Pre-Holiday-Barbecue Link Sausage Platter

To keep the vegetarian from crawling out of the marinade for my usual (last year, obviously, was an exception!) "vegetarian barbecue" on Give the King the Finger (Instead of Celebrating Actual Victory) Day, I've made up this tasty platter of link sausages.

OK, "tasty" might be false advertising. If, that is, this blawg counts as advertising, which leads directly into the first sausage:

• This blawg's only feline friend the IPKat (no, cats are not ordinarily welcome at my barbecues; they tend to be trip hazards around the open flames) notes that "lack of borders" works both ways for Google search results, at least in Canada. And at least founded on a prior judgment and evidence of fraudulent intent. This has a couple of implications that nobody will really like… but they are perhaps-inevitable consequences of "the entire world is not the Internet, no matter what entrepreneurs would prefer."

  Perhaps most oozing-fatty-barbecueishly delicious, this is another instance of petard-hoisting. Google — not to mention its allies, both formal and otherwise — has long run a global business, obtaining revenue globally and funneling it (or not, depending upon the tax consequences!) to Itself, which is in turn a Frankenstein's jurisdictional monster. However, Google has also long attempted to evade the consequences of entering other markets; not just those taxes mentioned in the preceding sentence, either. Here, there's a specific court judgment (with, admittedly, the flaw that the defendant abandoned the defense, resulting in what US practice would call a "default judgment") regarding a specific misuse of information with a limited remedy that Google attempted to evade on purely territorial-jurisdiction grounds: That a judgment related to conduct in British Columbia — or even more broadly in Canada — could not justify a worldwide removal of search results. This isn't just a desire to have one's cake and eat it too; it is an arrogant claim that the baker is entitled to the flour without paying for it in the first place, in order to bake the damned cake without engaging in appropriate health practices (whether "required by regulations" or otherwise). In short, Google's position is that it's entitled to the benefits of a worldwide reach without any consequences whatsoever… except, perhaps, to its own market share.

  There is, of course, a significant danger here: the Ehrenfeld problem. It is not really raised in this case; although I am troubled by the fact that it's based upon undefended allegations, those allegations appear both prima facie and factually valid and sound, leaving only possible abstract defenses of "justification" and "improper claim of ownership." It is, nonetheless, an uninvited guest at the barbecue, because relying upon a final legal position presumes due process in a disturbing way… and, more to the point, presumes the practicalities (such as paying for counsel, let alone finding available counsel) implied by "final legal position," and not just for obvious circumstances like defamation and infringement of intellectual property.

  I'm not going to pretend that this is an easily evaded conundrum. The whole point is that it is a conundrum that doesn't have easy, entrepreneurially-friendly, ideologically-simple analysis or resolution. Life is nearly as hard as that bit of last summer's potato salad under the grill lid.

• Which, in the broader sense, leads to the propriety of publishing depending on, well, something that's supposedly better when hard: a portion of the male anatomy. Of course, that region has no grey cells in it, so thinking with it is contraindicated in the first place…
• … but is perhaps better than thinking solely with one's wallet concerning the most-profitable part of publishing. Leaving aside that anything associated with Robert Maxwell needs at least as much skepticism as anything associated with Sauron and his minions, it remains fascinating (and frustrating) to me that "publishing" continues to be treated as a single monolithic structure despite being composed of thirteen distinct industries. "Publishing" is no more monolithic than "self-propelled wheeled vehicles" (ranging from motorcycles and automobiles through carnival rides, construction equipment, and fire trucks, to armored cars) is, and almost certainly less so.

  One might ponder just how this sausage is connected to the preceding one:

• But perhaps that might be too frustrating if one actually reads anything, let alone what is on offer from commercial publishers. Frankly, about two-thirds of the names in that graphic (across several categories) don't qualify as "intellectuals" in any sense of the term; "has done bachelor's degree" doesn't make one an intellectual! Neither does "has bachelor's (or even graduate) degree leading to Speaking From Authority on unrelated subjects," as is uniformly the case with the individuals identified in the graphic as "Right," "Explainers," and "newer lights from Silicon Valley."

  It's not that a bachelor's degree (or graduate degree) is a prerequisite to "clear thinking" — it's that the definition of "intellectual" implicit in the entire article is simultaneously both condescending (and sneering, not to mention argument from authority) and the worship of formal qualifications and/or entrepreneurial nonfailure rates, most of which are parental-social-class-selective in form (and too often in substance). Not to mention the irony of both the source of this article and the preceding link sausage as forms of the Argument From Authority in and of themselves.

Coal in the Stocking Year-Round

Just a short note on a recent matter that epitomizes SLAPP (Strategic Lawsuits Against Public Participation):

On Sunday evening, John Oliver spent most of his Last Week Tonight broadcast on coal. The broadcast included both satirical and factual criticism of one particular coal magnate. Said magnate has now — as Oliver predicted he would, and consistent with his past (mis)conduct (and his attorneys' (mis)conduct, compare W. Va. R. Prof. Cond. 3.1 with New York Times v. Sullivan, 403 U.S. 713 (1971)) — filed a libel suit.

<SARCASM> There's an obvious factual problem with the claim that Oliver engaged in "ruthless character assassination" (Cmplt. ¶ 51): There was Ruth involved. Associate Justice Ruth Bader Ginsburg, that is, as one of the majority in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), a matter mentioned during Oliver's broadcast segment. Indeed, it's easy to argue that Oliver was cleary with that Ruth, because the gravamen of the Last Week Tonight segment was that self-aggrandizing, self-interested magnates in the coal industry have engaged in substantial conduct to the prejudice of good government… and that is precisely what was at issue in Caperton.

Besides, that plaintiff (who will not get the dubious privilege of being named on this fine blawg) might not need his oxygen tank to survive (Cmplt. ¶ 5) if there were fewer coal particulates in the air. </SARCASM>

Frankly, given the respective track records, I have more confidence that Oliver and his team of comedy-oriented writers accurately stated the facts, and more to the point refrained from distorting third-party documents like the Federal Mine Safety and Health Administrations investigation of the Crandall Canyon Mine collapse, than I do in the counsel who filed this SLAPP action.

Presolstice Sausage Platter

No real theme here today, just a couple of semirandom sausages each more resembling a "rope" than a "link" sausage. Sort of; I think this metaphor is getting a wee bit overstretched.

• I have to laugh at the earnestness and colossal ignorance found in a piece trying to explain Marvel's recent "cancellation" of its Black Panther comics:

  Quite simply, World of Wakanda wasn’t selling well enough — but the solution isn’t as simple as going to your local comic store and buying more copies of Gay’s books. That’s because, in Marvel’s eyes, the number of copies of World of Wakanda that were sold in comic book stores was decided months ago. Considering the numerous ways and formats in which we are now able consume different kinds of pop culture, from books to music to television shows to movies, the comic book industry is unique in that it still relies on an outdated method of distribution.

  Every major US comic book company — Marvel, DC, Image, etc. — relies on one company, Diamond Comic Distributors, to print and ship their books to independent retailers, a.k.a. the owners of comic book shops. Diamond sells comics to comic book shops as final sale, meaning owners aren’t allowed to return or exchange books that didn’t sell. This is in contrast to traditional book retailers, which can sell back the books they weren’t able to sell.

  "Marvel canceled Roxane Gay and Ta-Nehisi Coates’s Black Panther comics. The problem goes beyond Marvel" (16 Jun 2017) (italics in original, hyperlinks omitted, inept quasijournalistic paragraphing corrected).

  This particular screed — as reasonable-sounding and generally accurate as it is — misses reality by implicitly claiming that "books to music to television shows to movies" are all distributed so inherently differently from and superior to comics that it's just the distribution system at fault. Not so much; a nonexhaustive list, in no particular order—

  • Just try getting digital works into the library market (which is not exactly trivial, and especially so for teen/YA material like many digitized comics) without being on Overdrive. Just try. Better yet, go to your local library and request an e-book from a major university press that is not obviously a purely academic work and see what reason you're given for the library's refusal to acquire that work — say, any of Michael Klarman's well-written, accessible works on the history of the US Constitution, published by the Oxford University Press.
  • The later-in-the-piece description of "pre-ordering" still describes exactly how commercial publishers treat all works. The only distinction — and it's a narrowing distinction given the recent wave of reconsolidation — is that book distribution is oligopolistic, not monopolistic. Otherwise, the tyranny of pre-orders is exactly the same… and it's actually even worse in non-comic periodicals.
  • Holding up the returnability of books as a feature, not a bug, is more than slightly insane, especially for trade nonfiction… if only because the timing of "returns" and "returnability" was set in the 1930s, ignoring countless changes in both production and fulfillment technology/practices and financial systems that should have collapsed the timelines (but haven't because that would be to the publishers' disadvantage — the current system favors them because it delays and reduces payments to authors). And it's not only that.
  • It's really no better for music. Perhaps you might recall, a few years ago, that an antitrust consent decree was entered against the major distributors of CDs… and if you really think things are better in listenable/downloadable distribution, you haven't been paying attention. The details differ slightly, but that's about it.
  • Television is a laughable distinction, again being an oligopoly-with-conscious-parallelism instead of monopoly issue. Realistically, even "cord-cutters" are still stovepiped through a very small range of distributors, at remarkably similar prices when recalculated on a per-viewer-hour-expended basis.
  • Movies? Really? Does this writer understand a damned thing about film distribution, whether first-run or otherwise, whether archly-commercial-aspiring-blockbuster or anything else?

  Overall, this article gets a C-. It accurately notes problems in comic distribution (and that's leaving aside any particular perfidy at Diamond itself, which is nontrivial but difficult to demonstrate at article length). It stumbles, however, in trying to overdistinguish those problems from the rest of the distributed-copies-of-entertainment industry so as to make its own chosen subject seem unique and important. It ultimately founders in its ignorance of the nondistinctiveness of oligopolies (especially once conscious parallelism is considered) and monopolies, and particularly so in the distribution as opposed to manufacturing phase of an industry.

• In an interesting decision this morning, the Supreme Court decided that if it's ok for Paul Cohen to wear a jacket proclaiming "Fuck the Draft" in a courthouse (despite posted rules demanding decorum), it's ok for a music group led by a man of East Asian ancestry to call itself "The Slants"… and register the trademark in the name. Frankly, Matal v. Tam is not a hard case: As the Court held (PDF slip op.), the Lanham Act's prohibition of registering marks that "disparage… or bring into contemp[t] or disrepute" anyone (whether alive or not) facially violates the First Amendment. (The court failed to note that sometimes this is more subtle, such as the Aunt Jemima mark, than "mere word marks" can easily communicate.) On this point, the court was 8–0; there was only a nominal plurality for part of the reasoning, but all eight judges (the matter was argued before Justice Gorsuch was even nominated) affirmed the Federal Circuit's judgment below rejecting § 1052(a).

  The key point (which is not all that clear in the opinion) is that although a mark and its registration by themselves constitute commercial speech, the government's actions in registering (or refusing to register) a mark are most emphatically not. The government's actions are, instead, intertwined with the First Amendment's prior-restraint-on-speech issues… because registering a mark is as much, itself, about the markholder's own speech as anything else. Tam obviously makes possible the registration of such marks as "Jailbird Hillary" or "Lying Donald" so long as they meet the other requirements of the Lanham Act (use in commerce, first use, etc.). On the other hand, there's something darker in here, too, given the intertwining of commercial, "moral," and political speech in things like branding and advertising of contraceptives… or the converse.

  Of course, the NFL and its intransigent Washington-DC-based franchise will welcome this decision as some kind of vindication. That ignores that whether something is constitutional (or not) often has very little to do with whether it is a good idea (or not)…

Three Left Feet

The courts have been busy on intellectual property matters of late — not just Over There, but Over Here (and Over Yonder, too).

• First, there's a two-part, two-decision, two-jurisdiction dance (in 13:8 time) concerning piracy and attempts to screw copyright holders in the name of "information access." By Google specifically, and "the internet means everything expressible digitally must be free" advocates in general.

  Part 1 is simple and directly concerns Google. Google has a long history of posting verbatim, unredacted takedown requests to Chilling Effects (now known as Lumen), which semiassiduous pirates (among others) then search to find interesting material for piracy (or, for takedowns related to defamation and/or invasion of privacy, blackmail/extortion/direct shaming). After all, if the URL is quoted in the takedown request — as is required by the takedown rules, whether for copyright, for trademark, or for other rights — the notice substitutes for a Google search result that is being challenged, doesn't it? Apparently, the German courts have caught on that Google is merely using the takedown request itself as both a shaming device (to deter takedown notices) and, more to the point here, an ersatz search result. Amusingly — to those of us with grim senses of humor — the injunction notice (PDF image file) does precisely what it demands Google do: It fully redacts the identifying information so that it is not itself an ersatz search result. The IPKat has a useful, plain-English summary… as far as it goes.

  But that just leads to Part 2, which also goes to ersatz piracy: Link-and-search sites that claim not to have any infringing material, just the links/metadata to find it elsewhere. The Court of Justice of the European Union didn't like this dance any better than did the Oberlandesgericht München from Part 1. I recommend the IPKat's useful, plain-English summary over the CJEU's infelicitous translated opinion, but the result is the same: "Link sites" induce copyright infringement and are therefore blockable (notwithstanding GS Media' notice concepts) under core European and Berne Convention doctrines. And the links offered in this sausage are with malice aforethought and an acute appreciation for the well-hoisted petard.

• In Design Basics, LLC v. Lexington Homes, Inc., No. [20]16–3817 (7th Cir. 06 Jun 2017), Judge Hamilton attempts yet again to grapple with "the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single-family homes… [while] administering intellectual property law to discourage so-called intellectual property 'trolls' while protecting genuine creativity" (slip op. at 1). Judge Hamilton is not entirely successful, but that's not his fault at all: It is, if anything, the fault of the parties, their lawyers, and to a lesser extent the poor writing in the Copyright Act itself.

  The case actually turns on the fundamental distinction between copyright and patent law. In copyright law, there is no "copying" without actual access to the source work; put another way, "independent conception" is a complete defense. In patent law, however, the patent application itself is as a matter of law universally known, so "independent conception" is not a defense. But the court did not stop there, because it took the opportunity to smack down transferee misuse of enforcement actions as a "revenue model." Perhaps what this Design Basics matter (as Judge Hamilton's opinion notes, in the last decade Design Basics has been plaintiff in over 100 copyright-infringement actions) demonstrates more than anything else — particularly when read together with the Sherlock Holmes matters — is that if you're a troll, you need to stay away from the Seventh Circuit because the judges will turn you to stone. Gleefully.

  The policy-level matter that "troll" litigation exposes is one that the various affected industries, the various legislatures, and indeed damned near everyone else have evaded even mentioning: Transfer of ownership (not just rights) from those whose personal efforts led to "Progress in the useful Arts and sciences" to those whose personal efforts consist solely of exploiting that "Progress" for financial advantage, usually via a portfolio of similar increments of "Progress" originating from multiple creators. This is a problem across both copyright and patent law. It is also a problem with treating intellectual works as "mere" property, with the underlying assumption that they are therefore freely alienable because all property "must" be. I point this out precisely because applying fourteenth-century notions of the immutable characteristics of tangible property seems to be putting the cart before the breeding rights to the horse.

Over Yonder is going to have to wait for a better copy of the opinion...

Of Lamps and Golden Doors

President Drumpf, you're descended from immigrants, and in particular on one side of the family from immigrants from a region that was historically hostile to the (then much-younger) United States at the time. It's bad enough that across the Pond, your allies in the ruling party are getting in bed with the Northern Ireland Unionist successors to Ian Paisley (a group that has committed more violent crimes and killed more Americans than have citizens of the Suspect Six Nations) after campaigning on a platform indicating that only they could fight terrorism. But:

Two United States Courts of Appeal have handed you — and your marginally competent and marginally ethical advisors, both attorneys and otherwise — your head on your "corrected" Executive Order, no thanks to Kathy Griffin. One court eviscerated your position primarily on constitutional grounds; the other, primarily on statutory authority and interpretation grounds. More to the point, the Fourth Circuit (the entire roll of active judges, in fact) rejected your unconstitutional animus, while the Ninth Circuit (a panel of three different judges than those who rejected your first Executive Order) engaged in a close reading of the relevant statute and rejected your sweeping policies as simultaneously unfounded in fact and unauthorized by statute (PDF). That is, the circuit ordinarily considered "most likely to be curmudgeonly, short-sightedly, and counterproductively anti-activist" reached to the Constitution, while the circuit ordinarily considered to be "most likely to be judicial activists" was restrained in its method… and both rejected you without giving you any unearned credit for having two intellectually honest brain cells to rub together. They weren't quite that vicious in their rhetoric — only in their fact-finding and reasoning.

The Ninth Circuit's opinion today is founded on exactly what a judicial opinion is supposed to be: A careful consideration of facts as they relate to the dispute in question, not to broad policy objectives. That's something that neither you nor your advisors did, since I don't think "policy" or "facts" were really at issue for you — only bigotry.

Two versions of a report from the Department of Homeland Security (“DHS”) surfaced after EO1 [the January Executive Order, previously enjoined] issued. First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2’s [the currently-at-issue Executive Order] issuance, concluded that citizenship “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by EO1 are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.” Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Id. Of the six countries included in EO2, only Somalia was identified as being among the “top” countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded “that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns” (emphasis added).

Hawaii v. Trump, No. [20]17–15589 (9th Cir. 12 Jun. 2017), slip op. at 10–11. That is, even your own hypersuspicious purported "experts" couldn't support the terms of the restrictions you would actually impose.

I'd suggest that you grow up, but telling a two year old who can't decide which temper tantrum to have next to "grow up" is both unrealistic and frankly counterproductive. And now that I think about it, that's insulting to the two-year-olds I raised — even at their worst they didn't act from the sense of entitlement you display every day.

Harsh Language

<SARCASM> I think I may have figured out a tweet's real meaning. Sort of: It's that The Donald is a poor language student and can't even name the letters in his new language accurately, at least not when tired.

"covfefe" = "КОВВ"

which is my best guess for an American (that is, who really knows no other language) learning Russian so he can speak to his new masters, and slightly fumbling the letter names (it's actually fairly close, phonetically). That's a nonsense jumble, but might be an acronym for something in the Foreign Ministry… or ФСБ… </SARCASM>

Head Cheese?

There is no head cheese on this platter of link sausages. <SARCASM> I would have fired her long ago just because I don't find her performances amusing, but as a fan of Richard Pryor I clearly don't understand contemporary stand-up and sketch comedy. </SARCASM>

• The French courts have indirectly begun prying away at some really dubious publishing/entertainment industry practices through exercising the original purpose of trademark law. Trademark law originated not as an intellectual property right, but as a consumer protection statute. In Anglo-American law, the "trademark" was specifically a mark applied to silverware by silversmiths, often in London's East End, and it was the counterfeiting of that mark on "inferior" merchandise (often containing little or no silver at all, let alone with the "authentic" craftsmanship) that led to a criminal offense for "passing off." Enforcement was eventually privatized to the proper "owners" of the respective marks except in the most egregious circumstances (usually those involving evasion of import duties), and after another hundred years or so became an intellectual property right in "modern" trademark law.

  The French courts — without, so far as I can tell, ever making this comparison explicitly (one of the reasons that I rely upon the IPKat for goings-on in France is that the opinions are difficult to access, and not just due to the general language but to inconsistent legalisms) — have considered Renaissance-patronage interpretation of mark "ownership" regarding copyrighted works. A recording company registered marks related to two songs commercialized from a cartoon character. The French Supreme Court has now ruled that the recording company — the patron — had no right to claim ownership of those marks; it is not the "origin" of the related "goods," and therefore its claim of ownership in the marks deceives the public.

  This has some fascinating implications for various publishing and entertainment-industry practices, well outside of the obvious question of "Who gets to be Pink Floyd after Roger Waters leaves?" In no particular order:

  • Is a ghostwritten book that does not disclose the true, natural name of the ghostwriter now a deceptive designation of origin, at least in France?
  • How about a celebrity-coauthored book in which the celebrity — or, more to the point, packager (I'm thinking specifically of you, J___ P___) — provides nothing more than a marketing umbrella, at least in terms of actual expression that remains in the work as published?
  • Do film production companies have a right to claim a mark in character names from previously published novels, as Warner Brothers so blatantly has in the Potterverse (look at the copyright page of any American edition of the fourth and later novels)?
  • What about "house names," like "Franklin W. Dixon" and his "colleagues"?
  • What about publisher-forced pseudonyms for authors with existing track records (and, therefore, discernable "origins" known to the public)?

  These are not easy questions. They are seldom even being asked.

• Then there's the potential mootness issue (that's just one example) concerning the racist/bigoted "travel ban." I'm a bit disturbed that the mootness analyses generally tend to confine themselves to literal mootness without looking at the most-important exception to mootness: capable of repetition but evading review. This isn't an easy question, either, but it exposes what is really at issue: May the Judicial Branch anticipate the possibility of future bad faith in fleeting actions founded on bad faith in the elected branches, and anticipatorily exercise its checks-and-balances powers on the elected branches by (essentially) stopping the clock? I would argue "yes, particularly when the purported basis is not a policy disagreement but the limits of the political branches' inherent authority," but that's not a popular opinion these days… because it can be made to seem in favor of so-called "judicial activism." Of course, that "activism" is almost always in response to someone else's action, so that's not an accurate label in the first place! And that is the point of the Rule of Law.