16 August 2021


These link sausages are piping hot! (Pies aren't really part of 'murikan cuisine, and the drought driving the price of soft wheat flour up makes me reluctant to depend on pastry anyway.)

  • When this piece appeared last week, my immediate reaction was to start writing a long essay on how it's fundamentally wrong. Then, on consideration, a shorter piece on how it's wrong. My thoughts have gotten progressively shorter and sharper since (which should frighten you about the long form):

    The basic problem is that Mr Eisen and Ms Lydgate appear shockingly ill-informed on what "the rule of law" means. One of them is a former diplomat, and the article's focus on the conduct of litigation as the focus of "the rule of law" is just… inexplicably tunnel-visioned, and neglects two millenia of European history (as a start). Litigation of individual disputes — and conduct of that litigation — is a consequence of the rule of law, not its epitome. The rule of law fundamentally requires only that all individuals and entities, including the government, both prevent and resolve their disputes via the same nonviolent standards and rules (another example of English's unfortunate tendency toward operator overloading and shifting definitions, because this "rules" is not coordinate with "rule of law"). That is, literally, all there is to it. Litigation, the regulation of lawyers, and regulation of clients' out-of-court statements, are merely mechanistic sets of those standards and rules; none of them is the rule of law. The tl;dr version: Means shape ends, and ends determine acceptable means, but means and ends are not the same thing.

    That's not to say that the point they actually are making — that our particular set of standards and rules has been (and remains) under attack, but that some of those charged with individual-instance enforcement of those standards and rules are fighting back — is unimportant. (I think they're horribly overoptimistic and have been fooled by the magician's assistant, but that's part of the long version!) It is not, however, about the rule of law, and we can't even just blame a bad headline this time.

  • Self-appointed Emperor Mark I and his bureaucrats/minions/sycophants/mandarins are busy preventing researchers from probing disinformation mechanisms on Faceplant. Which is reprehensible… and entirely predictable. It's predictable not just because by saying "social media" one is rejecting the concept of "social responsibility," or because they're greedy sleazebuckets who've never contemplated that the work that established the profit motive and enlightened self-interest as foundations of a capitalist economy was a work of moral philosophy. Although those are both true! It's predictable because it's an obvious consequence of the intersection of liability-insurer mindset, offensive collateral estoppel, trade secret law.

    The liability-insurer mindset is "never acknowledge anything until forced to in discovery, and even then consider lying." This is at least in part because the purported "fiduciary duty to shareholders" of for-profit liability insurers has overwhelmed the legitimate risk-pooling function of insurance; the cause, however, is almost irrelevant to the consequence, and fixing that cause would require decades of adjustment to a radical structural change (and probably have its own unanticipated consequences). Offensive collateral estoppel is the ability of another claimant to use a bad result against the defendant to force a result — once there's a finalized finding that cigarettes do indeed cause cancer, that issue can't really be contested any more. The key here, though, is trade secret law. These researchers — if their research was successful — would garner substantial insight into the specific algorithms and information flows inside of Faceplant… and keeping those secret is at the core of Faceplant's business model, because that's where the rents are, and where the ability to actually impose advertising rates instead of (formally or informally) auction them at a substantially lower price comes from. Any revelation of those trade secrets makes them unenforceable against all others… particularly including against former employees laboring under restrictive NDAs.

    Paranoid? Naaah. I've crossed swords with some of the lawyers and law firms involved. It's not paranoia when they really are out to get you!

  • Then there's incipient racism in "entertainment" to consider, whether book reviews (and, by implication, any other kind of review) or doll sets commemorating the plaything of old white oligarchs. As to the latter: I was at the oral argument in Walking Mountain (the next argument that morning was Ellison), and that article/controversy reflects that the arrogance, entitlement, and attitude haven't changed in two decades. And sheds further light on the two preceding sausages on this platter.
  • Perhaps darker and less obvious, the news regarding various aspects of creator/entertainer compensation by transferees of late has been entirely consistent with accreted capital's war on labor. (Even I can't, and won't, make a link sausage out of products from that purveyor of Big Chicken.) Whether concerning musical performance, the actual creators of comics and graphic novels, actors, authors, artists, whomever, there's a multipronged problem with the entertainment industry's structure.

    • The transferees treat entire entertainment units as their exclusive "property," often through misuse of the American work-for-hire doctrine (and its de facto equivalents elsewhere). In the US, there's a simple question to ask: Is the work being created actually eligible for treatment as work made for hire under the law at the time of creation? That is, was it by (a) a statutory employee (with all of the rights and protections afforded an employee, minimal as they are) within the scope of his/her/their duties, or (b) specifically commissioned in advance, in writing with mutual acknowledgement of WFH intent, and falling within one of the nine categories of eligible works? When courts have even inquired into this, they've generally gotten it wrong… and always failed to impose the consequences. (Hint: The closest that "comic book or graphic novel" comes is "contribution to a serial or collective work"… and that is, indeed, a question of fact that can only be measured at the time of creation and not through 20/200 hindsight by Bleistein-impaired observers.)
    • The judgment of noncreator managers at the transferees is treated as definitive as to both the artistic and commercial merit of the creations. This is perhaps most obvious in recorded music, but it's entangled in every performance-based art and even in those less performance-based (right, Ms Rowling?).
    • The transferees misuse their outsourcing of critical business elements (whether voluntary or forced by other generally applicable law, such as antitrust) to hide their actual financial interests, as the Johanssen/Disney+ dispute epitomizes. But that's far from an exclusive example — just consider the way that different formats and artificially-defined markets for book-length textual works are treated in author compensation (and we'll gently tug at the sleeves of the judges on the Second Circuit who've consistently gotten this wrong… for nearly a century… and ask them if they understand that merely "having a representative" does not change the nature of a "contract of adhesion," even under pre-Restatement contract law).
    • Perhaps most obviously, there's the translation-cost problem between forms of capital. Remember: "Capital" is not just "money in the bank account"; it includes all property interests. Mineral rights are capital. So are computer chips used to build SUVs. Most to the point here, intellectual property contributed to a venture intended for mutual profit is a capital contribution at least as much as it is a mere "product of labor." The difficulty is that post-mercantilist economics has a rich consideration of, and vocabulary to express, transaction costs (especially to the disadvantage of labor)… but tends to sweep the costs of translating one form of capital to another inside that rubric and rapidly under the rug, where it is now a two-meter-tall lump labelled "labor." This rubric is particularly inapt in a creative context like comic books and graphic novels that are expected to maintain continuity (or to overtly establish different continuities) — and in light of the first of these prongs, the treatment of the entire sub-ouevre as a single unit of "property." It does, however, rhetorically denigrate the claims of those who created the individual subunits… which, I suppose, is the entire point of the meme (at least from the standpoint of the preexisting accretions of financial capital).