12 January 2014

Neepery-Spiced Link Sausages

Non Sequitur, 12 Jan 2014The more things change...

  • Although this case probably should have come out of Colorado and not out of California, purveyors of bongs will be happy to hear that the design of a bong (however ornate) is not properly the subject of a copyright claim. It's, like, a useful article, man, so it has to be either a design patent or a trademark, because copyright can't be claimed for anything useful. Inhale, Inc. v. Starbuzz Tobacco, Inc., No. [20]12–56331 (9th Cir. 09 Jan 2014) (PDF). Faaaaaar out. And I really really believe that these "water pipes" were intended for tobacco... by either the purveyors or the customers.
  • "Consensus" means "unanimous and without objection or reservation." It appears that — contrary to the headline on this article — there is no consensus on global warming because there is an objector. One objector out of nearly 10,000 instances.

    Some who know a little bit about the history of science will object "But Galileo!" and completely miss the point. For one thing, Galileo was hardly alone in objecting to geocentrism, or to any of a variety of other bits of received wisdom; he just did so in the course of a personal attack on his former personal friend the Pope, so attacks on him from the power structure had a little more bite to them. For another thing, Galileo didn't just say "No it isn't" about geocentrism (or mechanics or gravitation); he offered another, specific, testable theory as a better explanation. What explanation has been offered by global-warming denialists for measured (and essentially irrefutable) evidence of climate changes, other than "Who ya gonna believe — me or yer own lyin' eyes?"

  • Friday was a huge day for intellectual property at the Supreme Court, with the court agreeing to hear four IP cases. And all of this will have profound business and creative impacts on authors, even if they're a bit subtle:

    • The Aereo case is the most obvious, as it relates directly to what "counts" as a copyright infringement. Further, the result of the case will have follow-on effects in both compensation for authors and noncompensation clauses in contracts offered to authors by those who would license their writings.
    • A second related-to-piracy accusation comes in the Limelight-Akamai matter, if only because the defense offered — "I didn't do it, my customers did it using my also-useful-for-another-purpose toolset" — is directly analogous to the defenses usually offered by internet copyright pirates... and, for that matter, in Grokster. That said, this is a much more complicated matter than it appears, and it leads directly to another case granted Friday:
    • Just how "clear and distinct" must patent claims be to be enforceable or valid? Although the Nautilus case doesn't appear to directly impact authors' interests, one must realize that most patents related to online commerce — indeed, many (if not most) software patents — have similar problems and have been similarly attacked. And that will have significant effects on authors, either way.
    • One of the real problems with trademark law is standing — who has the right to complain. It's sort of ironic to see Pom Wonderful leading the charge here, as Pom Wonderful's underlying claims are themselves somewhat... scientifically questionable.
  • And this leads to more IP neepery. An IPKat asks whether copyright has a notion of "progress" embedded in it. Leaving aside that I reject several of the factual premises — such as the claim that 1939 was a highwater mark in cinema that has never since been surpassed (I would point to 1979 and 1980, regardless of the problems with the Oscars those years... particularly since some of those 1939 "classics" were never as good as their reputation and simply do not hold up) — this particular kat got distracted by the mouse entrails this time. Progress in the arts is, by its very nature, neither measurable nor replicable. As specific examples, consider whether it is possible to objectively and replicably determine whether Procol Harum's "A Whiter Shade of Pale" represents "progress" beyond Bach's Orchestral Suite Number 3 (D), Second Movement (the "Air on a G String" from which the organ part of the Procol Harum piece was consciously derived), or whether one can objectively and replicably determine whether Ran or A Thousand Acres represent "progress" over The Tragedy of King Lear (however unsatisfactory all of the filmed versions to date of the Shakespeare have proven).

    More particularly, progress in the arts (such as it is) is never linear, excepting only "linear perspective"; if it was, Georgia O'Keefe would have painted like Picasso... but I don't think that Cubist flowers would have the same sort of reputation, do you? In a way, the concept of "progress" underlying that piece denies the Second Law of Thermodynamics: It depends upon the lossless existence of Maxwell's Daemon (the math demonstrating this is left as an exercise for the student — but it's math that shouldn't be beyond a third-year chemistry undergraduate). The redefinition at the end of the piece does not, I'm afraid, evade the implications of the earlier discussion.

  • And speaking of lack of "progress," I can't avoid the bloody commercials: American Idiotol starts its new "season" soon, with its continued disdain for anything that actually matters to "Progress in the useful Arts." I wish I could avoid the bloody result: Further overemphasis on the telegenic qualities of vocalists as a measure of musical worth and achievement when judged by panels that over the years mainly have shared a rather disreputable ignorance borne of tunnel vision.