25 October 2016

Weekend Update

... the original one. As in, "Billboard, you ignorant slut." The suddenness — and apparent method — of Ms Pallante's removal from her role as Register of Copyright are, indeed, surprising. But the ignorant spin on whose interests are served is, I'm afraid, no surprise at all.

It’s not clear why Hayden removed Pallante, but media business lobbyists reacted with dismay and some politicians expressed concern. After Pallante resigned, Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), respectively the Chairman and Ranking Member of the House Judiciary Committee, which has responsibility for copyright issues, issued a statement that Pallante’s departure would be “a tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.” They don’t mention Hayden, who informed members of Congress of her decision the day before the announcement, but their displeasure with her decision is implied.

Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes as the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners.

The unstated assumption in this passage — which, sadly, reflects silently-assumed roles in public debate on copyright — is that the interests of the distribution industries that were well-protected by Ms Pallante and even more so by her predecessor Ms Peters (who is quoted earlier in the article as proclaiming that she is "very disturbed") actually do align with the interests of creators; that Rep. Goodlatte knows a bloody thing about the interests of individual creators, as opposed to the interests of corporate lobbyists for the content-distribution industries;... and that the interests of librarians in making things available to the public are inimical to creators. Umm, not so much.

One example of how this is untrue is the Morris fiasco, in which Ms Peters (and, later, Ms Pallante) came down on the side of distributors and reusers — and against the interests of nonemployee authors — with cramped interpretations of the scope of copyright registration and how registration of a periodical does (or does not) protect freelancer contributions. The subtext is that the freelancers must pay additional fees to the Copyright Office to register their works, subverting the very intent of providing a "serial registration" in the first place (not to mention making use of registration data to determine chain of title virtually impossible, creating multiple registration chains for the same work). Consider the current issue of The Magazine of Fantasy and Science Fiction. If one took the concept of registration at face value, this would garner a single $35 fee for the Copyright Office, protecting its entire content regardless of who owns it. Not so fast: Under the Morris doctrine, each freelance work must be separately registered to be protected. That means that sixteen of the eighteen items appearing in this table of contents will each require a registration, for a total of perhaps as much as $560 in fees (perhaps less if authors take advantage of various group registrations, at the potential risk of being "late" to register and thereby losing statutory-damages and attorney's fees in litigation against an infringer).

Then there's the failure of the Copyright Office to provide definitive, APA-compliant guidance on how to terminate (revoke) a license under § 304(c) (for works first published prior to 01 Jan 1978) and § 203 (for works first contracted on or after 01 Jan 1978). It's only been forty bloody years since the 1976 Act was passed, but this is still an open question: What form a termination notice must take, how it must be delivered and to whom, when it must be delivered, whether the termination letter is recordable and when, under what circumstances an intermediate agreement (say, for another edition) forfeits termination (revocation) rights, and so on. This particular failure to even act is anti-creator and pro-distributor, if only because it enables continued publisher quibbling that "the notice wasn't technically correct."

Then there's the substantive problem of actual conflict, epitomized by the mess that the music industry made of 2Live Crew. Remember, there were creators on both sides in that case, but it results from humor-impaired bullying by the major industry figure that valued an existing revenue stream that flowed not to the actual creator, but to a particularly difficult-to-negotiate-with "music publishing company," over the creativity of rap artists outside of the N'ville establishment. (Note: Neither version is to my taste or even all that "good" in an analytic sense.) Similarly, the problems arising from and around The Wind Done Gone and Sixty Years Later: Coming Through the Rye also reflect agency capture: The Copyright Office has failed to act, and by doing so has kept matters in practice imbalanced in favor of distributor/publisher interests.

None of this is to say that the way Ms Pallante's departure appears to have been accomplished represents best management practices. Indeed, I simply do not know what led to it, although in the Department of Defense "moving to a new position without prior notice and locking out of the computer/administrative systems" would be a sign that some non-performance-related matter required an immediate change of command. It could be health; it could be allegations of misconduct that will later prove unfounded, but have a serious appearance; it could be discovery of a conflict of interest so serious that no "unwinding" is possible, even one imputed from another family member; it could be real and serious misconduct. <SARCASM> Perhaps it's just an audition to take over for Mr Drumpf on The Apprentice. </SARCASM> It could, of course, just be heavy-handed bureaucracy at work, or even spin coming from one side that the official sources have chosen not to respond to. We don't know, we probably won't know in the near future, and we need to just move on... but we also need to watch for this methodology again. We should also ponder the irony that because Ms Pallante is a mere employee of Congress, she has less protection for her job than she would have had if the Copyright Office was in the Department of Commerce, along with its intellectual-property counterparts of patents and trademarks.

Nonetheless, Billboard's self-interested explication is ignorant bullshit. The establishment figures of the music-publishing and music-distribution industry simply do not represent the interests of songwriters/composers and performers, except incidentally. And of course I manipulated the time stamp on this entry by an hour or so (the 'net connection was dicey for a while). I just couldn't resist.

19 October 2016

Half a Century Ago

I'm busy watching Chris "Hardball" Matthews throw softballs at the candidates and then duck. Half a century ago, Paul Simon — not the late Senator — predicted this result.

Sitting on a sofa on a Sunday afternoon
Going to the candidates' debate
Laugh about it, shout about it
When you've got to choose
Every way you look at this you lose

OK, so he got the day of the week wrong. And it's an ode to an alcoholic...

Just like the other moderators, Matthews is doing an extremely poor job of actually ensuring that the candidates try to answer the question... and then quotes things out of context as his version of a "hardball" to candidates. We'd all be better served with either John Oliver or Jon Stewart as the moderator.

Bluntly, the Commission on Presidential Debates is not doing its bloody job. It is not structuring matters to encourage substance and discourage soundbites; it is not selecting moderators who will enforce the rules — not even the flawed ones it has; when it allows outside input on questions, it allows those questions to be distorted by pressure-group tactics (as only the latest example, Matthews' acknowledgement of NRA-sponsored pressure on gun rights, which is at best a side issue for a segment purportedly on the entirety of the Supreme Court); it doesn't have a coherent vision of what people want or need the debates to be. In short — and precisely because it is a bipartisan commission, not (as its co-chair claimed) a nonpartisan commission — this structure disserves both the candidates and the electorate.

When I've got to choose, every way I look at this I lose.

15 October 2016

Complexity Isn't a Vice

...despite the best efforts of the leadership of both major political parties in this nation to make everyone believe it is. And it's ironic and somewhat shameful that Hollywood can remind everyone of that. Hollywood — the center of an industry that thinks it appropriate and less risky than trying something new, something based on what's happening today (or even in the last decade), to revive 25- and 40-year-old ill-conceived serials for long runs now; that is desperately afraid to confront its own historical and too-often-continuing practices of rampant discrimination, whether on the basis of race or gender or religion or national origin or education or whatever; that is unable to create a poster-type ad for a TV series with more than two central characters that is more than kindergarten-cutout away from every other such ad. It's still more intelligent, more nuanced, and more real than just about anything coming out of the Heffalumps or the Jackasses, let alone out of individual candidates' mouths.

Even at that, the next ten words, and the next ten after that, are nowhere near enough. Don't give me a few words, or even a sentence or two strung disjointedly misspelled on some PowerPoint slide (that will probably bore the hell out of everyone and take their attention away from what is actually being said anyway). Give me a paragraph or three. Per issue. With facts and footnotes and citations to back them up, and the honesty to admit that ideological determinism guarantees that virtually every day includes body counts. Ideology can determine only where we start in answering the questions that reality puts to us. It can't answer those questions; it can't determine what order we answer those questions; it can't even illuminate what the next set of questions is going to be, when we've already committed to answering the first set — or the set before that, or even just trying to answer the questions put to us decades ago that we've never managed to acknowledge, let alone answer.

In the end, we don't have ideological parties in the US: We have almost purely factional parties, defined by the unenlightened self-interest of their leaders and influence-peddlars and eminences gris, virtually none of whom have actually read Adam Smith or the many other progenitors of the modern "market economy." They therefore failed to notice that those works were struggling with not immediately political or economic or financial, but profoundly moral and ethical, problems concerning not just how the great unwashed behave in aggregate, but on how individual members of the nobility are obligated — not merely advised — to conduct themselves. It matters not whether the "nobility" is composed of landowners through inheritance, or captains of commerce and industry, or conquerors of new vistas previously unimagined. So I will, very shortly now, be staring at an absentee ballot trying to choose between the lesser of "Who cares?" yet again.

Screw it. After Cthulhu turned down the Heffalump candidacy for Vice President because he thought the top of the ticket was too extreme and too evil...

09 October 2016


I've turned off the "debate." Neither candidate has any bloody respect for the voters. Both candidates have egregiously failed to answer questions put to them... from the very first question. They were both asked by a black woman the entirely reasonable question of whether they were modelling appropriate behavior and language for the children assigned to watch these debates for school. One candidate spent 17-19 seconds of the two-minute answer addressing that, in very mealymouthed ways without admitting any fault. The other candidate spent even less time on the question. Both candidates had campaign speeches on BS economic and not-so-disguised class-warfare stuff that they wanted to lead off with, but got an easily anticipated question about their conduct. Both failed to answer the question actually put to them. Not just failed... refused. And the moderators are letting them get away with it.

Refusing to answer the question doesn't look very "Presidential."

My college gymnasium deserves better than this crap. Back to the bloody football game, where at least there's an attempt to play within the rules and the players get penalized for not doing so. Perhaps if the moderators had the ability to take speaking time away based on misconduct — and did so — some of this would stop. Instead, they're bloody 1980s regional-telly presenters on Anglia TV, unable to deviate from the script for fear of being fired... and the script was written months ago by some party hack (regardless of party).

The candidates get an F. The so-called "Debate Commission" gets an F. The moderators get an "Incomplete." And as of right now, I'm an "undecided voter" because I can't in good conscience vote in favor of any of the declared candidates... only against them. So the political apparatus also gets an F. That's an insult to every veteran, because we've put our butts on the line for the right to vote all the way back to the 1770s.

Sermon From the Glades

[9 Or what man is there of you, whom if his son ask bread, will he give him a stone?]
10 Or if he ask a fish, will he give him a serpent?

Matthew 7:10 (KJV)

The people of Florida should this Sunday give thanks for Matthew 7.10.2016, that He bloweth not their residences down.

And the rest of us should ponder the serpent we have been given by the Heffalump Party, he who shall pollute the athletic center of my undergraduate institution this evening. Hopefully, he will not be grabbing his opponent where he says he usually grabs women... at least, not on camera.

Or I could just go a little Old Testament:

8 Even as I have seen, they that plow iniquity, and sow wickedness, reap the same.

Job 4:8 (KJV)

and refrain from blaming every single registered Heffalump for the harvest of Nixon's "Southern Strategy" sown half a century past, and carefully nurtured by Reagan and his cronies. I can't really say every single registered Heffalump, because some of them — like a panel of three such appointees (two Ronald I, one George III) earlier this week — quite properly recognize problems with that snake's running mate's racial attitudes.

[Governor Pence's] brief asserts “the State’s compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries.” But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States. And if Syrian refugees do pose a terrorist threat, implementation of the governor’s policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to. Federal law does not allow a governor to deport to other states immigrants he deems dangerous; rather he should communicate his fears to the Office of Refugee Resettlement.

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

Exodus Refugee Immigration (Indiana) v. Michael Pence, Governor, No. [20]16–1509 (7th Cir. 03 Oct 2016) (PDF), slip op. at 5. The moderator at the VP debate on Tuesday blew it by not pressing Gov Pence on this. It came out the day before, so there was plenty of prep time for some "nightmare speculation" for which "[n]o evidence of this belief has been presented" (id., slip op. at 3). I, however, will not be forgetting about it in three years, when I expect Gov Pence will be somehow wedging himself into national politics again.

If what Judge Posner described (with acquiescence of Judges Easterbrook and Sykes, and affirming Judge Pratt) represents the mainstream of American Christianity (as Governor Pence has repeatedly proclaimed he does, and the Heffalump Party incessantly proclaims that it does), I'm glad I'm not one. And I suggest that y'all — as advocates and beneficiaries of the Southern Strategy, I'm gonna y'all you as you deserve — consider that Saul had to go to Syria before he could become a Christian. After which he arguably fit the definition of "Syrian" at issue today in this case...

02 October 2016

Deceptive "Advertising"

Don Draper wouldn't tolerate invasive software inserted along with advertising, and you probably shouldn't either. If your revenue model depends upon it, you've brought shame and disgrace upon your family for generations to come.

Part of protecting artists, authors, musicians, and other creative people from theft requires me to visit some pretty unsavoury places on the 'net. This at times includes both pirate repositories and piracy index sites.1 Of late, when confirming that some of these advertised pirated copies were actually pirated copies instead of clickbait for overt malware installation (probably no standing to object on copyright-infringement grounds), I've been running into whingeing from the actual download sites about my obstinate computer's refusal to accept advertising cookies (and other tracking mechanisms). Cookies that would destroy the anonymity of an otherwise illegal but ostrich-defensed download, even if later scrubbed from the local machine (because they could be retrieved from various internet servers in between). Of course, pirate sites are far from the only whingers about those disabling so-called "ad-blockers" (which do not actually block ads — only certain non-advertising functionality deceptively and silently inserted into the ads). It's difficult to tell the difference, though:

Want to see this site correctly? Turn off AdBlockers please!
Please turn off your ad blocker. Advertising allows us to give you the news free of charge.
Please deactivate your Adblocker for [site name] now. We finance our servers through the income of ads in order to provide you with our services.

And then all three attempted to install not just cookies, but actual executable code or search-engine preferences, on my computer. (My computer is smart enough to evade this sort of nonsense.) One of the three is a relatively respected news source... and it's the most-recent of the three to publicly proclaim its "need" for advertising with this kind of whingeing. Similarly and in a rather unfunny coincidence, the popup one now sees at the bottom of CNN's page ("By using this site, you agree to the Privacy Policy and Terms of Service", with embedded links to both that bury the rather intrusive active-tracking policies inside of fine print) is identical to what has been on [major pirate site] for six months longer... and I mean "identical" as in "uses the same JavaScript code, including variable names."

But all of this concerns only the secondary demands of advertisers/consolidators. The dirty little secret is that I never read online ads; I never click on online ads; I never make purchase decisions based on online ads. And all of that goes triple for when I encounter an ad while working. In short, any "counting" of my eyeballs actually deceives the advertiser.

The irony that the advertising industry "needs" to deceptively and invisibly "track" me (data that actually does it not a damned bit of good) while deceiving me as to what it is doing is a bit much in the face of the FTC Act (and equivalent law in the European Union). Even when the ad servers themselves happen to be "outside" the jurisdictions, the services/products offered — and usually the businesses involved — are not. And in a sad twist, it's more profitable for the advertiser or ad consolidator to sell my "contact information" to one of its own competitors than to rely upon the ad to direct any money to the actual advertiser: That is, the ads and their tracking systems are deceptive even concerning who benefits. Cui bono indeed.

I have five fingers on my left hand. I need only one of them to display my opinion of these practices. Can you guess which one?

  1. In a bit of irony that perhaps only true nerds can appreciate, these index sites tend to derive from memes and technology initiated by a couple of Bay Area college students in the 1990s, who organized the nascent internet's resources into a tree-like structure with lots of cross-links. This was typical of the time, descending from mindsets concerning the hardware limitations of timeshare and similarly 1970s-based systems (and in particular reinforced by the then-contemporary mismatch between processor capability and storage access). In the grand tradition of *nix and the Bell Labs vibe still popular among serious programmers — such as the pre-Linux "clone" Xinu ("Xinu Is Not Unix") — they called it "yet another hierarchical object organizer" and put an exclamation point at the end to show just how excited they really were.

    Thus, you're still getting your internet porn and pirated downloads of Game of Thrones from Yahoo!, even if you found it using Google or some "specialized" index site. And legal research is even more closely tied to the hierarchy-of-sources-with-crosslinking model... which, perhaps, explains a lot about how poorly the legal profession does when science and facts are at issue. See, e.g., Association for Molecular Pathology v. Myriad Genetics, Inc., No. [20]13–398 (U.S. 2013) (PDF), slip op. at 22.

29 September 2016

No, Authors, California Isn't Abusing You (or Bookstores)

There is no contenxt without contexnt. And recent fearmongering put forth by marginally literate "booksellers" and blindly spewed forth by more than one authors' organization that should know better demonstrates that pretty bloody well.

First, a bit of background. California recently passed, and Governor Brown signed into law, "An act to amend Section 1739.7 of, and to amend the heading of Title 1.1A (commencing with Section 1739.7) of Part 4 of Division 3 of, and to amend Section 1739.7 of, the Civil Code, relating to collectibles," AB 1570. This amendment is intended to deal with the continuing problems of fraud and misrepresentation in sports and celebrity memorabilia, such as people being sold baseballs purportedly autographed by both Babe Ruth and Lou Gehrig. Naturally, though, because it's "government regulation," some nitwits have decided to purposefully misinterpret it for their own political purposes... by not reading the bloody statute.

I'm not going to defend the writing in the statute as a paragon of virtue. It isn't; it should have been submitted to experienced consumer-protection litigators for cleanup, but instead looks like someone's first draft. It is, however, reasonably clear to anyone moderately familiar with statutory construction who actually follows up the cross-references. The critical part is not buried in the middle. It's right up front, in the definitions that form the very first substantive section of the bloody bill (all emphasis added):

[new Civil Code § 1739.7(a)(4)]

(A) “Dealer” means a person who is principally in the business of selling or offering for sale collectibles in or from this state, exclusively or nonexclusively, or a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to collectibles, or to whom that knowledge or skill may be attributed by his or her employment of an agent or other intermediary that by his or her occupation holds himself or herself out as having that knowledge or skill. “Dealer” includes an auctioneer who sells collectibles at a public auction, and also includes persons who are consignors or representatives or agents of auctioneers. “Dealer” includes a person engaged in a mail order, telephone order, online, or cable television business for the sale of collectibles.

(B) “Dealer” does not include any of the following:

(i) A pawnbroker licensed pursuant to Chapter 3 (commencing with Section 21300) of Division 8 of the Financial Code, if the collectible was acquired through a foreclosure on a collateral loan, provided that the pawnbroker does not hold himself or herself out as having knowledge or skill peculiar to collectibles.

(ii) The personality who signs the memorabilia.

(iii) A provider or operator of an online marketplace, provided that the online marketplace provider or operator is not principally in the business of selling, or offering for sale, collectibles, in or from the state, exclusively or nonexclusively, or does not hold itself out as having knowledge or skill peculiar to collectibles.

Naturally, that's from Section 2 of the actual bill.

None of the recordkeeping requirements for "collectibles" (defined in § 1739.7(a)(2) as "an autographed item sold or offered for sale in or from this state by a dealer to a consumer for five dollars ($5) or more") apply to anyone except "dealers." Not to private citizens reselling stuff from their uncle's estate. Not to individual artists who sign their paintings or postcards or prints or sculptures. More to the point here, not to authors who sign books for fans at conventions or bookstores... or to bookstores that happen to have a few author-autographed copies lying around, or even that offer — amongst all of their other business — to have a book personalized by the author for a holiday internet order.

Naturally, this entire contretemps arises from

  • Booksellers, not collectibles dealers
  • Who didn't read the statute, but instead saw something in the middle that might be inconvenient to them if it applied to them (which by the terms of the statute it doesn't)
  • Who know nothing of the best practices already customary among legitimate collectibles dealers and don't know that this statute largely codifies those best practices

and the blind inability of some organizations of authors — who are, all too often, actually in conflict with booksellers' actual (not necessarily proclaimed) interests — to actually think before scaring their members with something that doesn't apply to them.

I grant an F in reading comprehension to any of the fearmongering jerks responsible for this. And that's inexcusable for authors' organizations, arts-advocacy organizations... or for booksellers and other vendors who purport to support authors and the arts. I'll mutter my dark thoughts about "quasipartisan ideological agendas and naked self-interest" elsewhere.

21 September 2016


No, not some obscure boy band notable mainly for walking on its hind legs:

Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.

Nor even providers of link sausage ingredients. Well, not just ingredients...

  • Wellywellywellywellywell: The European Commission has decided that the future of the arts lies with artists and not distributors in its new single-digital-market copyright reform proposal (PDF). This has been rumored for a while, but I didn't want to rely on rumors — I'm not a tabloid journalist. One might say that this is Kirtsaeng I's Eurotrash progeny... except that it undervalues the potential for Schumpeterian creative destruction.

    Needless to say, not everyone — and especially not incumbent exchange operators (to borrow a disturbingly appropriate term from telephone-company deregulation) — is happy. Schade: The biggest "losers" will be the family-held/controlled media empires, which are largely agents for (or at least direct descendants of) fascism, and I don't even need to limit myself to Sauron's empire or English language or even the printed word to say that. Nobody is really asking in public whether media empires are the 21st century buggywhip manufacturers — perhaps because this time the incumbents are controlling the means of even having a conversation.

    But if they really want to make a difference, they have to NAFTAize it. The arts really are not an Old World/New World sort of thing... regardless of language barriers, or for that matter the entrenched financial interests behind Festung Europa (or, for that matter, Festung Amerika).

  • But a current exhibition at the V&A in London focused on the late 1960s and the interface between "popular culture" and "politics" may cut just a little bit too close to the interests of the public-school crowd. Perhaps Prospero gives a little bit too much credit to "Revolution," neglecting the six or seven other versions also left on the recording-studio floor... but the general point remains valid, and yet again Schumpeterian. Next up: The influence of the Monterrey Jazz Festival on electioneering in the 1980s (don't snicker too much, it's actually pretty apparent).
  • I am shocked — shocked, I say — to see irrefutable evidence of greed and fraud at the heart of megabanking. And gutless leadership, which is encouraged in a disturbingly ironic fashion by the very legal structures that make megabanks possible. Having guts means at minimum telling shareholders "No, I will not break the law, or foster a culture of lawbreaking, so as to increase your dividends by a penny per quarter per share."

    The Securities Exchange Act and Securities Act — our primary (not only) protections against investor fraud — distinguish between "shareholder" and "stakeholder" by never acknowledging the existence of nonshareholder stakeholders, and demand that management have allegiance only to shareholders. This is reinforced by Delaware law on corporation governance and function. The law's denial that once a business becomes large enough to meet exchange rating, it is also large enough to have thousands (or millions or tens of millions) of stakeholders who are not shareholders, has been refuted time after time. However, the unenlightened self-interest inherent in capital-appreciation primacy in corporate governance is both inconsistent with reality and basic math (hint: the concepts of limits and boundary values, both of which are rocket science... and first-year calculus).

  • Last, and far from least, a general election note. Remember to vote downballot, too. Indeed, there's an excellent argument that what happens regarding the Senate is actually far more important than what happens regarding the White House. (Nothing will happen in the House thanks to partisan gerrymandering.) Remember, also, that you're voting not just for the candidate on your ballot, but for all of his friends: A vote for a relatively moderate Heffalump like Mark Kirk is also a vote for retaining the obstructionism of Mitch McConnell and John Cornyn, while conversely a vote for a relatively conservative Jackass like Bill Nelson is also a vote for retaining the, well, obstructionism of Harry Reid and Dick Durbin.

    Indirectly, this is my way of throwing my hands up at all of the choices on the ballot (including the major-minor parties) for the Presidency. Determining exactly who is the least of the evils among a career politician with a long history of blindness to the problems of self-interest, a racist union-busting slumlord with no concept of the Rawlsian original position, a purported "doctor" who is antiscience (except, perhaps, regarding global warming), and a pro-gun-nut former governor who hasn't the foggiest clue about international affairs or history is really appalling. I really don't think choosing among the rack, the bastinada, waterboarding, and the Iron Maiden for the next four years is what the Founders had in mind. It would be nice to have a choice that is not an obvious instrument of torture, but the political class hasn't seen fit to give us one.

19 September 2016

In Medea Res

Not your Medea. My Medea.

  • After a night during which the Emmys congratulated themselves for racial diversity while ignoring the reality of TV's overt bias in favor of stupidity over any other single factor, the two lead film critics for the NYT ponder why H'wood is "separate and unequal" while missing the point. Both narratives also ignore the factor that could change things. Randy Newman was right: It's money that matters.

    The financial imperatives did not create racism (or anything else) in H'wood, but they are sure as hell the largest barrier to changing anything — especially the overemphasis on appealing to wide audiences (usually dumbed down to the minimal educational attainment of second- and third-generation management) with everything. However, a system that demands large returns for everything, even with the occasional nod to the "Sundance type of film" that still earns more money for its producers than for anyone else, is an active impediment to change. Even to change that the system itself acknowledges as necessary... or, more often, can't even recognize because it's outside some decades-old Psych 101 textbook's contemplation of "normal." Quickly: Name a character in American film/TV who takes pride and joy in intellectual/artistic achievement — instead of, or at least not manifested as, either overt sexual conquest/gender-appropriate nurturing or immediate financial/political rewards — who is not ridiculed for doing so... especially given the default poor-"social adjustment" compensation demanded of each and every one of those characters (yes, my readers, Chuck Lorre must be destroyed).

    I didn't think you could.

  • But one part of the entertainment industry is even more ignored than intellectuals... and it's dying, or at least changing into something unrecognizable. Yet it's the reason for the Internet! At least that's what the song claims (although my recollection is that 8x8 Star Trek came first and was much more of a drain on time-share systems back in the day).
  • Here's a quirk of the way European law on copyright infringements operates — and, more particularly, concerning what our Supreme Court illogically called "secondary infringement" over here in the Grokster matter (illogically because it is contrasted not to "primary infringement," but to "direct infringement," Grokster, 545 U.S. at 930–34). The Court of Justice of the European Union ruled late last week that free wireless providers are not liable as infringers, but may be required to password-protect their networks at the request of content owners.

    In McFadden v. Sony Music Ent. (Germany) GMBh, No. C-484/14 (15 Sep 2016), music-shop owner McFadden provided free, no-password/unsecured wifi in and near his shop. Someone — the opinion explicitly disclaims knowledge of who — used that to download a recording from somewhere on the net in which Sony claimed a copyright. Sony issued a demand to McFadden, and he sued for a declaration of no liability (¶¶ 22–28). After the usual convoluted chain of lower-court proceedings, the CJEU determined that even though the operator of the wireless service is not liable to the content claimant for infringement,1 the content claimant nonetheless can obtain an injunction requiring the operator of the wireless service to slap a password on the network (¶¶ 79, 90–101).

    And, unfortunately, bad writing and technical ineptitude have undermined this opinion ab initio.2 The opinion indicates only that the network must be password-protected, and hints that password protection somehow involves users revealing their identities as an appropriate part of the balance (¶ 96, which makes a little more sense in the German than in the English version — but not enough more sense). It's quite apparent that nobody at the CJEU has ever been to a coffee shop that posted the wifi username and password on a note by the cash register... or just kept the router's defaults in effect...

    What does this mean for authors? Not much — yet. One must sarcastically wonder whether username "Geist" with password "Passwort" is going to be the next major piracy infringer targeted by Sony, which will lead to more litigation over the relationship between the strength of network security and potential liability by/injunctions against service providers. <SARCASM> I really look forward to this set of judges trying to unravel that conundrum... especially when combining the slow pace of litigation with rapid changes in security models. Two-factor authentication requirements, anyone? </SARCASM>

  1. Unfortunately, the strange nature of European opinions originating in civil-law jurisdictions like Germany (where this case originated) — which are replete with internal cross-references, jargon, and refusal to ever say which party prevailed — interfaces with a really poor English translation, and not much better writing in the German (presumable) original. Thus, it's impossible to point to a reasonably small portion of the opinion that makes this point. I'm afraid you'll just have to trust me...
  2. That's bad schoolboy/legal Latin for "from the beginning" or "at its beginning" — used here with malice aforethought as an ironic illustration of the poor communications skills employed in writing this opinion (see especially ¶¶ 79, 101).

09 September 2016

No Meatless Link Sausages

... because there's at least some meat in each one.

  • Left unsaid in this article is the second-order aspect of responding to genius: Not just how to identify it, but how to respond once it's identified. And there's a disturbing corollary, too: If the "10,000 hours of practice" meme is wrong (and it surely is — every politician running for office today has more than 10,000 hours of practice at lying, and yet they're not fooling anyone but instead relying on their opponents being perceived as the "greater evil"), what does that say about those to whom we've delegated the coaching/teaching role in that practice?
  • Worse yet, there's the corresponding problem of the "successful" shaming of the arts, which after all are not amenable to standardized testing. Or career advice from octogenarians (but happy 50th anniversary to Star Trek anyway, even if recent efforts have largely been... disappointing).
  • Speaking of lying politicians, no morning-show host should ever "moderate" a serious election event ever again. Either that, or we've got to switch our "hosts" to those who work later in the day. Hey, that's not a bad idea: Jon Stewart and Larry Wilmore are currently unemployed, and so is (at least one of) Stephen Colbert...
  • Lots of copyright-related legal action across The Pond lately, much of it of direct concern to US authors.

    Most of the major pirate e-book repositories are now (purportedly) based in Europe, so the standard for when a link site contributes to infringement matters. In GS Media BV v. Sanoma Media BV, No. C–160/15 (08 Sep 2016), the European Court of Justice opined that holding a link site liable requires both that the link site obtain profit from the fact of hosting the links (and not from incidental activity or direct association with other profit-making activities; needless to say, US law is slightly different, requiring only that the infringing activity be a significant draw for general profitability) and that the link site be actually aware of the infringement and infringing material (related, but slightly different, factual inquiries). This is important to US authors and makes sending DMCA notices — even to Europe — more urgent: That's how one gives a link site, or whomever else, actual knowledge of both the infringement and the infringing material, so that the next author to come along isn't just shooting ostriches.

    And then there's the parody problem. US courts have largely gotten it wrong by overly restricting what constitutes a parody. The purportedly humorless Germans have done much better (official opinion auf deutsch (PDF), well-executed summary in English), primarily by avoiding the "target of" trap that Justice Souter fell into in 2Live Crew (and that has virtually no theoretical support in literary/arts scholarship) with the corollary that "satire" — if, that is, it is discernably different in principle — is not protected under Justice Souter's reasoning. Lurking behind this is a horrible mess arising from ex ante/ex post problems combined with serious retconning of "what did the artist intend?" that is even less amenable to judicial resolution than anything else in the arts... if that is possible. Regardless, the German approach is much closer to defensible.

  • And then there's the fashion industry. Leave aside its impulse to make me into its bloody billboard with obtrusive external branding (the label goes on the inside, thank you). Leave aside that so much of its output cannot be worn to actually do any work in (go ahead, Italian suit designers — wear a ventless jacket all day in court, with constant sit-stand-sit cycles and leaning and gesturing, and see if you don't pop a button). Forget the absence of pockets, usable forms of which are disappearing from men's clothing (look at polo-shirt selections of late) and never were in women's clothing. Just consider the selections available for women who aren't gymnasts or ballerinas (or, at minimum, don't play competitive tennis).

    And then ponder the gender issues raised by the alleged proportion of gay men in the fashion industries combined with their treatment of real women. Or not, because by now your head probably hurts from trying to resolve the contradictions.

  • Last, and far from least, a pissed-off note on current efforts to "encourage" use of two-factor authentication. If it actually provided better security in practice, it might be a better choice than secure-username-and-strong-password systems; there's very little evidence that actual users make it more secure, though. But crippling the purported better security by directly linking it to, say, the inherently insecure (and easy to forge/intercept) cell phone system and number isn't just insane and stupid and counterproductive — it's a transparent effort to create a further profit center with the ability to sell cell-phone data on, or misuse it to direct advertising directly to customers. I do not and will not participate in that sort of silliness.