Unterfräulein?

I'm afraid I don't share the enthusiasm for Supergirl. It might improve — this week was, after all, just the premiere — but it's still stuck in the same old definition of heroism and superpowers and "appropriate" plots and stereotypical character relationships, even when it attempts to recognize that a Y chromosome is neither necessary nor a birth defect. It still has this fundamental problem:

The first episode was grievously flawed; watching it resembled watching a train wreck. Never think through a problem, let alone consider an indirect approach; nope, we gotta act now even when we know we don't know enough, especially to create a few false conflicts. Engage in temper tantrums that would shame a two-year-old without regard to gender or culture. Recognize only those problems that have an obvious, immediate, physical-and-violent manifestation. Throw in some incompetent, bumbling bureaucratic and management figures and structures that are greater impediments to "heroism" than the purported villains. And villians, ensure that you take more time (and have even more overdeveloped devotion to screwed-up vengeance against the relatives of those who slighted them) than a Bond villain. I wish you'd all grow up and be adults — or at least consider that your characters might need to act like adults to deal with the universal superpower (and the really awful soundtrack and ridiculously implausible "incidents," like a plane crash in which the plane got below 500m without deploying flaps and landing gear). Not that the next-up-on-that-channel "supersized" episode of caricatured one-dimensional "gifted people" was any better... "too much good TV" my left little toenail.

A real superhero determined to actually make a difference — while virtuously and morally allowing puny humans to self-determine their futures — would find a way to, say, feed and clothe and shelter and provide medical care for a generation of kids, or even just provide a couple of years' worth of basic necessities while avoiding the most-obvious black-market opportunities. All without using force — or otherwise demonstrating an excess of machoism in the writers' room, regardless of superficial feminist impulses that mean it's not entirely testosterone-fuelled machoism — to take resources away from anyone else. And hey, if we need to remain American-centric for the benefit of the advertisers, it could even be in Baltimore (or, to keep things nice and caucasian, 400km west in Appalachia)! We'll also ignore the low probability of a young personal assistant in a major metropolitan area earning enough to have the nice (oversized to accommodate the camera crews) apartment and extensive wardrobe to choose from, or the utter lack of dirt anywhere away from fight scenes, or.... Of course, that would be a lot harder to shoot, and would probably drive away advertisers who choose to focus on high-disposable-income audiences (hints of the universal superpower again). Instead, we get the equivalent of a cheap easy laugh in a bad stand-up routine, primarily because none of the decisionmakers have themselves significant experience with (or even direct contact with) reality outside the Industry; that's only a short drive to Newark or East LA away, but apparently a drive that can't be fit into a busy schedule.

I have five fingers on each hand, but I only need one to express my opinion about the lost opportunities. You can probably guess which one.

Doomed to Repeat

Continuing last entry's theme of insanity:

• The current US political scene is more and more resembling 1971, with the parties slightly inverted. But only slightly. Ever since 1971, both parties have been almost relentlessly center-right in their orientation, mostly distinguished by rhetorical flourishes (often based on a single issue dubiously tied to "morality") and the particular personae of their public leadership. Take a look at the de facto one-party rule in Chicago and New York and San Francisco — and the chummy relationship of both parties (and their leaders) with the banking/investment and insurance industries — before you too blithely dismiss this...

  The McGovern wing of the Heffalumps is, at present, in the ascendant — within the Party (at least as measured by the volume and intolerance of the rhetoric). Just witness the problems with selecting a Speaker of the House (disturbingly paralleled by the 1969-73 struggle below Speaker among the Jackasses). <SARCASM> At least then-Senator Eagleton admitted both that he had had significant psychiatric intervention, and had needed it; would that the current slate of presidential "candidates" (both parties) would do the same, if only regarding narcissism and self-awareness. </SARCASM> Unlike virtually all of the current candidates, though, Eagleton actually participated in national service (and interrupted his upper-middle-class educational trajectory) before seeking a close personal relationship with The Button. Even if these days The Button more likely concerns the opening bell for the securities markets than it does silos in North Dakota filled with something other than grain.

• More insidiously, there's a feature of the prized American jury system that simply must be eliminated: the exclusion of potential jurors on a peremptory basis. I've had a personal taste of this myself, having been stricken many times from courts-martial and administrative panels because I was a sitting commander (and under the mythology of the military defense system, therefore overly predisposed — even more than military officers as a whole — to believe the worst of the accused and not listen to the evidence). But it's only a taste, and I don't pretend to have fully internalized the costs of being tried by a jury of one's social superiors. I can only emphathize; but that's part of the point and function of the jury system in the first place.
• At last, the leadership wanted (and arguably deserved, just like in Chicago) in Eastern Europe. Which is slightly less disturbing than another legendary leader of that ilk. It looks like the Empire really is pretty evil.
• Sometimes athletes are smarter than the politicians. Of course, given that some of those politicians would have us believe that an open-ended, no-periodic-payments, well-below-market-interest loan of $1 million (plus a substantial inheritance) in the early 1970s doesn't indicate privilege, that's not a very difficult standard.

Repetition Expecting a Different Result

If I spent all of my time commenting on insanity, I'd never get anything else done.

• Yet more evidence that the insurance industry is insane: A several-decades-old history of seeking (apparently successful) mental health treatment may make one uninsurable. This seems just a bit silly in that (a) survival for decades since is a pretty damned good indicator that the treatment worked... and (b) those who have sought treatment in the past are more likely to recognize need for treatment today prior to, umm, behaviorally initiating the policy benefits. But no — because the industry can use a particular statistic, it does, even when it's counterproductive, even when it elevates "correlation" to "causation," even when the specific item is a selector for parental social class...
• The "concert experience" is fundamental to the survival of orchestral music. (It's not all "classical," and I dislike the snootiness of calling it "serious" when so much of the repertory is either intended for teaching of technique or for dancing at some Society event or other, or at least at the afterparty.) The purported improvements, however, often leave parts of the (potential) audience behind — and it's even worse for other types of music, and indeed for non-musical public performance. Hell, it's not just the visually impaired who have been ignored; so have those with so many moderate-to-serious chronic conditions that don't qualify as "disabilities."
• As this piece makes clear — albeit unintentionally — there's a distinction between survival of a distributed cultural form and the distribution mechanism.
• In non-Euclidean parallel, there's the problem of the actual (not doctrinal) dilution of a brand by competition for an audience that is not competition in substance. Trademark law is an ill fit for the arts; unfortunately, it's all there is.
• I thought one was supposed to wait for the actual premiere to jump the shark (preferably without tripping on the dorsal fin on the way over, like a certain "hit TV series" running on Monday nights did by episode 2 last month). Remember: The one character who actually fulfills the Campbellian "hero's arc" — presuming that one credits bad anthropology and worse literary analysis as a viable explanation of story structure in the first place — in the first-completed trilogy was the guy in the black helmet... and even that was purely by accident.
• As much as we (justifiably) complain about scriptwriters doing dumb things and producers doing even more dumb things, reality is oft dumber. And reinforces to the Privileged Classes that actions (and omissions) don't necessarily have consequences... at least not for them...

Google Books, Again (Heavy Sigh)

In a result that should really surprise no one — given the fundamental flaws in the Authors' Guild's initial approach and misguided settlement attempt — the Second Circuit upheld the summary judgment entered against the AG's complaint. The Court of Appeals (Leval, J. (opinion author); Cabranes, J.; Parker, J.) summarized its holding as:

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute.

Authors Guild v. Google, Inc., No. [20]13–4829 (16 Oct 2015) (PDF), slip op. at 4 (italics in original, boldface emphasis supplied).

This was Keystone Kops litigation.

• The wrong plaintiffs (as demonstrated by the later problems with class certification, among other problems) sued
• The wrong defendants (as demonstrated by the later publisher join-in with a different set of defendants, the "independent" HathiTrust action, and a variety of other contortions) under
• The wrong legal theory/theories (as I objected a decade ago and this Second Circuit opinion reinforces) using
• The wrong evidentiary basis (summary judgment on fair use for a class?) in
• The wrong court (as I objected a decade ago, and as development since — particularly in the Sixth Circuit, but also the Ninth and Eleventh Circuits — have reinforced).

I do not consider this a cert-worthy matter for the Supreme Court... except that it is, indeed, coming out of the Second Circuit, which has an utterly abysmal history in front of the Supreme Court on copyright under the 1976 Act. On this record, one can at least rationalize that the Second Circuit reached a defensible result; its reasoning is highly suspect — depending as it does on copyright "principles" and cases derived largely from the 1909 Act without adequate consideration of changes wrought by the 1976 Act or the 1988 accession to the Berne Convention — but that by itself is not enough to justify certiorari. The AG's continuing ineptness in its public presentations, such as its press release accusing the Second Circuit (and Judge Leval in particular, although not by name... which, given his 1992 Harvard Law Review article, should not have surprised anyone once he showed up on the panel at oral argument a year ago) of "reduction of fair use to a one-factor test" (but see slip op. at 27–37), do not make it a credible party. More to the point, on the record in this matter (which is a result of all five mistakes noted in the bullet points above) the best result would be a more "balanced" reconsideration... which would not, in the end, change the result on this record.

Bad arrogant, narcissistic, self-aggrandizing purported representative of the entire community of authors (despite its membership criteria that exclude the majority of authors... and failure to actually represent even the majority of authors who are eligible). No tracking cookie.

October Surprises

... or perhaps not so surprising after all. There have been several interesting (and sometimes questionable... as much because their facts are outliers and do not provide guidance to others as anything else) US court copyright decisions of interest to authors of late. There hasn't been anything as egregious as the toddler going crazy, but there's still some comment appropriate. In no particular order:

• Perhaps easiest to deal with is "Happy Birthday to You." Leave aside for the moment that the entire revenue model associated with that piece of drivel has been based upon deception and not-quite-sanctionable bad faith since the 1930s — when the purportedly operative copyright registration application was filed — and that there's some question as to the copyright status of the source work under the 1870 Act in the first place. Chief Judge King of the US District Court for the Central District of California (which includes Los Angeles) granted summary judgment to those challenging the copyright in Marya v. Warner-Chappell Music Co., No. [20]13–04460 (Doc. 244) (C.D. Cal. 22 Sep 2015), expending almost all of his effort on the simultaneously easier and harder chain-of-title prerequisite. After all, if one can't prove copyright ownership, one can't sue on it (leaving aside all other defenses).

  It's easier because it's a pretty simple yes-or-no question based upon documentary proof... or, in this instance, the absence thereof. It's harder because it doesn't provide an awful lot of guidance to others, although it's going to be misquoted as if it does; it also opens a very tiny windowpane into the distinction between the grandious bombast coming out of Nashville regarding "what it owns" and the expensive snipe-hunt of a records search that will be necessary to either challenge or validate that bombast.

  This exposes an ethical quandary: Is it ethical for a music publisher to continue claiming ownership in the face of this kind of implicit criticism of its standard practices? I don't think so... but then, I'm very highly predisposed to discredit ownership claims of any IP transferee outside the employer-employee relationship, so perhaps there's room for argument. But it's an argument that must be had.

• Abstract depictions of yoga positions are not subject to copyright. Bikram's Yoga College of India v. Evolation Yoga, No. [20]13–55763 (9th Cir. 08 Oct 2015). Naturally, this is going to be overstated by those who don't look at the record to see what was actually at issue: Purely functional drawings and depictions of something with a noncreative purpose — a literal "how to" guide. There's a big difference among an abstract drawing showing the moment a player's foot impacts a football (soccer ball) to teach technique; a photograph of that same instant with David Beckham in a game situation taking a free kick; and a heavily photoshopped depiction of a kangaroo doing the same thing, whether the source of the pose was the abstract drawing or the photograph of Beckhamania about to erupt.

  Although the court did not focus on the fact/expression distinction as clearly as it could have, that's what is fundamentally at issue concerning the yoga positions. In the football example I gave in the previous paragraph, the expression "kangaroo playing football" is more important than the fact of correct technique (although that's certainly important), and the expressive photographic choices made to depict Beckham in live action are at least as important as the technique (even if that photograph appears in a book on teaching proper technique!). And that's the theoretical core of what's at issue for the yoga dispute (a context that seems more than vaguely disturbing and tinged with hypocrisy).

• Last for today, we come to an area in which both Congress and the Copyright Office have knowingly and willfully evaded their responsibilities for forty years: The form, effect, limits, and parameters of termination (revocation) notices under §§ 203 and 304(c). The Second Circuit, in an opinion notable as much for its dance around stare decisis from its own (arguably incorrect and probably not relevant on these facts) prior decisions, held that a notice given regarding another song — "Santa Claus is Comin' to Town" — was, in fact, effective against a music publisher... whose conduct appears roughly as justifiable as Warner-Chappell's, for similar but slightly different reasons. In Baldwin v. EMI Feist Catalog, Inc., No. [20]14–00182 (2d Cir. 08 Oct 2015), the Court held that one specific transfer was the relevant one, and that at least one of the notices granted was valid based upon the timing (and other characteristics of the transfer). This particular case is complicated by paperwork deficiencies somewhat similar to, if less extreme than, those that led to the result in the "Happy Birthday" matter. Perhaps this is excessively hyperformal... but probably not more so than needing to go onto land and take a bit of earth in one's mouth, followed by a formal statement of possession.

  And it's the law. This is where Congress and the Copyright Office have fallen down, as implied in the Baldwin opinion's gyrations to avoid other Second Circuit decisions (see slip op. at 23–33) that appear to point elsewhere. Bluntly, both Congress and the Copyright Office were remiss in drafting the 1976 Act, later amendments, and what few (inadequate) regulations have been issued regarding the matter, by failing to acknowledge that §§ 203 and 304(c) inherently create a substantial probability of deadlock among the heirs... and are inconsistent with state laws concerning succession of interests. There's a very simple, and very obvious, circumstance in which there is inherent deadlock: Children born to the creator's first spouse (or out of wedlock), versus a second or later spouse surviving at the creator's death. This is hardly an unusual circumstance; hell, it perfectly describes nearly a dozen matters that I've been personally involved in! The statute grants each exactly half of the interest, meaning that absent some agreement or method of resolving deadlock the right (important enough for two of the longer sections in an Act replete with multipage subsections) is utterly meaningless and valueless — and implicitly preresolved in favor of the transferees. All that would have been necessary was a deadlock-breaking mechanism when the divided interests are exactly equal, as is done routinely in every competent succession plan (whether for an estate or anything else) and has been done for the past couple of centuries of American law, so that deadlock is the exception rather than foretold.

Sausage Bits

Paperwork sucks...

• Normally — at least in the West — when one hears about economists who are skeptical of free markets, one expects the word "commie"... not concerns about deception and friction at a structural level raised by two recipients of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel (often inaccurately called the "Nobel Prize in Economics," which is part of the point).
• Which leads to some intelligent consideration of class issues in higher education from the perspective of evidence-gathering scientists.
• Now this is my kind of arts protest: God Hates Renoir... whose reputation has been driven for several decades as much by auction-house prices as anything else.
• Further reflecting the idiocy all too often associated with business affairs in the arts/literary world, yet another agent's ego is leading to uncertain management of her clients' interests after her death. Guys, this is just not that hard: Establishing a corporate (or partnership, or whatever) succession plan is expected behavior even for family bloody farms.
• Here's yet another example of special-snowflakiness among ardent liarscreationists, who cannot seem to comprehend that others can disagree with them without being evil. Of course, this is all wound up in McCarthyism (both Joe and Kevin).