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.

Diaper Patrol

There are babies involved in all of these link sausages, and really not in a cute way.

• Remember when actually talking about nepo-babies in H'wood was a thing? Nobody talks about them in publishing, but they're definitely there — on a slightly skewed axis, as the nepotism isn't all that often within publishing but mostly within the cultural-gatekeeper ecosystem. Both instances are not about actual skill or merit, as the subtext of the respective articles indicates (as to the MFAs, through silence); they are about virtue signaling, and in particular credentialism. And that doesn't lead to "elitist art" so much as "Arts but without Progress" — not a good thing at all, and my fondness for the m-dash predates the internet so there. Better to have a real education, as an immigrant, as a background for writing that actually creates Progress in the useful Arts… without appropriate virtue signaling or credentials.
• Slightly farther away, we need to worry about another thing babies say: "Mine!" And here, it's not the creators who are shrieking; it's the thieves, the imitators, the collectors. As to that last set, there's a very simple explanation: The entire LLM mindset (shared by most techbros) thinks only in terms of "ask forgiveness rather than get permission," whereas if there's one thing common across the arts it's thinking "get my permission before you do anything with My Stuff" — even when that permission is imposed by law in the form of fair use and fair dealing and the anxiety of influence, because the for-lack-of-a-better-term "reuser" needs to follow those permission rules. (Would that the author of that last link had been more assiduous himself in doing so over his career…)
• Contrariwise, there's the issue of how much should academics charge for access to their scholarly work, considering that unlike most creatives who put stuff out there academics aren't relying on income directly attributed to sale of copies of their works for lunch money. Although given pay scales, a latte may remain out of reach if they did…
• They wouldn't give her the Nobel or many of the other awards her work merited (despite her adjacency, anyway, to the right credentials), but at least Ursula K. Le Guin's house is now a historic landmark. Even with dragons and spaceships on the covers.
• Last for now, the big baby with his finger on the button and his hands in your wallet. He's certainly following in the tradition, although it's somewhat unfair of the letter-writers to cast blame solely on one source — Europe (and, in particular, British Petroleum and its sycophants in the British government spanning a century) and a couple millennia of negative selection-of-leaders sense (demonstrated ability to select the worst available leader and senior assistants) have surely soiled the playpen in advance. Meanwhile, other babies are squalling too, even as this one tries to deflect attention from his bad behavior with an entirely different temper tantrum from a second-generation "natural born citizen."

Below Minimal Professional Regard

Taking a break from misanthropy today. Well, not really, just from the Anthropic settlement; recent events and announcements have more than justified disdain for at least certain segments of humanity — especially when they're not just tolerating, but celebrating, hypocrisy.

• From the all-too-densely-populated Department of Ignorant Politicians and Wannabes, there's an unusually ignorant screed from some asshole Texan "protector" of "Our Republican Legacy" at The Hill claiming about all Democratic Socialists that:

  [A]ny political candidate who supports essentially canceling the first three Articles in the Constitution cannot truthfully say he or she will support and defend the Constitution. To take the oath would be to commit perjury.

  Two obvious rejoinders:

  1. So, those who supported Amendments XIII, XIV, XV, XVII, XX, and XXII perjured themselves whenever they took the oath, right? Because those amendments — separately and together — cancelled significant elements of Articles I and II, and impliedly cancelled a part of Article III. They're called Amendments for a reason, and they're specifically contemplated in Article V.
  2. This ignorant screed provides no evidence — not even any specific identification of offending provisions — that any element of the "Democratic Socialist" purported "platform" linked within it does anything more than advocate policy changes accomplished inside the rubric of Articles I-III. There's nothing there relating to "an entirely new governing system." Not even an overreaching assertion that the stated policies would impinge on states' rights (which Amendments XII, XIV, XV, and XVII certainly did!) matters in light of Article VI cl. 2.

  I've come to expect this sort of narrowness, of inability to read a document as a whole, from theologians, politicians, and other cranks (not to mention waaaaaaaaaaaaaaaay too many lawyers). I invite Matthews to take his bloody Old Testament fundamentalism somewhere else… unless, that is, coming from archly Protestant Texas, he wants to emphasize the "Judeo-" part of "Judeo-Christian" and contend that later fundamental changes mandated by fundamental changes in conduct and nature of the population can never be discussed, let alone advocated. If that's his test, I'm happy to be an apostate. I've taken, reaffirmed, and exerted myself in support of that oath quite a few times; contrariwise, Matthews's semiofficial bio at the Federalist Society doesn't disclose that he has done any of that. <SARCASM> I therefore claim Greater Authority, all cynical misuse of methods of formal argument entirely intended and in parallel to those embedded in Matthews's screed.</SARCASM>

  The moment that "advocating for policy change" is equated with "disloyalty to basic values," we're back before HUAC and/or the Inquisition. How'd that turn out? Oh, wait, that both the subject screed and this response have reached our respective readers via electronic distribution has no dependence whatsoever on opposition to, and rejection of, theocratic statements of orthodoxy; there's nothing, after all, unorthodox as of 1947 about semiconductors.

• Speaking of bad lawyers and bad people, the technologically-challenged bar regulators in this state demonstrated that they couldn't supervise/test technology, or properly specify it, to enable the hazing ritual for pledges to Sigma Beta Alpha to go ahead. (And really: Yakima? In July? That's hazing in itself!)

  I call this a "hazing ritual" because the bar exam demonstrates precisely nothing about knowledge or fitness to practice law. At best, it's aimed at testing the ability to be a 1930s small-town "does everything" lawyer… and misses that mark badly. (Plus, you know, it's a century later and there are no more small-town "does everything" lawyers fresh out of law school.) The selection of subjects is at best inept, and more to the point not readily reducible to multiple-choice questions or short essays produced from sanitized fact patterns and not real clients. And at worst, both the questions and answer choices/expected "essay" answers are several years out of date, and insensitive to statutory and binding-precedent opinions that question so-called "black-letter law."

• When one must praise this particular US Attorney for the District of Columbia — however faintly, particularly given her track record (not just, but certainly considering, as a Faux News sock puppet) — for belatedly following the ethics rules that bind all attorneys, let alone those specific to prosecutors, and withdrawing prosecutions whose only basis is as a convenient cover-up (however implausible) for her current boss and lack any plausible factual support, things have gotten really bad. Which shouldn't surprise anyone these days. Of course, none of that is tested on the bar exam; no exam can test whether a lawyer will actually tell his/her/their client "You're in the wrong, and I won't facilitate misuse of the law to further that" — especially not when that client's temper tantrums would shame the average two-year-old.
• [AALA,] I regret that your submission does not meet authors' needs at this time. Best wishes with your future writings.

  In order to avoid a conflict of interest, it helps to be able to spell, punctuate, and define "conflict of interest," at least in an I-know-it-when-I-see-it fashion. On the evidence of its recent update to its so-called "Canons of Ethics" (ordinarily honored only in the breech/breach), the Association of American Literary Agents can't, or at least won't. The opening paragraph of its announcement demonstrates this all too well, both overtly and between the lines:

  The Canon was originally created in the twentieth century and was rooted in the practices of the publishing business of the twentieth century. In the twenty-first century, publishing, along with the overall media landscape, has undergone a dramatic transformation. We have seen publisher consolidation, the advent of entirely new publishing models, the rise of digital media, social media, mobile technology, the challenges of AI, et.al., as well as the loss of physical retail space and traditional review media. Author/creators increasingly operate across a wide range of platforms, services, and competencies. Demands on agents, from publishers and from our clients have changed as well, necessitating some big shifts in the role of the agent.

  Reading between the lines is sort of essential to evaluating manuscripts and placing them with appropriate publishers — the one job (thanks to possibly-unlawful "conscious parallelism" in commercial publishing) within the province of literary agents. In no particular order, note that this paragraph glides by its assumptions that (a) there was "the" publishing business of the twentieth century (and, worse, one that was well-served by the predecessor organization of the AALA… which, itself, arose because its predecessor had Legal Trouble resulting in its forced dissolution, even though it kept the same lawyer), (b) the "root" of those practices was in the then-contemporary late twentieth century and not earlier, from the 1950s to not later than the early 1970s, (c) the technologically-enabled explosion in the population of potential/actual authors has nothing to do with anything, (d) all worthwhile publishing efforts are at "book length" or its equivalent, (e) the AALA actually understands the changes referenced in "platforms, services, and competencies"… and, perhaps more to the point, has the humility to say "I don't know" at either the individual or trade-organization level for those parts it doesn't (in excess of 70%) and consult actual licensed professionals who do, then follow the advice given, (f) it actually enforces its Canons of Ethics… especially against members of the old boys/girls/whatever club, (g) its membership includes all legitimate agents, and the entrance requirements are meaningfully related to the rest of the Canons, and…. Oh, that's enough for now; on to the specific and fundamental problem with this revision:

  Having an "agent" clinging to that name due to its implication of "protector against abuse by third parties that have superior knowledge and bad or at least adverse-interest-based intentions" is useless when that "agent" becomes that third party. New canons 10–12 function together to make the agent the watchman of its own accounting and related issues, in particular for publishing and editorial services. I'm unaware of more than about 500 or so well-documented instances of what can happen in publishing — even in the "late twentieth century" — with even purportedly "old-line" agents/agencies, let alone the invitations for self-dealing to the outright scams^†. A writer would ordinarily expect his/her/their agent to scrupulously inspect a publisher's royalty statements for errors and worse; these new provisions make the agent responsible for scrutinizing its own royalty statements for errors and worse, similarly for every other outside service. (What, you really think that "ISP billing based on usage for the author's website" is free from problems?)

  The community of literary agents needs to accept that its competence is limited to connecting authors to commercial publishers (when appropriate for both, which does require some judgment) and acting as a mere conduit for business communications related to that. This attempt at rationalizing diversified one-stop shopping is an ill-considered mess that refuses to learn from the organization's own history — and doesn't include minimal requirements like "There must, at minimum, be separate business structures for non-agenting activities like publishing, like editing, and so on that at least formalize separation of interests." Even law and megaaccounting/business-consultancy firms do better than that!

  That these "new business lines" for agents are moving the AALA toward being a "publishing services job shop," and indeed actual publishers, is perhaps too obvious to discuss further. For the benefit of those who still believe that the only way to be published properly is through established commercial publishers, consider this the business end of a clue-by-four.

• Then there's greed and ego in H'wood. Like that's a surprise. It appears that a sequel to a blockbuster is unlikely to go forward now because a studio head thinks the proposed pay to the "talent" is too high. The implication that his feelings are hurt because the "mere employees" will get more than he does in his Very Important Job — and that he doesn't think his bosses (the Board of Directors) will bump up his salary sufficiently, which is just so insulting — is pretty clear… especially since the biggest likely "expense" for films of this nature is the advertising/promotional budget at the back end that's largely unnecessary (and indirectly flows back into that studio head's pockets via stock options, but that's for another time).

  I'd ask if that studio head, or indeed any studio head, had ever gone through a six-week-long shoot on location with twelve-hour days (plus extra time in makeup, wardrobe, etc.) while separated from family and friends, but I think I can guess the answer. And, perhaps most annoyingly, this studio head (and his counterparts) is putting a limiting value on a job he's incapable of doing himself at a time that "gross receipts" for films of this nature are increasing substantially greater than the rate of inflation… well, except for the occasional bomb, and most of those are predictable for other reasons and with rare exceptions in the long run break even with real-world accounting.

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†  disclosure: The author was a client.