29 November 2016

Leftover Turkey Link Sausages

There may have been no Turkey Awards, but that doesn't mean I can't scrounge for leftover sausage makings...

  • In a fascinating bit of arrogance, some communities are advocating a tax on video streaming to make up for loss of tax revenue from cord-cutting. There are two unjustified layers of assumptions in here, both revealed in this passage:

    Public officials have argued that taxation rules need to be revised to account for changing technologies. It is unfair, some say, that people who get video through cable television are taxed while those who have shifted over to internet streaming services are not.

    The first — and most obvious — a priori assumption is that the existing administratively-convenient system is both "fair" and appropriate. A system of taxing specific consumption channels for necessities (more on that in a moment) is easy, but actually inherently unfair. Consider, for a moment, whether these cities impose a similar tax on those who rent DVDs (yes, some people still do, whether locally or by mail) or even borrow them from the library... and, more to the point, whether that "similar tax" is equivalent. No, this is instead the reification of current budgetary levels combined with general unwillingness of the public (usually instigated by heavy beneficiaries of indirect services who don't want to pay for them) to shift to an objectively-fairer system that is more difficult for the privileged to evade.

    More critically, these kinds of "taxes" — and those on telephone service, cable TV, etc. — raise First Amendment concerns, especially when revenues are not earmarked for support of First Amendment activities. That, however, is an inquiry that nobody is really willing to undertake.

  • This blawg's only feline friend the IPKat notes that the Court of Justice of the European Union has held that one may not resell a backup disk of a computer programme. In one sense, this seems a perfectly reasonable check on probable fraud: Purchase of a single copy, followed by a Fonovisa-like duplication effort. On the other, I think it also gives too much weight to claims that when one "buys" a program one is only obtaining a nontransferrable license. If the original was destroyed or damaged through no fault of the user, but the user had made an authorized backup copy, there's no good reason to prevent the user from substituting the perfectly valid backup copy in a later third-party transaction... except, that is, if one hasn't figured out that software "licensing" is a Ricardian rental scheme that is fundamentally inconsistent with freedom of information transfer (whether under American or European precepts). And the implications for the preceding link sausage are left as exercises for the student.
  • The Supreme Court issued its first signed opinion of the term before the end of November, on a criminal matter of seeming technicality that is actually much more foundational to Western notions of justice and finality. (And, frankly, to poor lawyering below.) In Bravo-Fernandez et al. v. US, No. [20]15–537 (29 Nov 2016) (PDF), the Court unanimously held that certain reversals of convictions for unrelated legal errors (that is, of procedure, not of insufficient evidence) cannot be bootstrapped into a double-jeopardy bar to reprosecution on the same charge.

    But what this really discloses is that both the advocates below and the judge below failed in their duty to properly guide the jury... through, at least as implied in this opinion, using a general-verdict form ("guilty/not guilty", charge by charge) instead of a findings-of-fact form ("did the defendants offer an unlawful bribe to X?" plus "was the bribe offered to X for the explicit purpose of influencing award of a government contract?"). This was fundamental error by both counsel and the judge, completely separate from what any of the appellate courts even bothered to review... but it is an error embedded in over three hundred years of common-law jury instructions, and longer than that in the civil law. It comes from the foundational assumption that the trier of fact is simultaneously applying law, in contrast to the scientific method. This is not to say that no "mercy" or "discretion" is to be applied to facts (there's no mercy in the Second Law of Thermodynamics!); it is to say that determining the data going into that application should not be mixed into the application itself, once one know what the significant data must consist of. That latter guidance is what the lawyers and judge — and the jury form — are supposed to provide to the lab techs (jurors). And remember, in a criminal trial the techs only get one run at the data... unlike scientific contexts which require replication (unless you're dealing with health supplements, apparently).

  • Finally, a side note on a sadly amusing issue in the entertainment world — an issue that recent family gatherings for post-election Thanksgiving meals should have put into the spotlight. The well-regarded quarterback of the Green Bay Packers has been extensively psychoanalyzed by amateurs regarding his purported "family estrangement" and how that might be affecting his play. The implication in all of these articles and soundbites is that Mr Rodgers is somehow unjustified in whatever "noncommunication" he has been engaged in. Leaving aside for the moment the dubious qualifications of those doing the "analysis" (if one may even associate that term with the drivel I've seen), nobody is considering the obvious inquiry: Maybe — just maybe — Rodgers is rightly avoiding one or more assholes. Far be it from any family member — ever, anywhere — to have expectations of being "taken care of" by successful athletes and entertainers. More darkly, far be it from any family — anywhere — to avoid including a never-shuts-up racist bigot who ruins every family gathering... a not-irrelevant hypothesis given that Mr Rodgers' significant other is mixed-race (and talented and a real threat to the purity of NeanderthalAnglo-Saxon values). And none of it is anyone else's business; it's not at all like letting one's gonads do the thinking on national security (and that miscreant is an involuntary member of my "family" — the family of commissioned line officers).