16 January 2012


Please judge these internet link sausages by the content of their recipes and not the origin of their casings...

  • There's an interesting piece in yesterday's Observer/Grauniad that discusses some of the prices of the UK's libel law... not surprisingly, in a very cursory and opinionated matter, since there's no question at all that something published in the Grauniad would be subject to jurisdiction in the London courts (and it wouldn't even require libel tourism to sue!).

    In Britain, money buys silence. The cost of libel actions in England and Wales is 140 times higher than the European average. If you lose a case, lawyers operating on a no-win, no-fee contract force you to pay damages, your costs, your assailant's costs, a "success fee" for the victorious lawyers– which doubles their real costs – and a payment to cover insurance bills. In 2010, Lord Justice Jackson added these together and estimated that the costs of civil litigation in England could amount to 10 times the damages the court awarded.

    Nick Cohen, "You Can't Read This Book" (book extract). The obvious counterargument is that this is no more than the scandalous liar deserves. Even assuming that to be true, though, the peculiar British institution of requiring the defendant speaker to prove the truth of what he said (instead of, as in the US and arguably as required by the Universal Declaration of Human Rights, the plaintiff subject to prove the falsity of what the defendant said) only magnifies the problem... and hides the problem of determining who, exactly, is the liar.

  • Which, in turn, leads to SauronRupert Murdoch's twitter complaint that President Obama's (well-considered) rejection of SOPA means that President Obama is merely following the directions of his tech-industry "paymasters" in declaring that he will not elevate antipiracy efforts above the First Amendment. Sauron has apparently forgotten that his "fortune" depends almost entirely for its base on the First Amendment, not to mention the right to hack celebrities' and crime victims' phones because he thinks the public will pay to know the results. Pot, meet kettle...
  • As a strange aside, consider the way that many libraries and video rental outlets (stores and online) attempt to subdivide entertainment films by some notion of genre or type. I suppose it's easy enough to say "musical," or "animated feature"... but sometimes, as at the library across town, things get a little bit surreal. Does Atlas Shrugged (Part I) really belong in "Action/Adventure Films"? And then there are tougher calls, like whether Dr Strangelove belongs in comedy, drama, or military action/adventure.
  • Across the Pond (returning again to the Grauniad), there are two contrasting items on how academic publishers are betraying both the public and their authors and a proposal, or perhaps just question, concerning whether declining advances offered to authors would justify a tax subsidy for authors. What both issues demonstrate is a fundamental problem with the economics of scale and distribution of written expression — a problem that was not well understood in the eighteenth century when the IP Clause was worded the way that it is. The short explanation is that the distribution system extracts rents from its control of time and its superior original capital position, and that those rents are imposed both monopolistically (on the public, as exemplified by the high prices for academic publications) and monopsonistically (on the suppliers/writers, as exemplified by the declining — or, in the case of academic authors, even increasingly negative! — compensation for authors spread out over an increasing period of time). That is, one must question the validity of the existing business model(s).

    Yes, this does relate directly to each of the three preceding link sausages on this platter. Each of them concerns an improper, self-interested classification that is imposed upon an entire antitrust market by coordinated interests that dominate a significant subsegment of that antitrust market — and thereby manage to extract rents from not just that subsegment, but from the entire antitrust market. If one accepts the theory behind the Rule of Reason, the HHI Index, and non-Schumpeterian modern antitrust doctrine, that shouldn't happen. That it does, in fact, happen (NewsCorp's very existence is proof) indicates that modern antitrust economics, at least as it relates to intellectual property, undervalues the endowment effect of intellectual property and underestimates the situational elasticity of the Coase Theorem, among other issues. In short, it's bad, ideologically driven economic theory that is not satisfactorily congruent with real human behavior, if only because economics and ideology are inherently valid for large systems and considerations in the arts and innovation are inherently valid for small systems... but both have much-greater than predicted by analogy to quantum mechanics echoes in the other.

  • Then there's the question of what economists would probably (if they thought about it at all, that is) label "second-order creative efforts" or something like that. Professor Pasquale calls it the remix culture, but what it really does is act as a snarling refutation of the dominant economic meme: That the profit motive is not only a necessary explanation for human activity, but a sufficient one.
  • Along the same lines, this blawg's only feline friend the IPKat notes two recent European studies on parasitic copying that, unfortunately, restrict themselves far too much by limiting what is being examined as copying, but nonetheless invite application to areas outside the scope of the studies.

Last for today, I want to comment on a successor to Dr King's concern about skin color. I am not implying that that battle is over, or even necessarily won; there are several towns in this county where one risks being pulled over for driving while melaninically enhanced. Instead, there's a move toward proxies, like religion, that are (in employment-law terms) of disparate impact rather than intentionally and universally discriminatory.

The case of Jessica Ahlquist is an excellent example, unfortunately. It also points out the defects in the Supreme Court's decision in Santa Fe School District, which did not go nearly far enough in rejecting prayer as a formal part of school athletic events. The obvious question is whether the sauce for the goose is also sauce for the gander. If one actually reads the attacks on Jessica Ahlquist, one sees a lot of accusations that she's not thinking for herself — that this is actually her parents using her as a proxy. Perhaps; but if that's valid, why not apply the same inquiry to the schools in Santa Fe that essentially directed a protestant, evangelical point of view as the only acceptable basis for that school-sponsored prayer/address?

Then there's the proxy issue for race and ethnicity. Take a look at that photograph of Ms Ahlquist that's on Ms McCreight's blog, linked above. It doesn't look very stereotypically Scandanavian, does it? Is there perhaps — just perhaps — some mixed ethnicity in Ms Ahlquist's background? And how, one might ask, does that compare to the much-more-homogeneous-than-average demographics of Cranston, Rhode Island (about 1.6σ off the US mean, and somewhere around 1σ off the Rhode Island mean, so far as I can determine quickly)? Disturbingly, I run across this all too often here in East Central Redneckistan, and ran across it all too often in the military worldwide and in dealing with legal and publishing issues.

If I were definitively judging Ms Ahlquist by the apparent content of her character — and I'm not; no sixteen-year-old girl deserves that, any more than sixteen-year-old girls acting as a clique as they so often do should be judging the worth of anyone else — I'd be a lot more impressed by her than I am by the Cranston community at large... assuming, of course, that the attacks on her Ms McCreight refers to were not largely made by carpetbaggers. (Yes, that inversion of the Southern Complaint during Reconstruction is intentional.) Not to mention that, at a fundamental level, she's right: It is discriminatory, and inappropriate, for an archly christian (and subliminally protestant) prayer to appear on the wall of a public high school in any context, let alone in isolation. It's wrong constitutionally under Santa Fe School District and Lemon and Larson and more other lines of precendent than I can name conveniently, let alone under any fair reading of the First Amendment itself; it's wrong fundamentally; it's wrong ethically; ... and it's wrong as a matter of religious doctrine, at least if one actually reads the later epistles. Most importantly for a day celebrating Dr King, it's wrong demographically as implicitly excluding all non-christians (and implicitly criticizing catholics).

Dr King's dream was not of contemporary Iran, nor of 1960s Belfast, nor of 1620s Germany. That does not mean, however, that it is anything less than the minimum aspiration required both by the constitution and basic human decency.