07 October 2010

The Variety Link Sausage Platter

£7.99 at Sainsbury's.

  • Congratulations to Mario Vargas Llosa for the Nobel Prize for Literature. Here's a list of winners since 1960 for your dubious amusement... and it's as interesting as much for who does not appear on it as for who does, and more particularly for the virulent anti-Americanism (and more subtle anti-English-language bias) apparent from the list. That's not to say that there isn't a lot of worthy literature from outside the English-speaking world; it is only to say that some of the omissions, particularly compared to the archly political grounds for including some of the winners, make this a less-than-reliable reflection of greatness in contemporary world literature. IMNSHO, Mr Llosa is (in translation, anyway) a worthy winner; but...
  • A purported 99% draft of the Anti-Counterfeiting Trade Agreement has been released. The actual text (PDF) required a few days to authenticate (given the widespread hand-wringing over the not-quite-as-current-as-it-said-it-was "draft" a few weeks back), but looks administratively workable. Whether it will work in substance is a different, and more difficult, question... and whether it's a good idea is yet murkier.

    The key point is this: If approved, ACTA will dissolve some of the protection pirates — and particularly internet pirates — have by operating from certain currently noncoooperative countries. Contrary to posturing on both sides, it will neither make internet piracy impossible nor will it destroy fair use ("fair dealing" in the rest of the world) on the internet. The critical language is, as usual, buried away from the aspirational language used to sell it:

    Article 2.3

    1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be destroyed, except in exceptional circumstances, without compensation of any sort.

    2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of such goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.

    3. The remedies under this article may be carried out at the expense of the infringer.

    The danger here is obvious: If a server that hosts Novaya Pravda, or another antigovernment publication — even as a mirror site — ever hosts a single infringing MP3, the entire server can be seized. If that sounds a lot like the Russian government's seizure of human rights organization computers that allegedly had infringing copies of Windows, it should. The concept of bad guys hiding among dissidents and civilians isn't limited to copyright infringement; it's a centuries-old problem in the law of armed conflict. How are we doing there, anyway?

    All of the posturing about ACTA, though, is about supply-side interdiction, just like in the "war on drugs." Nobody is paying attention to demand-side interdiction. As usual, though, it's the unstated implications of the link within that piece from PW that are most interesting: They go to a firm whose business is selling DRM. And that, given the anticircumvision provisions built into the draft of ACTA (currently Article 2.18.5, and even more flawed than is Chapter 12 of the US Copyright Act), is an uncomfortable coincidence.

  • So, failure to extend tax cuts for the "rich" will destroy small business? Even the pro-tax-cut-for-the-rich Economist says that's BS.
  • Then there's the question of killing off a different industry: the so-called "publishing industry." Some commentators are finally starting to accept that e-books won't kill publishing per se, but may force it to change... and to accept failure as the price of success. The irony of that last coming from Elsevier, though, is more than I could let pass without snark: It has been — for decades — notorious for using errors that are "too big" as an excuse to let risktakers below the top management level "find opportunities elsewhere in publishing," particularly for the educational subunit.
  • Actually, I think this typo has it right: It's not the software platform, stupid, it's the content (or lack thereof).
  • Yesterday, the Supreme Court heard arguments in one of those defend-the-Nazis cases: Snyder v. Phelps, which concerns a family member's lawsuit against some true nutcase religious fundamentalists who picketed a dead soldier's funeral with hate-speech placards not factually related to the dead soldier. At PrawfsBlawg, there's an interesting take, and comments thereon, predicting a remand for a retrial under narrower rules; I'm afraid, though, that the analysis misses two critical First Amendment issues that were also elided in the oral argument yesterday.

    First, there's the "clause interference" problem: Does the fact the Phelps uses the Westboro Baptist Church — thereby clothing his particular brand of odious bigotry in "exercise of religion" — change the analysis under the Expression Clause? I would argue not, but everyone is eager to avoid this issue entirely; on the other hand, I think it an issue that must be confronted, particularly given our condemnation for South African apartheid in the recent past when it was mandated by one of the ruling class's dominant religious sects. The Court has an opportunity here to make the various clauses and rights in the First Amendment fully independent by noting that the free speech aspects of whatever it decides have nothing whatsoever to do with the religious character (or not) of the speech. Consider, for example, whether we would accept — as valid religious speech that must be protected — the picketing of (and encouragement of violence against, in ever-so-polite language) a human rights center that opposed female circumcision, on the alleged ground that the Bible "says" that women are inferior and must submit to men.

    Second, I think the character of the forum provides an adequate ground for the Court to avoid ruling at all, if it chooses to do so... but the various advocates have avoided the issue entirely. My position is that a funeral is an almost-unlimited-purpose public forum, and therefore has the broadest possible First Amendment protection for expression. That many funerals are also prescribed religious ceremonies only reinforces this conclusion. The First Amendment does not enforce good taste — rather the opposite. So, in this instance, I would have barred the lawsuit on much different grounds: That it concerns speech at a public forum that at least on its face concerns a matter of public interest, and therefore any recasting of that speech to make it "personal" (and therefore actionable as "intentional infliction of emotional distress") is merely post hoc irrationality.

    So, much as I despise Phelps et al. — and I say this as a veteran and commanding officer who has buried casualties — he gets a free pass on this one. Or, at least, he should... because the consequences of not allowing him to state his message of self-aggrandizing hatred in that context are worse.