06 August 2013

Applewood-Smoked Link Sausages

This platter is going to meander a bit and reach a huge rope sausage not divided into convenient bite-sized chunks.

  • I'm no fan of the "nail theory" of anything complex ("For the want of a nail, the kingdom was lost"... and, therefore, the nail is the single most important thing in history), such as the dominance of Europe in producing the present world culture/civilization/whatever. Nonetheless, sometimes it's fascinating to consider complex interplays that revolve around single, discernable changes; adult lactose tolerance as a causal factor in European civilization is a good example.
  • Civilization doesn't come just out of a milk bottle; it also comes out of madness, or at least conditions commonly referred to as "madness."
  • On the other hand, it doesn't take descent into the depths of depression (or ascent into the low-oxygen heights of mania) to act and speak entirely irrationally regarding the arts... especially when there's outsider money involved.
  • Ultimately, this is why democracy is having such a difficult time putting down roots in noncolonial Africa and Asia (not that it's easy in the ex-colonies... or for that matter the ex-Soviet Union!). It's a huge advance for a social grouping — and the arts are, if nothing else, a reflection of a social grouping's attitudes — to tolerate dissent. That's not enough for democracy to flourish, though; one must embrace dissent; one must be fascinated — not repulsed — by monsters; one must consider that, in the bowels of {insert religious icon here}, one might be wrong.
  • Nonetheless, I refuse to discard my children, even when I'm done with them. Believe me, that made that cross-country move last year rather difficult...
  • Here's another example of what's wrong with inherited wealth: Masterworks sequestered away by social parasites.
  • Is the Internet a replacement for the awl bidness? There's a more-than-merely-credible argument that it already has, at least in the US. Even the Department of Justice's politically-hamstrung Antitrust Division proposes treating the Apple of 2013 like the Standard Oil of 1942 (and it's no coincidence that points to a wartime crackdown), implicitly acknowledging the importance of "information economy" practices to the overall economy. (Not to mention that it prevents the rise of another potential counterweight to the Koch brothers, whose fortune is founded in old-school energy monopolies, but that's a cynical view for another time.)
  • Duelling briefs on remedies in the Wormyfruit litigation reflect another aspect of information-as-a-source-of-monopoly as a cultural problem, not just an economic one. The government's suggestion (PDF) includes a long-term monitor to keep the gangrene at Apple from spreading. Apple, in opposition, continues to proclaim its innocence (PDF) in a way that just reinforces my conclusion that the "defense" it presented at trial was always aimed at the remedy and not at liability.

    And none of it matters in the end. It is probably beyond the power of the court to order the firing and permanent barring from the industry of the individual wrongdoers and their closest allies at Apple (not to mention that it depends upon defining "the industry" in the first place). The radical structural remedy of divestiture of content from hardware is a non-starter after the failure of the AT&T breakup to sustain itself against financier and politician pressures... not to mention the failure of the Microsoft action to change that bit of overreaching. The DoJ's proposal doesn't go far enough to actually both fix the problem and prevent recurrence (even at/with Apple alone), and the Apple "proposal" is for the wagging of a finger under the nose.

    One must debride this wound before any healing can begin, let alone long-term rehabilitation. (I do not prescribe a course of leeches: We already have more than enough of them in the arts, including — in most instances — both the publishers and the entire respective distribution systems.) In this instance, that means permanently removing certain empire-builders from the potential empire. If Mr Jobs were still alive, that would include him; it definitely includes Mr Cue, Mr Saul... and some of their counterparts at the publishers. But that's not something that antitrust law allows, because antitrust law isn't concerned with the impulse toward building empires; it is concerned with the actual effects of empires, with little attention to potential effects or to the inimical effects of building the empires in the first place. This is, perhaps, inevitable from a legal theory that largely evolved in nations with long traditions of "landed fortunes" as the foundation of social leadership. It is also, perhaps, inevitable in a society that accepts Lord Acton's aphorism about power itself corrupting... which is demonstrably, historically wrong; it is the striving for power that corrupts, not power itself (if it was power itself, we would have no myths concerning "benevolent dictators" to draw upon).

    I'm much more sympathetic to the DoJ position as being consistent with the judge's findings of fact and conclusions of law than I am with Apple's. Apple continues to deny responsibility despite Jude Cote's finding — albeit without using the "L" word — that most of the executives from most of the companies involved lied about the price-fixing conspiracy. That, by itself, deserves fairly harsh sanctions... if only as deterrence against others, for some hopeful value of "deterrence." The key point is that there are no good guys here.

    [W]hile the two-year prohibition against Publisher Defendant interference with retail price competition was intended to serve "as a means to ensure a cooling-off period and allow movement in the marketplace away from collusive conditions," there is reason to believe the Publisher Defendants may be positioning themselves to pick things back up where they left off as soon as their two-year clocks run. The e-book distribution contracts that the Publisher Defendants have entered into under their consent decrees are disappointingly similar to one another. And, multiple Publisher Defendant CEOs have come to court and offered non-credible testimony on Apple’s behalf, with one even claiming that he was proud of his actions, both at the time he took them and still today. Ensuring that Apple can discount e-books and compete on retail price will make it more difficult for the Publisher Defendants to prohibit other retailers from doing so, and will help to ensure that the ongoing effective relief consumers are currently enjoying under the Publisher Defendant consent decrees does not prove entirely ephemeral.

    DoJ Brief (Doc. 329) at 6 (citations and footnote omitted; emphasis added). "Conscious parallelism" my ass — those publishers do not have similar cost structures, business structures, product lines (except in the fact of "e-books"), or much of anything else that would drive similarity in e-book distribution contracts without at least implicit collusion, helped along by the revolving-door nature of executive positions among the publishers.

    Apple's response is, to say the least, inconsistent with the factual record.

    Similarly, prohibiting Apple from negotiating certain terms that are available to its competitors, such as retail price MFNs with non-defendant publishers, or restrictions on their own ability to set prices and offer discounts after the publisher consent decrees expire, would place Apple at a competitive disadvantage by limiting its flexibility to choose a business model. These provisions seek to punish Apple and harm competition rather than correct any wrongdoing or benefit consumers.

    Plaintiffs’ proposal that Apple’s commercial approach to existing e-book apps be frozen in amber for 10 years also is unrelated to any violation found by the Court and is not necessary to “forestall future violations” of the antitrust laws. There are a host of legitimate reasons why Apple, in operating the App Store, might seek over time to alter terms or even seek to migrate e-book apps to the iBookstore. There is no connection between Apple’s treatment of then-existing e-book apps and the actual antitrust violation that the Court found, and the Court should therefore reject the proposed injunction.

    Apple Resp. (Doc. 330) at 16–17 (citations and footnote omitted). Curiously, Apple's piece repeatedly cites to Mr Cue's testimony as justification for its positions, ignoring the court's factual finding that he was not a credible witness... which sounds a lot more like the politics of medieval/Renaissance Europe than it does of representative democracy — the Earl's eldest son remains the Earl's eldest son, regardless of his misconduct short of treason, and we must therefore treat him with the respect due his station.

  • It's just too bad the DoJ is unwilling to apply the scrutiny it has afforded e-book distribution to television distribution. A pox on all of them. A pox previously not isolated by the CDC and thus outside the scope of available vaccines on all of them. <SARCASM> I'm so glad that my present cable provider — one I'm seriously thinking of switching away from due to its own incompetence and bad practices — isn't involved in this particular fight, but will only take advantage of it for its own nefarious purposes. </SARCASM>