Unwisely Sticking My Head Above the Parapets

... primarily because there's live fire coming from every possible direction, including from inside the damned castle.

Once upon a time, I raised my right hand and said the following:

I, ____, having been appointed a Second Lieutenant in the United States Air Force, do solemnly affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter.

The oath taken by attorneys is similar, in that there is no reference at all to loyalty to any individual, or to any set of policies excepting only supporting and defending the Constitution (including also the respective state constitutions, which is yet another reason that states should get out of the lawyer-regulation business... but that's for another time, and it's a "should").

Instead, certain elements are acting as if a vulture fund has successfully engaged in a hostile takeover of a firm that has no legal or moral obligation to consider what the military calls "collateral damage" and what economists refer to as "externalities." A word of warning, based on history: The vast majority of prosecutions for "war crimes" have arisen from ignoring various aspects of "collateral damage" doctrine in preference to "mission accomplishment"... all too often of a self-serving "mission." Similarly, a plurality (and possibly a majority) of successful corporate prosecutions under the rule of law have concerned attempts to ignore externalities... all too often in pursuit not of building the value of the corporation, but of corporate officers and directors. And, almost by definition, governments in the United States aren't supposed to be about personal benefit, but about public service; how that works out in practice is incredibly complex, but the inability of current federal officeholders to vote/declare themselves a raise is a big hint.

And so, in the Monday Night Massacre, a lawyer got fired for holding to her oath. The administration was legally entitled to fire Ms Yates; the wisdom of doing so is a separate issue, as are both the wisdom and right of Ms Yates to speak and act as she did. As a West Wing character noted concerning Bartlet doing the "right thing" and invoking the 25th Amendment during the horribly contrived kidnapping crisis, "A truly self-sacrificing act usually involves some sacrifice." And even just following orders may be that self-sacrificing act, if not now then in the future. Few people remember that the lawyer who did follow orders and fire Special Prosecutor Archibald Cox during the Watergate investigation was the individual whose later Supreme Court nomination led to the arch partisanship of all judicial nominations: Robert Bork, then the Solicitor General. (Ironically enough, the Solicitor General would no longer be at that place in the chain of command!).

Agency Capture and the Copyright Office

There's an "argument" going on right now — resembling the posturing of silverback gorillas more than an argument — concerning whether the Copyright Office is a captured agency. On one side, there are "info free" warriors and allies, such as the so-called "Public Knowledge" group (a deceptively deceptive name, with multiple layers of ideological presumptions in it), claiming that the Copyright Office has been agency-captured by "copyright holders" to the detriment of the public at large. The opposition has been sniping around the edges, pointing at all of the problems — and, admittedly, they're serious ones — with the factual support offered for that position, but failing to engage with the underlying question of whether there has been a capture at all.

And then this happens: The recently-ousted Register gets a new job as CEO of the Association of American Publishers, continuing the long tradition of senior Copyright Office officials (and even not-so-senior) sliding easily into well-paying jobs specifically in the distributor/transferee segment of the entertainment industry. This exposes the meaninglessness of the posturing described in the first paragraph, because "copyright rights" is not a two-sided battle. It isn't even necessarily a battle... but it definitely has more than two sides. At minimum, copyright necessarily involves the rights of:

• The actual, natural-person creators of copyrighted works;
• The distributors and, where present, transferee-owners of those works after their creation;
• Reusers of those works, who create useful derivatives within the framework of copyright (whether licensed or not, fair use or not,... legally or not);
• End users of those works

The regulatory capture is the second area. And Ms Pallante's new job — which will fit in quite well with her advocacy over the years — is a pretty clear piece of evidence that capture has been successful. Ironically enough, because the Copyright Office is an arm of Congress, its employees are exempt from most of the "revolving-door" restrictions... which might have inhibited this particular embarassment if the Copyright Office had been in the Department of Commerce where it belongs, along with the Patent and Trademark Office.

No New Year's Treats for Me!

Last entry for a while (for some value of "while") <TooMuchMedicalInformation> due to impending Stuff tomorrow </TooMuchMedicalInformation>…

• Vanity presses have a long, dishonorable, disgusting tradition, even in academia. Bluntly, "page charges" turn most academic journals into vanity presses. Indeed, most authors for esteemed journals like Cell and Nature and The Lancet can expect never to be compensated by payment to them for their writings (whether one-time fees or royalties), except as an incidental knock-on effect of obtaining tenure or an academic promotion. Instead, they pay to be published — usually into four figures for even a short academic article. The academic divisions of most commercial publishers are the major profit centers for the entire corporation; for example, 2015's results for Pearson indicate a profit margin several times that of any trade division, whether by percentage or actual revenue.

  But this is not the worst aspect of the academic vanity-press deception, and hasn't been for quite some time. Even the NYT has finally come to the party (fashionably late — over twelve years — and a little hungover), although this article still soft-pedals matters.

• This blawg's only feline friend the IPKat (sorry, kitty, you spent most of yesterday afternoon being an asshole about the groceries on the counter where you're not supposed to be in the first place, so you're not this blawg's friend) notes — for non-US readers — the annual "Public Domain Day" based on Berne Convention copyright duration. The irony that most of Gertrude Stein's most-influential works remain in US copyright, but not international copyright (when that influence is disproportionately apparent among subsets of non-US university students), is perhaps a bit much to ponder at the moment.
• Without accepting — indeed, largely rejecting — the (less than overwhelming) normative asides, Terry Hart has posted a useful guide to copyright issues and persons likely to pop up in the US during the first few months of 2017. My "largely rejecting" comes from the silent assumption of a two-sided struggle between Big Media and Big Redistributor as the true nexus of copyright conflicts; it's much more Balkanized than that (with the expected consequences of Balkanization).

  The biggest example of which — and just because it's across the Pond doesn't mean it won't affect US copyright issues — is Brexit, and its effect on both EU copyright uniformity and directly upon UK copyright law. Anyone who can't see this one coming isn't looking… and we need not wait for Article 50 to actually get triggered for it to create problems, as different departments within the EU are already Balkanizing on copyright-related issues!