Sausage Links Ouroboros

... because they just go around in a circle until they end up where they started, biting their own tails. And if that's not a mixed-enough metaphor, just consider that they're sausages...

• In a particularly delicious bit of reflexive irony, Chris Anderson — one of the advocates of long-tail economics, and especially for creative works — has been accused of plagiarism by the Virginia Quarterly Review. The reflexive aspect comes into play when one makes the connection between Anderson's constant (if sometimes hidden) advocacy of "street cred" as a substitute for economic compensation for creators and the alleged source of the alleged plagiarism: Wikipedia. There have been various claims that it's a careless error rather than malicious... but motivation is not really that relevant to my particular point.

  The real problem with the long-tail theory is that it is mathematically ignorant. Business and economics do not take place in Lake Woebegone: Not all of the children are above average. Similarly, only a small proportion of creators are going to be otherwise self-sufficient and blessed with enough "leisure time" that they're willing to devote to creating distributable works of art that they can afford to offer those works for free (or to a small, rabid, self-selective fan base with inelastic brand loyalty). That's going to result in "art" coming from three groups of people: The idle rich (and/or tenured faculty), prisoners, and drones with patronage. Welcome back to the Italian Renaissance, guys... and remember that everything you know about its arts comes from what actually survived, not what wasn't created/distributed, and that they had this little thing called an Inquisition...

• Now that Buffy has staked Edward, maybe she should head back to California and stake a bigger vampire: Google. After all, there's only one letter different between "Sunnydale" and "Sunnyvale"... and they mean the same thing. Of course, the irony of that particular suggestion coming from the WSJ suggests that maybe someone has stopped all garlic deliveries to NewsCorp!
• One of the best possible reasons to object to the Google Book Search settlement is this inept, incredibly obtuse statement supporting the proposed settlement from the President of the Authors' Guild. He begins by misstating what a "copyright orphan" is (PDF), then proceeds to ignore the underlying economics of orphan works (PDF), the issues relating to transformative works and the parody/satire distinction, and finally winds up eliding both the marketplace problems from the authors' perspectives (rather ironic for a purported representative of authors) and the legal and ethical problems raised by the opt-out structure of the settlement.

  Ultimately, the problem — as I've pointed out repeatedly before — comes from a very simple failing: The Authors' Guild is not an adequate representative of the range of interests presented in this litigation. Mr Blount and the Authors' Guild represent a relatively small subset of the author "community" (which is a "community" in the same way that all of the cats in Manhattan form a "community"), and that subset has interests in inherent conflict with much, and probably most, of the rest of the community.

• The Supreme Court was busy again this morning, releasing four of the remaining seven argued cases; Chief Justice Roberts indicated that the last three will be released on Monday and that the Term will end then. Mob rule will then be safe until Monday, 05 October 2009, when we'll (hopefully) have nine justices on the bench if the Senate gets off its collective butt and votes on confirmation.

  The theme of today was "When is something so excrutiatingly clear that even we can't find a way to fuck with it?" Ironically, that clarity came in a set of 5–4 decisions, indicating that nothing was really that clear in the first place.

  • Eight justices agreed that strip-searching a thirteen-year-old girl on the unsupported word of another girl looking for drugs was unconstitutional (PDF); however, five of the justices held that it wasn't so obviously unconstitutional that the school principal who ordered the search should be liable for damages, even after failing to find anything during the constitutional search of the girl's backpack and outer clothing. The majority's reasoning turned on some confusion in the Courts of Appeals on just how far one can go in ordering searches at schools. This particular decision is probably good news for John Yoo, but going into why might take too long; the key point is that the majority appears to believe that potential confusion arising from a post hoc review in the comfort of judicial chambers, years after the incident, is an adequate proxy for whether someone who deals with the issue every day might be equally confused.
  • A different set of five justices held that a criminal defendant is entitled to cross-examine the lab tech who filed a report on chemical analysis; the prosecution can't just enter the report and be done with it (PDF). What is most interesting about the dissent — Alito, Breyer, Kennedy, and Roberts — is that the reasoning betrays no understanding that lab technique matters in obtaining verifiable results... let alone interpreting lab results. I hereby renew my call for a scientist on the Court!
  • A still different set of five justices held that a maritime statute that does not explicitly reject common-law rights does not cut off those common-law rights — in particular, the right to sue for punitive damages (PDF)for refusing to pay for medical care for an injured seaman continues to exist. This may not sound that significant, and it may turn out to be restricted... but it's one of the few blanket reaffirmances of the right to sue for punitive damages that the Court has issued in the last couple of decades. Most of the time, as soon as the phrase "punitive damages" has appeared somewhere in the syllabus, it has been followed by a restriction on punitive damages.
  • Finally for today, yet another different set of five justices held that Fed. R. Civ. P. 60(b)(5) requires a stringent, searching review of the basis for a prior judgment (PDF)when challenged by a state government. Following my usual pre-reading reaction, since Justice Kennedy is in a 5–4 majority on a civil procedure issue I had my doubts... which, unfortunately, were confirmed at pages 14–20 of Justice Alito's majority opinion.