Offshore Assets

Taking a break for a moment from US partisan politics (at least while gathering the ingredients for this platter), the last few weeks have seen some significant IP decisions, mostly overseas. But it's not 1930 any more: Especially with intellectual property, both "legal precedent" and "legal reasoning" for IP (which is essentially borderless anyway) squeeze their way past all borders — all too often without adequate (or honest) inspection at the border.

I am not suggesting — yet! — that Perry Rhodan is an undocumented immigrant. Neither, however, am I ruling out such consideration at a later date… especially if the West Germany of 1961 might well be called a "shithole country." (I did say "for a moment.")

• Since this is a platter of link sausages, let's start with whether the shape of a sausage is an enforceable-to-exclude element of a registered mark (in Europe, anyway). This just seems like one of those amusing bits of overreaching, but…
• …that seems almost like a standard business strategy these days, whether in Europe (and the UK) or in the US. Memories of discussions on this blawg of limp cockiness about an IP-related mark are more than "AI" hallucinations.
• That's about exploitation of IP, though. Before one gets to exploitation, one must produce the IP in the first place. This can be rather squicky in concept, and the result of a team effort that often involves dubious claims of "ownership" of the output. This last item has interesting implications for the enforceability of the US copyright law work-made-for-hire enforced statutory transfer in Europe (a doctrine that was always a bad idea anyway, and rested on the necessary condition that Congress has the right and authority to redefine a word in its relevant grant of power to mean nearly the opposite of its ordinary public meaning, either in the eighteenth century or now).
• Determining the kind of IP that's at issue in a particular dispute (especially once the lawyers get involved (third paragraph)!) is at least equally frustrating — and can be outcome-determinative. Consider, for a moment, whether this dispute would have reached this result under either trademark or more-generic "unfair competition" law. The key point to remember is that the natural-person creator is seldom, or at least seldom accurately, thinking about "the kind of law that will apply when I'm done" during the throes of creation… and that's before considering any "statutorily-enforced transfers of ownership"!
• After production, IP must be packaged for the consumer — especially when it's only words, words, and more words. I have always found CMS helpful, but not definitive, especially when it reaches outside its core competency in the humanities and nonnumeric social sciences. For example, for all of the foolishness of "signal priority" and "canonical abbreviations" found in The Bluebook (for American legal writing) — foolishness that never made sense, let alone a century later when about a third of the canonical abbreviations are entirely new and substantively overrule earlier but unchanged ones, not to mention show utter disdain for conflict-of-laws analysis of the actual weight of some abbreviations — CMS-compliant citations have always discounted essential information for legal materials (like full-and-adequate identification of which court issued many opinions). Bluntly, there cannot be an effective "uniform system of citation" that reaches all kinds of citations and all kinds of writing… and that's before getting into the distinction between "grammar in the real world" and "grammar in Mrs Grundy's sixth-grade classroom" underlying much of CMS's proscriptiveness. (Can you spot the seven items in this sausage that CMS would characterize as "improper" that actual real people and writers would characterize as "style for teh Internets" that actually has a substantive basis?)

Phew! That's exhausting if not necessarily exhaustive, to intentionally and ambiguously overload two terms of art that are themselves less than artful: Those initial rights are not truly "exhausted" if the parties can legitimately argue for years (with considerable attorneys' fees to be paid by someone) about them without regard to any disputed facts.

Indigestion

It's what's for election season.

• So Uncle Jeff thinks blocking his editorial staff from making an endorsement in this election cycle is appropriate, that what "presidential endorsements actually do is create a perception of bias — a perception of non-independence" [punctuation from transcript corrected], does he? Really? Perhaps he might have had some ground to stand on if he had announced this as a "new policy" when he bought the paper over a decade ago. In the same interview, he admitted that the timing was wrong. The current-events moment to have made this announcement was in the days after Harris was selected as the Democratic nominee, at which time that itself (a major-party nominee who was a last-minute substitute) would have been appropriate cover. But noooooooo, he had to wait until his editorial board had already prepared the endorsement and was only hours from actually announcing it.

  Bluntly, media moguls are corrupt assholes with massive conflicts of interest. Virtually all of them — even those with whom I (occasionally or even largely) agree. At least Bezos isn't starting a war, right? Well, maybe lending credence to a potential civil war — because he's wrong. Some undecided voters will "go[] with Newspaper A's endorsement," and even those who don't will get further education because in this media environment, "source reliability and verification" really does matter. Once upon a time, the WaPo stood for being a civic fucking watchdog; I can't say that any more. (And get rid of the paywall on the front page — if you aspire to being "the paper of record," you've got to be of record.)

• Over the weekend, I snidely remarked on whether A Certain Candidate is a fascist, concluding that the evidence of significant personality disorders may indicate otherwise. That doesn't exclude anything regarding his "friends," however; some of them almost certainly are fascists (or at least fascist-adjacent), in a way that should inform your vote. Any rumors that Leni Riefenstahl was the program director for last weekend's Four Hours of Hate are only implausible because she's long dead.
• Phew. That bloated sausage sure requires a palate cleanser! How about arts stuff? Like my natural habitat: Libraries. Turning more to intellectual property, chair designs from outside the EU must be given full copyright protection, and it appears that at least in France there shall be no market for second-hand "licensed" computer games. A little closer to home, it looks like I was right but for the wrong reasons about the Copyright Claims Board: Right that it wouldn't prove helpful to "small" claimants, but because it's largely not being used (not, as I had predicted, because it was inundated by porn purveyors). But away from IP itself, consider toxic fandom as described by a leading object of mindless fanboy worship (and fandom for Alan Moore has a very distinctly male aspect). OK, OK, that still leaves a rather nasty aftertaste…
• … so let's try a different palate-cleanser. While driving to the pharmacy in Seattle rain after lunch today, I was listening to the local NPR station's broadcast of the BBC News Hour. The main story was about climate-change-caused drought/flood alternations. The announcer plugged BBC's new Life at 50 Degrees series — just as I passed a bank's time-and-temperature display flashing "Temp 50". They're both right: Neither of them designate units…

Follow the Money

Reminder: If you took the US income-tax extension in April this year, your returns are due today. Which is both a sad "follow the money" in itself and an indirect issue with the following sausages, none of which leave a rich sensation behind.

• At least in Germany, wallpaper isn't like a mural when considering the right to photograph it. This rather inverts the ordinary result when the same conduct and similar copyrighted work get considered under the Eurocentric "fair dealing" framework versus the First-Amendment-centric "fair use" framework. I suspect that the latter was distorted by the problem with "The Original" in a way not immediately apparent in the opinions, but that's a suspicion only.
• Unfortunately, the "The Original" problem is not limited to the so-called fine arts: It also relates to recorded music, as demonstrated by the "ownership" of performance rights (not copyrights… at least outside the Sixth Circuit) in musical recordings in the US. The "owner" of the reproduction right is the possessor and physical owner of the "master recordings," recently epitomized by the Scooter Braun/Taylor Swift/rerecording of Swift's earlier albums fiasco. It's worth remembering that US law is a distinct outlier here, thanks to judge-made law (with more than a whiff of corruption) from the early part of the twentieth century, actually originating with photography and the 1870 Copyright Act. It's also worth remembering that even the "biggest" performance acts may not get paid (admittedly, it's a bit too historical for Generation Z, but at least it's not the Rat Pack).

  The fundamental problem with the entire chain of reasoning is that it grievously misstates the relevant facts and even-more-grievously ignores the "process versus product" problem, then slaps lawyerly/judicial misunderstandings of "what it takes to create a musical performance onto a 'master'" both at the origin of recorded music and now — especially when founded on analogies drawn from nineteenth-century photography and lithography. There are no heroes here, only antiheroes — which should surprise precisely no one. Even thinking about this makes me a bigger nerd than you expected, right?

• The same commercial pressures are impairing the advancement of the useful art of long-form fiction. "Author" is apparently an unduly dangerous occupation, anyway.

  It's not just Over There, either. An enterprising PhD student looking for a dissertation topic in behavioral economics could do far worse than examining how the two-and-a-half-century slide from "encourage" to "necessary and sufficient" has distorted "authorship." (It wouldn't hurt to note the irony of such research being done in the unpaid context of a "PhD dissertation," either.)

• Whether it's real property or larger swaths of the economy, money-laundering of ill-gotten financial capital (I'm looking at you, too, exploiters of scientific and advertising fraud) seems to be a Problem. <SARCASM> But surely that's never been a problem in either "common" or "rarified" arts, has it? We don't even need to consider outright theft…. </SARCASM>
• But at least that's overt corruption. (Which doesn't really make it much better.) That new flatscreen TV is stealing your soul — or at least information that should damned well remain private. One wonders if those content recognition systems extend to material routed in from one's recorded video collection… as might the owners of Potomac Video.

— 30 —

Thirty days until election day. Or, rather, the first election day for the presidency, thanks to an electoral college that today withstands just as much scrutiny as the original text of Article I § 2 cl. 3 — especially in light of their common flaw: Restricting full voice to "the right kind of people" beyond the mere facts of "citizenship" and "adulthood."

• OpenAI is possibly poised to become a profit-making corporation — that is, provide a measureable financial return to investors, in addition to any purported social benefits. The more-subtle change would be allowing outsiders direct influence on what benefits "the board" can establish as objectives (not to mention their operational priority)… because as a for-profit corporation, outsiders can buy enough voting control to "own" one or more seats on that board. (They can arguably do so for a benefit corporation, too, but it's harder.) Given the historical track record of too-early shifts from "basic science" to "economic exploitation of technology arising from basic science," like data brokers, that should scare you.
• In a remarkably-but-not-surprisingly myopic article, James Hibbert asks whether Disney is bad at Star Wars without engaging with the more-fundamental precondition: Is Star Wars badly conceived? I'm shocked — shocked, I say — to find a purported analysis of missteps in exploitation of an artistic property that does not consider missteps in creation of that artistic property. As a slight riff on the recently-deceased central character: I find your lack of questions… disturbing.
• Speaking of forgetting fundamental questions, a German court recently ruled that a specific large-model-inference dataset could rely on a German copyright-law defense to a claim of infringement. The fundamental question that was not asked concerns a confusion generally sidestepped in German copyright law but implicit in American copyright law: What kind of transformative process gives rise to a defense of transformative [fair] use, let alone when the concept of fair dealing (and not fair use) is at issue? That this failed of consideration in its US origin, too, doesn't help… especially given rejection of other defenses in the LAION decision at the lower-level court.
• One might also ask cui bono Big Music, but that's likely to be just as disturbing as the shadowing figures behind the previous two items. Not to mention just as difficult to discern — and just as subject to deception.
• Cui bono indeed when bankruptcy proceedings intervene! A Florida district court recently reached the (clearly) correct conclusion that termination rights are not extinguished by the creator's bankruptcy discharge (PDF at 18–27) without reaching the really, really hard question. It's pathetically easy on these facts to focus on the bankruptcy process, precisely due to the structures of the recorded-music industry. This enabled the court to evade the much harder question — whether, absent availability of the first clause of the § 101 definition of "work made for hire" (employee within the scope of duties), the claim in a contract that it concerns a "work made for hire" that is not eligible under the second clause in § 101 (the nine eligible categories for freelance works made for hire) makes it a work made for hire. That would have been a different question here because due to cui bono-flavored shenanigans followed by a technical correction, there's a clear textual-history determination that "a phonorecording" is not one of the eligible categories. (tl;dr The recorded-music industrial interests got phonorecordings included as a tenth category in an amendment to the 1976 Act, but that was rapidly reversed in another amendment.)
• As noted previously on this blawg, Braxton Bragg was a multidimensional loser (who was so inept that he "resigned" as army commander — under not-well-publicized pressure — after one of his many defeats) unworthy of having a military base named after him, regardless of (misplaced) "sons of the Confederacy" pride in the local community where the base is located. Why doesn't it surprise me that The Orange Menace proposes elevating that pride even further over reality by reinstating that traitor's name on a military base? Might "surprise" require inferring some knowledge of American history, even some knowledge of military principles, on the part of that individual, contrary to all other indications?

Nonendorsement From a Dog-Loving Parent

…that is, about as far from a childless catlady as one can get…

OK, I lied; I will make an endorsement here. I hereby endorse ensuring that your voter registration is up to date (non-US citizens, too, but the link is for 'murikans). Many jurisdictions (not just US, either) have thirty-days-prior-to-election restrictions, such as not being allowed to vote in non-Federal elections if registration is updated less than 30 days prior to the election. And that's even more common outside the US.

• Although I'm hesitant to give this self-righteous jerk a platform, the MIT Technology Review already did, so the marginal damage is minimal. Chris Lewis bloviates — on behalf of the organization of which he is President, and I'm burying the lede here — that the Second Circuit's decision declaring that the Internet Archive's piracy is not protected by fair use will lead to the downfall of western civilization, brutal whipping of puppies, and destruction of all libraries anywhere. I'll grant that the current "ecosystem" is unfair to libraries, but this sort of "self-help" solution has already been rejected rather thoroughly in the context of book availability.

  If Apple is suggesting that Amazon was engaging in illegal, monopolistic practices, and that Apple's combination with the Publisher Defendants to deprive a monopolist of some of its market power is pro-competitive and healthy for our economy, it is wrong. This trial has not been the occasion to decide whether Amazon's choice to sell NYT Bestsellers or other New Releases as loss leaders was an unfair trade practice or in any other way a violation of law. If it was, however, the remedy for illegal conduct is a complaint lodged with the proper law enforcement offices or a civil suit or both. Another company's alleged violation of antitrust laws is not an excuse for engaging in your own violations of law. Nor is suspicion that that may be occurring a defense to the claims litigated at this trial.

  US v. Apple, Inc., 952 F.Supp.2d 638, 708 (S.D.N.Y. 2013) (emphasis added), aff'd, 791 F.3d 290 (2d Cir. 2015). (Ironically, many of the publishers Lewis would attack regarding their e-book pricing policies "pleabargained down" in that matter.)

  The real problem here is that Lewis is conflating publisher misconduct — and a pattern and practice of imposing publishing contracts that facially violate the Rule Against Perpetuities is certainly a window onto misconduct — with the impact on the author community of the so-called "CDL" (far worse than musicians legitimately complaining about Spotify). Any claim that his organization and/or the Kahlebros are merely engaging in "civil disobedience" paints the wrong house with too broad a brush, because those who will be most harmed by involuntary "CDL" acquisitions are the authors who have no control over pricing policies… and, because "commercial publishing" is in the strange position of being both an oligopoly and monopsony, never reaches the actual interior-decoration misconduct.

  Then, too, the broad brush spatters all buildings (and appurtenances) as if they convey only mere "fact," without regard to originality of expression. But that's for another time… and, more to the point, careful examination of the "lending records" to discern both (a) how much is nearly-pure creative expression like "fiction" and "poetry" and (b) how much it's just an attempt to move Grokster's goalposts without ever admitting that's what they're trying to do.

• Speaking of Apple, schade. It's worth pondering how this relates to the conduct at issue in US v. Apple; whether a quick note of parallels, a deeper examination of repeat behavior of (unpunished) natural-person miscreants, or a broad-ranging consideration of how bullying relates to multinational corporations, that pondering will be disquieting.
• As Judge Côte implied in that quotation above, there just might be an antitrust problem in the part of publishing that is Lewis's legitimate concern: Scientific (and quasiscientific) journals. (Keep in mind that, because PW has more conflicts of interest in reporting on industry financials than the world-champion catlady has cats, the financial figures appearing in the article substantially understate the profitability of those journals.) All before citations themselves go rogue, which is at the opposite end of the problem and reflects the "academic politics are so vicious because the stakes are so low" meme.
• Interestingly, we may learn more about Ozymandias and other portions of the classical "canon" for which we have only fragmentary third-hand descriptions. Advocates of "original public meaning originalism" should ponder the equivalent — discovery of a trove of documents from the 1770s and 1780s reflecting the thoughts of ex-slaves (manumissed or otherwise) and how they used and understood terms like "person."
• Offered without further comment, there are changes afoot for prepublication review.

Weird Duck Sausages

You know things have gotten — well, weird — when the Prince of Darkness announces he'll be voting for a Democrat because the guy nominated by his own party is too evil. Ms Harris, I recommend politely RSVPing "no" to any invitations to go duck hunting; any implications that target selection (and downrange clearance) may be equally off now are entirely intentional.

Meanwhile, early next week things will get even weirder with yet another non-debate debate.

• Across the Pond they're proposing to eliminate more feudal lords with inherited titles from the House of Lords. Although I think Charles III's head is safe (or at least safer than his namesake's), the future William V just might want to look into opportunities for making a living (like his little brother has) — but he'll have a hard time getting legacy/donor preference to attend Stanford (or USC) business school. Schade.
• Meanwhile, the (ex-)commies over in Ukraine are demonstrating that they've learned the right lessons from prior atrocities in their region. Yes, war is a contact sport — but at least throw a penalty flag on late hits out of bounds, ok? (And definitely no running into the stands to demonstrate one's martial arts "prowess," guys.)
• The world of internet piracy has taken a couple of hits. First, a major anime/manga node (source for a number of sites) went dark. Then Brewster Kahle's arrogant selfrighteousness, his reductionism of all "original expression" to "mere information," got far more credibility than it deserved at the Second Circuit and still got trashed (large PDF). And his little dog, too!

  I'll have far more to say about this at another time. Of course, my position shouldn't surprise anyone at all… why yes, the choice of repository source was entirely intentional, with malice aforethought, and really does concern "fact" and not "original expression"; did you really need to ask?

• It appears that artificially-stupid large-language-model "AI" programs aren't hallucinating. Neither are they lying. They're just… bullshitting. I suspect that The Blues Brothers (1980) was an essential source work for all of the major large language models — that's why they can spew forth about that Picasso.

Qui Prodest ab Arte?

I'm afraid it's an ever-present and seldom-answered question.

• In a somewhat positive squashing of some leeches, the Copyright Office has made one aspect of streaming-music royalties less egregious. The real problem here is the contracting practices — not to mention the administrative nightmare — that resulted in the "termination"/revocation morass in the first place: "Life of the copyright" is an inappropriate duration for a contract.
• At least the streaming services were making some payments to some stated rightsholders, though — unlike these guys and contrary to the efforts of these guys. Eligibility for the DMCA safe harbor depends upon having a "reasonably implemented" policy for dealing with repeat infringers. That is, part of your First Amendment rent is internalizing externalities, notwithstanding adverse effects on short-term profitability (aside: that lawsuit has been going on for a decade, and the service provider has lost at every turn…).
• And at least streaming (and pirated!) content doesn't need to get a visa — a problem/concept with which I have profound disagreements, as particularly in music the "protect local performers" impulse exposes the failure of supporting the arts both commercially and governmentally while simultaneously imposing localist near-bigotry as a "solution." Not cool. The sole criterion for artists crossing borders should be "is the art worth it?" but the politics are, well, snarled at best.
• The problem of "the original" in the arts, and in museums, is a two headed coin. On one side, there's the improper and unjust denigration of accurate reproductions as appropriate for public display when the public isn't allowed to handle the piece in the first place. The other side of the coin is what to do about damage to "the original," especially when it was politically motivated and intentional; even more to the point than "what to do" is "who decides." The object-worship forming the body of the coin deserves more attention than it gets.
• But the real coin trick in the arts is effort by the Right Kind of People to avoid paying the creators. Stop kidding yourselves, moguls and auteurists: You wouldn't be able to charge hefty admission fees to your museums, nor celebrate your creative curatorship as primary above all other aspects of your art, without having screenplaysart to display in the first place.
• So both England and the US are looking for new men's national team coaches ("managers") after allowing incumbents to remain in place for too long. There won't be many questions raised about either the process or the people involved in doing the hiring in the first place or approving extensions later on, though; and that's the real problem. The parallels to H'wood mogul treatment of screenwriters are a bit too obvious, aren't they? Especially when trying to determine who profits?
• I have nothing much to say about the shooting at the RNC this past weekend. That there were obvious security system failures (details to be confirmed) fails to engage with the inherent dangers of pro-gun culture, the impossibility of perfect security, and the dangers/price of trying for perfect security. Nonetheless, I disapprove of the impulse to kill one's political opponents (or even political allies with whom one has differences, or ulterior motives, or whatever) as much as I disapprove of sycophants treating misconduct as inherently outside the rule of law. The law of unintended consequences always prevails in the end… right, Mrs Iselin? How about a nice game of solitaire?

Immoral Rights

Because there's nothing "moral" about…

• …authorship of Boléro asserted by the successors in interest, not the actual claimant(s). Especially not when attempting to improperly extend a copyright that had otherwise expired. The heirs to Ravel's estate (Ravel being the normally-and-by-consensus credited author/composer of Boléro) joined the heirs of Alexandre Benois (a stage designer who purportedly collaborated with Ravel on the production of Boléro) in asserting that Benois was a coauthor — which they claim would have extended copyright in the composition from already-expired 2016 to 2039 due to the differing dates of death. Unlike the US, France is uniform in measuring copyright from the date of death of the last-surviving author, with no foofery about pre-1978 works or works for hire. This claim failed, because — overdone rhetoric notwithstanding — absent other proof, especially documentary proof because all of the competent witnesses have been dead for years, there was nothing to establish collaboration on the composition.

  Indeed, at most there might have been a claim for the particular production, but even that would have been difficult given post-production declarations and the "Girl From Ipanema" problem: Absent proof of contribution to the copyrightable expression, there's no coauthorship claim in the first place. Sorrynotsorry, absent proof one can't ordinarily contemplate the stage designer as credibly contributing to the expression in a musical composition performed on that stage. This is distinct from the problem of early-on collaborators on films/screenplays, or books, or musical compositions (like this one), whose expression does survive being later cut out of authorship credit, and from the Raymond Carver/Gordon Lish problem involving the actual expression.

  What this really reflects is — yet again — transferees and patrons mistaking process for product in both creation of copyrightable materials and the copyrights (and related rights) themselves. But that discussion is for another forum and involves being not particularly nice to the author(s) of more than one copyright treatise; sometimes reality does intrude on the law (notwithstanding self-inflicted wounds where it… didn't).

• It could have been worse, I suppose. Benois's heirs could have tried to create a postmortem-by-half-a-century digital persona to enhance publicity efforts. They could have taken the estate's proceeds and invested in performance venues without regard to actual performers' and composers' rights and revenues. They could have cropped photographs and omitted the photographer's name (or memeified them without permission or acknowledgement).

  Of course they might have: They're transferees, operating independently of actual creators (and, so far as I can determine, without any guidance from their purported creator, let alone the composer). The "creators" of 17 U.S.C. § 201(b) are invited to go perform anatomically impossible acts upon themselves, having only understood income streams from the product — neither the product itself nor the process that went into creating the product. Or, even more than understood, cared about.

• From the Department of Phlogiston Studies comes this off-key "scientific study" of melodic sophistication since 1950 that ignores the presence of the ether — in this instance, the etheric airwaves. Neither that article nor the paper it discusses {partial $} engages with changing means of music consumption over the same period. For example, the 1950s mark the rise of the car radio — with all of the limitations in sophistication imposed by poor-range speakers and AM radio. And let's not forget the successor technology with all of its limitations: 8-track! (It also elides the problem with "melodic sophistication" being intertwined with, and not independent of, both vocal capability and lyrical integration. Not to mention the reduced emphasis on, well, actual musicianship, especially by "lead singers"…) In short, capability is an independent dimension not engaged with here.
• The Chapter 11 (reorganization) plan of the Romance Writers of America was confirmed (approved), without objection, by the United States Bankruptcy Court for the Southern District of Texas this afternoon. In re Romance Writers of America, Inc., No. [20]24–32447 (Bankr. S.D. Tex.), dkt. 77 (08 Jul 2024) (no link, behind the PACER paywall; look for it on RECAP in a couple of weeks). On the one hand, this means there will be a national trade organization for both writers and fans of romance fiction going forward… unless they screw up compliance with the plan. On the other hand, the public accusations of DEI-problems-bordering-on-outright-bigotry substantially understated the reality. And this for a writing-category organization founded by a Black woman…

Get Off My Lawn!

Two days from now, we'll have a lying contest in which one of the contestants has multiple felony convictions for not lying well enough…

• It's not entirely my generation's fault that Thursday night will epitomize Hobson's Choice. Just mostly. Bluntly, it's my generation that is now (and has been this century) controlling the smoke-filled back rooms, at least to the extent that within each party no candidate viewed as actually dangerous or transformative has a chance of getting approved. And won't give up that control, or even effectively train successors. That's right: The party leaderships are selfish old sheep with all of the foresight of, well, sheep.

  The civil rights era became electorally possible due to an awful outside influence: The forced exposure to, and often demise in, the rest of the world of Establishment figures (or at least family members) in the Second Thirty Years' War. That forced the Establishment of the 50s and early 60s to share actual responsibility and power with the kids… who have refused to do so themselves. Combine that with medical advances enabling a greater proportion of us old farts to maintain visible activity levels, and the consequences are pretty dire and pretty obvious.

  My contempt for my "betters" in my generation (and the one preceding) comes from knowing too many of them… and hearing them express themselves in unguarded moments while thoroughly camouflaged. Sometimes not so camouflaged, either.

• Criminal sentencing is hard. The offense is what gets the conviction in the first place; the sentence, however, is upon an individual. Since I wasn't in the courtroom, didn't hear the evidence, etc., etc., etc., I can't go too far in substituting my judgment for Judge Kendall's regarding business as usual in Chicago politics. (When the Trib implicitly criticizes seeming leniency regarding Illinois party Establishment — either party — you know things are really chaotic.) The fundamental problem is that the sentencing options available did not/do not include anything likely to be truly effective… which in the end would probably be worse. Although I really do think they should now (and should have a decade ago when the recordings became public) take away his law license.
• Speaking of things that essentially reduce to "personal self-aggrandizement as an excuse for bad faith," consider the related problems of bad faith in trademark applications and enforcement and large-language-model shenanigans. Both concern disrespect for others' rights — sometimes through intentional ignorance, sometimes through intentional devaluation — implemented through bullying and exploitation of unequal original positions, through forgetting the word that comes before "self-interest" (and completely forgetting the context and intent of Adam Smith's works of moral philosophy that have been appropriated by those who largely haven't read them). Like bankers.
• All of which pales compared to foolishness in the world's largest "democracy" that makes America First look benign. Over Here — despite the best efforts of various entitled bigots, such as the most-virulent antiimmigration activists (virtually none of whom have any native ancestry) — we've largely grown out of imprisoning those who question basic assumptions, at least in the last century, since rejecting sedition as a criminal offense. Oh, that pesky First Amendment hiding an anti-science agenda put forth by/in support of nonscientists…
• …leading directly into failure in the arts, like finding selling one's paintings truly challenging. Of course, the definition of "fail" matters an awful lot!

Hens' Teeth

Well, the Supreme Court agrees with me about something: New York City is not the center of the universe. At least not as far as copyright damages are concerned. Today's decision in Warner Chappell Music, Inc. v. Nealy held that:

In this case, we assume without deciding that a claim is timely under that provision if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened. We then consider whether a claim satisfying that rule is subject to another time-based limit—this one, preventing the recovery of damages for any infringement that occurred more than three years before a lawsuit’s filing. We hold that no such limit on damages exists. The Copyright Act entitles a copyright owner to recover damages for any timely claim.

Warner Chappell Music, Inc. v. Nealy, No. [20]22–1078 (U.S. 09 May 2024) (PDF), slip op. at 1.

Nealy matters to authors and other creators in several ways, some of which aren't all that obvious — and buried in footnotes. Starting with the obvious ones:

• The Court explicitly sided with jurisprudence from the Ninth Circuit on copyright matters against that from the Second Circuit. This has been a trend since the 1976 Act came into force — not uniform, often not explicit, but conflicts between the Ninth and Second Circuits on copyright matters have a very distinct tilt toward the Left Coast once they reach the Supreme Court. (Interestingly, that also extends to civil-procedure matters embedded in copyright disputes; for example, although it was far from explicit, the Court came down hard on the side of the Ninth Circuit's treatment of summary judgment burdens for defenses in Grokster.)
• In a broader sense, the Court held that limitations on remedies — and probably not just in the Copyright Act — are not presumed from statutes of limitations on causes of action, particularly not when a discovery rule is at issue. This particularly makes sense when late discovery (and late steps in chains of events) are at issue; one obvious example is the employee not selected for a promotion carrying a significant pay bump who does not discover an unlawful discriminatory reason for the selection for five years thereafter (well after the statute of limitations). That matters to authors, composers, and other freelancers with day jobs…

  But it also matters in a piracy context. Indeed, that's closely analogous to Nealy's situation — at least at this stage of the proceedings, he was unable to discover the infringement while incarcerated. That's not all that different from an author with no access to a behind-a-paywall/membership-required pirate site, or no awareness of a cheap pirated printed edition being sold in stores on the opposite coast.

• The ability to reach back to the original date of infringement for a remedy also shifts the balance slightly in favor of the creator for perhaps the most important purpose of all: Settlement. The vast majority of copyright claims are settled, either before or during litigation.

But the most important things may be buried in two footnotes.

Scholars have speculated about “exceptional case[s]” in which a copyright plaintiff could get some benefit out of a discovery rule even when combined with a three-year damages bar. 3 M. Nimmer & D. Nimmer, Copyright §12.05[B][2][c][ii] (2023). Suffice to say that assuming those cases exist at all, they are as rare as hen’s [sic] teeth.

Id. at 6 n.2. It pleases me to see one of the (far too many) speculations in what has all too often been treated by the Courts of Appeal and especially the District Courts as the Restatement (0th) of Copyright smacked down as unrelated to reality.

There was also advice that applies in all appeals — not just copyright matters.

[E]ven supposing Warner Chappell’s petition had urged us to opine on the discovery rule, our reformulation of the question presented should have put an end to such arguments. “The Court decides which questions to consider through well-established procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system.”

Id. at 5 n.1 (citation omitted). The short, snarky version of this is "Answer the question(s) specified for review, even if that's not what you really want to answer." Especially when the client already has a reputation for overreaching copyright management (and this is just one rather well-known example).

Nealy is good for actual creators. It may also prove good for some transferees. It's bad for "don't notice me!" and difficult-to-identify infringers. Schade.

I anticipate some lobbying to amend the Copyright Act to put a specific time limit on remedies…

More of an FM Vibe

Not the Steely Dan piece, either.

• There's a pending "controversy" about whether AM radios should continue to be required in cars. Leaving aside the more-than-faint echo of buggywhip manufacturers, there's an interesting irony here. On the one hand, the op-ed "contributor" is affiliated with a relentlessly pseudo-free-market, right-wing-tinged "policy institute" that is extremely friendly to two constituencies that distinctly benefit from AM radio: Right-wing controlled-by-descendants-of-the-founder-without-any-competition Sinclair Broadcasting, and right-wing talk radio shows (especially those west of the Appalachians). Troubling how one's principles can get in the way of loyalty to one's friends and patrons, isn't it?
• Turning to piracy of manga rather than piracy of the airwaves, the District Court in Tokyo imposed a ¥1.7 billion (US$11 million) penalty on a pirate website's operators. This is interesting for two reasons. First, unlike in the US, evading such a penalty through bankruptcy proceedings will be virtually impossible — it's merely complex in the US, but certainly achievable. Second, it's interesting that the court imposed a penalty based not upon "lost profits" but upon "lost revenues" — a measurement almost impossible to achieve in the US, especially given the "long discount" and typical court offsetting of costs avoided. Harlan is cheering the court on from beyond the grave — which rather sounds like a story he might have written…
• That was "just" piracy, not outright fraud. "Fraud" of this nature — given who the "victims" are — has me playing a sad lament on the world's tiniest violin (and wishing that some of the money went to the artists); a little later, that lament will evolve into a folk dance, perhaps even a tarantella. It also has me shaking my head at the primitive-magic aspects of "the original" subscribed to by the denizens of self-proclaimed fine art, and suggesting that the exclusivity of trading only in "the original" is precisely what made the fraud possible… and determined the particular victims.

  It's worth pondering what this scheme might have looked like if we were talking, instead, about "the original manuscript." Leaving aside any editorial contributions — or more than merely "contributions" — a reader gets the same authentic Experience from a mass-market paperback as from the longhand/typewritten/word-processed manuscript. Indeed, the typography and design of a printed edition are almost certainly better, and one can read a printed book on an airplane or holding it in one hand (not to mention e-books).

• A seemingly abstract legal issue also exposes a hypocrisy in litigation (surprise — it's only one of many). Most contracts these days have a forum selection clause, frequently putting the matter in the home court of the more-powerful party. Many publishing contracts require that (serial numbers filed off)

  Any action or proceeding regarding this Agreement or the Work shall be brought solely in the New York courts (state or federal) in New York County.

  or similar language — even for publishers not located in New York. One of the rationales most often stated is that the judges (and lawyers!) in the selected forum are "more familiar with" and even "expert in" the particular kinds of disputes. This, however, contradicts the "generalist judge" and "nonspecialist lawyer" memes of American law practice, and rather exposes the hypocrisy… and not-invented-here syndrome (go ahead and check the Second Circuit's track record in copyright matters before the Supreme Court, and for that matter in Congressional hearings and with the United States Trade Representative, since the 1976 Act came into effect — it's worse than the purportedly out-of-step Ninth Circuit in criminal law and civil rights!). In this, I envy full-bore patent lawyers a bit — at least their appeals are to a specialist court, where the judges more-probably-than-not can accurately pronounce "sphygmomanometer" and "D-lysergic acid diethylamide," not to mention understand the difference between a decimal and a binary megabyte.

• At least rising sea levels won't directly impair Swiss citizens who obtained a ruling that their human rights were violated by government inaction on climate change from the European Court for Human Rights.

Semicivilized Platter in the Wurst Way

Sometimes life 🦉 interferes at the sausage factory, and then one needs to throw out a bunch of spoiled stuff. Unfortunately, as it's election season (for eight more months, which is part of the problem), the news is going to look primarily like spoiled sausage ingredients for a while, and since the point of "sausages" is preserving the dodgier bits of dead animals…

• …perhaps more than anything else the spoilage concerns "monetizing content." The obvious connection is the EU's imposition of rules making techbro darlings slightly less insulated from accountability than organized crime, but only slightly in the context of companies with market valuations making this fine a rounding error in the account books. Just like purported nonprofit shenanigans, though, this is not going to trickle down to authors and other creators of "content." Some people are actively destreaming (and the article neglects the biggest reason to rely on offline storage like DVDs: loss of, and eyebrow-raising moralistic restrictions on, access — that is, misuse of the concept of "licensing" and silently converting "access" to "one-time admission fee," rejecting the very concept of the "personal, long-term library" in a way I find intolerable).
• Of course, it could be worse. It is, and one need not consider whether female psychopaths somehow get starring roles in purported informative speeches that have devolved to partisan spectacles in my lifetime or misuse of anecdotes isolated from context as sub rosa, post hoc rationalizations of outright bigotry. (One need not wield a knife and cackle in a TikTok video to be a psychopath. I'm not claiming to perform a diagnosis; I'm using the term in its wider, nontechnical sense — like asserting that "Stalin was a psychopath" despite his, umm, delegation skills.) There are disturbing connections to tyranny and to "political bias" (for any value thereof) in "generative AI" systems lurking in there, too.
• Returning to "not going to trickle down to creators," consider vanity presses hiding their nature. Once upon a time, perhaps even PW would have refused to publicize this crap: It's dressier language, but it still requires authors to (a) have spare financial capital to contribute in addition to the same intellectual-property capital they've always contributed, meaning that Undesireables — especially meaning those without the Right Ethnicity, the Right Private Educations, and the Right Passive/Preaccumulated Wealth — will not be welcome, (b) trust that these highly-experienced commercial-publishing figures can drag their heads out of the rampant financial (and other) mistakes embedded in commercial publishing and its distribution model(s), and (c) going beyond mere "mistakes," that whatever royalty statements do get issued will be timely and honest, under the stewardship of people who know only a culture of people dependant upon untimely and dishonest. (Really: 90 days to account and another 30 or more to pay, together with the "reserve against returns"???)

  Once upon a time, United Artists purported to outmaneuver the moguls (for the benefit of on-screen talent and "filmmakers"… but excluding screenwriters, musicians, cinematographers, animators, and the predecessors of "special-effects" creators in a rather intense bit of foreshadowing). It didn't take all that long for the moguls to take over, though. This time, they're in on the ground floor, converting their post-IP-creation labor into equity interests in that IP. And during the history of UA, it was neither more nor less abusive or dishonest about complying with payments to the "talent" than the rest of the film industry. Unfortunately, it's very difficult to provide citations, because the disputes didn't generate nonconfidential, publicly-accessible records very often — and still don't.

• But that thread pulled out from the snarl is all ready to snap right back in when the compensation at issue is the dubious mixture of power and survival under tyrannical governments. Loyalty is no panacaea, either; eventually, artistic truth speaks not necessarily directly to, but certainly inconsistently with, power, and perhaps even moreso when the "power" appears as generational conflicts purportedly "resolved" by The Law (and use of the definite article there is intentionally inaccurate). If there's one thing that the literary-theory wars from the 1960s through 1990s should have taught us, it's that Orwell's aphorism that "[t]he opinion that art should have nothing to do with politics is itself a political attitude" applies equally to "nonartistic" texts — and not just to the writer, but the interpreter, who is after all engaging in "writing" him/her/theirself. This is one area in which law devoutly and intentionally distinguishes itself from anything resembling reality — and, worse, proclaims that a virtue.

Unmedicated Link Sausage Platter

I'm afraid that medication for back spasms does not make for timely posting of the sausages, so some of these have perhaps been in the smokehouse a bit longer than optimal. That, however, may make some of their other ingredients slightly less noticeable.

• As I remarked during the first iteration of this meme (a few weeks ago), it's really too bad that nobody noticed that reading is sexy during my misspent youth (a couple decades before this internet-thingy), when I was found as often as possible in my natural habitat: The library.
• Even then, I was pondering "Lucas is such an incoherent klutz in interviews, I wonder if he used a ghostwriter, especially since the Star Wars novelization is a lot better written than the movie?" As it turns out, I was onto something. Which leads to a rather interesting trademark-law and consumer-protection-law question: Does failing to accurately identify the author of a published work result in overt misrepresentation of the origin of goods placed in the stream of commerce, especially in those instances in which the purported source had virtually nothing to do with the content passed off as originating with that source? <SARCASM> I'm not aware of more than a few dozen specific instances covered by privilege, NDAs, or any other enforceable confidentiality requirements that implicate this problem, why do you ask? Let me give you a Glomar response in advance… </SARCASM>
• Speaking of being at the edge of matters, consider copyright liability for CDN providers to overt/admitted/proud pirates. For those of you who object that this is just European nonsense, consider that it's a logical consequence of Grokster (especially as extended and reinforced in Global-Tech Appliances) that, primarily for procedural and insufficient-resources reasons, has seldom been raised in the US. The key point is that the European Cloudflare opinion, as did the US Grokster and Global-Tech Appliances opinions, rejects a willful-ignorance defense.
• The truism that art is political is hard to deny; as Orwell noted,

  [N]o book is genuinely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

  Why I Write (1946) (BlueBook-approved typography, but not quotation rules, just to piss off ignorant pedants). However, Orwell and Ms Agarwal are talking about something that is an intersection, not a congruence — because they mean slightly different things by "political." Although in common parlance "political" often includes "partisan," and "tribalist," and "identity-group selective," the specific interests of those last three often do not qualify as "political" in the sense that Orwell was reaching for (especially as one reads the rest of his works, and in particular his works after he began working for the BBC… "original public meaning" be damned). It's a useful intersection; what it is not, however, is one capable of infinite extension.

• That is perhaps most apparent in considering recent problems with peer review, which could be misleadingly asserted to arise from "political" issues when they far, far more often originate in failure of scientific detachment — especially when that failure is incentivized by tasty, tasty grant money. And tenure driven by numeric publication measures. And undisclosed conflicts of interest that are supposed to be eliminated by perfect scientific detachment but aren't (because humans are involved and therefore "perfect" is unachievable).
• But this all revolves around contempt. The distinguished EP Thompson identified one kind, contempt for working classes among their "betters". That's just one example of contempt for the Other — ethnicity, race, religion, the hands-versus-minds problem, old money versus not, whatever. It's rather like SiriusXM's contempt for its customers expressed in junk fees publicly rationalized as "music royalties" that just don't seem to make their way to musicians or composers in the amounts asserted… or, for that matter, in the amounts assessed (and assessable). It's also rather like the institutionalized contempt of land ownership, reflected in calling only property arising from land ownership "real."
• The purpose of the permitting process for protests outside the forthcoming Democratic National Convention is not to create disorder, but to preserve disorder. Think there'll be a New Chicago Seven trial thereafter? "Poor People's Army" sounds a lot more militant and dangerous than "Students for a Democratic Society"…

Mixed-Species Link Sausage Platter

Lots of weirdness from the arts and banking on this platter.

• Consider The Broadsheet Hit List of 1648 (some of which remain disturbingly contemporaneous).
• But that's just amusing, not as cringingly predictable as the impending implosion of gatekeeper-subculture-centric periodicals. Now when have I heard this before? Or seen it as a rather thin roman à clef that ultimately demonstrated just how irrelevant the allegory itself and its subject were?
• Even that's less deliciously damning than a garden supply business chewing on Louis Vuitton, a business whose narcissism is a positive feedback loop. It is, unfortunately, a positive feedback loop encouraged by, and embedded in, the "must always defend against everyone" meme built into trademark law — a meme that clashes, at a fundamental level, with the concepts of "satire," "parody," and "egotism." Europe may be beyond help, but at least we have a First Amendment over here to (eventually) rein this sort of thing in. Oops. Too late (PDF).

  Go ahead, Vuitton. Sue me for the pinpoint URL of this link sausage. But make sure that your attorneys read Rule 11 first.

• The family of the only true guitar god (the rest just want to be that good) is already experienced with litigation, and now his bandmates can join the fun. This exposes one of the critical problems with collective efforts in the arts: Who is the author? Cinema's so-called "auteur theory" was, at its core, an attention-getting device that actually evaded any real consideration — especially for films and even TV episodes adapted from preexisting material that wasn't a "script." Wait, is that the ghost of Raymond Carver trying to blend into the mantelpiece over there, snuggling up to that Hummel-like figurine of a walrus and the shockingly overpriced glass sculpture?

  My point here is that determining "the" author of a collective work requires intense examination, not acceptance of commercially-convenient labelling — and may, and indeed should, often result in "well, all of them" as an answer. Yes, that's commercially (and library-catalogingly) inconvenient; so is statistical mechanics.

• The preceding sausages on this platter verge on navel-gazing. Sometimes, however, the arts look outward, and are then promptly forgotten or reappropriated for other purposes — purposes that seldom acknowledge their own virtual self-parody.
• Turning from the healthier chicken sausages (no "natural hog casings" either) to pure pork, consider inflation targets. But not too broadly, or you might start considering the psychological fallout of inflation on trust-fund kids whose trusts were invested in long-term fixed-return securities and real property, and remain illiquid for Reasons… and then, rather sarcastically, ponder who disproportionately ends up in control of both banking policy and the messaging about it. Or that the monetary velocity of the consumer-facing portions of the economy is now an order of magnitude greater than when that "2% target" meme was developed, and since velocity inherently expands the apparent money supply, just maybe even a Friedman-worshipper would reconsider. Nothing to see here, no conflicts of interest here. Move along, citizens, back to your lives.
• …which explains, all too well, why banks are not paying attention to customer safety. On the one hand, the banks are overenthusiastic about purported "two-factor authentication" (and it's only purported, because if the authentication comes through the same device or decisional funnel it's only a multistep authentication, not a two-factor authentication — not a self-defeating mirage that convenient-use-of-smartphones-for-everything advocates want anyone to think about) that uses inherently insecure methods plus a "time-out." They don't want it good, they want it Tuesday (at 1406 to pay for that three-martini lunch, and delaying to 1408 would be inconvenient and unacceptable).

  On the other hand, the banks do not implement a duress-word system that would sandbox transactions as prospectively subject to further, later reexamination. It would be incredibly simple to implement — but it could not be fully automated. And that's why the banking system doesn't want anything like it: It would require injecting humans and human judgment into "banking," and there would be "personal responsibility" involved that they can't foist off on others. Plus it would blow up some of the nineteenth-century conceits of UCC article 3, and we can't have that!

Fooling Some of the People All of the Time

So, tomorrow Iowa demonstrates its contempt for the electoral process with in-person caucuses held on (ordinarily) business days that are also school nights, in the midst of a major weather event. The results and orientation shouldn't be all that surprising: The Iowan political process gave us the horror show of the Dishon. Steve King (the other one, who was reelected six times after spewing racial abuse at/about then-Senator Obama that could not possibly be excused as either "partisan" or "ideological"). Meanwhile, some in 'bama want to have a football-coach-v-football-coach contest for the Senate, which shows even more contempt for the electoral process. Color me Cynically Unsurprised (closely approximating Pantone 280C Union Jack Blue, but without the commercial branding… or a Manifest Destiny accent in Pantone 11-001 TPX Bright White).

• Maybe we just need more superheroes in politics. Or at least fewer supervillains. Not. Gonna. Happen.
• At this stage, I'd probably settle for less overtly commercial exploitation of purported "advice" — even, and perhaps especially, when it comes to advice on cooking steak from a Food Network columnist in what is probably an undisclosed advertorial on CNN. Putting enough salt on a steak to choke a small horse is not helpful, leaving aside the health issues and cultural preferences — especially since many cuts need more than just salt and pepper, and even more complete meals need other accents. Not to mention that "method of cooking" matters one helluva lot more than that article implies (including the question of just how dry the surface of the meat that is away from the heat source should be), as do cooking equipment (broiler, grill pan, skillet? three entirely different cooking methods, times, and appropriate temperatures), heat source (old-school electric, induction electric, and actual flame all require different techniques — and choices of lubricating fats if any), and desired degree of doneness (treatment differs radically for a blue/rare Wagyu bone-in ribeye than for a however-good medium-rare supermarket flank steak than for a no-remaining-pink-for-the-diner's-religious-requirements eye of round).

  No doubt Ms Thompson would blame "bad recipes" for any bad results after following her inane, incomplete suggestions; I'm actually shocked that she didn't take the opportunity to try to sell more marginal-quality overpriced Food Network-branded cookware, or recommend particular episodes from one of the sore-loser hosts. That advertorial is a net of only three, or perhaps four, "mistakes" to avoid after subtracting the mistakes it introduces (like insisting on Food Network steak knives when some cuts, preparations, entire meals demand carving into bite-sized pieces in the kitchen before serving). I'm not sure which is worse for American culture: NYC-based commercial publishing or NYC-based food/restaurant evaluations/advice.

• As offensive as that article was, it's nowhere near as offensive as using "comity" for a dictator's attempts to suppress criticism (in ways unlawful in the new nation) as a rationale against granting citizenship to a political refugee — in Canada, no less. Really? Whatever happened to considering whether the purportedly "criminal" conduct in nation A even could have led to prosecution in nation B? One wonders if an Iranian teenager who refused to wear her hijab, served her sentence, and then escaped would get the same treatment…
• Music is under "threat," too, whether from inept and often self-serving canon bullshit (and, to be excrutiatingly clear, almost none of the advocates for various versions of "canon" are themselves either competent composers/writers or musicians — which doesn't make what they have to say meaningless, merely underinclusive) or commercial practices inconsistent with the actual intent and text of the respective copyright statutes (and, to be excrutiatingly clear, there isn't a good basis consistent with post-piano-roll understandings of copyright — here or elsewhere — to tie actual ownership of the authorial right to possession of the master recordings, any more than there ever was to the in-camera exposed film). Purity is apparently necessary, which is rather ironic in that music more than any other form of the arts embraces impure cross-fertilization, whether popular or snobby or anything else.
• Speaking of "necessarily embracing impure cross-fertilization," Eliza has to learn from something. Part of the problem with the entire conversation is that one word — "learn." Virtually all of the stated positions assume that meat-processor (that is, human) learning is completely analogous to electronic-processor learning. There's a key difference though: The meat need not make a copy to learn; the silicon/whatever-other-material Von Neumann processor, however, must, in the processor registers that are inherent in Von Neumann processors.

  Maybe a future quantum or other system will not copy data into and through registers in order to assimilate its contents; until then, one cannot claim that no copy is made in non-meat-processor learning. This doesn't mean that "all uses of copyrighted materials in machine learning necessarily result in liability for copyright infringement," because the fact-intensive fair-use inquiry could still excuse any infringement. What it does mean, though, is that with present technology one must engage in that fact-intensive analysis and not deny that copying is involved at all. And precisely because it is a fact-intensive inquiry, it is not amenable to a bright-line rule that will either prohibit or excuse all use of copyrighted material to enhance Eliza's conversations.

Poisoned Blood Sausages

I have two questions for those Over Here complaining — no, not just complaining, shrieking — about how immigrants are poisoning the blood of the nation:

1. What federally-recognized tribe are you a member of?
2. Care to share your hints for getting stains out of those white sheets you're wearing?

I'd also ask if they were aware that they're echoing a wannabe Austrian artist, or pseudonymous fan of icepicks and purges (and I don't mean some diet fad), but (a) we already know and (b) they'd lie… or claim they got the rhetoric from other, equally repulsive figures. Not to mention ignore that that… individual's grandfather was an undocumented immigrant.

Not just Over Here, either. Maybe we should ask the Prime Minister about it… preferably at Question Time when he'll be forced to answer.

• Right in the middle of the platter, I'll lead off with creators' (non)rights. Whether we're talking about the misleading rhetoric of "public domain day" coming up in a week or so (the works are available — one just has to pay the writer), or the consequences of exceeding the scope of a copyright agreement's terms, or the future of audiobooks in a demonstration that Marx was absolutely wrong (it's not the means of production, but the means of distribution, that matter), or even the analogous circumstances in music, the result leaves us with one overriding refrain:

  Soylent Pulp is authors!

  which will probably lead to more indigestion than any slice of Autorenblutwurst. Or, for that matter, complete ignorance.

• Many people today rely on their phones for everything, from banking to inability to type URLs. They shouldn't — the consequences are pretty obvious.
• Relying on security systems you don't understand and can't see is probably less of a problem, though, than relying on tech billionaires' visions for the future — especially since those tech billionaires weren't even reading the good stuff, the stuff that considered consequences… let alone understanding much of it. Why yes, I am saying that these Wile E. Coyote-like tech supra-geniuses have educational deficits that impair their perspectives and performance, even before getting into their uniform experiential deficits (go ahead — name a tech billionaire who actually participated in national service, military or otherwise; it's not that they all needed to, it's that none of them did).
• Oh, that's too hard. Let's see what's on television. And how. But no athlete-nonstudents, even though it's "bowl season," please.

Infamous Link Sausage Platter

There are two aspects of this calendar date that continue to live in infamy: Korematsu and Hirabayashi. Well, three: Manzanar. Well, four: Executive Order 9066, and an almost fanatical devotion to genteel bigotry. I'm just not going to try to explain how this kind of neglected history makes the current brouhaha over who, and how, and when people can be selectively outraged by atrocities in the Levant not just possible, but probably inevitable (if only because it would probably be book-length and still be nowhere near complete).

It's almost always a mistake to conflate "acts and opinions of political leadership however selected" with "acts and opinions uniform among an entire population that is 'subordinate' to that leadership." In the end, that's exactly the point of "Never Again" and "Never Forget."

• Of late, self-regulation of judges has been somewhat in the news, even at the state level. These problems are both inevitable and avoidable. One need not even note the overt conflicts of interest (which are also inevitable when we foolishly-but-avoidably elect judges… or prosecutors and chief law-enforcement officials). In virtually every state, the entire legal disciplinary system is under the supervision of the state's highest court, which builds in even more blind spots than a military whose discipline system runs through and is dominated by the Academies (that still have Certain Statues at their entrances)… but is still subject to dedicated civilian control, unlike the legal profession.

  All of this also underpins the organized bar's inability to recognize that its prior ethical requirement of "zealous advocacy" is self-defeating when the entire job of lawyers is to assist the clients in resolving (or better yet preventing) disputes short of bloodshed, short of resort to that military. Sometimes — and it's utterly disfavored — one must tell one's client that there's little or no justification for further pursuit of the client's interest in the legal system, in court or otherwise. We don't actually teach that, and we bloody well don't reward that in practice. Sometimes the client is actually liable (leaving "criminally guilty" for another time), or deluded (or worse); we're seeing that play out in Manhattan right now concerning the Orange One, and that's far from the clearest or most prominent example.

• Then there's the slightly-less-inflammatory context of "intellectual property rights," which is an incredibly misleading misnomer. Some of the most-important (and most-annoying) rights often lumped in with, or at least treated as equivalent to, "intellectual property" are not "property" at all, like the right of attribution — a right much clearer in Europe, but that the US assured everyone was embedded in US law (just not the Copyright Act) when it joined the Berne Convention 35 years ago. The problem is not with IP rights per se — and copyright is merely an example, things are just as distorted in patent law and elsewhere — but with the monomaniacal quasireligious obsession with the economic activity of transferees and distributors, especially when misstated, misrepresented (that's not just a whisper of "Copyright Clearance Center" you're hearing in the background), and/or misused to actually suppress originality. Presuming that originality has an objective basis is the least of the problems… except if it's referring to "the original of a bank statement."
• Gee, it almost sounds like the legal system has a "blind spot" regarding "creativity." Almost as if the relentless demand — whether one is in a common-law or civil-law system — to prove that one is right by demonstrating that someone else has said the same thing before, even if only in an out-of-context soundbite, limits perspectives. Almost as if scientific ignorance and blindness on the Supreme Court, even when resolving an overtly scientific dispute (and notice that I didn't even have to resort to the abortion/viability/beginning of life issue?), are perhaps inevitable when the last time that any Justice was in a lab was an introductory general-education class as an undergrad. The last Supreme Court justice we've had with a STEM degree of any kind graduated with a math degree — not a laboratory-science degree — in 1929, and wrote the decision that gave us rigid trimesters. So I guess I wasn't so successful in avoiding the abortion controversy here…

  Not fit for purpose. In large part I blame decades of overemphasis on undergraduate grade-point averages at the top law schools that feed into the Supreme Court, and the judiciary as a whole. Laboratory science programs who send their graduates into law do so from a cohort whose GPA is half a point (out of four, in the US system) below that of the polisci/econ/literature/philosophy core, if only (albeit not only) because the grading systems are discontinuous. This makes those with creative, rigorous backgrounds in the sciences largely noncompetitive for admission to the "feeder schools."

  Any parallels to the blind spots in the US officer corps in Vietnam and since are, well, bloody obvious — things like a paramilitary structured like Napoleonic despotism having predictable failures of command responsibility and authority arising from that very structure. Hint to the "naval services": The median middie or seaman recruit today is better educated than the median admiral of 1807, so treating that seaman as if his/her/their brain is a piece of deck planking is not going to work.

• That's less infamous, though, than theocratic bullshit often excused by self-deception. But pointing out that self-deception and bad reasoning leads to further self-deception and bad reasoning is just not very popular. Or populist. Or electable.

So maybe "infamy" tends to arise from ignorance and tunnel vision. Like that's a surprise.