17 June 2008

A Mass of Miscellany

Rather a large crop of miscellany, first, then an expansion on yesterday's note.

  • The ill-advised Canadian copyright bill — as is usual for initial drafts of intellectual property legislation — reflects the phenomenon of "agency capture" all too well. Agency capture results when the agency that is doing regulating has its process captured by those whom it will regulate; for example, if the securities industry were to coopt the process of the Securities Exchange Commission, that would be (and, sadly, is) agency capture. In a parliamentary system like Canada's, the first draft of legislation almost always reflects agency capture, because that's just how bills get introduced. That is not to say that one should not worry about the Chapter 12-like anticircumvention provisions... just that they are to be expected.

    Almost slipping in under the radar, one finds further disputes over photographs of art as copyright infringements. Sadly, this dispute is one of the many collateral consequences of keeping copyright matters in the geographic circuits: There is no national law on this issue. This is sort of the converse of the Bridgeman issue (whether a photograph that merely reproduces two-dimensional art is original enough to have copyright protection). Unfortunately, if there is one area of copyright law in which an outside observer would mostly likely exclaim "WTF?" about the Second Circuit, it is treatment of photography... so I don't expect this story to have a happy ending for anyone (except, maybe, the lawyers).

  • I'm really pissed off at the Veterans' Administration for this one: It has spewed forth policy and regulations prohibiting voter registration on VA facility property. This is bullshit. As Phil Carter notes, this is a right veterans fought for, and we disserve veterans the most by neglecting it. The substandard and difficult-to-obtain care isn't enough of an insult from politicians acting dumb, I guess.

    Of course, if we really wanted to honor veterans' sacrifices, we'd move Veterans' Day to fall on Election Day and party like it was the Fourth of July.

  • There's often something to admire in one's enemies, even if only their certainty. Consider, then, the ultimate terrorist: Milton's Satan, and ask whether he's really all that bad (if, that is, you survive the speeches before breakfast). Maybe we can get him to wipe away some of our less-worthy institutions, though, just as some fear/hope the generational shift to Gen Y in the workforce might do. Of course, I heard this about Generation X, too, and I haven't seen that much change... but I'm a boomer, myself. I suspect it'll have just as much success as the "paperless office."
  • Speaking of paperless, here's a plethora of publishing piccadillos. Is Amazon verging on antitrust? Might it be taking the place of publishers? In one sense, these stories have nothing whatsoever to do with each other; in another, they are inextricably intertwined, and perhaps merely aspects of the same metanarrative. It will be fascinating, over the next three or four years, to see just how this plays out.

    But that's almost nothing compared to questions of authorship raised by the WGA credit system or ghostwritten celebrity books. Who really is the author? Well, you'll just have to wait for me to finish that long-in-process article to find out what I really think; you could spend the interim becoming a literary character. I didn't think Shrubbo had even read Candide, but he certainly seems to have adopted one of the characters...

  • Once upon a time, the telegraph changed the way English (and, for that matter, all Roman-alphabet languages) was written. On the whole, it was a change for the better: Fewer dependent and subordinate clauses. (Note the irony of the preceding sentence structure.) It was sufficiently different that cryptographers constructed different frequency tables and analytical tools for dealing with telegraphic English, as opposed to ordinary written English! Now some believe that texting will lead to the end of the sentence. I think not; it is more likely that the terseness encouraged in texting will merely continue the trend toward ever-shorter sentences, a development that I (as a German speaker) abhor. Technology will certainly have its effect on language usage per se, but its process is at least largely predictable... and if it does away with silent letters, all the better. Technology is also changing book design, not to mention the editorial process; it's amusing to find so many periodicals still demanding submissions in monospaced fonts that make the editing needlessly difficult, but that's a rant for another time. And space... leading to the question of whether the 6x9 trade edition may itself be on the way out...
  • And last on the miscellany list, it appears that music majors have decent success at putting their degrees to work (what do you think, Professor Patry? ;-) ). Better, I suppose, than English majors...

And now for something completely the same. One of the problems with making a general comment on a legal opinion, as I did yesterday concerning Justice Scalia's ill-founded dissent in Boumediene, is that one must then go into excrutiating detail later to correct misunderstandings. It's pretty clear that I relied too much on shorthand and assumptions about what people might say.

My perspective yesterday was this: Assume arguendo that we were dealing not with a specific-power issue (as in the suspension of habeas), but a "simple" civil rights statute. Assume further that the civil right in question was merely a civil right, and not a fundamental right. That puts us into the "rational basis" standard of review; that is, the government wins the argument if it has any rational basis — even one not expressed in the legislative and/or executive history — for its act, policy, legislation, whatever. However, a mere articulable fear, without more, is one of the few bases that does not pass rational basis scrutiny, so I tried to see if Justice Scalia's stated justification (which is merely a more-elegant condensation of the bloviation actually offered in support of both the executive policy and the resulting legislation) was more than a mere articulable fear. Unfortunately for that fear, I was unable to find a historical basis for it... meaning that it was not rational. And, therefore, under even the most deferential standard of review, the CSRT system fails. Further, since habeas is, in fact, a fundamental right — it is guaranteed not in the Bill of Rights, but in the core of the constitution itself — demonstrating that the legislation fails the most deferential test possible also evades the angels-on-the-head-of-a-pin arguments over the value and applicability of the (incredibly weak) precedent offered in support of the CSRT system as a de facto replacement for habeas.