29 March 2012

For Me, But Not for Thee

  • And so now, the Supreme Court oral arguments over Obamacare are over, and there's nothing to do but wait for the opinions. The arguments demonstrate, if nothing else, two severe flaws in our political system as it has evolved from that wonderful (if flawed) eighteenth-century document.

    First, one must remember that not everything that is stupid, or unwise, or dangerous, is "unconstitutional." Opponents of Obamacare have been too fond of, and too quick to pull the trigger on, that label. There are aspects of Obamacare that seem to at least raise some constitutional questions... but the vast majority of the statute (even, and perhaps especially, under the views actually expressed in McCulloch v. Maryland, 17 U.S. 159 (1819), and understood in their context) doesn't even come close to a constitutional issue.

    Second, one must also remember that any purported "unconstitutionality" was forced upon the statute not by its drafters or advocates, but by a combination of ineptness and sabotage by its opponents. It would have been incredibly simple to adopt The West Wing's proposed solution: Drop the age requirement from the Medicare statute. Politically — or, more accurately, partisanly — that was not just impossible, but inconceivable (and I do know what that word means, and it does mean what I think it does). What this really exposes, more than anything else, is that the concept of "nationalized healthcare" does not raise substantial constitutional issues — it is, instead, about the mechanisms chosen by Congress. And if that sounds like a faint echo of "necessary and proper," it should. It's an echo across the Grand Canyon of partisan politics, distorted by a two-century delay from the Bank of the United States... but, nonetheless, it is a discernable echo, and one that is perhaps amplified by the Fourteenth Amendment's Equal Protection Clause.

    Nonetheless, the health-care debates really come down to mechanism versus intent. There is some constitutional implication in that debate, but far less than the media (which hasn't read my children's book) understands. And for those of you who distrust the government and think it should be entirely a matter of private industry, I ask you this: Who actually owns/controls those private "insurers" (functionally, risk pool aggregators) you're so eager to leave in control? Are they even Americans, let alone private citizens? (Yeah, I can play that game too, when it suits me — I spent plenty of time inside the Beltway.)

  • In today's episode of Mystery Security Theater 2012, we'll ignore the sheer ignorance of antiterrorist efforts at US airports that leave the six major holes in air-travel security entirely untouched and focus on screening — not to mention annoying — passengers, who are not related to any of those six major holes. And if any internationally recognized security experts are invited to testify before Congress and directly confront the head of the Terminally Silly and Annoying Transportation "Safety" Administration (which, one might add, does not have direct authority over three of those six major holes in security), we'll just let the TSA pressure the Congressional committee into disinviting said expert to avoid any embarrassment (not to mention potential threat to the TSA budget).
  • A scientist rather belatedly questions the relationship between paper and electronic copies without going nearly far enough... or just setting his/her PDF reader for side-by-side view. OK, that was perhaps a bit too snide, but there's actually a far-better solution (are you listening, SCOTUS?): PDFs should be distributed at their actual physical page size, not centered (or whatever) on a standard-letter-sized page. Not only is that more internationally friendly — since standard letter size means 8½"x11½" in the US, but the slightly different 210mmx297mm A4 everywhere else under ISO 269 — but it allows one to just set one's printer for "centered, actual size" and come up with a clean printout on standard letter-sized paper. Since "centered, actual size" is the default orientation for Windows printer drivers (it's even in the definition)...

    Meanwhile, a drone/shill at the thoroughly evil Elsevier — one of the small oligopoly with a stranglehold on scientific publishing — tries to defend copyright in scientific journal articles without acknowledging the black hole in the room. Granting everything stated in that misleading little screed arguendo, it does not provide any justification of any kind whatsoever for irrevocably transferring that copyright from the actual author to the publisher. Indeed, a source-obscured (which is to say single-blind) reading of the article more fully supports retention of the copyright by the author, because only the author is actually in a position to determine what is/might be a nonliteral infringement. Instead, Mr Tempest assumes a rather Cartesian universe from his Prospero-like perspective: "I publish, therefore I own." Extension of this attitude to the trade publishing industries is not left as an exercise for the student — it's so bloody obvious that I'm embarrassed that I have to be even this specific.

  • Over in the world of patent law, a guest post on patent trolls and grasshoppers is readable on its own. It also has some really, really disturbing implications for their copyright equivalents... and, conversely, for fan fiction and derivative works generally. In particular, Mr Mallinson's comments expose the intellectual and doctrinal void at the center of attempts to limit the reach of the "parody" form of fair use by redefining what constitutes a "parody." Compare, e.g., Dr. Seuss Enters., LP, v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997) (applying a twisted version of the "target of the parody" doctrine and ruling a literary parody nonparodic, and therefore not fair use... primarily because it was partially directed at a judge) with Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (applying a different twisted version of the "target of the parody" doctrine and ruling a literary parody parodic, and therefore eligible for the fair use defense).