17 July 2019

I Could Never Get the Hang of I-de-olh-oh-gee

I'm going to be as gentle about this as I can: Lawyers in general, and law professors in particular, should not be allowed access to statistical tools unless and until they take a minimum grad-school-two-credit-equivalent course in experimental design taught by scientists who actually design experiments. A recent article on copyright remedies epitomizes the GIGO problem that results. The article is fundamentally wrong, fundamentally unsound, and based on fundamentally ridiculous experimental design. Some of the policy conclusions may have some validity, and should be part of the discussion… but the article's data set and analysis are orthogonal to any valid conclusion.

It's worth quoting the article's description of its "experimental design and method" in full, omitting footnotes (which do not appear to resolve any of the difficulties discussed below, let alone the more-subtle ones not explicable in a blawg entry).

The docket study presented in this Part is based on the Copyright Data Project, a publicly available database that contains docket entries, complaints, and other documents of almost one thousand copyright disputes from the period between January 1, 2005 and December 31, 2008. The list of cases was populated by a search on Bloomberg Law of all cases filed in federal courts from January 1, 2005 to December 31, 2008 for which the “Nature of Suit” is Copyright. This four-year period provides an ideal window to study statutory damages since it allows us to compare the role of statutory damages in the context of P2P file sharing on the one hand, with more commonplace copyright disputes on the other. The final list of cases in the database contains a random selection of 957 out of 17,119 cases. By randomizing the cases for analysis, the analysis is based on a representative set of cases. The docket database contains 46 coded fields and 125 different variables on each of the copyright disputes randomly selected from that period.

It is helpful to summarize a few general observations about copyright litigation. In their topography of the field, Christopher Cotropia and James Gibson observe that (1) “the Central District of California and Southern District of New York are ‘hot districts’ for copyright cases,” (2) copyright cases are “no more likely to get contentious than other civil litigation, [but] when they do get contentious, they get very contentious—resulting in significantly more docket entries, substantive rulings, and trials,” and (3) copyright dockets contain a remarkable number of (successful) small firms and “low IP” industries. Where pertinent, the analysis below will take into account these particularities of copyright disputes. Additionally, the results will distinguish between “regular” and “peer-to-peer” (P2P) or file-sharing cases. Separating both types of cases is important given the flood of P2P litigation in the 2005–2008 period.1

Go ahead. Soak that in. Now let's consider just a few of the obvious systemic flaws in this dataset (and in this instance, I lay the blame as much upon Cotropia and Gibson as on DePoorter), in the order that they become unmistakeable (that is, not disclaimed in the next sentence sort of thing!) in this passage. To begin with, "docket entries, complaints, and other documents of almost one thousand copyright disputes from the period between January 1, 2005 and December 31, 2008" represents not precisely the Jurassic Period, but it's definitely Bronze Age. It's pre-tablet, pre-Kindle, pre-Spotify, and pre-online Netflix; it's nearly pre-Etsy; it's at the height of The Pirate Bay; it's at the beginning of TOR (which had enough activity to point at defendants only in the last twelve months of the studied period); it's before widespread release/use of decoders for online video content that enabled high-quality transcoding; it's before almost-universal social media account usage, a major vector for infringements; most to the point, it's before widespread adoption of cellphones able to store and replay pirated content. In short, the 'net doesn't look much like it did in 2008, let alone 2005, regarding copyright infringements.

Similarly, the reliance on only matters filed in US District Court is also more than a bit problematic. IMNSHO and consistent with both my personal experience and the general experience of authors' organizations — both specific to that period and overall since the late 1990s when I began representing and consulting for creators and other copyright holders regarding online piracy — the statutory-damages stick being waved in a takedown letter prevents a substantial proportion (at least three quarters) of lawsuit filings against nonhabitual offenders. It does so in three ways: It provides substantial incentive for nonhabitual offenders to settle, take down, or otherwise obviate the need for suit; it also provides substantial incentive to habitual offenders (overt pirate sites being the most obvious example, but also including, say, America Online, Inc. (pay attention to who argued and won that one — and concerning what kind of infringement!), Cox Communications, and so on, to make getting them into court procedurally difficult to impossible (not to mention expensive and time-consuming); and there's that pesky DMCA shield2 that locks many disputes right out of court (and the interplay with demand letters asserting ineligibility for DMCA safe harbors and corresponding availability of statutory damages can be fascinating in itself), notwithstanding that an infringement using any conduit but the internet might well have been meritorious. And that's just for indisputably-US-based defendants!

Randomization of cases for analysis isn't enough unless one first ensures that the random selection is across a single, or at least representative, population. And then one must ensure that all of the statistical tools used for analysis are sample-based tools… and perform all of the crosschecks later. Table 5, however, reflects that these crosschecks were not performed subsamples of two individual author plaintiffs, three "software—video games" plaintiffs, three "performing arts" plaintiffs, and five "fine arts" plaintiffs are nowhere close to the minimum sample size necessary to validate a statistical conclusion from a population of either 957 or 17,119 cases. Indeed, Tables 5 and 9 allow the inference that statutory damages, even when potentially enhanced for willful infringement, are too low to provide sufficient incentive for individual creators to file suit… although the article never considers this possibility (nor the difficulties of actually collecting such a judgment).3

The article also has a deeper, unstated analytic problem: It presumes that allegations of "willful infringement" are related directly, and only, to claims for enhanced statutory damages. Umm, not so much. Especially with smaller and independent copyright holders — authors, composers, and so on who are not operating under a collective umbrella — recovery of attorney's fees is at least as important as whether statutory damages might be enhanced. Since the willfulness of the violation is a critical factor in the Fogerty analysis, of course a high proportion of plaintiffs will plead willfulness.4 In short, the "willfulness" pleading issue is not an independent variable amenable to statistical analysis or argument.

There's also a fundamental legal-landscape problem that this article neglects: The Morris problem.5 By itself, this explains why there are so few individual authors who filed suit: They could't get into court in the Second Circuit during the study period. And authors of individual pieces in periodicals are those most in need statutory damages to make a lawsuit viable. The dataset self-selected against a substantial body of copyright holders — arguably, based upon the legislative history of the 1976 Act, those who were supposedly intended to benefit the most from the statutory damages provision. The Muchnick decision6 slightly relaxes this by enabling class-action suits to be filed and settled when not all copyright holders have "satisfactory" registrations, but only slightly — and only two years after the end of the study period.

Perhaps most egregiously, the article attempts to draw conclusions about the entire universe of copyright holder behavior from a nonrepresentative set. For example, as disclosed in Table 9, it analyzes more instances of motion picture and television-program infringements — a total of 27 filed cases, all of which by definition concern a copyright holder that is not a natural-person creator — than the combined total of art and text (10 clear instances and possibly up to 8 others categorized as "publishing" for unclear reasons). Let's just acknowledge that analyzing incentives, process, or anything else as would Warner Brothers is not at all comparable to an individual author or artist. The article also incorrectly assumes that copyright is the principle, or motivating, cause of action.!7

Bluntly, this article represents what happens when someone just crunches numbers without considering where they come from, where they're going, and what they omit as much as reveal. This is especially distressing because the article is ideologically aligned with a meme prevalent in the law-and-economics movement (and favorable to certain interests), but is not founded on solid data or solid analysis of the data (before even raising the "epidemiological versus empirical" monster from the depths of statistical analysis). The particular ideological meme involved — and it's apparent only when reaching the last six pages before the article's conclusion — is that because this dataset and analysis appears to show that the existing statutory damages regime is from at least one perspective (those potentially paying them — that is, the wrongdoers!) inefficient without using that word, the entire regime must be rejected. This meme, of course, rejects that "efficiency" is itself a normative judgment, precisely because it is perspective-bound to less than all participants in a particular economic system. As is this data set.


  1. Ben DePoorter, Copyright Enforcement in the Digital Age: When the Remedy Is Wrong, 66 UCLA L. Rev. 400, 417–18 (2019) (footnotes omitted).
  2. 17 U.S.C. § 512 (limiting liability of "online service providers" in a manner explicitly excluding statutory damages).
  3. Cf. Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (1st Cir. 2011). Conversations with counsel involved in the matter indicate that nowhere near the $675,000 in statutory damages assessed for a long-running scheme that it is difficult to characterize as anything but willful infringement, given the number of warnings made, has been collected.
  4. Compare id. at 428 (neglecting attorney's fees as related to willfulness).
  5. Morris v. Business Concepts, Inc., 259 F.3d 65 (2d Cir. 2001), later op., 283 F.3d 502 (2d Cir. 2002) (publisher's compilation copyright registration certificate does not act as a copyright registration certificate for individual freelance articles contained in that issue of a periodical).
  6. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).
  7. Cf., e.g., C.E. Petit, Accio Lawsuit!, Scrivener's Error (02 Nov 2007).

16 July 2019

RIP Justice Stevens

The other Great Dissenter died earlier today at 99, after a stroke, in Ft Lauderdale.

What I find most frustrating is that this clearly centrist man has come to epitomize "the Court's liberal wing." But that's for another time.

Get Back to Where You Once Belonged

And I don't mean just to Queens (even if Queens might as well have been a foreign country when you were growing up there, happily living off the proceeds of your grandfather's career as a neopimp fleecing goldminers in Alaska). Which, perhaps more than anything else, reflects your inability to contemplate what "competition" actually means… because competition in the sex trade isn't good for anyone.

No, I mean going back to Kallstadt, where your grandfather really came from. That's the place you should go back to and fix, before you engage in a facist, racist campaign of criticizing America, like you did by not later than 1998 and went public with in 2015. Because there's nothing whatsoever wrong with the Palatinate. Nope: No antisemitic traditions (hint: Arabs and Palestinians are Semites, too), or xenophobia, or nepotism… or history as one of the strongholds of the Nazi party.

Meanwhile, your dubious allies are trying another path to take us back to the good old days of the 1950s: painting members of the United States government with the label "communist" just because they say "disagreeable" things. (There are exactly 57 of them, Senator IselinGraham. All while the House Heffalump leader is named… McCarthy. Can't you guys even come up with new slurs?)

So get back to where you once belonged (although I don't think you left for California grass (which you would have paved over, anyway, even though that's a different song by actual Americans)… or consorted with a man who thought he was a woman, let alone a gender-fluid tree).

And in the meantime, my apologies to the four women of color who've been pilloried in this way. It's all I've got, I'm afraid… but in a sense, we're all responsible. That's the point of representative government.

Launch

Fifty years ago, Messrs Armstrong, Aldrin, and Collins cleared the tower…

13 July 2019

Z731

Most of these sausages are related to my natural habitat: Libraries. Directly or indirectly.

  • The ALA has finally recognized that continuing to name its top professionalism award after a bigot is probably not a good plan. And that's even before considering the cultural insensitivity and imperialism, scientific ignorance, disdain for both law and literature, and a reading public that was entirely upper-middle-class white men (with an occasional nod to upper-middle-class white women) born and living east of the Hudson, that is inherent in the disease that he has imposed on American libraries: The Dewey Decimal System. Now if we can just get the ALA to deaccession that monstrosity…
  • I can't help smiling at this one. The very concept of drag-queen story hours is mind-boggling to someone who grew up in the 60s and 70s. On the other tentacle, that was in one of the more repressive enclaves in the Seattle area — which I like to think I largely outgrew (even before high school, let alone adulthood) — so…
  • (I'm using this source only because it's not behind a paywall — and the better, more-nuanced ones are.) Libraries — including my local library — are beginning to push back against publisher discrimination against libraries. The irony of publishers claiming unilaterally (and, one might add, inconsistent with both copyright law and the relevant parts of the UCC) that those who "purchase" an e-book or downloadable audio file are "only" getting a license becomes most apparent when comparing it to publishers' uniform refusal to accept that, as a matter of law, they've only gotten a license from authors (and, therefore, that licensor/licensee law, not seller/purchaser law, regulates the contracts, transactions, and rights) is too much to handle on a Saturday morning before the caffeine kicks in. The nicest descriptor I can find this early is "disingenuous," although my immediate impulse is more toward "inherently and intellectually dishonest."
  • Speaking of paywalls and publisher dishonesty, there's almost nothing more inherently and intellectually dishonest than for-profit publishers locking publicly funded scientific research up behind paywalls. Well, maybe the default demand of law reviews to claim copyright in law journal articles written by people not on faculty at the journal's sponsoring law school is moreso — but not by much. News bulletin: The (US) 1909 Act was abrogated over forty years ago, and it never had validity outside the US.
  • At the other end of the age spectrum — and still a huge impact on libraries — consider the YA wars being waged by and on behalf of those who haven't read the books. That's the most intellectually dishonest aspect of the whole thing: It's not just those criticizing and defending particular books who haven't read them; it's many of the people charged with marketing them, who selected "YA" as appropriate in the first place. Exhibit 22,978: this forthcoming book, which will be marketed as YA in the US and has not a damned thing to do with YA; indeed, it subverts just about everything "related to" YA because its subtext and context presume familiarity with Paradise Lost.
  • Then there's an unexamined issue: The relationship between bookstores and libraries, especially as bookstores disappear. This is another east-of-the-Hudson problem: The general conceptions of "the proper place and role" of both bookstores and libraries presume that every literate individual (regardless of age or economic circumstances) has easy walking, or at least short-public-transit-trip, access to both large, comprehensive, well-stocked public libraries and large, comprehensive, well-stocked bookstores staffed by employees and managers who really know their respective inventories. Umm, not so much… especially as real-estate speculation continues to force bookstores to close (and, frankly, was one of the two major causes of both Borders' demise and the still-probable-if-perhaps-a-little-delayed failure of B&N). The reality is that a healthy culture needs both, but that has been increasingly difficult since the mid-1970s.
  • We all need to remember that libraries are the best defense against misinformation in general, cultural imperialism in particular, and information that's relevant and not just from an ill-formed search result. Although they're not a defense of or for abused adjunct professors, the real problem there being that anti-tax maroons have convinced themselves (and others) that money paid to people who develop resources — like, say, people — is a pure sunk cost and not an investment with a difficult-to-quantify return.

07 July 2019

Where the Gold Is

Megan Rapinoe has the Golden Ball. Unlike the tweeter-in-chief. And can use her Golden Boot to… actually, she's far too respectful to do that, especially in how she has protested inequality (of several kinds). And she's got 22 teammates.

USWNT 2019 World Cup Trophy Presentation (linked from USSoccer.com)

Now if we can just convince FIFA that (a) you don't show respect to women by allowing any other sanctioned match (let alone sanctioned national team matches) to occur on the same day as the Women's World Cup final, and (b) you don't advance the women's game by proposing to double the purse at the next World Cup while increasing the field, after you've increased the purse for the men at an even greater rate (when the men's Cup will be contested in atrocious conditions in Qatar), we'll be ahead of US immigration policy.

04 July 2019

You Were Absent From the Reviewing Stand, Comrade

And so, on this two-hundred-forty-fourth celebration/anniversary of giving the King of England the finger (with ornate phrasing and equally ornate calligraphy) — not because taxes were too high or the military was overused, but because the white slaveowners over here weren't landowning gentlemen in England and therefore couldn't vote on taxes or war (or even send corruptible representatives to vote) — there were speeches and displays of military might in DC.

By a draft dodger (or, at least, someone who has shown no sign of heel spurs that keep him from strolling about).

With visuals that, if captured on slightly grainy black-and-white film, evoke Nürnberg in 1934, or Москва́ in 1950, all too well. Including the contempt for the actual wishes of the majority of the populace, as both of those leaders were "elected" through harsh limitations on voter eligibility… and extolled returning their respective nations to a more-glorious past.

The irony that the Supreme Court just declared that partisan gerrymandering is essentially outside the jurisdiction of the courts to even decide; and the further irony that voting rights are equally bound up in the census matter also just decided (or, more properly, not decided but declared ripe for trial); and the final irony that this President got into office by use of a mechanism that was supposed to be a brake on demagogues (the Electoral College), at least in the minds of those white male landowners and slaveowners we celebrate as The Founders — are individually and collectively too much.

I'll just wash down some Native-American-caught-and-smoked salmon with a craft brew and be all snooty about it, sneering the whole while at burnt-hot-dog-and-PBR self-declared "Real Americans" — the ones who came along a thousand years or more afterward, and haven't considered that most of their ancestors were themselves economic and/or human-rights refugees. One wonders how much attention has been paid to economic conditions in Germany at the time the Drumpf family came over… or the inscription on that damned statute in New York Harbor.

But all of this just leads to the next question: Who will be absent from the reviewing stand next year, Comrade? Look at those photos carefully and pick your candidates. Hopefully in 2021, the centerpiece will be absent, too.

25 June 2019

Fashion Is FUCT

Yesterday's opinion in Iancu v. Brunetti, No. [20]18–302 (U.S. 24 Jun 2019) (PDF, slip op.), on its face concerns the First Amendment and its interface with trademark registration. It's not an unimportant case in that respect; but then, this Court does not take up unimportant First Amendment cases, even if its decision later proves unimportant. There's a hidden landmine in it, though, precisely because neither the parties nor the Court paid sufficient enough attention to the context.

Brunetti holds that the prohibition on registering marks that "[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter," 15 U.S.C. § 1052(a), violates the First Amendment and must be invalidated. Limiting the meaning of "immoral or scandalous" to "offensive or shocking because of their mode of expression" (regardless of the content of that expression) is inappropriate because that's not an "interpretation," but rewriting of the statute inconsistent with its text. Slip op. at 9–11. The only solution — especially in light of the parallel problem in the recent Tam case (barring registration of "The Slants" to refer to an Asian-American band due to the word "disparaging" — that, amusingly, appears between "immoral" and "scandalous" in § 1052(a) — violated the First Amendment) — is to deny enforcement to the "immoral" and "scandalous" bars entirely. In this interpretation, the Court is surely correct.

But…

The real problem is that the Lanham Act in particular, and trademark law in general, fails when applied to expression in general and the arts in particular. That ranges from character names to branding in the useful arts, like fashion. Probably because the parties themselves refused to engage with it, the Court never reached the second-order implications of overt (and especially external) fashion branding. Consider, for a moment, a beer bottle with a picture of a frog giving the finger. (This is not a hypothetical; see Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998).) Just as the Liquor Board — in an area of much greater regulation than mere "fashion" — could not restrict the use of an undeniably "scandalous" mark on a beer bottle, the neologism "FUCT" must be displayable and registrable. One need not even reach any of the issues in Cohen that distract the opinions other than the majority in Brunetti.

That said, the Cohen problem is relevant — just not in the way that the parties brought to the Court. The fundamental problem is apparent in the context of Cohen. When an individual chooses to wear a jacket stating "Fuck the Draft" into a California courthouse, the identity and message of the speaker are readily ascertainable. There is, perhaps, room for argument at the edges over details, but not much at the core. Transferring this concept to mere branding, however, makes things much different. Imagine, for a moment, that Mr Cohen was wearing a Bad Frog Brewery t-shirt depicting the challenged label; or that he was wearing a "Fuck the Draft" branded polo shirt, with a clearly visible embroidered logo and word mark where the chest pocket would otherwise be. There is, clearly, speech in those instances; its content, and the identity of the speaker, are nowhere near clear. Especially if that's a shirt picked up at a second-hand store because it was cheap and Mr Cohen was poor, and chose to wear something offensive but not full of holes to the courthouse.

In short, the fashion-branding meme — especially brand identification visible on the outside of the clothing, from cartoon frogs and crocodiles on up — is completely FUCT. And the industry's concept of turning its customers into billboards for the brand is equally FUCT. That's one reason that I supported South Butt against North Face; then there's the intellectual dishonesty in relying upon the label to generate distinctiveness (when distinctiveness is merited in the first place) rather than the actual quality and price of the garment. I do not purchase clothing that has external brand identification unless it's easily removable or hideable in normal wear. Well, once upon a time I accepted silver "U.S." logos on my lapels and "U.S. Air Force" over the pocket, but — as Emily Litella would say — that's different; never mind.

Tomorrow, almost for certain, will truly begin another summer of our discontent; the Court releases at least one more opinion at 10am EDT.

21 June 2019

Abrogation

One decision from the Court this morning exposes several layers of abrogating responsibility. Including the Court.

In Flowers v. Mississippi, No. [29]17–9572 (21 Jun 2019) (PDF), the Court correctly held that a history across six trials and two decades of peremptorily challenging black potential jurors off a black defendant's criminal jury made the conviction of and death sentence imposed upon that defendant constitutionally unacceptable. This is in many senses a good decision, particularly as it makes clear that the proper test for a Batson violation (especially when asserting a pattern and practice) is the entire picture, not just individual juror treatment.

But…

The courts (at all levels), bar, and populace at large have abrogated their responsibilities and made this "victory" a hollow one.

  • At a fundamental level, this case exposes the foolishness of direct elections for law-enforcement personnel (and judges). The prosecutor in charge at every stage of Mr Flowers' Koestleresque ordeal was an elected prosecuting attorney. And, as is made clear in the record and news reports, the same individual.
  • The Mississippi trial court facially erred by not requiring recusal of that prosecutor at some stage. Surely by the time there had already been two reversals of convictions for the same conduct as was before it, the trial court should have directed the matter be tried by a different individual. And after the third. And after mistrials.
  • The Mississippi Supreme Court facially erred in the same way, and further erred in not providing more explicit guidance on acceptable conduct.
  • The Mississippi bar authorities egregiously (but expectedly) erred in not imposing discipline by the time the third trial came around. Let alone the fourth, fifth, or sixth.
  • The US Supreme Court erred by not naming the attorney who perpetrated the misconduct, took up its time and attention, and brought discredit upon both the State of Mississippi and the profession of law with his bigotry. Indeed, by using circumlocutions like "the State" and "the prosecutor" throughout, one cannot tell that the same individual was responsible. Unless, that is, one takes the hint in Justice Alito's concurrence; or reads the petitions and briefs; or reads the bloody newspaper.

    This is bad writing. It is not respect for the State of Misssissippi, or the courts of that state, or the people of that state, to refuse to name a responsible person who also happens to be an elected official. That it's a longstanding tradition does not make it respectful… especially when the opinion names the victims and several prospective and actual jurors, who each appear to be blameless. By not naming the miscreant(s), the opinion allows — and through its repeated invocations of "the State" actually encourages — imputing individual misconduct to the entire state. That… is not respect for the state.

    The Court also erred in not directing that the matter be assigned to different counsel for the State of Mississippi on remand. Such an order would be about the integrity of the judicial function of courts of the United States, a matter well within its authority even when relating to state-court proceedings (and ditto for the Supreme Court of Mississippi). Failure to so direct creates the appearance to a reasonable person of a lack of impartiality, compare Code of Conduct for U.S. Judges Can. 1, 2 (Mar 2019) and 28 U.S.C. § 455.

Multiple layers of supervision have refused to decide to sanction, or even just temporarily incapacitate, this unfaithful-to-his-office elected official (who shouldn't be an elected official as a matter of principle, but that's something that both the courts specifically and American society generally have refused to engage with). That refusal to decide is a decision in itself. So even if Justice Kavanaugh gets partial credit for reaching the right result, he doesn't get full credit. Justice is a process, not just a thing, and it has to appear correct at every stage.

The buck clearly stops somewhere else for everyone. Flowers demonstrates why the standard is that "impartiality might reasonably be questioned," 28 U.S.C. § 455(a) — even when there is actual impartiality. And in this instance, the later conduct of the matter even after the Mississippi Supreme Court specifically found a Batson violation in a prior appeal calls not just impartiality, but fitness to serve as a government official and fitness to practice law, into more than just "reasonable question," see MS R. Prof. Cond. 3.3, 3.4, 3.5, 3.8, 4.4, 8.3, 8.4. The contrast with the profession's attempts in most states to raise the bar-exam pass score — for a type of exam that by design cannot test conduct or "impartiality" — at a time when more minorities and women are in law school than when the bar regulators were is, umm, disturbing.

18 June 2019

HRH Mark I

Since the Supreme Court won't be mischievously upsetting our expectations issuing more decisions until Thursday, a denizen of the other coast — one who, on all evidence, thinks he's beyond the law anyway — took advantage of the lull to announce his new sovereign state. One of the traditional markers of sovereignty is an independent financial system (however entangled with the rest of the world or opposed by others), and This Is It.

Z has already demonstrated all of the arrogance, self-regard, and entitlement required of royalty. But he knows he's unelectable in our current system (a contemporary's continued rejection, both in person and via initiative, presages his likely fate). Besides, he'd be required to follow someone else's rules to run for office or be confirmed to an appointed office, and he's just bloody not interested in that. And then he'd have to pay attention to constituent needs, which is definitely something he's bloody not interested in.

Facebookia is just about as credible as Freedonia. For the moment. But Z is beginning to act more and more like a banana-republic dictator… similar to United Fruit. Far be it from me to compare Facebook to the Cavendish banana, although both have this nasty fungus and both are entirely cloned and nondiverse…

P.S. Go ahead. Just try to cancel my account (hint: I don't have one).

17 June 2019

We Don't Get No Education

So Nataly Buhr — a new high school graduate — has had lots of lessons about educational failures, even though she's the valedictorian in her high school class of about 500 students. And in that last, she's almost certainly distinct from those she criticized. I would take 20:1 odds that none of the professional staff at San Ysidro High School were, themselves, valedictorians of their own high school classes. How that qualifies them to evaluate the needs and concerns of a valedictorian (the principal criticizes her for not having raised them prior to the speech — which is, objectively and all other things being equal, the right thing to do, but even in corporate litigation there's more formal recognition of "demand futility" than in education) is beyond me. And, more to the point, beyond them.

Nonetheless, she got an excellent education… quite possibly in spite of her public school system. As did a contemporary in Florida. And that education comes down to this: Educators can't take either criticism or a joke. Or recognize irony. When education stopped being the thing that brainy women were consigned to some time in the 1960s (a result of men's need for easy draft deferments as much as anything else, at least as to this field in particular… because there wasn't a simultaneous rush of men into nursing!), the chances of an educator having been high-school valedictorian went through the floor. On the one hand, that was great for the women whose actual capabilities could be exploited by the economy and themselves. On the other hand, it was a bad thing for public education, especially since culturally in the US men are even more prone to bullying the nerds than women are.

Meanwhile, Betsy De Vos wants to make education even less of a priority in high schools, substituting job training (for "good manufacturing jobs," no doubt, that don't actually exist and would be technological dead ends in a decade if they did). <SARCASM> That just might keep a successor of Ms Buhr from speaking out a dozen years from now… because she'll have been even more ill-served than she was as San Ysidro High School near San Diego, which already appears on its way to meeting De Vos's view of the proper role of public schools. Sending the valedictorian to UC San Diego implies a lot — especially that valedictorians at public high schools should not expect to be welcomed at 1%er colleges. </SARCASM>

This is some of the bullshit that results from Balkanized "local control" of schools, seldom by those who were themselves successful in those schools or (academically anyway) afterward. <SARCASM> I'm so glad nothing has changed in the four decades since I lived through it, or in the decade since my kids did. </SARCASM> (Admittedly, I wasn't the class valedictorian; I got a couple of A-minuses in PE in the days before "class weighting" for AP and college-prep classes, so an A- in 9th grade PE counted as much as an A in AP Bio, AP Chemistry, or AP Calculus….)

14 June 2019

The Women's Edition

As a run-up to Father's Day weekend, here's a platter about women. Well, mostly. Well, sort of, because all of the "women's issues" here result from the entitlement of white men.

  • I blame the outrage at the US women continuing to celebrate joy in scoring goals, both individually and as a team on entitled, constipated old white men. A particular group of constipated old white men: The power brokers at FIFA who set up the standings system to encourage teams to grind the bootheel into the wounded. Two things do so: Making "goal difference" the first tie-breaker in standings, and not limiting the goal-difference number attributable to a match. It's bad for competitive balance and bad for the audience, especially any audience of purported neutrals. If the measure was goals scored, there's still an opportunity for joy, and for the superior team to not get grumpy about it, if the inferior team scores on a deflected-ball-turned-into-breakaway-counterattack or a freaky penalty or just an isolated individual moment of brilliance. And if there's a limit of, say, four- or five-goal credit for a particular match, we don't have the problem of running up scores encouraged by evaluation systems that don't include an "enough is enough" component, reminiscent of the oft-criticized computer ranking systems for college football.
  • And meanwhile, we're not going to see criticism leveled at the Italian players for their remonstrations to eject a Jamaican player who committed a reckless foul… at a time that the Italians were already up 4–0 and were no doubt worried about a diminution of their own goal difference. That's actually a more-prevalent and more-dangerous "bad sporting behavior" problem than is running up a score in a match that counts. But the Italian women are not Americans, either, so…
  • The domestic contrast of Fox's channel-flipping mandate in favor of the domain of rich entitled white men (the US "Open" Golf Championship) in the face of the concerted effort by rich, entitled white men to avoid paying the women who've invaded the clubhouse by being superior is a bit much (and it's not just the US, it's FIFA, too). So f*ck you, Fox Sport programming dorks. Put the whole Women's World Cup on Fox itself — the broadcast channel — especially since (due to the time-zone differences) the Women's World Cup is over by the time the right white guys have recovered from their three-martini lunches, even in New York. Relegate the "spectacle" of golf (and its environmental and class-warfare-by-the-rich arrogance) to where it bloody well belongs: Zero-dark-thirty reruns. It'll still be fresh the next day on VHS recordings.
  • There should be two women exiting the Whitesupremacy House staff. One is going, voluntarily; I can only imagine that her next gig will be as Director of Communications for the tobacco industry, because that's the only big-name (and big-compensation) post I can imagine in which outright lying is both more prevalent and more expected. Not even Big Pharma, Big Chem, or Big Energy is as bad. One must wonder, though, why marijuana (with some proven health benefits, although admittedly a lot of minuses) is a Schedule I substance not even being fully researched, and tobacco is not… oh, wait a moment, there were/are a lot of white male entitled (slave-owning and/or obtaining their land and business from slave-owning) registered-voter American farmers growing tobacco. Never mind: If you have inherited expectations of continuing in a line of business, you're entitled to do so no matter how damaging that line of business is to others.

    The other one, however… Unfortunately, a pattern of "mere" knowing and willful violations of the Hatch Act is not felonious. Hell, I bet the appearance fees more than cover the fines, which will probably be paid under the table by Roy Moore's election committee anyway. Notwithstanding the further illegality involved in that: "Manifest destiny," y'all.