18 October 2012

Midmeal Link Sausage Distraction

Just taking a quick breath before getting back into the HathiTrust summary judgment decision; the hard part in explaining that begins now, particularly in distinguishing among theory, fact and argument as in front of the court, and dubious lawyerly and client performance. In any event:

  • There's one aspect of class warfare that has been lurking in Candidate R's speeches of late, particularly at the debates. Or, rather, an aspect that has been lurking between the lines, in words unsaid. Both M.R. and P.R. (for the R party, but at least not the R document — yet) have placed a great deal of rhetorical emphasis on the foundation of the US in the middle class, in supporting the middle class, and in making opportunities for the poor to haul themselves up into the middle class. The silence regarding whether it's proper, or appropriate, for members of the middle class to haul themselves into the upper class is not deafening — one must actually look for it — but it's an interesting contrast with the life-story of the opposing candidate. I suppose that it's ok for a peasant to dream of being a townsman, and for a townsman to aspire to become a merchant... but aspirations to join the nobility are uncouth at best.
  • The Second Circuit got one right today in declaring DOMA unconstitutional. Three things strike me about the opinion: Judge Jacobs's concern for ensuring that there is solid jurisprudential theory, not just precedent, backing up his reasoning (not a lot of decisions cite John Hart Ely, although more should); the application of intermediate scrutiny, not strict scrutiny, which is much more survivable on further review; and the rhetorical shenanigans to avoid labelling the stand-in legislators defending DOMA as the bigots they are.
  • Meanwhile, Judge Posner has stated an opinion on reforming patent law to evade/avoid trolls in a way that betrays his "economics is everything" bias. The key point is this: The underlying assumption of his screed is that the only acceptable means of measuring whether a given advance (and strategy for encouraging that advance) is the kind of "advance of the useful arts and sciences" contemplated in the Constitution is a numerically discernable financial measurement. That is, if damages from infringement cannot be measured, neither should there be any equitable relief. The real danger here is that this attitude can worm its way into copyright suits, too... like HathiTrust (and I'll be getting there about three entries down the road).

    There appears to be a serious problem with patent trolls. The problem, though is far more with what is being patented than it is with who is asserting the patents and when... because the vast, vast majority of NPEs (non-practicing entities who hold patent rights but do not try to exploit them directly) hold patents that, in copyright law, would be on the "idea" side of the "idea/expression" dichotomy.

  • Authors should take a close look at Kris Rusch's three part series on authors who disappear. Comparing it to her husband's comments on e-book successes should scare the hell out of commercial publishing and media magnates... but that would require them to give a rat's ass about what they're doing. Sure, a few individual employees do; but there are no Bennett Cerfs in commercial publishing any more, and he was hardly a paragon of virtue (just a vast improvement on what we do have).

*  *  *

Oh, goody, I'm being transferred after half an hour on ignore. Back to dealing with a disappeared author's problems that implicate each of the four sausages above...