30 January 2012

Monday Morning Link Sausage Platter

Audi's ad agency deserves yet more congratulations. The Godfatheresque Super Bowl commercial with the Mercedes grille of a couple years ago was good; this one lacks only a certain... sparkliness. It's one that Don Draper would have been (would be?) proud of.

  • One of the (many) problems with microeconomic theory is that its imprecision with language lends itself to broad statements that are ultimately self-contradictory. The concept of a "bubble," for example, leads to silly invocations of a "self-e-publishing bubble" set to burst, and leads otherwise-intelligent economists to proclaim that the rise of a purported lingua franca reduces the value of language study when, in fact, it does the opposite (both logically and historically).
  • As an example of the kind of analysis that is rejected by neoclassical microeconomic doctrine, consider this thought-provoking (if ultimately misleading) article on the Inquisition as the true ancestor of the modern police state. It's an interesting set of parallels, but examining the examples provided closely just reinforces the feeling that something is missing: Consideration of the scope of Hoffer's "true believer" in organizational dynamics (along with the ironic counterpart between Hoffer's method of exposition and the preceding link sausage).
  • Many artisans and artists have favorite tools, ranging from a master cabinetmaker's chisels to Harlan Ellison's manual typewriter to a violinist's Strad. But does it matter? The old line that "it's a poor craftsman who blames his tools" was obviously uttered by someone who had never been frustrated trying to do marquetry with an improperly beveled blade, or a pianist stuck with an improperly tuned piano. That said, there's a lot of interaction between the personal comfort level of particular tools and particular artisans...
  • The Center for Social Media at American University has released a new Code of Best Practices for Academic and Research Libraries, downloadable as a PDF from that page. This is another data point in the "quantum rivalrousness" debate over expression as protected property — not to mention a position that must be given some weight.

    Many theorists of economics and property focus on rivalrousness as a critical aspect of property — a particularly unfortunate term that has a meaning orthogonal to what it would otherwise imply. I suppose it's derived from some sense that true property allows no rivals for its exclusive use; the classic example is that one cannot simultaneously build a two-story townhouse and a one-flat-over-a-barber-shop building on the same plot of land, and neither can a butcher and a chef simultaneously use the same knife. This has obvious problems when applied to "intellectual property," because there can be multiple, simultaneous productions across the world of Hamlet; indeed, the annual Bloomsday readings of Joyce's classic are a snarling and ironic counterpoint themselves, particularly given the abusive practices of Joyce's heir(s). The CSM study is about "quantum rivalrousness" because the purpose of the uses to which it is devoted blends both the per-copy, potentially rival aspects of access to copies of scholarship-relevant works and the nonrival aspects of access to the ideas contained in those works... and simultaneously blurs the idea/expression "dichotomy" stated in Feist:

    It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

    This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed: "The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book." We reiterated this point in Harper & Row:

    [N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work — termed "expression" — that display the stamp of the author's originality.

    [C]opyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original — for example… facts, or materials in the public domain — as long as such use does not unfairly appropriate the author's original contributions.

    This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.

    Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–51 (1991) (internal citations omitted, ellipses in original, typography corrected).

    There is no universal answer to the multilevel inquiry that the Code attempts to resolve, because at some point idea and expression become inextricably intertwined. Just as one cannot forget all Newtonian mechanics when delving into quantum effects, one cannot forget that sometimes what seems to be a "fact" is the expression of that fact — such as the "three-fifths of all other persons" expression of the so-called Great Compromise, or Cordelia's inadequate attempts to express her divided loyalties in Lear ("exactly half"). And as the title of the Code itself implies, the best we can do is put forth "best practices," not a prescriptive "guide to avoiding liability" — if only because more often than we might admit, context is content (and vice versa).