Sometimes it really is more important to ask the question than to find "the" answer; after all, those answers are often fixed in time and avoidance.
- There is — at long last — increasing controversy about the "right way" to treat mental health issues. There's an incredibly simple and obvious answer, but it's not one that the various constituencies are going to like: There is no one right way, and any attempt to remove judgment from the art of determining (and implementing) an appropriate treatment protocol for a particular individual and his/her circumstances is doomed to being an incomplete answer. This is not just because we don't know how to separate cause from effect in neurology and psychiatry (example: it's easy to say that there are genetic linkages between schizophrenia and certain chemical imbalances in the neural cortex, but we can't say what makes those genetic predispositions express themselves with any degree of accuracy... and since that is a historical event that we can't unwind in any case, it doesn't tell us what to do about it).
There's a more fundamental problem lurking underneath, though: The presumption that some set of social norms accurately implies the acceptable underlying individual thought- and personality processes... and that having a distinct, describable, nonnormative condition is somehow defective and must be corrected. A number of years ago one of my clients was going through a divorce proceeding (I wasn't counsel in that proceeding). In the course of the proceeding, the spouse and the spouse's lawyer kept shrieking "hypergraphia!" as some kind of evidence that my client would be an unfit parent and therefore must not be allowed custody of any kind. They neglected to put any context on their claims, though... such as noting that my client was a multiple-bestseller author whose working process involved writing summaries of research to ensure understanding of the material before writing the science-based books for which my client was known.
- Perhaps the most important thing that astronauts do during their rest periods is the ultimate human activity: create art (and explain what the hell they're doing).
- Just as there's no such thing as a free lunch, there's no such thing as a free market (or at least not the kind of free market that's at the core of first- and second-year college microeconomics).
- The Supreme Court issued a unanimous decision yesterday in a patent matter that has some important implications for digital copyright. In Bowman v. Monsanto, No. 11796 (PDF), Justice Kagan wrote that:
Bowman principally argues that exhaustion should apply here because seeds are meant to be planted. The exhaustion doctrine, he reminds us, typically prevents a patentee from controlling the use of a patented product following an authorized sale. And in planting Roundup Ready seeds, Bowman continues, he is merely using them in the normal way farmers do. Bowman thus concludes that allowing Monsanto to interfere with that use would “creat[e] an impermissible exception to the exhaustion doctrine” for patented seeds and other “self-replicating technologies.”
But it is really Bowman who is asking for an unprecedented exception—to what he concedes is the “well settled” rule that “the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Reproducing a patented article no doubt “uses” it after a fashion. But as already explained, we have always drawn the boundaries of the exhaustion doctrine to exclude that activity, so that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.
Slip op. at 78 (citations omitted).
This is not, as it might at first seem, inconsistent with the recent decision in Kirtsaeng. To begin with, copyright is (a) fundamentally about copies in the first place, as opposed to right to "practice" an invention, and (b) unfortunate in using "exhaustion" to mean something analogous to, but still quite different from, what "exhaustion" means in patent law. The key distinction is this: In Kirtsaeng, the only "violation" alleged was a purely commercial one: Mr Kirtsaeng's scheme only acted to (perhaps) reduce the publisher's income from its book (although given the different cost bases, etc., it's entirely possible that the overseas editions are actually more profitable to Wiley), not to increase the actual supply of the copyrighted articles. Mr Bowman, however, engaged in conduct fundamental to the patent: He increased the supply of a patented article without a license to do so.
And, thus, the implications for e-books and other digital copyrighted works. Bowman reinforces that one may not sell (or otherwise dispose of) copies made of an electronic copy purchased/licensed by an end-user. (We'll leave aside the epistomological question of when one makes a "copy," given the technology involved.) Kirtsaeng reinforces that one may dispose of one's own lawfully purchased copy as one sees fit. The middle case, though, is troubling: Is one entitled to repurpose a lawfully purchased copy for a different use, such as translating a non-DRMed epub into a mobi file that can be read on an older Kindle? What if DRM is involved (see 17 U.S.C. ch. 12, which appears at first glance to prohibit breaking the DRM... even though each lawfully purchased device arguably breaks DRM)? What if there's patented software involved? And, most crucially, what if one's policy preferences in the answers to these question are not clearly the way the law is written — particularly if the law was written decades before any of the actual "violations" became possible, let alone widespread and socially acceptable (among a subset of the populace, anyway)?
- This blog's only feline friend the IPKat notes that making legitimate products of desired quality at a reasonable price available to consumers is a good way to fight counterfeiting, as this blawg has been proclaiming since before it was born. Indeed, the historical record back to the seventeenth century shows that every successful anticounterfeiting/antipiracy campaign has involved precisely that... and that a high proportion of the unsuccessful campaigns did not. Now combine this with a publishing industry that sets its price based not on the distinctive qualities of the content it sells, but on the packaging in which that content is provided, and I think you'll see some interesting implications for e-books — and precisely why the so-called "agency model" is per se unlawful price-fixing.
- Carrie Vaughn disses Gatsby for not engaging with reality, among other flaws. Now, I've not seen this most-recent film (and won't until it's available for me to view at my leisure at home), but I have seen prior filmings and have read the book. Frankly, I think Ms Vaughn was unduly generous... because from her description, the film actually did a better job of teasing out ill-handled themes from the first half of the book than did the book itself. The Great American Novel is the ether of literature; the primary problem is that nobody has done the literary equivalent of the Michelson-Morley experiment, and indeed never will (because publicizing the results of that experiment would not be politically or socially acceptable, if nothing else).
- Last, and far from least, there's data privacy in Europe to consider. This has a disturbing implication for current US software trends toward putting everything in the cloud instead of on individual machines. It also has interesting implications for "how the hell do we pay for the 'net anyway?" But implications are all I can offer at the moment; anyone who pretends to have answers is probably selling something. It is possibly new and improved... but it is no doubt being offered to you as a targeted advertisement.