Link Sausages Taking (Uncopyrightable) Selfies

Oops — the lens was covered by a flap of the phone case, so no selfie for the blawg. Darn.

The "Monkey Selfie" opinion discussed earlier (second sausage) has issued as a written order. It's a clear and short dismissal with leave to amend (the amendment period extends to 17 February, so this may not be over!). The written version of the opinion makes two subordinate points that I wish had been made more clearly.

First (but not first in order in the opinion), Judge Orrick notes that not everything about intellectual property — and, in particular, many lacunae in the various statutes — can or should be resolved by judges.

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

Naruto v. Slater, No. 2015–cv–04324 Doc. 45 (N.D. Cal. 28 Jan 2016) (PDF), slip op. at 6 (bracketed text in original, internal cross-reference omitted, emphasis added). This should bring another jurist's not-quite-lamentation on an obvious lacuna in the Copyright Act to mind:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); accord Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product."). In Sony, the Supreme Court noted that it was Congress's responsibility to adapt the copyright laws in response to changes in technology:

From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment—the printing press—that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned new rules that new technology made necessary.

464 U.S. at 430–31 (footnotes omitted).

Authors['] Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011) (Chin, J., now on Ct. of Appeals) (footnote and parallel citations omitted, hyperlinks supplied, paragraphing corrected).

Second, of particular note is Judge Orrick's specific discussion of the Act's "plain language" (although couched much more diplomatically than is this sentence):

The Copyright Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium of expression must be done “by or under the authority of the author.” 17 U.S.C. § 101. The Copyright Act defines neither “works of authorship” nor “author.” The Ninth Circuit has observed that the Act “purposefully left ‘works of authorship’ undefined to provide for some flexibility.” Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015).

Naruto, slip op. at 4 (hyperlinks supplied). Regrettably, this is post hoc rationalization of the worst kind; the twenty-year-long legislative history reflects not an intentional lacuna left for flexibility, but a dissonant combination of failure to consider "because it's obvious" and a profound failure to agree at the last moment — contrary to the conclusory statement appearing in the treatise lurking in the background.

Copyright policy, jurisprudence, etc. would all be better off if we would stop pretending that there's anything "plain" about the language of the Copyright Act of 1976, or its amendments. It just isn't; it's badly organized, and badly written at just about any level of inquiry appropriate. (The irony that this relates directly to a statute whose constitutional mandate is to advance the progress of the useful arts and sciences is a bit much for a foggy Saturday morning.) Consider, for example, the probably unconstitutional redefinition of "author" that even allows non-human persons a claim of authorship:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C. § 201(b). The necessary internal cross-reference to the definition of "work made for hire" — which is not actually necessary but for that definition's disingenuously convoluted nature — is bad writing in itself, because it doesn't explicitly cite the source of the definition. Under no intellectually honest understanding of the phrase "plain language" does either § 201(b) or the definition buried in § 101 qualify as "plain". And that's before considering § 203, or § 512, or...

That is, making a claim that something is compelled by the "plain language" of the Copyright Act is all too often either (or even simultaneously) overly diplomatic or sarcasm of the highest order. Authors, composers, artists, reusers, distributors, rights-acquirers, and everyone else deserve better. Perhaps, however, given that it was the respective Judiciary Committees in Congress — most of whom were lawyers — involved, the result was inevitable.

This is not fine prose nor, by itself, terribly clear. It would appear to have been drafted by lawyers.

Bourke v. Dun & Bradstreet Corp., 159 F.3d 1032, 1037 (7th Cir. 1998). Remember: The creative impulse is institutionally discouraged in law; the highest aspiration of legal writing is to demonstrate that someone else has already said the exact same thing (with, at most, easily dismissed variances). And this is true for "civil law" systems, too, mainly with slight changes in the "someone else." The irony of this denigration of creativity making a statute regulating rights in, and purportedly encouraging, creativity almost impossible for creative people to understand is perhaps too obvious to be left implicit.

Naruto reaches the right result at a policy level — animals can't be "authors" — relying on dubious authority and ignoring some obvious implications. But that's the best one can expect given the nature of the available authority...

Link Sausages Blotted Up With White Paper Towels

Pass the dark mustard, please...

• One of the problems with pure-public-domain approaches to the arts is the three-part question of who pays for it, who gets paid, and what gets paid for. Contrary to the implications in the article, though, there almost certainly is not an optimal "solution"; the history of the arts in Soviet Russia (and Maoist China, and for that matter in pre-Renaissance Europe) should be more than sufficient demonstration of the repressive power of conformity. Further, governments and other monoliths have never demonstrated an ability to pay for art that challenges the status quo simultaneously in form and in content (at best, it's one or the other). In short, there's a place for a safety net, but that's what it needs to be: Not a primary source of security, but a backstop for survivial. Starving artists are too busy pushing up daisies to paint them...
• Then there's the corollary: Who works there. <SARCASM> I suppose that the daughters of hereditary wealth need something to do with their lives if they prove unruly, unwontedly intelligent and/or independent, or — worse yet — unmarriagable (the worst thing that can befall a social subclass that models itself on failure to read Austen with any sense of irony). </SARCASM> One of the flaws of the Low & Low study is that it doesn't seem to recognize the even-worse demographics of promotion from entry- and entry-plus-one-level positions. In publishing, that means looking at not just editorial assistants and assistant editors, but at midlevel and senior editors; not just at marketing assistants, but at account reps.

  It's not just H'wood, people: The demographics of the decisionmakers and support staff throughout the entertainment industry skew horribly toward upper-middle-class whites who are at least two generations removed from immigrant status. Even they're not getting rich, or at least not predictably... except if they come from the hereditary-owner subclass. There's still a disturbing prevalence of the "Guildmaster's Offspring" phenomenon all too familiar to pre-Industrial-Revolution Europe. Exhibit A: The Sauron Murdoch family.

• All of which is reflected in the reification of the "original" as the only thing worth owning in the visual arts. Admittedly, some of my sneering here comes from my disdain for too damned many of the people involved, and even more from my visual impairment. Let's translate this to another area in the arts: Imagine that the singular print made in the cutting room of Apocalypse Now! was treated — culturally, aesthetically, artistically — the same way as a Rothko original; or the final copyedited manuscript of Galatea 2.2; or the score actually used for the recorded symphonic performance of "Conquistador" (Procol Harum). Instead, though, the "nonsharing patronage" of fifteenth-century Italy seems to be the norm... and the visual arts retain their special-snowflakiness.
• As a sideways second bit of the first sausage on this platter and grudging acknowledgement of the third (which was a bit overspiced and poorly mixed), there's a fascinating — and difficult to understand, if only because I'm not strong enough in any of the languages offered thus far — opinion by the Advocate General concerning how to assess — and, at least by implication, distribute — copying levies. The key point is that levies must be related not to anticipated harms, but to harms actually suffered... which implicitly assumes that reliable data exists to measure the harms actually suffered (and, further, that nobody is cooking the books in issuing royalty statements analyzing that data). Implicitly, then, copying levies may be moving toward death.

  The logic problem with this Opinion is that it relies upon a false dilemma: Either copying levies or nothing. This kind of false dilemma pervades all discussion of intellectual property law, with a particularly stale aftertaste of that first sausage on the platter spiced with the near-rotten weregeld presumption of modern law (that virtually every harm can and should be reduced to an economic transaction in an amount that society at large is willing to accept and enforce). Guys, if it was all about agreed piecewise economic value we wouldn't even have that third sausage...

#OscarsSoStupidandPredictable (Part 2)

Just a short follow-up to yesterday's posting...

Yeah, there's been backlash already. THR quotes one unnamed Academy of Motion Picture Arts and Sciences member as follows (and, regrettably, I have to assume that this quotation is accurate and not wrenched from context):

Another member of the PR branch who wished to remain anonymous fumed, "They did a knee-jerk reaction, when in fact the issue around actors [of color not receiving nominations] is in the actors [sic] branch — they are the ones who do the nominations!" He continued, "This 30-year rule is going to hit the PR branch and executives branch the hardest. What are you going to tell Bob Iger? He got in in 2005 when he took over Disney. He leaves in a year and goes to the NFL. So is he out? He is only building the Academy Museum."

Scott Feinberg, "Academy's New Voting Rules Raise Questions, Concerns and Anger Among Members" (23 Jan 2016) (bracketed insertion in original, emphasis added).

The irony that this is coming from an anonymous member of the PR branch is disturbing enough; but the irony gets rustier after thinking about it. One only becomes eligible to even be considered for membership in the actors' branch by being cast in at least one qualifying film, and usually several. The actors' branch then has some say over who gets in, but first one must be cast... and that prerequisite is almost entirely controlled by the executive and PR branches, because historically those two branches have together operated (all too frequently consciousely and overtly) to restrict opportunities for persons of color — and, for that matter, women and East Asians and gays and every other distinct grouping other than white Christian men — out of concerns utterly unrelated to merit. No, the executive and PR branches have far too often barred the majority from film roles based on perceived difficulty in "selling" the resulting film; just ask Ramón Antonio Gerardo Estévez why he felt it necessary to adopt an Irish-sounding stage name in the 1960s, and ponder the consequences of the most-successful-in-acting-recognition of his children following that practice while his daughter and other two sons did not.

In short, the inability of a (presumably) "senior" member of the PR branch to see the problem is precisely why the inactive "senior" members of the PR and executive branches most need to be weeded out. Of course, there is going to be a transition period, and there will be shrieking in all directions. But it seems to me that demographically weeding out those who historically established, embellished, and enforced the demographic roadblocks makes a nice bed for Procrustes.

#OscarsSoStupidandPredictable

I'm not pleased with the Oscars this year, with the complete domination by Northwest Europeans across the acting and directing categories. On the other hand, the Academy has brought it on itself, with a combination of:

• A stupid eligibility system that allows gaming by doing "special releases" in Los Angeles and New York at the end of the year to move the eligibility date... when a film that is released only in those location cannot possibly show a profit. This year, that means that Selma — a film that almost certainly would have been competitive in the directing and acting categories against what is on the official slate — was not eligible when it was a January 2015 release to over 95% of the country.
• A stupid calendar that starts too damned soon after the end of the year — hell, the voting begins before the end of the year, and even well before the actual release dates of many eligible films. If one wants a meaningful contest for "best," one allows a meaningful opportunity to actually see all of the candidates. Otherwise, it's just a bloody easily manipulated high-school popularity contest for Homecoming Queen (ok, perhaps that was a bit too literal). Frequently among Academy voters whose education too frequently never got past high school, for that matter...
• A stupid refusal to have actual, stateable, agreed-upon criteria for when a role is a "leading role" and when a role is a "supporting role." At least two of the supporting-actor nominations (without regard to gender) are for individuals who gave their all in performances that should be considered "leading" roles... and that, by itself, may very well have knocked persons of color in truly supporting roles off the ballot this year. The awards for 1980 are a disturbing — and by no means unique — example: The best-film winner had no leading actor, and the system manipulated things to give its actual leading actor an award as supporting actor because politics required giving a makeup award to another actor in the lead category (and also neglecting two performances substantially superior to that performance, also by actors who would later get make-up awards). And, meanwhile, there were performances by supporting-role "actors of color" that didn't make it on the ballot so all these white men could get their recognition. (Aside: This is not a slam at Timothy Hutton, whose performance in Ordinary People was good enough and certainly did not tarnish the awards like, say, the preceding year's best actor fiasco. Mr Hoffman deserved a Best Actor award... just not for Kramer v. Kramer, and so on down the line. It's a slam at the Academy.)
• It's not that the Academy has a lot of non-active members that's the problem. It's how those non-active members got to be members in the first place... in an exclusionary industry, and especially in the off-camera roles. If the demographics of the acting branches of the Academy were significantly different (in a meaningful way) from the off-camera branches, one's rhetorical eyebrows might be raised a little higher; in reality, not so much. Bluntly, there's a long history of racism and nepotism in H'wood — starting with class- and race-selecting "unpaid internships" as an entry point — and it takes about thirty to forty years to reverse those. (That's what it took for the US military to move within one standard deviation of national demographics among the junior officer ranks after Truman "desegregated" the military in 1947.)

In short, the Academy has brought #OscarsSoWhite upon itself with decades of neglect, of coded acceptability — of "NY and LA based critics are the only ones who matter" in the era of Gene and Roger and location shooting and Vancouver/Toronto/wherever studios, of the de facto racial hiring practices throughout the industry that have gotten no attention whatsoever from the Academy, of allowing what is supposed to be a set of awards for "excellence" or "outstanding achievement" to be coopted for marketing and ego purposes. It's disturbingly parallel to the FHA setting the table for Trump-family racism... and I sincerely hope that at least one Academy member gets an uncomfortable flinch from that comparison. Failing to acknowledge past misconduct, and further failing to take specific steps to deal structurally with that past misconduct, has consequences; just ask Secretary (General) Powell — or anyone who served as a junior officer supervising/commanding Vietnam-era enlisted personnel, particularly at any base in the former Confederacy (or, hypothetically, New York City — thanks, greedy landlords).

Making America Great? Again?

And so the woman who could see Russia/Moscow from her window (probably a misremembrance of one stop on her five-campus undergraduate meander toward a degree in "communications," when she really could... Moscow, Idaho, that is) is endorsing the Heffalump candidate whose grasp of reality — or absence thereof — most closely approaches her own. I'm shocked — shocked, I say — to find such disingenuousness in American politics. Maybe that transforms Trump into a Palin drone: Makes no sense whatsoever either forward or backward.

I'm equally shocked that she's hauling out the "make America great again" meme. I find it interesting, but entirely unsurprising, that every single individual who has pushed this meme would have been equally entitled to push Rosa Parks out of her seat on the bus. Of course, it might be a bit much expecting either Palin or Trump to spell "melanin" in the first place... two days after celebrating Dr. Martin Luther King, Jr.'s ever-shifting-thanks-to-the-need-for-middle-class-friendly-three-day-weekends birthday. Maybe they should go watch Gran Torino so they can claim to have at least some awareness. Awareness that they'd be getting from a guy who spoke to an empty chair at a Heffalump national convention, which is more than they have now. And if you don't find that disturbing, you'll have to do what I plan on doing.

Unconscious Time-Based Racism/Classism

So, while zoning out, I was watching one of the cooking-contest shows on Food Network last night, and realized something: Unconscious racism/classism embedded in the time limits for the already-edited-for-length contest segments. A one-half-hour-long total time segment locks out (in no particular order):

• Rice. But it's not a very popular or versatile foodstuff, so blocking a central ingredient in the cuisines of approximately half of the world's population doesn't really matter.
• Yeast-leavened breads. And there goes half of the remainder.
• All other whole-kernel grasses (and, for that matter, buckwheat, which is not a grass/grain at all). Still smaller... now we're down to ahistorical New World-influenced Western Europe.
• Roasted game. Can't do it at high heat, which means it's going to take a while.
• Stews. Yeah, stew can be done in twenty minutes. Riiiiiiiight. And "stew" also includes a lot of curries.

So, instead, we get variation after variation on middle-class-and-above Northern European cooking, with "excitement" from adaptations to foodstuffs found in the western hemisphere. But no biryanis; no judges arguing over which contestant produced the tastiest tehdig; not even any risotto or jambalaya or paella. No red-cooked game fowl. No ragùs. Almost nothing from India or sub-Saharan Africa or the Arabian Gulf.

It's not like these are live or real-time shows; they're already edited for time. Editing down from 45 minutes to 11 for broadcast probably won't be that much harder than editing down from 30 minutes to 11 for broadcast... especially since it takes 15 seconds to show rice being started! Hell, even Iron Chef is edited down from an hour of cooking time to allow for showing the judges preening over their publicity opportunities.

No, the real "culprit" here is the idea that dinner has to be on the table from scratch in half an hour — which is, itself, a very classist and unconsciously racist conceit (you mean you can't use a slow-cooker to make chili????????).

Return of Lovechild of Internet Link Sausages

First platter of sausages in a while...

• A long, interesting review essay at NYTM on the "authenticity" problem in sociology also uncomfortably echoes — at approximately 0.38 (p < 0.70) removes — current arguments going on in various communities in fiction (literature). "Who may speak for whom?" is, indeed, a central question. The antiintellectual undercurrent in the question, though, is as much of a problem as anything else: A de facto requirement to undermine one's very data through overt apologia of positionality implicitly distrusts both the writer and the writer's audience; it proclaims that nobody is smart enough to understand that the data is imperfect and the conclusions drawn from it are conclusions and not fact, regardless of the rhetoric involved. It is, in short, a genteel bigotry of its own — one that denies the validity of research, in a biting-the-hand-that-feeds-one sort of way.

  And it leads to a much more darkly disturbing question in fiction: How does positionality properly manifest itself in an explicitly counterfactual work — even an explicitly counterfactual work that includes substantial factual material? I don't have an answer... but smugly arch exclusion of voices of insufficient "authenticity" sounds far, far too much like pretending that Dr Charles Drew was not a research physician because his background was not sufficiently authentic. Equality and sensitivity do not mean "I get to be the abusive senior fratboy running the hazing rituals now!" There's a huge distinction between acknowledging possible flaws and treating the (largely inherited) basis for some of those flaws as disqualifying one from even expressing an opinion... and the circularity and irony of such courtesy stigma should give the intellectually honest a great deal of discomfort. I'm not sure I know a right way, but excluding voices and evidence is surely wrong. (And the less said about so-called "journalistic standards" in this context, the better; one wonders how many journalists understand that their investigative standards are a direct result of eighteenth-century libel law in England, which in turn was almost exclusively a concern of the white male protestant upper- and upper-middle classes.)

• RIP Ziggy Stardust David Bowie. I was never an ardent fan, or even really much of a fan... but on grounds of taste more than of substance (well, except for the quasidisco and arch dance music, which was on a substantive basis), and I knew the difference between the two even back in the mid-70s. But I don't have enough East Coast urban authenticity to make that sort of distinction, and my positionality is suspect...
• Meanwhile, The New Republic is up for sale. Again. <SARCASM> Maybe — just maybe — treating the staff humanely might have allowed a sustainable change. Maybe some Bowie bonds would help fund things for a while, too. </SARCASM>
• An increasingly difficult question in IP law — especially as it relates to the 'net — is deceptively easy to state: Where does infringement occur? It matters a great deal, because that affects both the substantive law (e.g., if the infringement "occurs in" the US, the First Amendment comes into play) and procedure (jurisdiction, rules, etc.) necessary to resolve any dispute that can't be dealt with directly.

Merry [solstice-related holiday name deleted because THIS IS WAR]

The coal has been file-stamped and committed to the kind services of an aerial delivery service staffed by Eastern Orthodox reindeer. Whether those reindeer have appropriate FAA clearances for flight over populated areas is their problem, not mine; they're a common carrier who accepted the delivery instructions and bills of lading for 24,098 lumps of coal in two irregularly-sized and -shaped bags (exclusive of exhibits).

In no particular order, then, and carefully ignoring everything political-campaign related as part of my New Year's resolutions:

• Chief Justice Roy Moore of the Alabama Supreme Court has just provided yet another data point for why no judicial or law-enforcement officer should be selected (or retained) through a popular election, with his utterly inane hair-splitting anti-gay bigotry that gives ardent legal hair-splitters a headache. Not only is Justice Moore an elected judge, but (a) he's been in trouble over government-imposed religious "respect" before, and was removed from office as a (partial) result for unethical misconduct inappropriate to any lawyer (let alone a judge); and (b) was elected to his current post after that previous incident of a judicial officer failing to honor the rule of law over... well, an accurate description would contain too many expletives for your screen to safely accept. I'll just have to restrict myself to directing a well-known, anatomically impossible phoneme-fricative imperative to all Heffalump candidates for the highest office in the land, because at various times in the last four months each and every one of them has not just stated tolerance for, but expressed advocacy of, this kind of religious bigotry.

  Damn. That resolution didn't even last a full paragraph. At that, it probably lasted longer than most "get in shape"-type resolutions...

• But at least that was about humanity. As held yesterday by a respected judge in San Francisco, a macaque does not own the copyright in its selfie photograph when the photographer set the camera up to enable the macaque to activate the shutter/record the image. Although it was an oral ruling, it appears to be following the principle that copyright belongs to humans — not to animals, and not to electronic text-generating systems. (I'm somewhat pissed off that I had to go to a non-US neutral source to get a clear, accurate description of a US copyright decision that is not deluged with ads of dubious copyright integrity.)

  That leads to a side issue, though. It seems clear now that monkeys can't own copyrights (or, at least, can't be authors for the purpose of copyright protection). What about the unicorns and silverback gorillas of the tech and entertainment industries, who claim "authorship" under the work-for hire doctrine (see 17 U.S.C. § 201(b))? Or the venture-capital vultures who buy them up? OK, the imagery is a bit excessive, but it's really the same point: If a macaque, because it's an animal, can't be an "author," why can a business entity? (Yeah, the obvious answer is "Because the statute says so." Our statute — nobody else's.) And if the governing statute in a foreign jurisdiction allowed nonhumans to be owners (even in part) of business entities... No, I'm not thinking of Switzerland at all, and anyone who says I am is being just as disingenuous as was PETA in filing this lawsuit in the first place (I have a different jurisdiction in mind).