- The day of the New Hampshire "primary," the manufacturer (miner?) of Twinkies and other wholesome snacks declares bankruptcy. Coincidence? I think not...
- The fallout from excessive copyright terms is tone-deaf, otherwise-disinherited nephews determining what's on Broadway (besides jazz hands). The problem here is that the Copyright Act overrides wills in two respects: revocation/termination rights (§ 304(c), § 203) and renewal rights (§ 304(a)(1)(C)) descend according to legal directive, not what is in the will or other succession-of-interest plan (such as a trust). I understand why Congress wanted to do this — it was a reaction to the combination of overreaching by publishers (primarily music publishers) in the 1940s and 1950s and the indeterminacy of what happens to renewal rights if the publisher takes the whole copyright — as was required under the 1909 Act, even if fleeting — and then goes out of business without returning the copyright to the creator (even if that was the intent, and was reflected in the publishing contract that way). That Congress still got it egregiously wrong shouldn't surprise anyone, though... because in the mid-1970s, it wasn't just Nimmer-worship; it was worship of the first edition of Nimmer.
- In 2011, paid digital downloads of music (by some measures) exceeded CD sales. Leaving aside the reliability (or not) of the data and conclusions, it points to an interesting psychological and marketing issue: Redefinition of what is "the Work" in which the public is interested. This is perhaps most obvious in classical music; few people, after all, download just the second movement of Beethoven's Ninth Symphony. The almost-iconic status of the Fourth Movement (with the "Ode to Joy") is truly exceptional in classical music; instead, the Work is the Ninth Symphony as a whole, which (until relatively recently) required not just a whole CD, but two vinyl discs. Conversely, in "popular" music, since the late 1970s the integrated (or "concept") album has gone out of style. People just don't refer to The White Album's marketplace successors as the Work any more. In turn, that makes the relatively small, discrete subunits of popular music that are collected together on a single CD each individual Works under the measures of the marketplace... and this is particularly so for albums coming out of the Nashville-based labels, because album construction is even more marketing-dork dominated in that subset than elsewhere (where it's still endemic).
Implications of this shift as they concern electronic, and even printed, works of fiction are left as an exercise for the increasingly frustrated reader.
- Jig the Goblin's sugar daddy poses for fantasy covers. Your eyes will not thank me, but the manufacturers of BrainBleach™ will. It also reminds me of a client's dismay at having a tramp stamp thrown onto her protagonist without any prior notice; the perceptive may have noted that since then, in that bestselling series, the protagonist has been posed so that any hypothetical tramp stamp would not be visible...
I'm going to close today with something that is not a sausage; consider this the real meat of the meal. The United States Court of Appeals for the Tenth Circuit yesterday upheld an injunction granted against Oklahoma's voter-approved "anti-Sharia" referendum, remarking near the end:
Appellants argue that the preliminary injunction interferes with Oklahomans' fundamental right to vote, prevents enactment of the voters' will, and "discourages the voters from participating in the election process."
Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that "'it is always in the public interest to prevent the violation of a party’s constitutional rights.'" "While the public has an interest in the will of the voters being carried out … the public has a more profound and long-term interest in upholding an individual's constitutional rights." [S]ee also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting "[t]he strong public interest in protecting First Amendment values").
Awad v. Ziriax, No. 2010–06273 (10th Cir. 10 Jan 2012), slip op. at 36 (PDF) (ellipses in original, some internal citations omitted).
Leaving aside that, from a policy perspective — indeed, from many policy perspectives — this is the correct outcome, it also points out the real difference between a representative democracy founded on the rule of law and pure populist direct democracy: In the former, there are limits on what the body politic is allowed to do to subsets of the body politic (however vague and inconsistent); in the latter, there are not. That, however, is just the starter course, because the actual meat (I'm not sure whether it's a roast, a stew, or a steak) comes from the Supreme Court's hearings yesterday on the FCC's ban on so-called 'fleeting indecent speech' (and, specifically, the seven words you can't say on radio/television). I have a challenge for the majority in Citizens United, and for those who support the concept that "money is [political] speech:" Make a principled distinction that justifies treating money not as a mere enabler of speech, but of actual speech that necessarily invokes First Amendment protection... that simultaneously justifies treating so-called "four-letter words" and depictions of "naughty bits" as nonspeech that is outside the scope of First Amendment protection while not overturning Cohen v. California, 403 U.S. 15 (1971), which held that a student protestor could wear a jacket proclaiming "Fuck the Draft" without unlawfully denigrating the dignity of a court.
In short, I challenge the Supreme Court to demonstrate in a principled way that even though money is speech, broadcasting the word "fuck" is not. "Because a bunch of white guys in black dresses said so" is not a principled way!