28 June 2012


A fascinating day in the news today... including, surprisingly enough, news relevant to authors that is not related to healthcare!

  • I won't engage in an extensive screed on the Affordable Care Act/Obamacare decision this morning. I've expected all along that the Chief Justice would vote to uphold (based on some of his prior writings), albeit perhaps on broader grounds than he actually did. This is actually good news for authors and other "independent contractors," because a broader market should make healthcare policies both more available and probably (on average) more affordable.

    What I find curious about the decisions is the collective silence concerning the relationship between the power to regulate commerce and the power to tax. Remember, in 1789 the only permissible bases for federal taxation were "apportionment among the states"... and excise-type taxes on individual commercial transactions. Several eighteenth-century documents known to Madison, Jefferson, et al. make quite explicit that the power to tax and the power to regulate commerce are merely two sides of the same coin. Literally. Of course, this "originalist" argument points even more strongly in favor of the constitutionality of the Affordable Care Act, so it's not that surprising that the Usual Suspects (who are ideologically opposed to the ACA) didn't acknowledge it. But then, merely because something is a bad policy does not mean that it is unconstitutional, or the converse!

    Although I don't ordinarily wish harm on political opponents, I'm making an exception this time: I am wishing death-or-disability-or-at-least-serious-illness-through-conniption-fits upon the right-wing media barons and radio talk shows. The irony that they'd need good health care after such an "incident" is not beside the point: It is the point.

  • Aside from that, James Frey should be one of the happiest writers out there after another decision by the Supreme Court. In United States v. Alvarez, No. [20]11–210, the Court held by a (4+2)-3 vote — that is, there was no majority opinion, but six justices voted for their differing reasons for the same result — that a statute that criminalizes lying about military honors received violates the First Amendment. That is, under the First Amendment one is entitled to lie; it is only the results of those lies that can properly be regulated. In this instance, Xavier Alvarez tried to get respect to which he wasn't entitled by claiming to be a Medal of Honor recipient... but that did not appear, on this record, to result in any commercial or other direct advantage. James Frey should be happy because the mere fact of his lying in a book is no longer unlawful per se. Instead, Alvarez actually shifts the blame back to where it belongs: The effect of the lie, and the publisher's responsibility for it (by marketing the work as a "memoir" and not as "fiction").
  • So the House of Reprehensibles may vote today to hold Attorney General Holder in contempt. Especially in this context, I think that is logically impossible: The House of Reprehensibles is beneath contempt. One must wonder if the House would be so eager to move forward on this if General Holder looked more like the old white men proposing the motion...
  • Somewhat lost in all of this is the Copyright Office's move to finally clarify that registering a compilation of previously published material extends only to original expression in that compilation. As 77 Fed. Reg. 37605 (PDF) belatedly clarifies, that's a statutory requirement... not to mention a constitutional one (under Feist).

    I'll have more to say next week regarding the Beijing Treaty on Audiovisual Performances, which brings individual performers inside of copyright... and essentially requires enshrinement of DRM for recordation of those performances.