26 June 2014

Smoked Link Sausages

I've really struggled to refrain from "Somebody is wrong in the 'net, and I must correct them!" regarding a couple of recent issues that have hit the speculative fiction community in the last week. Hint: No matter your purported authenticity or academic-in-an-unrelated-field qualifications, you should carefully read someone's comments before spewing outrage, ideology, and absolutismus, and consider that maybe — just maybe — the qualifiers in those comments were intentional and meaningful. Especially when you're playing in that someone else's area of professional expertise and/or denying the authenticity/applicability of that other individual's personal experiences... an irony that seems to escape most commenters in those areas.

  • Speaking of the need to refrain from speaking without paying attention to context, I offer the following quotation from this morning's Supreme Court decisions without further comment:

    Of course we do not hold that “[s]peech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed.” We instead apply an uncontroversial principle of constitutional adjudi­cation: that a plaintiff generally cannot prevail on an as-applied chal­lenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him. Specifically, when someone challenges a law as viewpoint discriminatory but it is not clear from the face of the law which speakers will be allowed to speak, he must show that he was prevented from speaking while someone espous­ing another viewpoint was permitted to do so. Justice Scalia can decry this analysis as “astonishing” only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges.

    McCullen v. Coakley, No. [20]12–1168, slip op. at 18 n.4 (26 Jun 2014) (Roberts, C.J.) (citations omitted).

  • There has been a lot of other copyright news in the last couple of weeks aside from the HathiTrust fiasco. (That HathiTrust is a fiasco is the fault of multiple players — Congress, the parties, the bar and judiciary of the Second Circuit, and outside commentators and activists all share some blame.) I'll be delving into several of these in more detail as I see fit; for now, just consider Sherlock Holmes, copying levies in Europe, attacks on misuse of the work-for-hire doctrine that do not go nearly far enough (IMNSHO the doctrine is unconstitutional as applied to freelancers... and if not unconstitutional, it is inconsistent with treaty obligations), and last but not least Aereo. And that's aside from some interesting activity in other courts and elsewhere, not to mention the curious decision in Alice Corp. I'm not behind on my reading so much as behind on my blawgging.
  • Meanwhile, the AmazonFail 5.04 continues to provide endless amusement if your sense of humor is as sick as is mine and you're sufficiently cynical. Bluntly, this is a fight they should both lose... except that the fallout will be unacceptable. It's actually a result of the 1566 Licensing Act, which improperly conflated the editorial, the reproduction, and the distribution functions, largely in the name of censorship, and has also resulted in blatant plans to violate antitrust law that will get precisely no attention from the relevant enforcement agencies.