22 June 2011

The Cloud Gets in My Eyes

I got tied up yesterday, so things got delayed.

  • A NYT music critic admits to being a "special needs" person (his words) in a piece on migrating music to the cloud that has more at the margins than I think the critic realizes.

    The obvious problem is with artistic integrity. This is already a minor problem with random-play systems; for example, the Moody Blues' "Timothy Leary" means something completely different — both musically and thematically — when separated from the surrounding "House of Four Doors" pieces on A Question of Balance. Similarly, the three preceding movements of Beethoven's last completed symphony form a musical (and, at times, thematic-echo) prelude to the fourth movement and its chorale from Schiller's "Ode to Joy," and it's difficult to imagine even trying to listen to just part of Keith Jarrett's Köln Concert. (The less said about opera, the better...) There is already far too great a tendency for music listening habits to focus on "greatest hits"; whether it's about attention spans or something else, putting one's "library" into a single, cross-indexed bitbucket online, without regard for context, has its dangers.

    The secondary problem is one of privacy. If it's in the cloud, it's accessible to others (regardless of any touted security mechanisms)... both in terms of what is in the collection and the listening habits within it. It's not just fear of Big Brother that makes this of concern; imagine, for a moment, the glee (or Glee) when a jury consultant in an organized-crime trial discovers that one prospective juror listens to gangsta rap about a third of the time!

  • So Bristol Palin has published a memoir — undoubtedly a self-serving piece of nearly incoherent garbage that has what little coherence it can claim only through the efforts of a ghostwriter. Does anyone really need any more epidemiological1 evidence for the validity of Rawls's concept of the original position as a foundation of justice? After all, but for an accident of birth, virtually nobody outside of a suburb in Alaska would know who Bristol Palin is, let alone care!
  • Some experts just aren't expert enough, I suppose. Leaving aside my significant and longterm disagreements with David Nimmer on copyright law and its meaning — not to mention the impropriety of presenting a legal argument as an "expert declaration" — he's not an expert on everything related to copyright. Nobody is. In particular, as both the Central District of California and Ninth Circuit have recently recognized, he is not an expert on the literary analysis necessary to determine whether two works are extrinsically substantially similar. Gable v. Nat'l Bdcast Co., Inc., 727 F. Supp.2d 815, 832–37 (C.D. Cal. 2010), aff'd, No. 10–55420 at 4 (9th Cir. 16 Jun 2011, mem. op.) (PDF).

    Or, to put it both more sarcastically and more succinctly: Lawyers, given their poor skills with writing, are certainly not experts on whether two specific pieces of written work are artistically similar; they are, at best, lay witnesses to that question of fact, and their opinions on that question carry no more weight than that of any other marginally literate adult, absent a particular lawyer's qualifications in literary analysis (as distinct from, and usually opposed to, law).

  • Last for today, and far from least, here's a rather bloated link sausage on the limits of copyright; the limits of noncopyright; institutional arrogance; and the interface between writing and the real world.

    In a long-awaited opinion, the Second Circuit decided on Monday that certain parts of the "hot news" doctrine are preempted by the Copyright Act... and nonetheless failed to ground its opinion in the correct part of copyright doctrine, but instead continued its institutional arrogance of citing to a dubious line of its own opinions that does its best to pretend that there is no Supreme Court of the United States. In Barclays Capital Inc. v. Theflyonthewall.com, Inc., No. [20]10–1372 (2d Cir. 20 Jun 2011) (PDF), the Second Circuit determined that New York state law's "hot news" doctrine — which has steadily worked its way into federal law as an equitable sideshow in copyright law — does not allow an investment bank to sue a "news aggregator" who reports the fact that a bank has made a specific investment recommendation for violating the bank's copyright in the fact of that recommendation as "hot news." In an 88-page disquisition that includes an outraged dissent, the Second Circuit almost entirely relies upon a line of cases regarding the "hot news" exception, most prominently National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).

    There's just one tiny problem with the reasoning of the Court and of the dissent: The continued reliance on Second Circuit law that was arguably overturned — or at least severely questioned — by either, or both, of the Copyright Act of 1976 and Feist Publications, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340 (1991). In particular, Feist explicitly rejects the "sweat of the brow" theory of ownership of factual information, and implicitly rejects state-law causes of action based on "sweat of the brow" for discovery and statement of facts as preempted by the Copyright Act. And that is all that was needed to decide Fly on the Wall II. Instead, the institutional arrogance of the Second Circuit led it to rely on its own convoluted reasoning.

    Of course, there remains a big distinction between these two possibilities:

    Barclays downgraded its recommendation for International Widgets this morning...


    Barclays downgraded its recommendation for International Widgets this morning, citing significant increases in accounts receivable from the Greek government. According to the lead analyst, "..."

    However, the defendant conceded that the second one — which extensively quotes copyrightable expression, or is at minimum a derivative work based upon copyrightable expression of the analysis — is a copyright infringement. The Second Circuit should have stuck to Feist as the sole necessary ground for decision.

    Also on Monday, I noted a decision from the Third Circuit on the copyright-law consequences of removing a credit from a photograph. This leads to the intermediate case that we really want to understand:

    Does citing the fact of "hot news" without attribution of the source violate § 1202 of the Copyright Act?

    OK, maybe "we" is a bit excessive unless it is limited to intellectual property nerds like me. Nonetheless, it is an important question for writers, and particularly for newsletter writers (especially those who are a little bit too attached to their scribblings). There's a big difference between "is not a good practice" and "unlawful"; however, following good practices — that is, properly attributing sources — avoids the question in a good way.

  1. Yes, I know the difference between "empirical" and "epidemiological" evidence. Too bad most proponents of so-called "empirical legal studies" don't... and thereby undermine their statistical analyses and evidence gathering. Sometimes having a background in laboratory technique and experimental design can be useful when there are no test tubes or Ehrenmeyer flasks in sight.