21 June 2018

The Summer of Our Discontent

…starts today. Because it was the Spring of our discontent through yesterday.

  • As another entry in the "stupid doesn't necessarily mean unconstitutional" list, the Supreme Court — in a frighteningly internally inconsistent 5–4 majority opinion that on first reading undermines over a century of personal jurisdiction law — determined that there is no constitutional barrier to a state imposing a sales-tax-collection requirement on out-of-state vendors who ship merchandise (and services, even though services were not actually at issue in this lawsuit, and I have serious Sixth Amendment concerns here) into that state. South Dakota v. Wayfair, Inc., No.&nbps;[20]17–494 (PDF).

    South Dakota purports to apply this to "only" big merchants, but the statute in question simply does not reflect reality. (The irony that the basis for the Court's decision is that the longstanding ban on out-of-state sales tax collection did not reflect reality was never even touched.) Under the terms of South Dakota's statute, if one has either $100,000 in shipments to South Dakota or 200 items shipped to South Dakota in a given year, that suffices. Imagine, for the moment — and I am not going to name the specific exemplar — a Florida-based writer on Native American activism who sells collections of his/her/their articles cheaply from her website — let's say $1.99, so that there's no undercutting of the current Amazon Direct Publishing pricing requirements. If that writer sold 222 copies of a collection that discussed, say, Wounded Knee, to South Dakota residents in a given year, the $441.78 in retail sales would subject that writer to South Dakota's reporting-and-collection requirements. Forever (because once in the system, the reporting requirement continues even when no sales are made and no tax is due — which is the default for state-imposed sales tax systems). So the statute itself needs a reality check; I would say that regarding all sales tax statutes — and even moreso for VAT.

    My Sixth Amendment concerns begin in Sioux City, Iowa — just across the border from South Dakota. Consider, for the moment, South Dakota residents (formerly) employed at the Gateway Computers operation in Iowa. (Remember Gateway? The cow-patterned boxes with cheap parts, haphazard assembly, and an insidious arbitration clause for an illusory arbitration system not actually available to consumers that was hidden in later pages of documents reviewable only after delivery?) Let's consider an Iowa-based employment-law attorney who, in a year, handles workers' compensation and similar matters for 200 or more South Dakota residents, all arising from that Iowa-based location. Or an IP attorney several states over who represents a South Dakota-based band and sends 237 DMCA notices on behalf of that band. Or, more broadly and beyond the Sixth Amendment, a medical clinic in Minnesota that also sees South Dakota residents and can foresee that prescriptions will be filled in South Dakota… such as for birth control and other women's-reproductive-health medications. In short, "stupid" is probably being generous.

  • Meanwhile, the Supreme Court's failure over the last half-century to abrogate Korematsu and Hirabayashi continue to cause trouble in immigration cases. I continue to urge the Court to overturn them formally and definitively.
  • And the less said about child cruelty, the better. One could reasonably infer that the only persons who have inalienable rights under this Administration — and this set of Heffalumps in power — are dead Presidents (and dead Ben Franklin). Apparently, money isn't just speech. Further, one must wonder whether Jefferson Beauregard Sessions has ever read a scholarly discussion of Romans 13 (not my preferred text, but close enough, especially reading verses 8-10), let alone pondered even a bit of the history of its use and misuse. More to the point, he's neglected to note that Romans 13 concerns itself with taxes, revenues (customs duties), honor, and respect — not with discrimination — in even the least-scholarly translations.

06 June 2018

"Cocky" Goes Limp

… which is intentionally over the line of "appropriate" puns and comments regarding this controversy because so much else is. Including, in particular, the stereotypes embedded in the marketing and brand identification in the "field of romance novels."

First, a (non)disclaimer: Prior to posting my prior screed on this nonsense, I had not read any of the court submissions. Those comments that I made were on general principles and based on (a) the actual registration documents and (b) my specific knowledge of practices, procedures, and commercial values in the arts. I'm thus gratified that Judge Hellerstein reached the same conclusion on the actual record before him when he heard a doomed motion for a preliminary injunction last Friday (PDF) (HT: The fabulous and unappreciated "Courtney Milan").

The real point here is that a piece of paper from the PTO is not a bloody magic wand that enables the holder of that paper to magically take "all the monies you earn" at Amazon Just Because. There's still plenty of legal work to do, and it requires hard facts and rewards a stiff… upper lip… more than it does thinking with a part of the anatomy (or wallet) that doesn't have any bloody grey cells.

That said, the critical passage from Judge Hellerstein's oral ruling is this:

To sum up, the most important factor here as we have gone through the eight is the strength of the plaintiffs' mark. It seems to me at this point of the record and given the way that these titles look to be more adjectives than indications of source, that we have a weak mark.

[Second, i]t is not clear that defendants use the word "Cocky" in a way that makes it an indication of source. It is more a description of the nature of the contents: Her Cocky Firefighters, Her Cocky Doctors. I hold that defendant is not using the word "Cocky" in a mark. Although there could be a likelihood of confusion, other factors being equal, that there is some kind of an infringement, at this point I don't think a similarity.

Third is the competitive proximity of their products. They are clearly competitive proximate.

The fourth is a likelihood that plaintiff will bridge the gap and offer a product like defendants. That is not really a factor because both are in the market already.

Fifth is actual confusion. I didn't find any.

[Sixth is] Defendant's good faith, I think it is a mixed factor.

Seven, the quality of the defendants' product as compared to plaintiff's, they seem to be equal.

[Eighth, s]ophistication, at least at this point on the record, the sophistication of the purchasers, I think sophistication is high, and that is another factor against issuing a TRO or a preliminary injunction.

Now let's talk about irreparable harm. Plaintiff will suffer irreparable harm if, assuming the trademark is valid, others will occupy the field. Although sales data can be obtained and damages can be proved, it is also a damage to good will involved in the trademark that can't be proved. So there clearly is irreparable harm that would be suffered by the plaintiff in the absence of restraint. However, it seems to me that defendant, who is on the market with her romance novels, if restrained, would also suffer damage and it would be irreparable. If a book is taken off the market, it can't be sold. Books of this nature have to do with timeliness as well. So I can't say that there is any balance here. If there is, it is likely to tip in defendants' favor because a good portion of injury by the plaintiff would be compensable in damages and captured profits. So that factor is in favor of defendant.

Whether an injunction is in the public interest, given the way these trademarks are used, I don't think there is much of a public interest in them.

Here plaintiff can't demonstrate that its trademark merits protection, nor in my opinion that defendant's use of a similar mark is likely to cause consumer confusion. Those are the eight factors that we just talked about. Accordingly, the motion for a TRO and for a preliminary injunction is denied.

That doesn't mean the case is over. It means that we go into the next stage of discovery.

Hop Hop Prods., Inc. v. Kneupper, No. [20]18–cv–04670 (S.D.N.Y., 01 Jun 2018) (Hellerstein, J.), trans. at 41–43 (transcript-artifact paragraphing corrected).

I'll raise a Jack Daniels for this one, for the same reasons as before. The legal underpinning of the Jack Daniels letter is the difficulty in carrying the burden to justify injunctive relief — whether the extraordinary burden for a temporary restraining order or preliminary injunction stated here, or the burden after trial when damages have already been proven. The was a fundamental lack of judgment by plaintiff and plaintiff's counsel — not just on procedural grounds, but on the basis of the marketplace (I love that Judge Hellerstein correctly characterizes the marketplace of romance readers as "sophisticated" regarding use of the term "cocky" in a title, see trans. at 39–40). The cold hard facts, not the limp protestations of a would-be usurper.

05 June 2018

We Hardly Knew Ye

Shot fifty years ago today: Robert F. Kennedy. While surrounded by good men with guns, but that's almost beside the point, given all of the other disturbing echoes of 1968 we're seeing half a century later.

04 June 2018

Eating Cake, or Not, or Not Prejudicing Decisions

The Supreme Court issued its decision this morning in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, No. [20]16–111 (04 Jun 2018) (pdf), reversing the imposition of sanctions on the cake "artist." The decision is both indisputably correct — in a way with interesting implications for the pending immigration cases — and substantively wrong but consistent with some existing doctrine (which is itself wrong).

The decision was correct in sending the matter back for reconsideration on the ground that decisionmakers had improperly expressed animus toward a right that was at issue, was within their jurisdiction, was essential to deciding the matter… and had not yet been formally presented. That is — and I wish the Court would get away from its excessive deference to the purported uprightness and integrity of state systems just because they're state systems — there was stated decisionmaker bias. The Commission screwed up; those members who had expressed animus prior to (or even at) the hearing should have been recused, and a different panel should have been called in if they all were. This, of course, has some interesting implications for the pending immigration cases… because the same kinds of evidence of "bias" that were held against the Commission are present in the present Administration's statements (both before and after the 2016 election) regarding immigration policy.

In its substance, though, this case is wrong, at a definitional level. "Free exercise of religion" does not extend to "violation of civil rights." The Court this morning points out that, at the time the dispute arose, same-sex marriage was not yet "the law" in Colorado, which necessarily complicates things. (I would argue that same-sex marriage was not yet "the law" in Colorado at the time precisely because some people misused conceptions of "free exercise" as a rationale for their bigotry, but that's for another time.) A true originalist would look carefully at what "free exercise" might have meant in the eighteenth century, and in particular in the context of the century following the Glorious Revolution. That originalist would discover that exclusion of non-co-religionists from commercial transactions — even those involving artistic fabric prints in Liverpool and Manchester — was not understood as part of "exercise of religion" under the common law of England by the 1760s. That originalist would then be confronted with a more-difficult question: Whether the individualized creation of a cake is enough different.

This time, the Court punted, without having to reach the fundamental issue in Bleistein: The very competence of the judiciary to determine whether a piece before it is "art." (And this is, perhaps, very fortunate for the creators of the Jack Chick comics… and even more-inimical examples. Some of which are in museums.) It will be unable to do so if the Colorado Civil Rights Commission repairs its procedural errors and reaches the same substantive result, and the matter returns — probably just in time for the 2019 Term of Court, leading to a decision in mid-2020 just in time for the presidential election cycle. (Which would be bad, bad, baaaad for the quality of both public discourse and the decision itself.)

But it's a coffin-corner punt as to the immigration cases, and the Administration doesn't have Rocket Ismail to run the punt out. (Identity of potential punt returner chosen with malice aforethought.) If the relatively benign statements of certain members of the Colorado Civil Rights Commission were sufficient to demonstrate inappropriate animus — and they were; as a commanding officer and staff officer, I was in the trenches on these sorts of things for many years, and I'm all too aware of how the appearance of bias has collateral effects that are unpredictable in their details but entirely predictable in their effect on respect for everyone and everything involved — one shudders to think about the gyrations that will be necessary to evade the same conclusion regarding Drumpf's statements, in the face of civil-rights law and even fundamental authorization from Congress that is much more specific and inconsistent with those statements.

Then, too, there's a second-level philosophical issue: Is there a difference between "free exercise of religion" and "free speech, including the right not to speak"? I don't pretend that this is an easy question; I think it makes a difference in this particular case only if "free exercise" is misinterpreted to include "bigotry when justified by some doctrine labelled 'religion' notwithstanding that doctrine's inconsistency with the rest of the purported belief." That way lies the religious justifications for Jim Crow, guys, and any reading of the Fifth and Fourteenth Amendments that does not acknowledge that as an issue equally applicable to religious-doctrine-justified discrimination on any other basis also ignores the three hundred years of history preceding the Constitutional Convention.

26 May 2018

Trademark Cock-Up

This is not the first blawg piece to discuss the ineptness of trademark law and practice regarding the arts — not even on this particular bit of nonsense. It won't be the last. And it won't be the last to recommend the Jack Daniels approach to every trademark issue in the arts that does not clearly arise from intentional and unfair passing off or counterfeiting. I do not promise that I won't be cocky about it.

In any event, Writer Beware offers a clear, balanced, and accurate description of problems that have arisen from US Trademark Reg. Nos. 5447836 (word mark) and 5458137 (graphic representation of word mark), purporting to register the term "Cocky" in class 9 and class 16 claiming first use in commerce dates of 16 June 2016 (and a later registration for a specific graphic version). The mark purportedly uniquely identifies "A series of {downloadable e-books}{books} in the field of romance." Here's how I would evaluate this claim of right to the word mark (the '836 registration) if an author came to me with concerns, but not having received a notice:

  • The mark is, by its nature, quite weak. It concerns appropriation of a common-use term to describe goods related to the ordinary meaning of that word. (I'm not at all certain that a registration was justified given the short use in commerce.)
  • A quick search of the US Trademark Office's records (which you can do yourself at TESS; unfortunately, due to the session-based access to the database in question, I cannot provide a URL directly to the search results individually or as a whole) reveals more than 80 applications and grants related to the word "cocky," indicating that this isn't exactly a novel usage in general. Somewhat amusingly, most of the records for the word "cocky" alone relate to clothing… and we'll return to the relevance of that later (it's hinted at above).
  • A quick search of the Library of Congress's catalog (again, thanks to session-oriented database results, there isn't a way to give you a URL to the list of results) results in well over 100 entries for "Cocky" in the title… including three from romance publishers, two of which appear to be series books from the same designated author (not this trademark holder… but not necessarily the same person, either). As these all date from more than one year prior to the claimed use-in-commerce date, I can only infer that nobody did an appropriate search in the right places — they all would have shown up well prior to the application date.
  • A quick search at WorldCat (again, session results so I can't point you at exactly what I saw) is even worse, with several hundred results (and at least six comparable in the first hundred). Again, these all date from at least one year prior to the claimed use-in-commerce date.

I would thus tell an author who had used merely the word "cocky" in his or her book title or description — especially if used as a description in its ordinary-language sense — to relax and forward any correspondence to counsel. (Frankly, Ms Hopkins, or rather her business entity, can have the graphical mark… well, maybe not entirely, but it's really not worth fighting over, especially since in many e-book formats and/or readers it won't be visible as a graphic anyway.)

The real problem here, though, is the particular approach taken to others' uses. In descending order of seriousness:

  • There has been no visible screening of "uses" by others for nominative or fair use. This is itself an unfair trade practice and unfair competition.
  • Neither has there been visible screening of "uses" by others for actual competition — that is, reference standing by itself to a series of romance books/e-books. Asserting that including a series mark inside a single instance title would be, umm, a novel legal theory… especially since single-instance titles are per se not registrable as trademarks, creating an inverse inference of inherent (non)infringement. (Example: A book entitled The Relationship of Star Trek Novelizations to Film and Television Canonical Developments does not infringe the Star Trek mark.)
  • Trademark law (and, in particular, the registration system as it exists… remembering that registration of trademarks is optional) is ill-suited to the arts in the first place, and especially to anything even slightly outside the core of the high-school English curriculum. Trademark law is about verifying the authenticity of widgets; series titles for books in the field of romance, not so much.

    Which leads to the real point: Unless one has decent evidence of intentional counterfeiting or passing off that has no tenable treatment as parody ex ante, the holder of a mark in the arts is almost always better off using the Jack Daniels approach to others who are "invading one's space." Ms Hopkins, her business entity, and her counsel appear to need some serious education on this point; they're not alone, by any means (recall the "space marines" fiasco), but they're in the spotlight this time because they got cocky about the scope of the mark.

  • Trademark law is also ill-suited for the arts because some old, arguably no-longer-good-law cases on so-called "genericide" have resulted in overreaching, often over the line into paranoid, interpretations of the "must object" aspect of trademarks. Unlike copyrights, trademarks require the holder to object to actually infringing uses of the mark without a license. This is "black letter" law… written on thoroughly decaying paper that doesn't note the multiple changes in both statutory and case law since it was stated. It's actually incredibly difficult to win, because it's very fact-specific. The entire point of the "Jack Daniels letter" is that it is a sufficient response to almost certainly avoid later genericide. Every reported decision imposing a forfeiture penalty for "failure to defend" in the US since the mid-1990s that I have found required systematic, intentional infringements over an extended period of time, analogous to "adverse possession" in real property, that were known to the holder and nonetheless completely ignored. There was no requirement to file or even threaten suit to create a sufficient response; indeed, the reported decisions are remarkably vague other than noting that the holder "objected" (or similar language) when rejecting an asserted failure to defend.

Ultimately, this is more probably an ego problem than anything else. (I don't have enough information to narrow down whether it's author ego, agent ego, publisher ego, lawyer ego, or some combination thereof.) Creators — including authors, composers, artists, etc. — have a greater tendency than even real-estate developers toward extreme embracing of endowment entitlement (PDF). This is exacerbated when they encounter (worse yet, are) marketing executives who "grew up" in fungible widgets and supermarket economics. And that leads to behavior that makes slapping "Trump" on recently acquired buildings, and then never giving it up, look positively reasonable.

15 May 2018

National Erratic Driving Day

…should be established as the day before Mother's Day. And it's not just restricted to motorized vehicles, either; shopping carts can participate, too! <SARCASM> Or maybe it's just the preview of Auto-Body Repair Day. </SARCASM> But all of this shopping (even sharks have mothers) leads to thoughts on jurisprudence.

Really.

Due to the inequities of sales tax collection, and the Supreme Court's decision yesterday on sport gambling that previews the chaos to come.

Currently, sales taxes and the Internet are Balkanized by Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Quill held that a seller lacking a physical presence in State B was not obligated to collect sales tax for goods and services shipped to residents of State B — on constitutional, not statutory, grounds. Yesterday's decision in Murphy v. NCAA, No. [20]16–476 (PDF), previews a forthcoming decision challenging the result in Quill on a parallel path — the combination of Congressional power and statutory construction — in a way that implies that at least the result of Quill will remain in place (at least for the present) when the Court issues its decision in South Dakota v. Wayfair, Inc. ("Wayfair") (useful discussion of the progress of oral argument with which I nonetheless fundamentally disagree) in the next few weeks.

The common issue is the so-called "anticommandeering doctrine." Murphy held that as a constitutional matter and through interpretation of the specifics of the statute at issue, Congress cannot demand that states actually do something that is within the respective states' purview. (This is arguably a minor narrowing of "necessary and proper" as it relates to the Commerce Clause, but that's getting much too theoretical and tangential even for me.) The point is that states have even less ability to commandeer each other, or more relevantly here, citizens of another state for the mere purpose of tax collection that is already constitutionally suspect under Quill. No matter how much society and commerce have "evolved" — ironically, that very argument was rejected in Quill itself, see 504 U.S. at 310–16 — there remains, nonetheless, the "distinct sovereigns" problem embedded in both the constitution and every domestic Commerce Clause decision in the past century and a half.

Consistency with Murphy will require that at most the Court reverse Wayfair on the ground that there's no tenable Congressional act authorizing state-to-state sales tax commandeering. After all, under the UCC, the sale is completed in the seller's jurisdiction, at the moment the agreement is reached (or, at latest, the moment the shipment is consigned to a carrier). And if there's one aspect of commerce that has truly "changed" since the long-ago days of Bellas discussed in Quill, it is the adoption of the UCC in the states. And the Court need not even reach the constitutional issue; under the (generally misbegotten and intellectually dishonest) "constitutional avoidance canon," all it need do is point out that the federal statutory scheme is no more acceptable than that in Murphy and save the constitutional issues for another case. <SARCASM> Preferably one not involving a state with a fifty-year history of encouraging banks and credit-card issuers to base themselves there so as to evade usury restrictions imposed in other states. But that, of course, has nothing to do with state-versus-state commandeering. </SARCASM>

Then, too, there's the "not all stupidity is unconstitutional" problem — for yet another day. Sales taxes, and for that matter value-added taxes, are stupid, regressive, anti-union elements of undeclared class warfare by the idle rich against everyone else, especially when not accompanied by equivalent-level nonresidential (or, better yet, extravagent-residential) asset taxes. Fortunately for that class of individuals (which included almost all of the Founding Fathers), there's no "wisdom" component of the Constitution falling within the Judicial Power…

04 May 2018

Have a Nice Day, John Mitchell

… which is a particularly difficult echo after reading this piece on military officers and unlawful orders — today. Which I find both incredibly naïve and incredibly dismissive of the officer corps; but then, I lived through Iran-Contra, and it amazes me how little the public understands the anger of my generation of officers at that bullshit. Sure, there are exceptions, and possibly getting selected to flag rank would favor them; but the consensus was… otherwise, especially once the "lying to Congress in support of a particular ideological agenda with no valid military purpose" part became unmistakeably clear.

30 April 2018

The Big Reveal

There was a big reveal last night on WestWorld (Season 2, Episode 2, "Reunion") Well, not really: It was implicit from the very first episode of the first season, obvious after the third episode, and inevitable after the sixth.

<SPOILER ALERT> Delos — the "corporation" that owns WestWorld, although it's as much a true "corporation" in apparent operation as is Harriman Enterprises, whose namesake is also "Delos" — is the result of merging FaceBook, Cambridge Analytica, and Apple… with a little bit less self-deception/disingenuousness regarding "nobility of purpose" (or even "sociopathy"). In one of the flashback scenes, William the Younger admitted that WestWorld would involve pervasive monitoring of Guests, taking advantage of the fact that the Guests think nobody will be watching. He implied that it would be for marketing and advertising… but Logan's escapades during the episode demonstrate that obtaining material for blackmail is at least as important, especially considering the scope of the purported "market" for WestWorld (the 0.1%ers).

I'm shocked. Shocked, I say.

23 April 2018

Six Copyrightable Works in Search of "the" Author

Part 0: Crass Introductory Remarks

One would think that the judiciary was capable of learning from the past, especially when implored to avoid a particular class of errors by a giant (however flawed, and however later passed by) of the past. One would probably be wrong, as evidenced by the judiciary's — hell, the entire profession of law's — failure to acknowledge an observation by Oliver Wendell Holmes, Jr. more than a century ago, cautioning the judiciary (and the law!) against the Dunning-Kruger effect1 regarding the arts:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.2

And even here — in recognizing the profession's fallibility in judging the product of artistic endeavor — Holmes fails to acknowledge the profession's utter ignorance regarding process, which is particularly ironic given Manet as an example. Holmes can hardly be blamed for neglecting the interplay between the First Amendment and the arts, which is admittedly an aspect of law entirely ignored in US jurisprudence for another quarter of a century thereafter; more-recent practitioners, however, don't have that excuse.

I do not pretend to omniscience on these matters, especially the farther one gets from my own experiences in studying and creating both artistic works and artistic processes (which are two entirely different classes). But I'm at least aware of the limitations and differences and problems with post hoc rationalizations that seem to have escaped both the artists/creators and the legal profession.3 That is, I think I've got the minimal humility necessary for daily function in and around the arts — which cannot be said for certain judges and treatise authors… Over the next few months, I'll be irregularly posting some more-detailed musings on six egregious errors in copyright doctrine that result directly from the failure to distinguish between "process" and "thing," and how those errors relate to identifying "the" author of a work. Sadly, each of these errors was not only preventable, but predictable.

What I've found most frustrating over the years — especially when dealing with "Information Wants to Be Free" (IWTBF) advocates and virtually every tech entrepreneuer or groupie — is that understanding process as an integral element of the arts is also necessary to understanding both the expression (and information!) in the arts and virtually everything about these six problems. It is not sufficient; it is merely necessary.


  1. See generally, e.g., Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments, 77 J. Personality & Soc. Psych. 1121 (1999) abstract, text behind paywall. The less said about the judicially imposed Dunning-Kruger effect concerning jury verdicts, the better… although the probability that there's at least one member of a jury familiar with artistic process is greater than that among the lawyers and judges who tried the case.

    author's note on citation format In a not-so-subtle rebellion against the Bluebook and in recognition of legally enforceable rights in at least part of the arts community, I am adopting use of the ampersand ("&") to connect authors who each worked on an integrated whole, and the simple conjunctive ("and") for editors or other sources of collective works who contributed to a whole but not individual discrete elements. Plus it will screw up some less-sophisticated web crawlers that have trouble with operator overloading of the ampersand in HTML.

  2. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted).
  3. For an introduction to the endowment effect in general, see Daniel Kahneman, Jack L. Knetsch, & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Perspectives 193 (1991) PDF.

    As these musings progress, the "it's mine" problem will become more and more central, as will the different varieties of "ownership" at issue in the arts — particularly when they overlap but the decisional frame being used favors, and perhaps even considers, only one of the varieties. Cf. David P. Stern/NASA, (22) Frames of Reference: The Basics, From Stargazers to Starships (2006, retrieved 2018). (This reference to basic physics and basic reasoning is an intentional self-referential smack at the limited educational background of the legal profession, cf. note 1 supra.)

13 April 2018

Still Life

No, I'm not going to inflict a "still life" drawing upon you. I may be a law school graduate, but I'm not, you know, evil.

Once Life has achieved stillness, though, there will be renewed activity here. Including, I'm afraid, calling out an entire state's judiciary for abrogation of its fundamental proclaimed duty of "regulating and administering the profession of law." And I say this as the victim who couldn't get even a real inquiry started. My old mentor, colleague, and friend the recently and untimely deceased Ron Rotunda agreed, more quietly than he thought most appropriate but out of a sense that he should perhaps allow the courts and the bar to self-reform.

And, of course, more intellectual property and stuff of concern to creators, more politics, more art, more everything.

But at present, life is a kaleidoscope or kinescope and not still.

04 April 2018

A Half Century of Futility

I think he'd be terribly disappointed; I know I am. And was: The gleefulness of some of the adults around me (which made its way to the west coast in time for the evening news) at the assassination of a man who was clearly no threat to them is a clear memory and the overt beginning of political awareness for me. The content of character I see in "public service" resembles nothing upon which Dr King would wish to judge anyone.

Fifty years ago today, a bullet on the balcony of the Lorraine Motel made Black Lives Matter inevitable. Not necessarily at this time; not necessarily in detail. Nonviolent protest was met with violence, with advocacy of violence, with ignorance and fear, with the assumptions of the zero-sum game during the greatest quarter century of constant and relentless "pie expansion" in Western history. I'm actually writing this in parts and somewhat in advance (due to an impending move, I can't be certain of 'net bandwidth), but I predict one thing that both disgusts and disheartens me: Too much effort, too much time, and too many column-inches will have been devoted to the recent death of another in a line of dubious evangelists who should be despised for oh-so-genteely and oh-so-deniably preaching exclusion of the Other (and too many who go much, much farther… regardless of the particular religion in question) than will be devoted to this anniversary of the death of a religious leader1 who did not stoop to dehumanizing those who didn't agree with him (or, at least during his lifetime, allow his close associates to do so). We can count on Sinclair Media — which is disproportionately present (not solely, just disproportionately) in so-called "Trump Country" — to continue its tradition of cloaked undermining that isn't quite hate speech or dog-whistling; after all, the local station in Chambanana did for the fortieth anniversary… and we'll get to see Sinclair's "must run" nonsense here on the west coast within the next hour or so (if it didn't run last hour). <SARCASM> It's not like Sinclair Media is headquartered in a former slave state (and very near a major slave marketplace) or anything like that. </SARCASM>


  1. Religious leaders do not cross the line to impropriety by advocating rights (unless, that is, they are rights founded solely in religious doctrine and inconsistent with other such doctrine, such as anti-abortion protesters who nonetheless endorse the death penalty). Dr King seldom made that kind of error… in distinct contrast to some of his successors, who have screwed up further by using their religious status as levers into policy positions and debates that have little, if anything, to do with rights. Although the Constitution prohibits any "religious test" for office, I would just as soon bar any active member of a religious hierarchy from political office (and vice versa) — if nothing else, the past few thousand years of history have demonstrated that's a volatile combination that inevitably paves a path toward bigotry. Such as many of the fifteenth- through seventeenth-century rationales put forth for enslaving Africans.

14 March 2018

RIP Dr Hawking

… whose contributions to astrophysics are too immense to be described in a short blawg post, and that leaves aside his contributions as a popularizer/communicator of science. And it was all possible due to nationalized healthcare — Hawking said so himself.

Dr Hawking would have been "uninsurable" under US standards after his diagnosis half a century ago. Even if he had been able to get "insurance," the cost would have been astronomical (and may well have blocked him from getting a job, because the law on employment disability for people with noncongenital medical conditions has black-hole-sized loopholes and complete loss of information); the exclusions for "experimental treatments" would have been devastating; and he would have had to spend half his waking hours with insurance forms and on interminable telephone holds.

It's not that nationalized healthcare caused his brilliance. It's that it was one of several necessary conditions for his brilliance to flourish.

So the next time you're worrying about how the US is falling behind in the sciences, think about Dr Hawking's career. In particular, consider that we do not and cannot know about US-based scientists — or artists or anyone else — who failed to achieve their potential because, well, "Coverage Denied."

A very bad way to begin Pi Day — the death of the Lucasian Professor of Mathematics.