22 March 2015

No Lines Here

These are so serious-minded that I obviously haven't had enough caffeine.

  • This is why I shall no longer tinker with the machinery of death... and advocate isolating not just the courts themselves, but the machinery of justice, from electoral politics. Especially in the aftermath of Willie Horton, we should have learned this by now.
  • The "Blurred Lines" verdict continues to be both over- and underinterpreted pretty much everywhere. There's a much more interesting question that it potentially raises, though. Assuming arguendo that a jury verdict in a single matter could be treated as creating precedent, or even a default business condition — as I noted earlier, not even close — is there a missing defendant in the Gaye-family-versus-hiphopish-conglomerate group?

    Yeah. And his identity and ordinary business practices rather blow up the entire argument.

    To start with, Mr Yankovic is famous for asking permission. He does it even when he doesn't need to; he's an excrutiatingly polite humorist. But in this instance, my suspicion is that he asked permission only of the more-recent of the two potential sources, particularly given the vocal inflections he used. Under the basic property-law principle that one cannot give binding permission without actual authority to do so — and the copyright principle that every infringer is potentially liable, regardless of purported "best practices" or invalid "permissions" (getting permission only influences the remedy, not the liability) — if the "Blurred Lines" verdict has real force, Mr Yankovic is infringing the Gaye copyright. The particular elements in "Word Crimes" that are drawn from "Blurred Lines" are precisely those that a rational jury would have found improperly copy from "Got to Give It Up." Mr Yankovic is, therefore, a second-order copyright infringer.

    But parody protects Yankovic, right? Not so fast. Under the insanely self-referential, ill-considered, almost-completely-without-foundation distinction between "parody" and "satire" in US copyright law, "Word Crimes" is not a parody. Its object is not mockery of "Blurred Lines"; and since the parody theory requires a pretty close linkage between the new work and its target, one would need to find mockery of "Got to Give It Up" in "Word Crimes" for the reasoning in 2Live Crew to provide much of a shield. And this is because satire is explicitly excluded from the parody defense, since it can "stand on its own two feet." I'm afraid that this particular matter demonstrates that they're both left feet, and that one of them may be a peg leg... because the practical and literary-theoretical reality is that both parody and satire are at least as much about the reputation of the target work(s) as they are about the work(s).

    I'm not at all certain that any part of this particular controversy advances the progress in the useful arts... but that's primarily because those who are asserting superior rights are not, themselves, creators of the useful arts. They are transferees only. This is not to say that transferees should have no rights — that would lead to some really perverse incentives — but only that transferees cannot be trusted to comport their conduct with the underlying purpose. And that is a ripe subject indeed for parody and satire...

  • Speaking of objectives, ponder for a moment the intellectually dishonest disjuncture between the purpose of "museums" and the way they are actually run. And we don't even need to invoke museums' peculiar variety of the endowment effect regarding stolen property.
  • And all three of these items relate to kleptocracy by using public goods as private property: Jobs in the justice system; works created by others; and... works created by others.