The Anthropic (Lack of) Principle

Some e-mails and others' blog entries lead me to believe that the class definition in the settlement regarding Anthropic's use of pirated material as training material for its "AI" is causing some needless confusion. Slightly rewording it, the class members who can recover are those who:

• Hold the copyright,
• in works leeched by Anthropic to "train"¹ its "AI" systems
• that were, for US works, registered with the Copyright Office
• with an effective date preceding the leeching
• and within five years after first publication.

It's those last two qualifications that are causing the confusion, because they're not about copyright law — they are, instead, about the technicalities of class certification, and specifically about the problem of class representives having circumstances typical of the class and that the common questions presented predominate. However, it does relate back to copyright law, in a way, too — because works falling outside of these parameters and leeched in this scheme still violates that work's copyright, but it would require further litigation. The incredibly ill-advised registration system — which is inconsistent with the Berne Convention's disdain for "formalities," but for both historical and hidden-agenda reasons beyond the scope here continues to be part of US copyright law — has two provisions that are prone to abusive litigation tactics. The class definition excludes those tactics by defining otherwise valid copyright claims out of the class.

The easiest to understand, and the one with the most validity, is that the effective date of registration² needs to precede the date on which the material was misappropriated by Anthropic. This isn't about copyright validity, but about the availability of certain remedies under § 412. Since those remedies are important parts of this class action, they've been forced in through the class definition.³

It's much more difficult to accept the "registered within five years" limitation. A registration can be made at any time that a work's copyright is in force. The "five years" comes from an evidentiary qualification in § 410 of the Copyright Act: A registration whose effective date is within five years of first publication is prima facie valid, but a later registration is subject to challenge more generally. Excluding the post-five-years-registered works is a litigation decision made in negotiating this settlement (and in the class allegations in the complaint), because it appears that none of the proposed class representatives falls into that group and the additional squirreliness involved in validating those registrations might theoretically impair the "common question" aspect of class certification.

Unfortunately, that last point in particular has been misinterpreted in a number of places as meaning that more than five years after first publication, it's too late to register at all (instead of just for this particular lawsuit). Frankly, that's what some parties here want you to think, because without registration there's no individual cause of action that can be heard by the courts (§ 411, although this is a claim-processing rule and not jurisdiction⁴).

The fundamental problem is that the publishing industries — some more than others — have been at best slovenly in registering copyrights, even when the publishing contract requires such registration.⁵ (It was worse under the 1909 Act, when that failure to register also forfeited the copyright itself.) It is still worth doing late registrations (so long as the term hasn't expired and the registrant is even more careful than usual to proofread the application and ensure it's fully truthful and accurate). This suit, after all, is not going to resolve all questions regarding leeching of material under copyright… and the next set of class counsel to come along, or even individual lawyers, might be more aggressive. However, they can't file if there's no registration.

---

1. I'm just not going to express my contempt for this sort of deceptive misuse of language here. Although that misuse is endemic to the general discussion of "AI" and "generative AI" and "chatbots," the point of this blawg entry is misunderstanding of copyright law by affected authors (and potentially many others).

   Don't worry, you sleazebuckets. I'll deal with your intellectual dishonesty and intentionally deceptive acts and practices more directly another time. Bwahahahahaha!

2. Although really not relevant here, the effective date of registration is ordinarily the earliest of the date of actual application (including payment of fees) or — if that application date is 90 days or less after first publication — the date of first publication. Naturally, the "date of first publication" is defined in the Copyright Act only for "phonorecordings."
3. We'll pretend, for the moment, that § 505 provides the only way to recover attorney's fees. It doesn't; the rule governing class actions provides for attorney's fees (regardless of whether the cause of action otherwise provides for them), and on a far more generous basis than does the Copyright Act. Needless to say, I'm displeased with the confusion here, too.
4. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). This matters because federal class actions can include claims of dubious (or even no) subject-matter jurisdiction if pursued individually.
5. This failure constitutes a breach of contract by the publisher. On one hand, it's probably long past the statute of limitations, since the failure to register "should be" apparent to the author not long after publication. Creative lawyers might use such breaches — especially when part of a pattern or practice — to strike other defenses offered by publishers for other breach-of-contract claims like failure to pay royalties; this is called the doctrine of unclean hands. Of course, the hands were a lot less clean when smearing linseed-oil-based inks…

The City Is for Burning

Once every generation:

1933 — Griffith Park
1965 — Watts
1992 — Rodney King
2025 — January wildfires… and now this

What that says about the arsonist in chief and fomenting insurrection — again — is not supposed to be a necessary part of the conversation in a true democracy. Is it? Maybe a well-known former resident of an internment camp already understands the current situation all too well.

• How about something cheerier, like music? (That look on your face says "You've got to be kidding me.") How about some real patriotism from pop stars, who did not dodge the draft? Sometimes I do have upbeat stories on the music segment of the entertainment industry! But you don't actually come here for the cheeriness, so I'll return to normal grouchiness pondering Corruption at the Top: The Next Generation, all the while speculating about how bad things must really be if that source is criticizing management. Nor is it really any better across the Pond.
• Well, how about the rising gaming industry? Surely there's some extravagent claim to be made that will entertain us! Just consider that he probably never would have been able to work on games like Othello, Lear, Macbeth, The Tempest, or The Winter's Tale (that last with its definitely-made-for-gaming "Exit — pursued by a bear"), because he was 40 or older and — notwithstanding the Age Discrimination in Employment Act — old fogeys of 40 and up have real trouble getting interviews (let alone actual jobs) in gaming. Any grey hairs had better be from a bottle…
• At least the House of Lords is showing some understanding of the natural-person-creator's needs and perspective on "exceptions" for AI use of copyrighted material. Not at all by coincidence, the charge is being led in the House of Lords by an actual, active, natural-person creator — something we haven't had in Congress for quite some time. Now if we'll just get everyone, or even anyone who actually has a voice in the matter, to understand and accept that "machine learning" on a Von Neumann-architecture computer doesn't resemble "human learning" except by coincidence, we could have a real conversation. Which, in the current environment, would turn into a war on social media rather rapidly.

Don't Have to Live Like a Refugee

Warning: Some contents satirical. The humor- and/or intellectually-impaired are severely cautioned.

• Professor Tushnet describes a consumer-deception case involving claims that A and B were separate entities when they were in fact the same. This is disturbingly parallel to this morning's 9–0 Supreme Court decision (3 concurring opinions) regarding potential liability for wire fraud by deceptive identification of a "separate" minority-owned "subcontractor".
• I ran into some white refugees from South Africa this afternoon. They appeared fairly comfortable to me, although their name doesn't sound very "white." However, when I asked for any documentation concerning a risk of genocide, I got no response.
• At least they were refugees. This… individual from South Africa was not a refugee so much as a draft-dodger. That makes him a good fit for this Administration, with its occasional focus on the military accomplishments of others. At least it wasn't an attempt to rename Memorial Day, which would be a bit too much regarding a holiday originally about Union soldiers. (I tried to link to the VA's explanation, but as of this afternoon it's returning a 404 error…)
• When a newspaper long known for its hostility to "creatives" (notwithstanding the "new ownership") prints a page of "book recommendations" from one of its "content partners" filled with AI hallucinations, things are getting just a little bit too weird — and disturbing. It's not so much the "we were fooled by an AI hallucination" as "we did no review or factchecking whatsoever on something from a 'content partner' — nobody tears off and prints from a teletype any more, but we tried!" Then, of course, they blamed their own failure to follow journalistic standards on someone else. I guess I'll need to go elsewhere trying to find literary immortality, or even prestige — let alone a reading list likely to be available through the public library (which only actually acquires and circulates real books).
• Note to executives at Universal Music Group: It's not a good-faith effort to "resolve" a dispute or disagreement when you reject a claim that arose from your overt and intentional deception and violations of law. Those works couldn't have been "works made for hire"… unless they were by (a) employees within the scope of their duties, in which case I'd like to see the W2s you issued to them at the time, or (b) a freelancer's specifically commissioned work falling into one of nine categories, none of which can be mangled to include "phonorecordings" either at the time of the creation or now. Since it was after 01 Jan 1978, just declaring "work made for hire" in the contract was insufficient (and the transferee/recorded music industry's near half-century of refusing to acknowledge that 1909 Act precedents were statutorily overruled is not, I'm afraid, an AI hallucination).
• Sympathy to President Biden regarding his recent medical diagnosis… and a kick in the crotch for those attempting to turn it into continued criticism of Vice-President Harris and others for not "disclosing" this or any other "health challenge." WTAF? If they had, y'all would have screamed about violating Biden's medical privacy. We still wouldn't have had younger candidates in presumably better health… oh, wait, he's not exactly younger himself, is he?

  Everybody is entitled to a voice in democracy. Not everybody is entitled to be on the ballot. If your birth year appears in the "presently eligible to draw Social Security benefits" table (like mine does!), get off the ballot. Otherwise, events like this are inevitably accelerated, or at least more prevalent.

Just Eat It

I think I've finally gotten the sausage grinder under (at least temporary) control. The last four months have been almost non-stop output, even without any real inputs.

• So, the Orange Menace thinks that WalMart should just "eat" price increases caused by his tariffs. Turnabout is fair play, I suppose: If costs increase over time at his "luxury condominium and apartment complexes," perhaps Trump Tower (Chicago) rents should snap back to their 2007 levels (from what I've been able to determine, about half the current rate). Oh, that's not what he meant? He meant that just the price rises due to tariffs he personally and imperially imposed should be eaten? (We'll just ignore how much the steel to build that luxury complex came from, or had price influenced by, import tariffs on steel.) Oh, wait, he's a special snowflake; this is about appropriate behavior for the little people, not for Very Important Real Estate Speculators (With Substantial Histories of Bankruptcy and Tax-Loss Carry-Forwards, resulting in at least a decade of not paying any federal income tax despite Being Yuuuuuuuugely Rich)…

  No kids in Japan were starved in the production of this link sausage. I cannot say the same, however, for the kids of those holding "good manufacturing jobs" in Japan once the tariffs hit — that would be trickle-down economics, wouldn't it?

• Speaking of "the little people," consider early-career (and popularity-passed-them-by-with-no-other-skills-developed) artists. Or, as is all too apparent, don't; the objective of "ensuring" that there are more "good manufacturing jobs" for Real Americans has much more to do with ensuring that those Real Americans have not the resources, time, energy, or education to object… or retrain for new "good manufacturing jobs" fifteen years or so in the future, when the products and processes of their current jobs will no longer result in above-market returns for passive investors.
• The NEA, however, is just a tiny piece of artists' property interests. Like in their good government jobs… oh, wait, she's not an artist, never mind; I therefore shouldn't be considering the interests of a black woman doing an impossible job, well out of public awareness… It's almost like there's a hidden agenda involved, such as replacing the de facto Zeroth Restatement of Copyright Law (immensely flawed as it is, both in detail and in its underlying assumptions that favor transferees over natural-person creators and reject "creative process" as at all relevant) with one more favorable to techbros.
• But perhaps it's time for a sweeter, apple-flavored sausage (although nobody really wants to see how that one was made). Perhaps Mr Cook should just eat it… like he didn't do almost exactly a decade ago (just in case you're wondering, cert. denied).

Their Lips Were Moving

Let's just skip the medical TMI and get right to the platter.

• If you can take your attention off of the multiline train wreck in DC, you might want to sympathize a bit (or perhaps enjoy some schadenfreude) with the poor, poor executives at Apple. Smacked around by the European Commission and by a respected US District Judge in the same month for antitrust… issues. It's not like they weren't warned about turning the Apple IIe (we'll just elide the Apple III as if it never happened) from an open system to a walled garden with the Mac, although that's nearly half a century ago. More to the point, it's not like they weren't warned about executives-as-witnesses whose greatest economy was with the truth about a decade ago — also regarding antitrust.
• Apple's colleague down the street isn't doing much better. Not only was it also fined by the European Commission (first link in the preceding sausage), but it disrespects all IP that it doesn't own. This is a far-from-unique issue among IP transferees, but it's particularly annoying coming from a company that traffics in personally identifiable data. It's also quite interesting that different divisions, and different product lines, of the same corporation have different, but overlapping, variants on IP rights that end up pointing at the same underlying foundation: Only our IP has value.
• Speaking of transferees taking all the seats at the table (and disrespect of a major actor for everyone else's IP), the ongoing lawsuit by Big Phonogram against the Internet Archive continues to stumble along, perhaps toward an endpoint. Or perhaps not; in any event, this is one bit of IP litigation that I wish both sides would lose — Silicon Valley learned everything it knows about "only my IP rights deserve respect" from Nashville.
• Returning to European concerns, there's an interesting case on the minutiae of trademark law brewing that has important implications for certain disreputable publishing practices. As this blawg's only feline friend the IPKat asks, "Is it deceptive to use a designer’s name in a trade mark if the designer is no longer with the company?" If the CJEU says "yes," or even "maybe," that would have profound implications for works written by other than the identified author. That's not to say the "ghostwriting is to be forbidden" — just that if it's a deceptive act to attribute a design via mark to someone no longer with the company, attributing a book to someone who didn't write it while hiding the identity of who did is also a deceptive act. Hmmmmm, can I think of a political figure implicated in this sort of thing?
• Then there's… this long-running fiasco. Bluntly, Ms Palin, you clearly have little idea of what "incitement" means — and implies.

That's enough for now. I'll try to emerge from the fallout shelter a little more often than I have this month.

After-Bedtime Sausage Platter

I've had several false starts on the blawg this month (not to mention shepherding tax returns through — Beware the Ides of April, even though that's technically the 14th). I've started on several pieces only to have somebody in DC up past his bedtime make things worse.

• Every generation has some variation on complaints that "young people don't read [the right kind of] books, leading to the collapse of civilization." Here's another example, that I'm afraid evades two aspects of "reading" by teens.

  First, and perhaps most obvious, the definition of "book" (and "[right kind of] book") is more than merely "problematic" — note that every single example cited concerns "dead-tree books." I'm old enough to remember Respectable Adults sneering at mass-market paperbacks, even when they were A Clockwork Orange and 1984 and The Dispossessed and, perhaps most to the point, Fahrenheit 451… mostly with covers conceived and executed by people who were not the target audience, let alone teens themselves. It wasn't just judging the books by their covers, but by their very format — and that continues with e-books, especially when those e-books are being read on something other than a dedicated e-book device. (If you spot me on the bus or the train staring at my phone, I'm not doomscrolling — I'm reading We or some other book that the self-appointed Guardians of Culture consider suspect at best.)

  Second, there's a glare of condescension in there — the unstated assumption that "what is worthwhile in Western Civilization exists at 'book length' (usually novels and textbooks) only." A voracious reader does need to read some at book length… but they could do that by reading the archives of this blawg from front to back. More, a voracious informed reader is going to read in the lengths established by the fields of interest/study. As an obvious example, law is far, far more oriented toward individual opinions (whether common law, civil law, sharia, whatever) and journal articles. Even moreso in the sciences, both as to "generalities" and "breaking topics." There's no need to point out the problem of long, descriptive passages revealing that the author was paid by the word and not the concept, especially with fiction: The Ones Who Walk Away From Omelas has a great deal more to say about "virtue" than, say, The Faerie Queen. In short, the purpose of reading matters; and it especially matters to teens who have largely been stuck with badly-written, often ill-conceived textbooks as the exemplars of "book length."

• Young people would probably run for office more frequently if the gatekeepers would (a) do a better job of gatekeeping, (b) figure out that elected office has an expiration date, and (c) knock off the "pay your dues, and only in the way that past generations have" crap. Then we end up with wide-eyed credulous crap like this piece that almost entirely misses the point: Party gatekeepers gave us both candidates for President last year, giving us a choice between the lesser of "who cares?" Unfortunately, it's actually difficult to choose rationally between bad alternatives — and people do a remarkably poor job protecting their own interests when all choices offered are against those interests.

  In short, my generation (and the prior generation) needs to shut up and get off the ballot. That's different from not listening to the old farts at all (seeing as how my generation paid the price in Vietnam, we know a little bit — perhaps all too viscerally — about conflicts serving shadowy purposes either forgotten or never revealed). The only dominoes we should be actually making decisions about are the double-nine sets in the rec room, and definitely not for others.

• From the Department of Everything Old Is New Again, a new generation has created its own Gilded Age via multinational "tech companies" that cut corners on the tax bill (translation note: the UK phrase "tax avoidance" doesn't mean the same thing as the American phrase "tax avoidance" — it's much more condemnatory, often reaching what would be called "tax evasion" Over Here). Which, I suppose, beats outright theft, although anyone who actually knows enough sophomore-year computer programming, and how the von Neumann-compliant processors of today work, should have figured out long ago that "generative AI" necessarily gets its input by making copies — precisely what copyright law is concerned with. This is not to say that copyright law couldn't benefit from some considerable rethinking and revision; it is to say that imagining that copyright law has already changed to be exactly what generative-system proponents think it should be (just ignore the massive conflicts of interest) rather resembles a different kind of thinking one's way to success.

The Ministry of Silly Talks

Just to be excrutiatingly clear, this is not an April Fool's Day platter. I'm afraid that with the wackiness of both "the news" and "IP" of late, this disclaimer is all too necessary.

• Since last posting's screed, things have only gotten worse regarding what will no doubt be remembered — or, as personal (conflicts of) interests demand, excused, willfully ignored, and deflected — as Signalgate. Not to mention demonstrate the value of free publicity when someone misuses a product.

  For those who think this was a nothingburger, consider what the intelligence community thinks (or at least those who talk about it¹ say). According to the governing regulation and executive order,

  Information may be considered for classification only if its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security and it concerns one of the categories specified in section 1.4 of Reference (d):

  (1) Military plans, weapon systems, or operations

  Executive Order 13526, Classified National Security Information (29 Dec 2009) at ¶ 1(b) (emphasis added). Exact time and location of an employment of aerial weapon systems sure sounds like "operations" to this veteran… and that's probably the least egregious aspect of this fiasco.²

• One area that's not getting the attention it deserves, though, is Elizagate: The unlicensed, unauthorized use of willfully pirated text as "training material" for large-language-model-based systems. (Not that I'd know anything about this sort of thing.) Digging a little deeper, one discovers a rather disturbing self-contradiction in the "training model": It depends on treating all text as informationally equal; this is rather remarkable, given which of the publishing industries is the most profitable by virtually any measurement. The irony that the very best case for denigrating the expression per se in favor of the facts it expresses as fair use is precisely that sort of material³ is a bit much to tolerate in this environment.
• But that's less offensive, and certainly less important, than "divisive narratives" in museums. One must wonder if this museum on the Mall received the same sort of directive, especially given recent "immigration enforcement" actions. Oh, wait, no need to wonder at all, when the decision can be inferred as soon as one identifies the "judge".⁴
• That the Dear Leader has a family member who might be asked one of the interrogator's questions from the occasional "song of the day" is probably waaaaaaaaaaaaay too pointed an objection. Fortunately, I need not worry; too bad I know many who should/do. (Knowing one would be enough to rather ruin the day.)

 
 

---

1. Those who bloviate about the details of "pending intelligence matters" almost never actually know those details; those who do know the details almost never bloviate.
2. Of course, if these idiots hadn't been trying to live up down to the dubious wisdom of applying business-metric analysis to national security, they would have had a fully trained executive officer (in the USAF sense; one who was already cleared for, and probably involved in, the planning) set up any meeting, whether in person or virtual. A competent executive officer would have directly reconfirmed the identities of all individuals in the group, and warned the authorized attendees not to add anyone else. But this group was — variably for each individual — too stupid, too overconfident, and/or too sociopathically narcissistic to even care. But that would have been inefficient…
3. <SARCASM> Far be it for me to point out that most of the source databases sucked in to LibG3n et al. disproportionately deemphasize these materials in favor of current commentary and especially works of fiction that directly impact the author's total earnings. Or that, ironically, when those repositories receive takedown demands, they'll disproportionately honor the ones from generally-controlled-circulation publishers of factual material (I have a couple decades' worth of data to support this — by no means all self-generated), and will take no steps to prevent prompt reposting of the removed material. </SARCASM>
4. Calling these individuals "judges" denigrates actual judges. They perform an important function, and at least a substantial proportion are even-handed and in good faith despite the biases built into the system; but they're not "judges," if only because the rules of evidence don't apply.

Spring Is Here

Life, however, is not skittles and beer — not even a "lite beer."

• Musicians and composers can't afford even "lite beer" on their typical earnings. Spotify has been a disaster, funneling even more of the revenue streams to distributors (and definitely not the musicians or composers). Worse, the scramble for pay distributed via algorithm inhibits creativity.
• Things are little, if any, better for those who create art from text. Ignore the expected but there are too many books! lament (virtually always expressed by someone with a conflict of interest that's not very hard to find). Dig a little deeper and you'll find a somewhat flatter income distribution than Big Legacy Publishing provides¹ that nonetheless hides the poverty-level medians — which, in turn, means that the creators need another source of income. It probably won't be a support job elsewhere in the arts, though.
• Indeed, one need not even be a "content provider" to be ripped off by transferees. Ask yourself a question: How much of the revenue at ProQuest (or EBSCO) ever finds its way into the authors' account? (Ordinarily, less than Spotify pays musicians!) I can almost hear cryptolibertarians saying "But the authors agreed to the one-time-fee contracts! They have nothing to complain about!" I'll be in the corner, muttering about how contract enforceability presumes equal access to the relevant information, most especially future market conditions for a "transfer" of at minimum 70 years' duration (and that's if the author drops dead immediately after signing the contract).
• At least ProQuest and EBSCO actually have rights granted by the publisher (even if that's not always proper). Not everyone who, umm, "reads" electronic texts does. <SARCASM> Oh, my, did I inadvertently point to another potential source of LLM training materials that really is public domain? If only the standard of writing in those materials wasn't so poor… </SARCASM>
• The push to remove diversity, equity, and inclusion often goes more than a little bit too far. It's almost like they don't care that their real motivations are in full view. The one thing they're far too careful about is they hide who's actually going the work… not the signature on the orders but their text…
• If it's spring, barbecue season can't be too far off. Even — especially? — on Capitol Hill.

Hand me that bag of peanuts, please. No, the other one.

---

1. There really isn't a good term here short of snark. "Traditional publishing" ignores that the "tradition" — measured by "most titles," the only independently verifiable count — until just about a century ago was a vanity publishing deal. "Commercial publishing" is my usual term, but it seems a bit inapt in considering the commerce of publishing.

Winter Weather

I almost got trapped in a parking lot by a sudden snowstorm — the special snowflakes drifted up to my chest! These particular special snowflakes were driving SUVs (and a couple minivans and pickups). Well, not exactly driving, but parking. Hint: When a space says "Compact," it might really mean it… and "compact SUV" is very much like "friendly fire" (neither one really is, no matter how pervasive the marketingspeak), and taking up two spots in a crowded lot doesn't help anyone. Except that it might save those special snowflakes a few steps while they're preventing other customers from getting in their way in the store.

In any event, lots of interesting IP and related news items even since the last platter.

• Consider the (difficult) issue of copyright in fictional universes. One wonders how much farther the reasoning might extend when considering a completely invented fictional universe, like the United Federation of Planets (Star Trek™), instead of the slightly fictionalized Peckham that played home to Del Boy. Or is the way I identified the Federation a hint, reaching toward the inner operation of (and communicative distinction between) copyright and trademark?
• The purple haze still lingers around the copyright estate of J. Marshall Hendrix, as Sony (the successor to Hendrix's label) has found out to its chagrin. Couldn't happen to a nicer group of plantation overseers, could it? Not all transferees actively mistreat the actual creators, but the economic model remains very much the same…
• A couple contrasting, and probably fundamentally incompatible, visions of "fair use" and "training sets for large language model generative systems" have hit the news of late. On the one hand, authors in the UK are (rightly) complaining that a "consultation" on copyright's proper treatment neglected authors' (and other creators') interests. Conversely, WestLaw got the opposite result regarding purportedly factual (and definitely lacking originality by design) case headnotes. Comparison to the last paragraph might bear some consideration of its own.
• One might instead ponder the EU Advocate General's attempt to leave weasel room around Dastar when applied to European patents. Which is just as bizarrely strange as it sounds. Dastar held that, under US law, a trademarked title (or, more broadly, a Lanham Act claim) cannot be used to protect a thin, compilation only, dubiously expired copyright. The pending CeramTec matter concerns something quite parallel: Marks being used to at least as to commerce extend an expired patent.
• One could just consider that the Doge of Venice Beach has ensured that some of his minions have extracted quite a bit of data tracing back to specific individuals from government computers. Not that any intelligence-collection methods might use this now dubiously or completely unsecured material residing on Baby Techbros' laptops (n.b. cited as a basic open-source explanation, without comment upon or endorsement of its precision or accuracy). That, after all, would be considering potential collateral damage — something that the individuals at the top in the executive branch since 20 January have clearly demonstrated is not within their weltanschauung.

An Unreasonable Use of Resources

This sausage platter is not a reasonable use of my time and resources —

• Lots of obscure copyright and intellectual property stuff that I've neglected to mention of late, ranging from global applicability of US copyright terminations (n.b. beware broken/inaccurate links in the article) to still more nonsense about dog chew toys and trademark infringment of whiskey bottles. IMNSHO, these judicial opinions got tripped up by the process versus product problem in and around the arts and intellectual property — but that's for another time, another forum, another stultifying set of citations to authority that reflexively fail to engage with the process versus product problem by their very nature.

  But the winners, as usual, aren't the actual creators. Sometimes the winners are publishers (and some classes of reusers); sometimes the winners are TV production companies; sometimes the winners are an entirely different set of reusers. The only guaranteed winners are the lawyers. Well, the general class of transferees, too, but that's also for another time, another forum, another few hundred footnotes…

• …some transferees being less basically honest than others. (Translation: Companies House, in the UK, performs the functions — and more — of US state-level Secretaries of State and their divisions responsible for business organizations.) Of course, it helps the con artists Over There that the UK doesn't overtly prohibit unfair competition, for some value of "unfair" that depends largely on "how much did you pay your lawyers?"
• I'll just shove the politics in one big lumpy sausage for the day, so if you'd rather not barf you may want to skip to the next one. The current administration is trying its very best to be more corrupt than Ulysses S. Grant's, which was so corrupt that Congress established a civil service system to prevent personal loyalty "oaths" from being a criterion for getting or keeping a federal job. Civil service isn't dead yet, but not for want of effort. You want an example of the alternative? Try city hall… in Chicago. That's all too consistent with the only effective way to reduce the felon count among Illinois governors. Part of the problem (and not just the executive branch) arises from how we choose the winners, but even that piece goes not nearly far enough because it doesn't excoriate the corrupt, coopted gatekeepers (who usually epitomize "patronage").

  In the end, I'm not sure which is more disturbing: That cancellation upon accusation remains A Thing in the arts (especially when, no matter how well supported, the accusation is levelled at a creator or performer previously acclaimed as a role model for and around their work, particularly when there are clearly multiple sides of the story — perhaps all icky — which remain untested), but that opprobrium doesn't extend to politicians not just accused, but found liable for the ickiness after a full trial, or refuses to pay legal bills (that's just one example). If character matters for the one…

  What's next? Jackbooted thugs in the military? Unfortunately, that's not that implausible. The public has little idea how close we came to that; the end of the Cold War disrupted a decade of perceived-loyalty buggery, but not nearly enough.

  Obviously, the current administration is trying its very best to deflect attention from Secretary-Designate Brainworm's policy preferences utter ignorance by undermining medical research all by itself. Oh, wait, basic science isn't efficient because the outcome is largely unpredictable.

  "Dr. Victoria Fraser MacKenzie, when asked whether she could describe the scientific advances we may expect to achieve from the voyage of the Starfarer, replied with a single word: 'No.' [* * * *] 'Science,' she insisted, 'is not meant to create useful applications of scientific knowledge. [… A] scientist does not do an experiment to prove a hypothesis. A scientist does an experiment to test a hypothesis. You may guess about the answer that nature might give back to you. You may even hope for nature to give you a particular answer. But you can’t know what answer you'll get until you’ve performed the experiment. If you did, or if you thought you did, you'd be back two thousand years when experimentation was looked upon as unnecessary and vulgar, or, worse, back a thousand years when belief was more important than knowledge, and people who challenged beliefs with knowledge were burned at the stake.'"

  Vonda N. McIntyre, Starfarers (1989). It may be a work of fiction, but it's accurate, looking backward and forward… and as previous ingredients in this sausage and the news demonstrate all too well, the stake-burning was less than a thousand minutes ago.

• A little bit less politically — but not entirely removed from it — consider the healthcare problems caused by the division between "mental" and "physical" health. There is an underlying political issue: Convincing those who pay to do so when "the records" don't include clear and replicable "evidence" regarding the "condition" to be "treated"… not to mention that there's so little quantifiable treatment applying to all patients. Determining whether a patient needs, say, a particular dose of atorvastatin (brand name: Lipitor) to control lipid and cholesterol levels can be quantified; even the regimen and results of body-building can be quantified. Getting a trauma victim readjusted to normal function? Not so much.

— but I did it anyway.

Survival

Four years ago, there was a serious possibility that this nation would succumb to something that hasn't ever happened on this part of this continent before: A successful violent revolution by the loser at the polls. The First War of American Secession came about precisely because there weren't any polls, so the colonials could hardly be accused of sore-loserdom. The Second War of American Secession beat back the attempt (after four years), although we're still recovering from it in many ways. This time around, the loser was more graceful, more respectful of a quarter of a millennium of men and women who fought, and bled, and died — and of those they never came home to — in defense of "voting matters."

What damage that former loser will cause is for the future. It may be mostly "just" policy failures (as I remarked here just short of a couple of decades ago, stupid ≠ unconstitutional); it may be the executive this time instead of Congress; it almost certainly will result in needless suffering, casualties, and probably deaths. But we're not quite at the death of the American Experiment

We interrupt this rant to return to the irregularly-scheduled platter of link sausages.

• All too often, "old and wise" really means "decrepit and inflexible." It's been a dozen years since there's been an occupant of 1600 Pennsylvania Avenue who wasn't drawing Social Security, and the average age of Senators just sworn in last week is at least Social Security-eligible. I've been griping about this for quite a while, and I'm glad to see I've finally got company. Well, a little company, in that most Senators might as well be off just keeping their "bad habits" (and short workweeks).
• I'm firmly against the draft, but it's like both Dracula and a Cyberdyne Systems Model 101 it (or at least advocacy of it) keeps coming back. Peace Corps veteran Jonathan Zimmerman is here rather overdoing it, though.

  We don't need the entire nation to engage in national service. For one thing, that's a rather fast path toward devaluing an awful lot of jobs that are far more complex to do well than one can train draftees to do. It's one thing to say "build roads" (or even just "fill potholes") with some vision of creating the Transcontinental Railroad with slightly updated materials in mind; it's another entirely to do so safely, effectively, and with few side effects. Rather than reinstating the draft, I propose something a bit more… targeted: Appearance on a ballot for a state or federal legislative or executive (or, hackcoughshouldn'tbeelected judicial) office should require prior satisfactory completion of national service (and, of course, the Peace Corps counts, among many other "nontraditional" roles). That might, at minimum, provide some appropriate — arguably essential in a democratic republic — insight into some of those who don't have much in common with candidates for high office.

• Being a (nonuniformed) lawyer, however, isn't one of them. For example, just consider how much "service" to the nation as a whole was actually being provided by the lawyers in this fiasco. Or this one. Leaving aside that these two matters demonstrate yet again that states are incapable of effectively regulating the legal profession, I find myself unable to distinguish the conduct of counsel in these matters from that of counsel related to the attempted coup on 06 Jan 2021. Oh, wait, many them — including one of the most egregious — weren't disciplined either…

[fade out and static]

…yet.

Raising the DebtCaffeine Ceiling

I'll begin with the morning ritual: Coffee. Definitely not any brand or type advertised on American television — let alone the UK (foreshadowing seven years of fighting against demons while seriously undercaffeinated).

• Stealth branding efforts continue to be problematic, whether unopposed but later challenged or distinctive only to monolingual boors. But that's nowhere near as confusing as figuring out what conduct, or who, is actually regulated by copyright principles from afar.
• If there's an underlying theme to the preceding link, it's that being a special snowflake isn't good enough to evade generally-applicable, well-settled restrictions on overreaching bullying. Claiming that it's all the users' fault doesn't seem to be much more successful. Means used need to be consistent with ends desired, or one ends up subverting both — especially when the special snowflakes are the ones already in power, unable to tolerate any criticism whatsoever. It's neither "pro-democracy" nor "the rule of law" if what really matters is whether anyone who might object knows about it. (Yes, that's a hint for the incoming administration.)
• Throwing the bastards out is only the first step, of course. The Romanovs were bastards, but what followed was worse. Violent revolution followed by vengeance against those perceived/labelled as the former oppressors seldom makes it a decade without descending even farther — and especially so when religion is involved (just look two nations to the east… or at any of the neighbors to the southwest). (Yet another hint for the incoming administration.)
• That danger is perhaps more obvious with governments than with dominant business entities, whether in large or niche "markets." Indeed, "business as usual" can be even more repulsive in the niches, because blacklists are a lot more effective — and pervasive.

Grinch-Approved Link Sausages

These are just the basic sausages. There's plenty of garlic in their souls, but you'll have to bring your own sauerkraut and toadstools.

• If we had an effective national health assurance system, we wouldn't be talking about the CEO of the insurer with the highest rate of claim denial among major insurers (except maybe for the VA, but that's a different issue entirely) getting shot in an apparent targeted assassination — and then seeing teh internets explode with schadenfreude over an act of vigilante violence.

  The legitimate use of violence in pursuit of policy objectives is the exclusive province of the State. It can't be tolerated from private citizens, whether we're talking about a single targeted assassination or a much larger atrocity. Sure, States (and quasistate actors) make mistakes about it — like, say, the assholes on both all sides of the disputes in the Levant — but they're not unaccountable bullyionaires (well, not supposed to be). <SARCASM> Like the proposed cabinet for the incoming administration, some of whom clearly have no clue about how government officials are supposed to act.¹ Oh, wait, maybe that explains why so many bullyionaires want to be in the new cabinet where they can direct violence, or at least the power of the State, against their personal enemies. </SARCASM>

• I did mention unaccountable private citizens as a problem. Their power is especially problematic when it arises from accounting dodges in the first place, whether individuals or entire businesses.
• It's the holiday season so there's lots of dubious intellectual property news. The newly formalized reach of EU designs is highly technical and mostly concerns what we (over here) call "industrial design." But that doesn't — indeed, can't — make "Русский военный корабль, иди на хуй" on t-shirts protectable (for trademark purposes) on behalf of the Ukraine border guards; it's just not distinctive. Katy Perry had only a little bit more success in Australia.
• But that was better luck than the Kahlebros² have had: They decided not to petition the Supreme Court to overturn their abject loss in the Second Circuit. The IA's attitude is extremely common among techbros (and too common among other activists) — "the law already must be what we want it to be to advance our interests, regardless of what that does to anyone else." Admittedly, the law is often ossified, stuck in assumptions (not to mention precedents, and poorly-worded legislation and constitutional provisions) that are overtly out of date, and frequently ignore problems never imagined. The public statements by the IA, however, reflect an almost theological arrogance, an unwillingness to conceive of personal error, an utter disrespect for those whose interests are not completely aligned with those of the techbros — even when the techbros proclaim that they know what those interests are better than do those who have them. This is especially so when what the techbros demand is theirs as of right is totally unencumbered use of what the law treats as someone else's property (literal copies here, creation of derivative works for the egregiously misnamed "generative AI" that has almost zero chance of passing the Turing Test in the next decade, let alone now). The law can certainly do better than it does with science — but one must also remember that the applications and self-interest of techbros are not a congruent set with "science." Or "invariable right."

---

1. Or, for that matter, what "treason" is in the first place; one thing that it's definitely not is "providing testimony on personal knowledge in support of a complaint properly filed in the right place," or "filing a complaint regarding conduct that appears to violate clearly-established law." But then, that individual has a track-record with his own whistleblowers, so we shouldn't be surprised.
2. What to call the advocates of conversion of printed books to electronic books without authority from either the publishers or the authors/successors, while the works are still in copyright, is itself an interesting question of deceptive labelling. Making it an even more interesting conundrum, none of the "groups" actually have unified interests in themselves. For example, the authors of mainstream novels have different interests and perspectives on how this conversion might matter to them than do, say, journalists employed by a periodical who knowingly signed an employment agreement containing a clear work-made-for-hire clause; and even within distinct segments, there is legitimate disagreement among members. And that's just the authors; the assumption that publishers' interests coincide with authors leaves me ROFLMAOing (because, well, I know too many of both). This is a problem, similar in nature to whether one wants to be called a "liberal" in today's political environment. So, because this group largely insists on insulting the interests of everyone else, the intelligence of those actually involved in creating original expression, and me rather personally, I'm going to be snide. Get over it.

Today's Group W Bench

Satire warning (slightly updated from six decades ago.¹):

•  •  •

"Kid, I want you to go over and sit down on that bench that says Group W. Now, kid!"

And I walked over to the bench there — and Group W's where they put you if you may not be moral enough to join the government after committing your special crime. And there was all kinds of mean, nasty, ugly-lookin' people on the bench there. Atheists. Genderless-lovers. Border-crossers!²

Border-crossers sitting right there on the bench next to me! And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench. And the meanest, ugliest, nastiest one, the meanest border-crosser of them all, was coming over to me and he was mean and ugly and nasty and horrible and all kind of things. And he sat down next to me and said, "Kid… what did you get?" I said, "I didn't get nothing, I had to pay fifty thousand dollars and pick up the textbooks." He said, "What were you arrested for, kid?" and I said, "Literature." And they all moved away from me on the bench there, and gave me the hairy eyeball and all kinds of mean nasty things, 'til I said, "And creating a nuisance," and they all came back, shook my hand, and we had a great time on the bench, talkin' about crime, atheism, border-crossing, an' all kinds of groovy things that we was talking about on the bench.

It's not really all that implausible, is it? Notice, though, that nobody on the Group W bench is there due to a white-collar crime conviction… either in the original of six decades ago or now. I'd make some snide remark that Ali's Restaurant is, these days, probably in Cambridge, Massachusetts, but certain Ivy-League-"educated" ignoramuses (whose "American mind" was obviously closed before attendance) would probably object a bit too loud… and Cambridge has a helluva lot more than three police officers.

---

1. With no apologies whatsoever to Arlo Guthrie. And definitely none to EMI Music, Inc. and/or Appleseed Music, Inc. This does not qualify as a "parody" under the mistaken definition found in the 2Live Crew matter (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)) — a definition that would have absolutely appalled Founding Father Benjamin Franklin and his near-contemporary François-Marie Arouet a/k/a Voltaire. Because its target is not the talking-blues piece but the attitudes surrounding it, it is "only" satire and therefore outside the ordinary bounds of fair use.

   Which is wrong. But understanding why requires "doing literature," and perhaps "doing history and legislative intent." But the current rightsholders can, nonetheless, bite me.

2. <SARCASM> No reference to either Our Once and Future Dear Leader's family background, or the DOGE of Venice (floppy hat and all), is unintended. </SARCASM>

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?