30 July 2022

A Platter Full of Holes

…and the holes are dripping grease (and other liquids) onto the floor…

  • Policing in America has problems going right to the top and all the way down (for those thinking the black woman now supervising an all-white police department is probably the one creating the "hostile work environment," ask yourself why the resignations included the entire all-white department). Dah Mayah is skeptical and opposed {$} to letting the past be the past. And sometimes a dozen good guys with guns can't stop a bad guy with a gun for Reasons (that have yet to be explained, and will probably come down to "someone in charge panicked, and that happens with the defective systems we've built, but we're gonna place individual blame anyway").
  • Here's another all-too-polite piece on misuse of history in legal opinions, following up a bit on what I said last time. Of course, following Matthew Hale's practice regarding witches — he ordered at least two accused witches burned when he sat as a judge — for Steve Bannon (who really wants to "go medieval," which would mean he'd have to give up his social media access so maybe not) reflects rather badly on using Hale as authority to determine the rights of… other… noncomforming… women and girls.

    None of which matters when the "history" relied upon to interpret the present is "old-school theological revisionism masquerading as neutral presentation of facts," does it? Pretty basic science shows that time only moves one direction in this reference frame. But none of you highly-educated judges and lawyers have much of a background in even pretty basic science, do you? That's called a "lacuna," a hole that we should be seeking to fill… but for the anti-science-background admissions criteria to the law schools that tend to produce federal judges, meaning there's little to fill it with. Yes, I'm lookin' at you, Harvard et alia, and all rating systems that include undifferentiated undergraduate GPA as a significant component of determining a law school's quality.

  • Congratulations to the thirteen finalists for this year's Booker Prize for fiction written in English. In one sense, it's a gratifyingly diverse group; actually, in more than one sense. The big hole here is "commercially successful," which says perhaps more about "commercial publishing" and "the stream of commerce for literature" than one might wish.
  • It also exposes a serious hole in the current controversy over the Kahle-bros' rampant piracy excused as an "adaptation" to COVID. There are no authors at the table/in the courtroom here (and no, a certain organization based in NYC is not an adequate representative… not to mention that it's not representative in this case in any sense). So I'm going to fill the hole via the Federal Rules of Civil Procedure.

    12(b) [A] a party may assert the following defenses by motion:…

    (7) failure to join a party under Rule 19.


    19(a)(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:…

    (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

       (i) as a practical matter impair or impede the person's ability to protect the interest…

    Bluntly, publishers' interests are not proxies for, or even coordinate with, the diversity of authors' interests. Especially for — at least as claimed by the Kahle-bros in their various defenses — printed editions that have gone out of print, sometimes because the publishers have gone out of business. Just because it would be hard to give authors a (let alone enough) voice in these proceedings doesn't mean it doesn't need to be done. As currently structured, though, this lawsuit entirely ignores binding precedent: The holding in Tasini that a searchable-text electronic edition scanned from a printed text is not a publisher's "revision" but — absent an actual, clear contractual transfer of the right to create such an electronic edition from the author — an interest reserved to the author. That means that any resolution of this lawsuit will necessarily "impair or impede [each author]'s ability to protect the interest."

    Some authors may applaud the Kahle-bros' efforts. Some may not care. Some will vehemently oppose it, particularly since some of those commercial publishers have cited the existence of widespread pirated editions of the authors' older works as grounds to either refuse to publish an electronic edition or to pay less to the author for the new right to publish an electronic edition. But as much as I despise the Kahle-bros' disingenuousness and treatment of all written works as "mere information" that wants to be free/should be available to everyone for nothing (notwithstanding that such a meme reifies "art should be created only by the independently wealthy" as not just a viewpoint but a practical imperative), I despise the disingenuousness of the publishers' positions in blanket assertions of rights that they do not, in fact, control even more.

    The obvious "right way" to fill this hole would be for both the Kahle-bros and the commercial publishers to treat all questions of "default" or "routine" conduct relating to copyright as "opt-out" — that is, that one defers to the broadest possible interpretation of the rightsholder's rights as possible unless and until the rightsholder opts out of that specific proposed use. (It's also called "common courtesy," but that's nowhere to be found on teh intertubes anyway.) Oh, that wouldn't be efficient or commercially viable? <SARCASM> It would be inconvenient to ask permission instead of seeking forgiveness that will never include compensation for the collateral damage? </SARCASM> "Rights" tend not to be efficient or commercially viable by their very nature — that's precisely why we have to protect them with constitutional provisions and legislation and judge-made rules. This gaping chasm (not just hole) epitomizes much more a "why can't they both lose?" controversy than anything else.