

  1. It's probably inconsistent with our obligations under the Berne Convention; Article 5(2) disfavors formalities but unfortunately distinguishes between "enjoyment" and "protection" (which are otherwise undefined). Sadly, Fourth Estate does not engage with the Berne Convention outside of a single sentence, slip op. at 9, although a treaty is of higher order than a "mere" statute (if slightly below constitutional provisions). The most-natural reading of the English-language official text (remembering that this Article was originally written in French… by nonlitigating lawyers) is that a failure of a formal registration requirement may restrict remedies, but not the very act of suit. Which leads to:
  2. It's Congress's cheapskate way of adding to the Library of Congress without actually appropriating money to do so — functionally, it's a tax on original and hence copyrightable expression. Not only must registrants provide two copies of the best (presumably "library-ready") edition of their works, but they have to pay a processing fee on top of it! And I'm not just being cynical; this rationale was explicitly provided and/or acknowledged in both reports to Congress and in Congressional proceedings prior to the 1909 Act, and indeed for a number of years before that. Those who look only at the legislative materials for the 1976 Act would have to delve deeper to find it… but it's there, in the early 1960s reports and hearings. <SARCASM> Apparently, Congress had gotten smart enough by the time there was actual legislative language on the table to keep its conflict of interest less visible. </SARCASM> The irony that the actual appropriated cost of properly acquiring materials for the Library of Congress in 1976 would have been just about the operating cost of an Enterprise-class aircraft carrier is a bit much.

That's bad enough. The real problem, though, arises in the civil-procedure implications that are soft-pedalled in Justice Ginsburg's opinion.

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application.

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow us to revise § 411(a)’s congressionally composed text.

Slip op. at 11–12 (internal citations omitted, typography corrected).

The tl;dr version: Bad and noncomparable data sources lead to poor conclusions. A longer version:

  • In a practical sense, that "seven months" figure is not accurate, not even for just group registration of periodicals as it issue here — and even if it were, it's only an "average." Reading the GAO report from which it is drawn more closely (and with more knowledge of the actual context) discloses that this "average" is calculated by accreting noncomparable applications from noncomparable sources; more formally, it is a cross-population mean of uncertain variance. Seven months is probably about average for a single text-printed-on-paper work submitted as part of a frequent-but-not-otherwise-related batch by trained staff at a commercial publisher. It egregiously underestimates the delay for group registrations (such as material appearing in periodicals as at issue in this case), and for photographs and other fine art, and for first-time-or-occasional registrations, and for musical recordings (as distinct from compositions).
  • The claimant's proposed remedy — a mandamus action against the Registrar (see slip op. at 8–9) — would not and does not extend the statute of limitations against the infringer absent a later application for "equitable tolling"… and recent Supreme Court decisions (as in "last week" (PDF)!) indicate increasing skepticism of tolling.
  • I must disagree with this unanimous decision on the facts relating to "preregistration as a safety measure": Preregistration under § 408, particularly as implemented by the Copyright Office, simply is not available to many types of works likely to be infringed prior to the ability to actually obtain registration, and have all of their value destroyed (both retrospectively and prospectively) by that infringement. In particular, preregistration functionally is not available for periodicals, the equivalent of "hot news" (which may include photographs of breaking events)… and musical compositions, an area of copyright law even more dependent on the "expert testimony" issues raised by the other opinion issued today.
  • This last point becomes more important in the internet age when determining who is actually infringing may not be as easy — in fact, almost never is as easy, cf., e.g., 17 U.S.C. § 512 — as it was in the case in front of the Court. "Sure, go ahead and file a Doe complaint." <SARCASM> Yeah, that always (ever, in copyright matters) turns out well. Even when you really aren't Prenda. </SARCASM> And, of course, this also assumes that infringements are detected immediately.
  • Just blaming increased processing times on inadequate budget and staff — implying that there's a quick-and-easy solution if Congress has the will, and pretending that these were not that significant an issue until the "increased security" imposed after 11 Sep 2001 — ignores the explosion in copyrightable material eligible for registration since 1956; this blawg entry is just the tip of the tip of the tip of the iceberg, just considering that in 1956 it would have required at best a manual typewriter, and more probably my illegible scrawl. And that's before considering the explosion in sources of copyrightable material since 1956, when copyright attached not on fixation but on publication.

In the end, this is a bad decision that is a predictable consequence of bad Congressional drafting and bad Congressional intent. So-called "registration" should be eliminated unless and until Congress makes it like a car registration or real-property registration — including mandates for current contact information, current ownership, and everything else. Which cannot be done as long as the Copyright Office is a subunit of Congress rather than the Executive Branch. Guys, it wouldn't be that hard — the Patent and Trademark Office has had such systems in place for decades — but it's an executive function… meaning that to keep building the Library of Congress, materials would have to be transferred between branches, which is not as easy as it sounds. And then the registration issues will have to interface with bankruptcy matters, and state-law estate matters, and… naah, just do away with it. Use a carrot (if you want an injunction for seizure or destruction — US law remedies that are in excess of what is required by the Berne Convention — you have to provide the copies to the Library of Congress and prove up with the proof of receipt only) instead of a stick.

01 March 2019

Son of Article 88 Link Sausage Platter

Just put the <SARCASM> tag on everything on this platter — but it's also full of serious points, which may perhaps be best appreciated with a shot of bitters (Angostura is probably the most widely available).

  • You really know that things are bad in political discourse when the White House sounds substantially less credible than a convicted perjurer (who, at least this time, brought documentation to back up his sworn testimony and offers more). If there's any contempt here, it's the contempt endemic in those who have power who believe that they're entitled to both power in the sense of being "representatives" and power in the sense of "autocracy." And that's regardless of purported ideology or party affiliation.

    After all, the mythical computer that always lies gets defeated every time, even in the worst-written dreck. The hard part is distinguishing the true bits in a habitual liar's sworn testimony. It's not that there are none; it's that believing them in isolation from anything else is difficult, especially when those accusing them most vociferously of lying sound like they've never heard of Proverbs 28:1 by fleeing from showing their tax returns, which would tend to refute some of the lies coming from that liar.

    What this fiasco says about legal ethics and the efficacy of bar discipline is left as an exercise in frustration. And I'm explicitly referring to professional misconduct during the hearing by more than one member of the bar (which no longer includes Mr Cohen…).

  • More shocking, shocking news out of H'wood: Nobody in LA can spell "conflict of interest" if given the first dozen letters. There's another potential writer's strike looming, this time because the (largely coopted, but that's for another time) Writer's Guild is demanding that talent agents refrain from being on both sides, especially in the same transaction. The agents' trade association, however, wants signs that the Guild is willing to "compromise" on a basic principle of ethics. Many industry "insiders" claim that the entire system of H'wood would collapse if social-climbing rentseekers couldn't shift from role to role, even in the same transaction when their clients' interests are in making producers pay the talent more but their personal interests are in making producers (themselves) pay talent less — let alone the temptation to do so in general, which even a profession with as many loopholes in its ethics rules as the law forbids (at least without a knowing waiver) (and see also the next three rules thereafter). And H'wood falling apart would be a bad thing after this round of Oscars?

    This is precisely why unionization is all too often not just helpful, but necessary. Of course, because the WGA needs to continue working with these hypocritical assholes, it can't actually call them hypocritical assholes. At least not in public. Non-screenplay authors don't have the same insulation (or unionization rights!), so they can't call all too many book packaging operations out for even worse misconduct. In short, unions in the arts (and, for that matter, in public service, ranging from teachers and nurses and cops to disability-claim processors) aren't so much about the facial-rate-of-pay issues as about the outright abuse and fraud issues… but the only leverage available for the latter is giving unions power over the former, in a system in which "capital accretion" is the only purpose of damned near anything and venture capitalists will buy out or otherwise take control of the exceptions.

  • Meanwhile, Apple's COO says trust him, Apple isn't elitist. Nope: A company that obstinately refuses to conform to any standard it can possibly hope to evade for the last few decades — the one-button mouse, the lack of filename extensions, spiral floppy disk formatting, refusal to provide service manuals to non-employees, nonsegmented addressing (and that's just the 1980s); we'll avoid, for the moment, the non-user-removable/replaceable battery (which is also a security issue), the utterly nonstandard connectors. the missing connectors that force users who want to use a headset with their phones, as implicitly required by the laws of a couple of dozen states for drivers, to pay an order of magnitude more for a substantially less-capable headset — isn't elitist at all. Neither is it elistist because it disables transfer of purchased iTunes content to a new machine (even a new Apple machine) without paying for a more-bells-and-whistles-but-actually-less-capable software "update" and a subscription fee for access to material that is not stored in the cloud, but locally. Neither is it elitist because it continues to refuse to comply with data-storage formats and standards, such as the completely unnecessary workaround required to embed fonts in epubs to make them readable on Apple devices and saleable through Apple "stores." Neither is it elitist because it charges an exhorbitantly premium price for often-inferior and source-locked hardware.

    I've seen more accommodation and flexibility from cable-TV providers!

    Nope. That's not elitist at all. In this sense, I believe Mr Williams… because it's almost all an obvious and almost inevitable consequence of corporate dumbism, not elitism. Consider the legendary hostility of Apple hardware and software to people who — unlike the late Mr Jobs — got decent grades in eighth-grade typing, and have since gone on to write long documents all by themselves (instead of assembling parts other people have provided) and edit them and revise them extensively into a coherent whole that does not rely upon cheap and often irrelevant eye-candy (elitism would include a help system linking directly to Tufte, if "good and clear communication" is "elitist"). Or who can independently operate their index and middle fingers (same underlying issue, I suspect) and therefore demand a two-button mouse, just like in the 1970s at Xerox's lab just down the road from Cupertino… and other 1970s military applications that used trackballs. Or who select things to do by other than pointing at items on a list someone else has created at the factory without detailed knowledge of what actually needs to be done. Or who think that fine points of design that are to the taste of high-level, highly-paid managers with little or no experience working in resource-restrictive environments definitively determine the functions directly available to people in the field without extensive customization that gets trashed with every upgrade.

    Apple isn't alone in this. It's merely one of the worst offenders; in that, it's up against some pretty stiff competition. Just try comparing the user interface of current versions of either Microsoft Office or even LibreOffice to functions actually used in writing more than a two-page letter or crappy-graphic-laden sales flyer… let alone an academic paper, a legal document (especially on lined pleading paper!), or even as plain-vanilla-formatted an effort as the draft of a novel. But it's not elitism: It's contempt. OK, I guess that is a form of elitism. Never mind.

  • This one has been fermenting for a month, so it's rather kimche-like. Shame on you, Grauniad books editor and interviewees, for your shortsightedness concerning short fiction. The closest any of the fifty stories on the list come to speculative fiction — you know, the stuff that appears in books and magazines with dragons and rocketships and occasionally a single, staring eye on the cover, even when it's as unrelated to any of these tokens as "The Ones Who Walk Away From Omelas" and "Repent, Harlequin! Said the Ticktockman" — is one piece from Angela Carter, and perhaps (but only perhaps) one nineteenth-century story from Edgar Allan Poe that is "speculative" only in that it presents a horror-like internalized view of quasi-Judaic guilt. If it was good enough for Borges (whose notable absence from the list can perhaps be excused by the "written in English" trope, which has problems of its own!) and Saramago (ditto) and Voltaire (ditto, ok, last time I'm giving them this monolinguist excuse, even if the list does include Chekhov-and-I-don't-mean-the-Star-Trek-one) and Le Guin and Ellison and Wells — not to mention any of several much superior pieces by Angela Carter to the one on the list — the best short speculative fiction is good enough for more than 2% of this list. The less said about the other blind spots on this list, the better.

    I specifically expect better from Hilary Mantel… except that the article itself is misleadingly cast with her name first when only a single one of the stories is her selection. The real "villain" here is Chris Power, responsible for half the list. In the end, this is the elistist entry on this platter (as noted, the Apple item is just contempt).

  • Last, a more hopeful item, but it still has some contempt for (aspiring) officials in it. Chicago is going to choose a black woman as its next mayor, after the Democratic primary rejected a Daley. Good {unbelievably foul and offensive string of expletives deleted} riddance. At least for the present: I strongly doubt that family is capable of learning a damned thing, let alone that "family connections do not entitle one to office in a representative democracy." And, as that article neglects, it appears that liberal white voters played an important role, due to low voter turnout which was even lower among black voters.

    Neither of these women is immune from connection to Chicago machine politics; politics in Chicago really is a dirty game dominated by dirty players. But at least one of them appears to have had a bath recently, before diving back into the mud puddle. And both of them are demographically distinct from Chicago's past "leadership," although they're still going to be stuck dealing with a City Council (and County Council, of which one of the two candidates is a member) that is ardently nonrepresentative and a national synonym to this day for "corruption" — deservedly so.