Sunday Sausage Sale

I have lots of sausages on offer this morning, but from fewer batches. They're all kosher, USDA-inspected, and guaranteed not less than 50% Earthling.

• Scalzi (correctly) states the limits of the First Amendment on his blog. I leave to your judgment, though, whether it's Scalzi or the chattering m/classes who is/are out of line. Perhaps you should consider the following before making that decision:

  The cultural industry, vanity, the resentment felt by intellectuals at seeing power slipping from their hands, have so obscured the vision of Western writers as to make them believe that not being persecuted by the police is a privilege.

  Giovanni Grazzini, Solzhenitsyn. The key to understanding this, though, is remembering that it is not, indeed, a privilege: It is a right embedded in the First Amendment... against the government, not against everyone. Tyranny by the marketplace (for some value of "marketplace") is perfectly fine. I have to admit, though, that I'd like to know of some time and place in which intellectuals had power to slip through their hands.

  I suppose it beats being the FCC and "forces of decency" in the Third Circuit this past week. First, as I noted earlier this week, half a second of boob is not so indecent that a network should get a fine. Then, later this week, the COPA got similarly stripped bare. The forces of decency probably feel a lot like Sam the Eagle, but perhaps less salubrious.

• Last Sunday, I noted the jury verdict in the Bratz copyright suit (fifth bullet). Now, there's a motion for mistrial alleging racism in the jury room, which sort of deflects attention from questions of discriminating against smart people (as opposed to smartasses like my relatives in the legal profession).
• The relentlessly conservative National Law Journal has an interesting (if somewhat shortsighted) article on the next President's potential influence over Supreme Court appointments, and what that might mean for the Court. As is all too typical, though, the article ignores the influence of the lower courts, the insurance industry (particularly the insurance defense bar), and the political appointees and electees making up the various legal apparatus of the State in setting the agenda for the Supreme Court. It is in those deeply opaque realms, I suspect, that the real effect of this election will be felt. The lower courts, in the way they shape their opinions, have an unacknowledged controlling influence on the Supreme Court's decisions, thanks to the unexpected consequences of the advisory opinion doctrine. The insurance industry's continued policy of "millions for defense, but not one dime for tribute" and the politics of the federal and state attorneys-general will have a not-quite-as-detailed, but certainly immense, similar effect. No matter how "liberal" or "conservative" the membership of the Supreme Court, it only decides what the parties have placed in front of it.
• I'm afraid that this particular sausage is filled with indigestible lumps. Unusually, though, they're all rather fatty bits of striated muscle related to the same species: Homo publicanus nonsapiens.
  • Who shall we blame for poor book sales? How about the party who is not able to attend corporate meetings to defend him/herself: the author? Sadly, but for entirely different reasons, this is usually the (most) correct answer!
  • Although not technically from this species, one could make that distinction only through DNA analysis: the film industry and the publishing industry are more alike than they wish to acknowledge, the major distinction being size. Disintermediation via downloadable films is leading to a difference between what the industry thinks will be popular and what actually is.
  • Then there are two gristly bits of protectionism in this sausage: Hawley Smoot in Australia, contrasted with Indian copyright royalties for compulsory licenses. I have taken every opportunity in the last decade to advocate an end to "territorial rights," because I think territorial rights are to nobody's advantage in the long run (except, perhaps, the various domestic printing industries). In the long run, the simplicity of a single, worldwide payment system for world rights to a particular work in its language will outweigh any arbitrage opportunities that are not created through protectionist measures (or, conversely, through so-called compulsory licenses... which would not be an issue but for the protectionism). The problem, of course, is surviving the short run on the way to the long run.
  • As a funhouse mirror to protectionism, there's the issue of defining when a book is "out of print," which is now becoming a current issue in the UK (reflexive HT: Jay Lake) (which, unlike the US, has a semienforceable Minimum Basic Terms agreement). Again, for years I have advocated cutting through "availability" measures, which are technologically limited, to economic return measures, for determining when a work is out of print. That is, whether a work is "in print" should be determined by whether it is continuing to sell, not whether there are books or bits in some warehouse.

  You'll have to excuse me while I go to the powder room and deal with the consequences of trying to digest this sausage; I'd advise you to do the same.

• The last lumpy sausage (for today) is sort of a sideways "military byproduct" of yesterday's rant. The potential release of Rosenberg grand-jury testimony implicates a few other questions, but the obvious ones are far too abstract for a mere blawg. Instead, consider the classic-Russian-strategy-in-reverse being employed by the government in the Gitmo cases. In the classic version, Russia traded immense swaths of territory (and not a few peasants) for the time to organize its immense resources. Here, though, the political directors of the Gitmo efforts are trading human lives and dignity for the time to get the hell out of office in January 2009 without excessive damage to their careers... or potential war-crimes liability.

  Ironically, though, there is more than one way in which military trials and military commissions do a better job of protecting the accused than do civilian courts. That purported bastion of liberalism, the California Supreme Court, has just rejected unsworn defendants' statements — the defendant's opportunity to make a personal statement to the court after the presentation of all other evidence without being subject to cross-examination (although stated facts may be rebutted). Traditionally, this is where a guilty defendant may throw himself on the mercy of the court. In US military proceedings, though, one still has that right.

  The accused may make an unsworn statement and may not be cross-examined by the [prosecuting] counsel upon it or examined upon it by the court-martial. The prosecution may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both.

  United States Manual for Courts-Martial Rule 1001(c)(2)(C) (2008).