03 October 2013

More Questions Than Answers

It's sort of ironic, in the midst of the childish exercise by the Teabagger Party, that what they're really doing resembles nothing so much as holding one's breath until one's face turns... blue...

  • Sometimes it's rather frustrating to see the poor rigor typically applied to context debates, particularly those about the relationship between science and society. A piece by Eileen Pollack in New York Times Magazine offers many anecdotes and no rigorous proof concerning why women are being "held back" in the sciences. Perhaps a large part of the problem is that the article revolves around Yale, and not a better-rounded institution of the 1970s and 1980s like the one I attended (I should mention that once one gets away from physics and math departments — even in heavily-mathematical subfields — it's a different world in any event). Too, the article is undermined by small sample sizes and inordinate emphasis in the sciences on the reputation of one's undergraduate institution for later employment opportunities (even after a PhD at a more-prestigious institution), because they reflect the problems in high school for everyone in a jock-centric culture as much as anything else.

    My point is that Professor Pollack's article doesn't prove anything. It asks questions, and points toward areas for further inquiry. But like so much criticism of the scientific system that is coming from outside the scientific system, it doesn't respect the scientific system enough to apply the scientific method to the scientific system.

  • That's a fascinating contrast to what happens when someone does apply some rigor to exploring the social context of the sciences. Keeping in mind that statistical analysis of survey data doesn't prove (in the scientific sense) anything — it can refute, it can focus inquiries, but it at most represents the shadows in Plato's cave — consider the relationship between political predisposition and climate-change denialism. This won't come as a surprise to anyone who remembers the word that comes before "self-interest" in the classics of political economy that still explain so much about the behavior of persons with accumulated capital1—yet another failure of context.
  • Another recent article inadvertantly exposes an interesting internal contrast with funding struggles between the sciences and the humanities that arises from a simple contextual barrier that both writers fail to engage with: How one measures the results matters. The modern grant-based funding system is based almost entirely upon discrete projects and discrete ranges of expected/possible results... and that way of thinking is seldom conducive to original work in the humanities, leading to much-more-arbitrary (and existing-and-institutional-reputation-biased) grant decisions. The problem is similar to cultural/religious disrespect for alchemy as a progenitor of modern chemistry: It fails to recognize that alchemists, in particular, were all too familiar with being burned at the stake and/or spending time assisting the Inquisition with certain inquiries — a fate seldom imposed on contemporaries in mechanics, if all too similar to that for astronomy.
  • Consider the concept of libraries as shelters from storms... which, for nerds, they already are; it's just that the nerds are often the only ones who see the storms, or for that matter live through social-context disasters on a daily basis.
  • Breaking news on the copyright front: If you infringe copyright in Europe, you're sort of stuck with US-style quasifederal jurisdiction over your actions... including in the copyright-holder's home court (so to speak), even if you took care to avoid distributing your infringing copies there. This is one of those "well, duuuuuuh" issues that US lawyers "solved" 200 years ago — although admittedly there is more difference between the courts of France and Austria than there is between those of California and New York (or, more particularly, federal courts in California and New York).

    The particular dispute arose when an Austrian company distributed CDs in the UK of a French songwriter's works. The songwriter sued in Toulouse; the Austrians objected, and not just because they didn't want to speak French to their lawyers (frankly, that's a good enough reason, but not recognized as such by the courts). Today, the Court of Justice of the European Union (not quite the EU Supreme Court, but close enough for this purpose) held that:

    Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of alleged infringement of copyrights protected by the Member State of the court seised, the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State and which has, in the latter State, reproduced that work on a material support which is subsequently sold by companies established in a third Member State through an internet site also accessible with the jurisdiction of the court seised. That court has jurisdiction only to determine the damage caused in the Member State within which it is situated.

    Pinckney v. KDG Mediatech AG, No. C–170/12 (CJEU 03 Oct 2013). In plain(er) English, this means that the court in Toulouse has jurisdiction to determine liability for copyright infringement, because the harm was inflicted in France (the copyright holder wasn't paid, and that's where he resides), and that's enough for jurisdiction. There's still a limitation, though: The French court can only direct compensation for the harms that occurred in France. In this instance, that may not matter much, as there's only a single (French) holder. In the event of a jointly authored work, though, it will get more... interesting.

    This is distinct from US copyright practice in that US courts assert nationwide (indeed, worldwide, as in Grokster) reach in imposing damages. In part, that's because US copyright actions take place in federal court, and we've had over two centuries to figure out the osmotic permeability of subordinate-sovereign barriers; the courts in Europe have had barely two decades, and their subordinate-sovereign barriers are different membranes from ours. (Not inherently better or worse... just different.) The interesting-to-a-litigator question will be the follow-on litigation: If the court in Toulouse issues a finding of infringement but only token damages (because it's not entirely certain that, under French law, sales outside of France count in determining how much the author wasn't paid), and Mr Pinckney then goes to court in Austria waving his finding of infringement, does the alleged infringer get to relitigate infringement, in whole or in part? The European version of "full faith and credit" that Americans (both lawyers and others) take for granted is far less stringent, and I'm not at all certain it would bar the Austrian company from relitigating the finding of infringement. Indeed, reading between the lines of Pinckney as best I can, it appears that Article 5(3) does not reach nearly that far. It might be merely very persuasive precedent... but that's not the same thing as finality, and encourages substantial legal fees and delays.2

    The side question that this litigation entirely avoids arises from the following non-hypothetical. The Big Brazilian River's European operations are all in Luxembourg; indeed, the UK operations, the German operations, etc. all report to and are taxed in Luxembourg. Consider a blatant infringement of a US author's book, in e-book form, by a European pirate operating through its own shell entity, let's say not-hypothetically-at-all in the Netherlands. Since the book is in English, and is most prominently displayed and sold through the .uk website, there's naturally enough a suit filed in the UK... which results in a default judgment of infringement but only token damages because the money all went to/through Luxembourg and/or the Netherlands. So, what does the author's counsel do next? May the infringer and/or BBR relitigate the finding of infringement (particularly because it was a default, which is even more disfavored in the Netherlands than it is in the UK) when brought to their home jurisdictions? Unfortunately, Pinckney does not deal with this circumstance.

  1. "Enlightened." See, e.g., Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776); Alexis de Tocqueville, Democracy in America (1835–40).
  2. In the eyes of a guilty defendant, justice delayed is justice.