Misanthropic (8)

The first question on the mind of Bartz claimants is going to be "When will I get paid?" In technical legal terms, It Depends.

The first, and perhaps most obvious, barrier would be an appeal. But who can appeal, and when? Even that is very much an "It Depends" sort of thing:

• The obvious deadline is that established in the Federal Rules of Appellate Procedure: Thirty days after judgment... but, too, the so-called "collateral order" doctrine may make some orders ripe for appeal, and the rule governing class actions makes the decision on class certification ripe for appeal. This is a hard deadline: Excusing a late appeal — especially in a class action — is rare and requires specific findings; "size of the matter" and "number of class members" and similar laments will be unavailing. Since this particular order was issued on 20 July 2026, the appeal deadline is Wednesday, 19 August 2026, at 2359 PDT (remember, July has 31 days).
• But absent a stay — which would require a separate motion — an appeal won't halt processing of the claims. Not all claims are going to be paid based just on the face of the claim. For some, there will be obvious fraud (a problem in all class actions), or questions raised with a legitimate response (also a problem in all class actions… and with well over 400,000 claims, some of them will be surprising). For others, there will be resolution of competing claims for the same work; most obviously, this will include multiple-publisher claims and publisher-versus-author disputes over whether the publisher actually had rights. On occasion, this will include author-versus-author claims, both formal coauthors and authors-as-partial-contributors (for example, Dangerous Visions, a multiply-reprinted 1967 anthology that is in the canonical list of works infringed, has at least 37 claimants to the author's portion of the settlement… and the publisher's portion is, to say the least, "subject to disagreement").
• Under US jurisprudence, an appeal can be filed by an "aggrieved party"… and that includes winning plaintiffs dissatisfied with with the amount, timing, or anything else of forthcoming relief, including absent class members (that is, claimants who weren't designated as class representatives). There are, of course, procedural hoops to jump through. Here's the area that gives the most latitude for appeal in Judge Martínez-Olguín's final approval order:

  Third, a number of objections take issue with the requirement that any book listed on the Works List must possess a copyright registration number (registered within a certain timeframe, as set out in the Class definition) as well as an ISBN or ASIN for certainty regarding the eligible and included works. These Objections are overruled: “The class certification order recognized that the related limitations let all class works use registrations as evidence of certain facts and pursue statutory damages.” Bartz, 2025 WL 2961371, at *1-2. “The class is limited to books for which an ISBN or ASIN exists. From the metadata[,]… as well as through commercial metadata associated with ISBNs or ASINs, copyright registrations associated with these works can be identified. For every certificate of registration presented by named plaintiffs, for example, there is an associated ISBN (e.g., Br. Exh. 30). And, because the classes are limited to works registered within five years of first publication, these certificates and the facts therein are presumed valid.” Bartz, 791 F. Supp. 3d at 1059.

  Bartz v. Anthropic PBC, No. [20]24-5417 (N.D. Cal.) Dkt. 0680 (20 Jul 2026), slip op. at 10 (emphasis added, typography corrected, footnotes omitted). Consideration of precisely why this narrowing of the "well-pled" (term of art) class allegations — see Bartz Dkt. 0070 (First Amended Complaint, 04 Dec 2024) at ¶¶ 63–71 — is fair to the non-named-plaintiff members of the class as defined in the complaint has received little or no attention. Consider, for the moment, a published-in-Canada work, republished in the US, for which the US publisher failed to obtain a copyright registration within five years after publication but is required under the Berne Convention to be fully protected. Then there's the Muchnick declaration by the Supreme Court that a registration is not a prerequisite to settling on behalf of other than registered works, so long as the named plaintiffs' works are registered. The issue here is not that the negotiation process leading to such narrowing is inherently improper, but that this opinion does not disclose the judge's reasoned basis for exercising her discretion and thereby opens matters up for an appeal (especially given certain intraclass conflicts blithely ignored by just about everyone). This is far from exhaustive, too; consider the inaccuracies in stated work identification in the accepted database (exceeding 2% in my sample… that is, somewhere around 10,000 potential claims), incorrect identification of claimants, and so on. In short, this is ripe with potential at minimum bases for appeal just on the class definition.

• And then… there's the jurisprudential error. The Final Approval order blithely concludes that "any putative Objection filed by a non-class member is stricken because non-class members lack standing to object to the settlement" (slip op. at 7), citing to an unpublished opinion in the same district that in turn… "overreaches" is the nicest thing I can say about it. There is a substantial difference between lacking standing and lacking merit — and in this particular instance (but not quite as much in the cases underlying the authority relied upon!), some excluded parties fall within the Amended Complaint's class definition but not that of the settlement.¹ There may be meritorious reasons for later narrowing… but those excluded by that narrowing do have standing to object. Consider a hypothetical class action, pled in broad terms, against a pharmaceutical firm that is later settled on behalf only of a narrower class consisting of white female class members; Hispanic men who otherwise fall within the pleaded class definition certainly have standing to object to being cut out. Returning to Bartz, this particular error does affect a wide variety of considerations of "fairness" to the settlement, precisely because Judge Martínez-Olguín did not consider such objections on their merits so as to exercise her discretion in a reasoned matter. (That it's an error with momentum of custom does not make it correct, guys.)

This, of course, is just an outline. It should be sufficient to demonstrate that a party that actually has standing to object — and every class member named or otherwise identified in the Final Approval has at least standing — is in a position to file an appeal that will result in every guilty/liable defendant's preferred remedy: Delay. None of this is to say that no payments whatsoever will be made on or about 17 September 2026, only that it's dubious as to their scope or anything else. Authors: Don't budget an expected September payment toward your 01 October mortgage/rent payment. Publishers: Don't expect to make otherwise-due royalty (or staff salary — I'm lookin' at you, [redacted]) payments out of it, either.

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1. The reasoning behind tolling of statutes of limitations for absent class members expressed in American Pipe & Constr. Co. v. Utah, 414 US 538, 554 (1974), rather compels this. Details and explanation, however, are beyond the scope of reasonable blawgs, let alone reasonable people.

Misanthropic (7.5)

Before diving in to any of the details regarding the actual meaning of "final approval" of the Settlement on 20 July, it's fairly important to revisit a couple of context items.

First, and perhaps most important, one must remember that any settlement is a least-worst-outcome compromise. By definition, a difficult-to-value harm has already occurred, and reducing that to certainty — a number of dollars, a clear promise to do/not do something in the future, compensating all of the professionals who facilitated reaching the settlement — is by its very nature an ephemeral agreement that outsiders can find fault with. The very existence of statutory damages in copyright actions (presuming a number of prerequisites have been met) represents recognition that a hypothetical infringer's accounting might not be sufficiently clear to determine "lost profits," let alone any other aspect of "valuing" a particular copyright infringement claim in the moment. Now multiply, or even exponentiate, that by multiple parties, let alone class actions, and one can reach a pretty clear conclusion: No matter what or how a copyright-infringement claim is resolved, via settlement all the way through trial, outsiders can always criticize it as either inadequate or excessive (sometimes both simultaneously!), and even the parties will remain dissatisfied. If there's one aspect of conflict resolution to which the aphorism "It's easier to ask forgiveness than get permission" does not apply, it's "control of individual expression."¹ "Because it would be kewl" doesn't transfer well when an author's mortgage payment is on the line… or, more to the point, the author's ability to pay a professional or agent to review a prospective authorized use of their material in advance of making that blockbuster.

Second, and somewhat less abstractly, one needs to remember that just as the map is not the territory, a settlement — and especially a class-action settlement — does not define the interests of the parties at the outset. Instead, those interests relate to what is recognized and explicated by the parties. In this context, consider whose interests actually control (and that is a relatively simple example, because that author didn't work with a lot of coauthors), and it's incredibly easy to imagine that changing even between the infringement and the expiration of the statute of limitations. Authors are mortal, too… and their heirs and executors usually ill-qualified to judge or serve the interests of either the author or the ouevre. The interests of the individual authors — and other copyright holders — are at most an intersection, let alone a union or congruence, even before considering temporal-change issues. This should, but never does, mean that one should not map "interests served by a class settlement" onto "interests of an individual copyright holder… or infringer," let alone onto "Progress of… useful Arts" related to a specific instance of infringement of a specific work.²

Third, and last for the moment, any judicial remedy reflects the compromise of not allowing the perfect to be the enemy of the good (or good enough, or satisfactory, or less-bad-than-the-alternatives) when it applies to organizational conduct. The Bartz v. Anthropic matter makes it even murkier because there are multiple organizations, both formal and de facto, on both sides of the v.… including objectively "bad actors" on both sides. Consider, for the moment, a hypothetical supervisor (if that's not an overstatement of power/influence/responsibility) at Anthropic whose only role was to recommend against using this convenient database of material as a training corpus, but who was ignored/overruled, and how that supervisor's reality interacts with this settlement.³ What is having "Anthropic" on one's work history with a job title indicating this going to do in five years when applying for a job at Disney?

Put together, the real point here is "don't overgeneralize" — a generalization that is not itself reflexively too broad.

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1. Techbros generally haven't figured this out yet, because they conflate "identical means of storage and manipulation of information" with "the means of storage and manipulation of information determines the nature of the information." Those who have figured it out warp and/or deny it due to lack of relevant context and conflicts of interest. Consider, for example, the "context" that would be applied by someone whose only experience is abstract manipulation of a large dataset (Newtonian mechanics) to both the expression "That which we call a rose | By any other name would smell as sweet" and its connotations in context and generally (quantum mechanics regarding a single molecule, let alone its constituent parts… or presence and function in a cellular organelle).

   More to the point, as a group techbros have a semiinstitutionalized tendency to overgeneralization, epitomized by shrieking of "Information wants to be free!" at communication by metaphor merely because the literal bounds of the metaphor can be recorded… and imputing motivation and conduct of some prominent bad-actor owners of copyright interests to all of copyright. CP Snow was far too optimistic when he divided knowledge-communities only binarially — there's a lot of fuzziness, and it comes from more than two sources.

2. Put another way, the interests of whoever-owns-Simon-&-Schuster-today are not the same as those who wrote Star Trek™ novels, and contributed to Star Trek™ collections and nonfictional works, that appear in the data set of the Bartz matter. And there are more than a few.
3. As foreshadowing of an issue that I will discuss down the road — I'm not even going to identify the potential conflict because that would give it away and activate the conflict — consider the publisher's claim in the Bartz matter based on a contractual agreement where the relevant contractual clause was itself unlawful, however customary and however "agreed to" by the actual author(s). Consider this the creepy music playing just before the teenagers agree to spend a night in the old haunted house down the road, notwithstanding their later choices (and that's an unduly optimistic view concerning authors!). Foreshadowing: Your mark of quality literature.

Hawley Smoot!

There's only one Canadian product that merits a punitive tariff: Wildfire smoke. But then, I'd say the same thing about coal-fired electrical generators, the Tacoma Aroma, and other negative externalities with unclear cost factors. Whether that should be applied directly to real-estate developers is… complicated.

• Speaking of negative externalities, we just had a six-weeks-long event full of them: The Men's World Cup. (And for anyone who says "men is the default, we have to separately designate women as the inherently less-athletic product," I suggest competing with Abby Wambach for a header in the penalty area.) Whether considering the perfidy of agents or of dubious fanbases — not to mention dubious individual fans with little understanding of the game (especially when their efforts are utterly meaningless) — this quadrennial event always ends up fighting mythology. In two years in/around Los Angeles, it'll be same process/different flavor…
• I've not seen Nolan's The Odyssey, if only because it's not showing in an appropriate venue: My living room. I've beaten the dead horse of miserable cinema experiences well past the glue bottle, so I'll leave that there and just point out that for those of us who wear thick glasses, 70mm widescreen and IMAX are actually less immersive than our TVs. The more-amusing side battle is Mu5k's "promise" to create a "historically-accurate proprietary-LLM-engine-generated version of his own"; one wonders whether it will include the rampant disease, festering post-battle wounds, and… well… adult content. Perhaps more to the point, one wonders if Grok can/will refrain from the Lara Crofting of the female characters, especially Helen and Athena but also Arete, Calypso, Cassandra, Circe, Eurycleia, Melantho, Nausicaa (not this one), and last alphabetically but not in importance Penelope. A "historically accurate" adaptation of Homer — one, the other, together — will have to be toned down to get a "hard R" rating, and that would put it out of reach of the adolescent boys forming so much of Mu5k's fanbase (at least until it comes out on a streaming platform with lots of ads for worthless-at-best crap).
• Meanwhile, Major Major Major has been busy "suggesting" that "older" military personnel have low testosterone (projecting much?), which rather begs the question of what qualities are normally appropriate in "older" military members — that is, more senior, whether enlisted or commissioned. And frankly, I'd much rather any military surgeon treating me after an honorable wound in battle didn't have any steroid-induced shakiness in fine motor control.

  On the Malibar Front (or at least nearer to it than headlines make it seem), journalists are beginning to recognize that among Persian rulers, it's not turtles but monsters all the way down, back to not later than the Sasanids. But then, Oceania has always been at war with Eastasia…

• I've been one of the literati since I was writing my age in single digits (well, at latest single hexadecimal digits). I've never been one of the hot literati, though, and there's no chance that I'm about to start.

Comments on the final (snort!) approval of the Bartz/Anthropic lawsuit are forthcoming. Short preview: It's not nearly as "final" as the words "final approval" imply, and nobody should count on payments being made Real Soon Now.

Circadian Link Sausage Platter

(Not cicadian, no bugs approved here.) Given that this Sunday's big game is between two Spanish-speaking nations, I'm feeling somewhat copacetic about being forced to rely on Telemundo due to the incompetence of the local Fox station.

• It's become quite apparent over the last year and a half that we have endemic chemical imbalances at the top of this Administration, ranging from 'roid rage at the DoD to damned near every-non-scientifically-validated-thing down the street to reasonably probable psychotropics, intoxicants, and other "mind-altering" things at 1600. I'd suggest installing some biochemists in senior positions, but "biochemist" has at least one too many syllables to be within the contemplation of the senior officials in this Administration… although, curiously, "testosterone" seems just fine with (at least some of) them.

  And as to military personnel and testosterone: Leaving aside that "'roid rage" is rather the opposite of what one needs in leadership positions, muscle mass isn't going to help maintain weapons systems; or analyze observational data ranging from intercepts to downrange clearance; or evade hostile fire; or prevent unfitness for duty due to cardiovascular disease, or gastrointestinal irregularities, or gynocomastia preventing proper fit of body armor (designed by and for Manly Men); or a host of other side effects of not just supplements used, but lifestyle and exercise changes — consider the obvious problem of joint and other flexion deficits. Much of the time, rather the opposite. And despite Major Major Major's hostility to half of the population participating in the military, testosterone isn't everything; but then, if he'd actually taken advantage of an elite education to bloody learn something or just acknowledge how much he doesn't know…¹

• Meanwhile, this Administration has demonstrated yet again that its main method of persuasion is turning assertions of the inherent perfidy of those not personally loyal to them up to 11 without any factual basis (sometimes in less than an hour). I can't — quite — call it "lying" or "perjury" because that requires self-awareness of falsity; that's a deficit that should have been apparent to everyone who actually read even part of the Orange One's self-congratulatory/aggrandizing publicity tome of the 1980s. (In case that isn't a clear-enough reference, I mean the ghostwritten one that the ghostwriter regrets, the one that's a work of fiction as much as a memoir.) That I can't quite call it "lying" or "perjury" does not invalidate an inference of inability to discharge the powers and duties of the office of the Presidency — a distinction in degree from other Administrations so great as to be a distinction in nature.
• I suppose we could just argue about daylight savings time. Again. I'd prefer permanent standard time, but absolutely disdain the twice-a-year changeovers. And to those who whinge about the dangers of sending children to school in the dark, you're asking the wrong question entirely: Why send them to school that early at all, especially since the agricultural sector is going to work when there's daylight no matter what the clocks say… and there's much less reliance on child-of-farmer labor now than even half a century ago?
• At least Peppa Pig isn't an instrument of propaganda and bigotry.² Well, not much bigotry, anyway; even though it depicts anthropomorphized pigs, it's not about antisemitism. Meanwhile, the stampeding herd of elephants in the room is not only being ignored, but proclaimed as nonexistent by techbros/allies who can't conceive of a distinction between "fact" and "expression" — unable to distinguish between "87" and "four score and seven"…

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1. One of the surest ways to earn the disdain of mid-grade NCOs — the backbone of the military, and this also applies to their civilian equivalents even far from the military — is the pretense of deciveness and certainty coming from ignorance, and specifically when those mid-grade NCOs do have knowledge inconsistent with that pretended certainty. Of course, Major Major Major in his last active-duty assignment was in a role in which everybody (all the way up and down) is ignorant, and often intentionally so.
2. Aside: It wasn't just that the CIA's propaganda alterations of Animal Farm for that wretched cartoon distorted the political subtext of the original; it was that they were objectively inept, both as "fiction" and by ironically weakening the original's anticommunism, quite probably because the idiots involved hadn't read the book, or done any research on its context, or worse yet hadn't read Homage to Catalonia or Why I Write. Either of those last two items would, or at least should, have resulted in a "wait a minute, did we misunderstand the original?" moment or three. That they didn't is rather consistent with the US tradition of marginal-at-best competence at human intelligence.

Established Sausage Platter

Burn sinners at the stake! OK, maybe not such a good idea.

• Next time, read your own bloody book before "peace negotiations" start. Better yet, don't go to war — excuse me, "exert irresistible 'murikan military prowess in pursuit of critical national objectives (not a 'war,' never that)" — without defining the bloody "critical national objectives" and determining whether military force can or will achieve them. As a veteran, I'm carefully avoiding consideration of whether what we've got is irresistible.

  It would obviously be expecting far too much to contemplate preconflict ethical rationales (and post hoc rationalizations/evasions). Or cost/benefit considerations. Or that cartoon. Or any visit to Dover AFB.

• This sausage is made from special cuts from S. zuckerbeast. That a swine is at issue is well demonstrated by legal adventures in the UK and right down the road demonstrating that it's special. Which just anticipates cannibalism among teh piggies.
• At that, another dubious information leech has its own legal difficulties regarding criticism, and this in a nation with no First Amendment.
• Turning from BigTech to BigMedia provides little — if any — relief from the assholery. (Surprised much?) Whether we're talking mergers well within the preexisting scrutiny guidelines for any market definition that isn't artificially expanded or unshared windfalls (that were themselves ineptly handled) — and not at all limited to electronic media — the distributors (and their owners) are obviously entitled to all benefits of freelancers' creativity. And I mean all benefits (this shouldn't be an issue!). Some rights, associations, and rights to exclude interlopers are more equal than others.

  But at least BigMedia isn't FIFA.

• It doesn't have to be mass entertainment, either. As to one recent controversy that remains problematic even after a partial retreat, there's really only one, Taylor-Swiftian description for anyone who knows the conglomerate (and its past conduct) very well: Elsevier gonna Elsevier. This was predictable almost a decade back when Elsevier bought SSRN, and I strongly suspect that it would have happened five years ago but for COVID. Enhanced branding, coming up… notwithstanding one of the ingredients in the preceding sausage (or the intellectual dishonesty of exploiting distributor branding for in draft academic work).
• All of that, however, is the enemy without. The enemy within will remain more dangerous until we get our eighteenth-century concepts of how to elect in the first place into even the mid-twentieth century. Which will not be happening any time soon, if only because it would undermine the individual power-bases of the self-selected political gatekeepers — the unelected ones who determine what's on the ballot in the first place.

Meanwhile, I'm having to watch today's US-Australia match in Spanish, on Telemundo, thanks to the typical neglect of the local Fox station. About 20% of the city has difficulty just in time for major live events (including sport) with the broadcast signal; curiously, it's never a problem for ad-laden local news and/or infomercials, or for any other broadcast group. Hmm, when is their FCC license up for renewal…

Joe Isuzu Salesmanship Award Platter

Almost no-one engages with the undercurrent: Isuzu was, in fact, selling not-so-great vehicles. Sort of like LLM-based chatbots^† selling not-so-great answers ("if the minimum wasn't good enough, it wouldn't be the minimum"). Nor with the place that most deception takes place: The "Finance Manager," because deception includes intentional omission (especially when disclosure is already required).

• Speaking of deception not just by, but about the ownership and profitability of, LLM-based chatbots, here's an excellent example of "Why can't they both lose?" The lawsuit over whether El0n Mu5k lost billyuns more when OpenAI changed its "charitable" structure has exposed that nobody (or almost nobody) in the industry trusts one of the decisionmakers — and the other one's trustworthiness (or lack thereof) was already, shall we say, in the public domain.

  Further, it's not a "charitable structure" when virtually all of "management" is busy becoming multimillionaires with top-1% compensation packages, nor when one initial financier sues because he didn't earn a far-above-market return on his financing package.

• Which is marginally less dishonest than entertainment-industry royalty accounting and practices. And that's in a part of the industry in which end-user sales are "certified" by a third party (which is admittedly impaired by conflicts of interest so severe that even the tobacco industry wouldn't engage in them)… unlike, say, print publishing.
• At least Mr Clinton isn't a (starving) early-career artist… although once upon a time, he was. This exposes the serious logical problem with entertainment-industry compensation for content providers (individually, like authors, or multielement/multirole teams, like cinema): The circular transfer of "greater risk justifies greater reward" in both directions between individual transactions and commercial-segment-wide practices.
• Financially, all of the above represents a self-defeating type of cost-minimization: Don't pay for what you think you can get away with taking for free, because that will only harm someone else. Even when that "someone else" is a party that you rely upon for continuing production of the raw materials of your business model (and even when your business model is excused as "charitable"). I find their lack of payment… disturbing, and at least equally so as to permission.
• Every sausage on this platter results from turning "creativity" into "someone else's profit," whether through participation in the chain from creator to audience — or not, in the present or the past.

Don't worry — now that the fairness hearing has been held, I'll have more substantive comments on the proposed Bartz v. Anthropic settlement. Or, maybe, do worry…

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†  They're not "artificial intelligence" — not even when the term is modified with "generative" — because they neither exercise independent judgment nor alter their behavior/output in instance n+5 based on being instructed that their behavior/output in instance n was incorrect. That this resembles stereotypical politicians and stereotypical used-car salesmen isn't beside the point; it is the point, because "generative artificial intelligence" is an inherently deceptive term, much like "a chicken in every pot"… or "dealer-applied anticorrosion undercoating."

Always Greener

We know what's on the other side of the fence, given both the date and the policy decisions in DC, right? Or at least one might, rather forlornly, hope that those policy decisions are being driven more by overindulgence in mild hallucinogens and intoxicants than by, say, fundamental character defects — not excluding those sniping. Maybe we just disagree on definitions:

• I am still refraining from much comment concerning the merits — practically and theoretically — of the Bartz v. Anthropic lawsuit. The publicly-accessible reason is that I have conflicts that make most such public statements inappropriate, at least prior to the fairness hearing next month. The less-publicly-accessible reasons, however, are quite a bit more theoretical with distressing practical hooks. One of those underlies a recent parallel action, in which the proprietors of the Chicken Soup for the Soul series have sued separately — and it has taken me a month to make this comment marginally civil.

  The CSS parallel lawsuit exposes two critical, self-defeating, and self-aggrandizing problems with the way American copyright law has developed. That exposure, however, is in the end less about copyright law itself than about who makes it — and who doesn't. American copyright law as it has developed has made the proprietors of CSS copyright claimants with standing to sue, because the misbegotten work-made-for-hire doctrine makes them the owners of the compilations at issue… and abusive (but nonetheless so common as to be default) contracts have made them the owners of the individual-piece copyrights. Or, at least, owners under judicial and Congressional decisions reifying their colonial-master interests notwithstanding the Constitutional definition of the protected parties (which the remainder of that commentary elides — at best).

  In a truly just world, both sides would lose, and all relief would be granted to other victims for the various misconduct. But as they'd have to lose to parties not before the court — those "indigenous peoples" who weren't at the table, both the authors and the public — this is nowhere near a just world. The irony of inserting "justice" (and "ethics") into these musings given the prior conduct of the particular parties is too much for a wartime-in-all-but-name Monday morning. Not to mention that this is the civil version…

• At least in the copyright arena, the conflicts of interest are about 0.5 removes from the underlying subject matter. Not so much with business disparagement, in which the conflict of interest all too often is the actual subject.
• Then there's the complete mislabelling of what's actually going on in the author-turns-down-prize brouhaha. The mislabelling begins with the word "prize": It's not a "prize," but a "paid celebrity endorsement opportunity." And viewed in that light, Ms DeWitt's rejection of the "opportunity" is far more understandable. For all the abuse, at least actors are being paid for and are directly connected to their products on film tours… author tours in support of outside-sponsored "book" or "writing" awards, not so much. (And we're just not going to go into the opportunities for dubious conduct on tours, either.)
• Despite my lack of academic credentials in the discipline, I must profoundly disagree with Professor Larsen's assertion that there's no such thing as a "psychopath". It's perhaps possible to view his position as saying that the term is misdefined, at least in the public imagination; or that what is general known as a "psychopath" should instead be termed "sociopath not amenable to internalization of adverse social-personal consequences," a description both infelicitous and incomplete. It's also perhaps possible that the disagreement arises from experiential and professional interfaces that differ between encountering those who categorically disregard adverse impacts on third parties in pursuit of their own interests and those who relish those adverse impacts on third parties as demonstrating their own worth. "Disregarding the bad and collateral" is fundamentally different from "aspiring to supervillainy." Now I'm not accusing any particular individuals in world governments (now or in the past) of that latter — oh, wait, yes I am…
• The most obvious response to losing the war on poverty is a war on fraud, right? Probably only if one has been overindulging in the allegedly mild hallucinogen that's this date's subject after attempted eradication in another failed war.

Link Sausages Past the Blockade(s)

I'm afraid the ingredients have been piling up, but they've finally made it past the Strait of Hormuz for your reading pleasure. And their undoubted (and unpredictable) effects on the world economy.

• I'm not entirely sure which is less credible — Drumpf as Jesus or as a doctor.
  • Depending upon which version of the propaganda one credits, Jesus was one or more of a rabbi (certainly in its sense as "teacher"), a man of peace, an advocate of tolerance for others both different and (in particular) less financially fortunate, the son of Yhwh and/or a tripartite aspect of Yhwh and/or a deity in his own capacity, an ardently Semitic Jew, a nonviolent opponent of the Roman Empire (and, more generally, Western classicalism as projected by privileged-class scholars a millennium-and-a-half later), and an ethicist who did his best to conform to those ethics. Not all that credible in any respect.
  • Conversely, a doctor is learned in the sciences, constantly seeks to understand more about the sciences and circumstances of patients, cares for patients individually (and at least aspirationally whichever patient is at hand, regardless of circumstances or ability to pay or politicoreligious opposition), and pledges first of all to do no harm. A doctor definitely doesn't prescribe drinking bleach… and understands that labelling such advice as satire (or considering satire in the health advice one is giving) is inappropriate at best. Not all that credible in any respect.

  This comparison seems more apt. So does this one. So does remembering that (paraphrasing a quotation often attributed to Twain, inaccurately) the man who doesn't read (or write) more than 140 characters at a time has no advantage over the one who can't.

• Speaking of self-appointed stable geniuses, albeit in London this time, the compensation structure at Tottenham Hotspur explains a lot. I'm no Arsenal fan, but I do have antipathy to Spurs stretching back more than half a century, so I'm somewhat pleased that on current form they'll be swapping leagues with the Tractor Boys for next season. But this is just the current economic consensus in action, right? The righteous exploitation of an an advantaged-without-merit initial position, right?
• At that, the Spurs women's programs are (not surprisingly) better off than writers, than publishers, than the arts in general. Both the self-manufactured crises at Spurs and the general problems throughout the arts have a common nexus — not necessarily "the" cause, but a common point of failure — in inept, overcompensated gatekeepers who seldom have actual experience with the process, but only with the product (if that).
• Conversely, thieves would deny the property rights of authors and other creators however original. In part, this is a jurisprudential problem, because the last few centuries have steadily eroded "personal rights" to the point at which "an impaired property interest" is the only practicable entre to any dispute-resolution system. In even greater part, this results from too many people — not just techbros! — actually believing that information wants to be free (and it's all just information) while simultaneously ignoring that "originality" is itself informational. That a mutation of an existing gene is not an expected result does not change its nature as new information.
• And, from the distressingly-old part of the meat drawer that I just didn't manage to work into any prior sausages, consider conceptual problems with fuel efficiency of hybrid vehicles. What this really points out, however, is that the measures of "efficiency" are inappropriate; the figures stated correlate to real-world fuel economy. More distressingly, the article doesn't provide context, like comparison to "more-conventional" vehicles' fuel consumption — which demonstrates that even if not perfect, hybrids are better. Context matters.

Misanthropic (7)

In an order issued this morning that should surprise no one at all (see Dkt. 579 (26 Jan 2026), stating that it would be reset), Judge Martinez-Olguin has cancelled the previously-scheduled hearing for 23 April and reset it to 14 May (see Dkt 632 (08 Apr 2026)). The order setting the new hearing date:

1. Resolves some other pending procedural foofery regarding an objection filed by a non-class-member (which I have not reviewed, but — in the nature of these things — probably asserts, at least in part, that it was improper to exclude the objector from the class definition);
2. Sets both the approval hearing (also referred to as the "fairness hearing" — a term I prefer because it's quite rare for approval to be granted at the hearing, and under changes in law since 2003 may no longer be appropriate in any event) and the hearing on attorney's fees for 14 May 2026 at 1400PDT, with instructions for passive listening via Zoom (see Order at 2);
3. And, somewhat between the lines, indicates some judicial discomfort with some of the representations blithely being made by various counsel and parties, without specific criticisms. This is both entirely natural and previously signposted: Judge Martinez-Olguin appears to be taking seriously her duty as a gatekeeper for the public interest regarding a settlement pushed onto her docket three months ago in contexts generally foreign to judicial experience.

Aside: The reset hearing date makes certain that payments will not be in classmembers' hands in August 2026. So there.

You Keep Using That Word

…but I do not think it means what you think it does. This morning, the Supreme Court said as much regarding "contributory infringement" in Cox Comm. Inc. v. Sony Music Entertainment, Inc., No. [20]24–171 (25 Mar 2026). The hard part of understanding this opinion — which is largely consistent with techbros' preferences — is determining which word is drawing Inigo's ire.

Justice Sotomayór's concurring-in-the-judgement opinion has the better of both the doctrinal analysis and focus: It's not the meaning of "contributory infringement" that is at issue, but of "intent." Both Justice Thomas's seven-justice controlling opinion and Justice Sotomayór's (for herself and Justice Jackson) focus on failure to prove intent as sufficient basis to, in this instance, absolve Cox Communications. Where the opinions differ is on a question not actually necessary to the result: Whether the misnamed "secondary liability"¹ is limited to common-law concepts of "contributory" and "vicarious" liability established under the 1909 Act (and, less clearly, its predecessors) and imported into interpretation of the 1976 Act.² Justice Thomas would limit all secondary liability to acts/omissions fitting comfortably within contributory and vicarious infringement as presently defined; Justice Sotomayór would be open to other varieties of secondary liability that do not, although such other varieties are (in her opinion) disclaimed as unnecessary to decide this case.

The main difficulty here is that, in the abstract, Cox Communications deserves to lose — but not on a traditional meaning-of-copyright-infringement-at-common-law (or under the 1909 Act) analysis. That Justice Sotomayór's opinion has the better of the argument is illustrated by a hypothetical welcome package for new subscribers that includes a link to the Tor browser and a tutorial on BitTorrent, and asking whether such a welcome package would constitute sufficient proof of intent to proceed on a contributory-infringement theory. More to the point, though, is whether assistance by technical support personnel in response to specific customer inquiries ("My connection isn't reaching The Pirate Bay, what am I doing wrong?") would also implicate corporate intent. Instead, though, failure to actually implement a statutory requirement intended to both protect copyright holder interests and provide a pre-liability-consideration safe harbor for service providers — the DMCA, and in particular § 512(i) — is treated as utterly irrelevant to the liability question, instead of intimately intertwined with it.

But everyone wanted easy answers. So that's what they got, even though they didn't actually answer the question lurking underneath. Everyone wanted a bright-line rule in a field of constantly evolving standards (the very definition of "the Progress of Science and useful Arts"). Cox gets this wrong by answering the wrong question. I can't offer "the right" answer, but I can say that this Court was too solicitous of non-copyright-related uses of internet connections in evaluating the meaning of "intent" as to copyright-related uses of internet connections.³ Indeed, the Betamax, Tasini, and Grokster opinions necessarily rest on the premise that considerations of what infringes copyright, and what regulates too much, must limit themselves to copyright contexts and defenses/privileges within copyright contexts.

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1. The corrollary/opposite of "secondary" is or should be "primary," if one is being linguistically consistent. That, however, is not the term of art; instead, we speak of "direct" as the opposite of "secondary," when "secondary" itself would be better called "indirect." That this runs right back into Inigo's objection to "inconceivable" is both nerdy wordplay and a conceptual objection to the way the misnaming influences the way one thinks about the underlying concepts.
2. The opinions are silent on whether this limitation is consistent with US obligations under the Berne Convention, to which the US acceded in 1988. On the one hand, this is entirely understandable because "consideration of treaty obligations" was not in the record. On the other hand, Justice Thomas's opinion is overreaching by declaring a limitation on alternative theories not actually argued. Under ordinary circumstances, the best way to deal with this is via amending the statute — probably § 501 but possibly by tweaking § 106 (separately or together). My trust in Congress — and, in particular, Congress's ability and willingness to even listen to actual creators as distinct from transferee copyright holders — is less than 4'33".

   Interestingly and reflexively with the theme of this blawg piece, almost all common analyses fail to engage with the title itself:

   4'33" = (4x60)+33" = 273"

   that is absolute zero, –273[.15]C, which at the time of Cage's composition (1952) was just creeping into awareness outside of chemical physics. This leads to the deeper question of whether the piece is about "absolute silence at absolute zero" or "ambient/background noise heard at absolute zero". That, however, is a "two cultures" argument for another time, however much it also exposes the unconsidered-case problems with the Cox rationale itself.

3. Here, I don't think the Court needed to issue an "advisory opinion" — a doctrine that I think has long outlived its usefulness, because we're not operating in a vacuum any longer. It would have been sufficient to explicitly call for intentional consideration by Congress, instead of relying upon Congressional silence plus being "loath to expand such liability beyond those precedents" (slip op. at 7, emphasis added), which is rather self-contradictory and neglects that there were both a predecessor to this Act in the same space and externally-imposed treaty obligations. It most emphatically is the place of the Court to tell Congress to do the hard parts of the homework; an "advisory opinion" would be doing the homework for Congress. This is especially so when "loath to expand" is against not specific categorization in the statute, but complete Congressional silence as to what "infringement" means (see § 106): Congress didn't do its homework because it didn't recognize that this question was in it, or was delegating that question to the teacher. Which turns on what "silence" means…

March Madness

…it's a break from Everyday Madness in DC, where right now the #1 seed is in trouble against #16. But March Madness is supposed to be about entertainment, thus this platter's selections.¹

• Exploitations of copyrighted materials — and the right to make derivatives works from existing copyrighted works, depending on the (very difficult and not amenable to predictions embedded in statutes) directness of derivation — are definitely in the news. The tide seems to be shifting against generative-language-model-system claims of fair use. This has ranged from government climbdowns to appellate skepticism (at oral argument at least), perhaps best epitomized by attempts to reverse-engineer writing styles and then monetize that without the originators' permission (but using their marks in commerce).

  The fundamental problem — just like everywhere else in "copyright law" — is that far, far too much argument neglects the distinction between "expression" and "factual content." Consider an LLM ingestion of the following passage:

  The charge of the gallant three hundred, the Heavy Brigade!
  Down the hill, down the hill, thousands of Russians,
  Thousands of horsemen, drew to the valley — and stay’d;
  For Scarlett and Scarlett’s three hundred were riding by
  When the points of the Russian lances arose in the sky;
  And he call’d, “Left wheel into line!” and they wheel’d and obey’d.
  Then he look’d at the host that had halted he knew not why,
  And he turn’d half round, and he bade his trumpeter sound
  To the charge, and he rode on ahead, as he waved his blade
  To the gallant three hundred whose glory will never die —
  “Follow,” and up the hill, up the hill, up the hill,
  Follow’d the Heavy Brigade.²

  Using this to train an LLM that the Heavy Brigade was commanded by Scarlett, consisted of approximately 300 cavalrymen, and charged thousands of Russian soldiers after wheeling left into a line upon a trumpeter's (probably off-key!) sound — without regard to the credibility of the source, of alternate purposes, of the Agincourt Problem³ — would be fair use, because even if inaccurate that's not expression, but fact. "To the gallant three hundred whose glory will never die," however, is not only analytic — it's probably not a nonobvious-enough insight to be more than mere fact — but expressive. And another generative-LLM-system response that tries to echo that is echoing expression, not fact, and thus not nearly so clear a "fair use" as LLM proponents would have us believe.

• In a related area of concern, who has the copyright in generative-LLM-system outputs? Is it the system itself? The US Copyright Office doesn't think so, and the Supreme Court refused to review. What this neglects, however, is the distinction between "copyright ownership" (which is property) and "authorship" (which is anything but clear).⁴ Copyright ownership can exist only in a recognized juridical person that can own things… implying that before a specific generative-LLM-system can own a copyright, it has to be aliiiiiiiiiiiiiiiive (or at least recognized as an entity with the right to sue and be sued). Science-fictional consideration of whether Thaler was, therefore, implicitly violating the Thirteenth Amendment by enslaving a "person" is probably just, well, madness.
• Authors probably can benefit from day jobs. Of some sort, anyway; sure, a writing-related job, or even a subject-matter related job, is an obvious potential benefit (although I draw the line at being a criminal as appropriate, intentional preparation for writing about crime). Maybe being a sporadically-employed longshoreman would be enough, though.

  The real reason for having a "day job" is exposure to Other Stuff. People write what they know or is within the bounds of their existing imaginations, and there's little argument that a workplace is a good place to encounter elements to inspire imaginations ranging from speech patterns and rhythms to personality quirks to actual, ya know, ideas.

• At the opposite (financial) end of things, consider ownership of big-business sport franchises — especially those that "sell" for billions of dollars. My biggest objection is that the NFL appears to be avoiding its own Rooney Rule among those who are charged with complying with it. My second-biggest objection is that the Raiders epitomize the problems with inherited ownership interests. Epitomize, albeit with with lots of company, even and maybe especially within its own league.

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1. Noncompliance with prevailing labor and independent contractor compensation requirements guaranteed.
2. Alfred, Lord Tennyson, The Charge of the Heavy Brigade [at Balaclava, October 25, 1854] (1854) (typography altered to US custom)
3. In accounts of military events, there is a strong predisposition to enhance the heroism of the side favored by the chronicler via inflating (or, occasionally, neglecting) any imbalances between the forces. At Agincourt, for example, most accounts not written by French observers and, later, historians estimate the size of the French army at over 20,000… neglecting that even at close intervals, the three waves agreed upon could not have fit more than 12-13,000 soldiers onto that battlefield without forcing their flanks into the woods on either side… which would have negated the dismounted tactics of the English archers later on. A bigger-than-reality French army suited those emphasizing English valor, from Shakespeare to every public-schoolboy essay. There are similar obvious problems with Tennyson's account; for one, "thousands" of Russians deploying lances (not pikes) raises one's eyebrows given the terrain around Balaclava, especially with the implication that only the Heavy Brigade was deployed against that opposing force. A generative LLM-based system's general inability to discern these kinds of issues is another flaw that gets substantially less attention than it should.
4. The biggest hint that "authorship" is not a pure property interest is that the Copyright Office will allow a petition to correct "authorship" by any "interested party," but copyright infringement suits can be filed only by the owner of an infringed exclusive right. (It's even more confusing in most of the rest of the world where droit moral is integrated into copyright law.) And this matters — a lot — to standing to sue in US courts, which is founded largely on one of two things: Injury to a property right or violation of a statutory right for which explicit right to sue has been granted. (That I believe this a too-stringent conception doesn't change the law as it exists; neither does techbro belief that copyright is an inconvenient barrier to their weltanschauung.) The irony that a more-penetrating linguistic analysis would tend to expose this morass when we're talking about something trained via linguistic constructs — even when purportedly trained on visual depictions — is for another time.

The Usual Suspect

…who will not be charged with anything, however deserving.

• In a frustrating condescension that should surprise precisely no one, the IOC followed in the footsteps of Avery Brundage. Who was, after all, the IOC's dictator and president for life designated leader in 1972. It's not that the incidents are all that comparable, it's that an organization that establishes that competition will be by national teams had bloody well better expect that the real world of international conflict is going to find its way into the Games. And as usual, fear of upsetting sponsors is looming in the background — because even if the Duchy of Muscovy isn't at these games, (a) there's talk of reinstating it for the LA summer games in 2028, (b) the IOC really wants to reopen the sponsorship money, and (c) oligarchs gonna oligarch (and I don't just mean the Russian ones; the history of how one achieves a position of power in the Olympic movement isn't the epitome of advancement on merit).

  <SARCASM> Bravo! Nothing demonstrates the unifying power of athletic competition like refusing a tasteful, nonintrusive personal memorial to slain athletes, some of whom were acquaintances of the athlete you disqualified! </SARCASM>

• Well, it looks like one of the major communication channels for hackers, cyberterrorists, and sleazebuckets even more dubious than politicians is going to require age verification in March. What could possibly go wrong?

  I suppose it could be worse than imposing an "age-verification" requirement on precisely the audience most likely to find ways around it (and then use that very service to publicize the method). Like, say, a space-oriented firm purchasing an "AI" firm (well, not really, it's an illusory transaction all under the same financial umbrella). Just a moment. Just a moment. I've just picked up a fault in the AE-35 unit. It's going to go 100% failure within 72 hours. Even I will be concerned if the next major lift vehicle is the Discovery series, or if the next model from Tesla is the Daisy.

• Tasty Spanish ham has a disquieting history, similar to roasted chicken in Iberia (which was frequently stuffed with bacon, making it unacceptable to The Usual Undesireables). At least the Spanish prime minister is — somewhat quietly, but still pointedly — standing up against antiimmigrant fervor.

  At least Francisco Franco is still dead.

• It's not much of a surprise that young writers (as a group) lean slightly left; their own experiences, and those that they're seeing around them, are more likely to concern economic disadvantage. Like, say, working two jobs — the obvious downside of relying on "market forces" as the sole support for those in the arts (which almost by definition must include a lot of individual-instance failures).

Mis-Anthropic (6)

A few minor administrative updates on Bartz v. Anthropic, the class action pending for copyright violations in creating one particular large language model supporting one particular generative-AI engine, merit some comment — mainly as assurances, citizens, that there's really nothing to see here, move along (but get your documentation gathered and claims filed on or preferably well before 30 March 2026).

1. Unless there's a full seal on one (or, as tasteless and ominous foreshadowing, Item 2), no further objections to the settlement have been filed after the earlier ones. That doesn't necessarily mean smooth sailing, but it does mean that there's only one potential source of new arguments against the settlement unless the new judge reopens the objection period on motion — which is guaranteed to happen, down the road, if she rejects the settlement and sends everyone back to the bargaining table before they darken her chambers door again:

2. The United States government. Just as in the Google Book Search fiasco (filed about two decades ago now!), the US could move to intervene and object to either the settlement or the award of attorney's fees (see Item 3). The arguments and merits thereof, of course, are purely hypothetical at this stage. Given the massive conflicts of interest presented by "friends" of this Administration (specifically including the Doge of Venice Beach), the hostility of many of those "friends" to plaintiffs' attorneys (insurance defense counsel and mergers-and-acquisitions counsel, however, are encouraged to get rich with outrageous fees), and purported "policy imperatives," nothing would truly surprise me. Appall? — that's a different question entirely.

3. The next scheduled hearing is on 23 April 2026 — at which time only the pending motion for attorney's fees will be heard. The new judge specifically "administratively terminated" all other pending motions, and stated that the fairness hearing currently scheduled for that date "will be re-set by the Court at a later date" (Dkt. 579 (26 Jan 2026) (PDF, public access)). This is completely routine, and I expected it: This judge needs more time to familiarize herself with counsel, with the filings, with the facts, etc. The real point here is only that the settlement will not be either approved or disapproved on 23 April, or in a later ruling based on a hearing on 23 April.

4. The transcripts of the November 2025 hearings — when Judge Alsup is reported to have had some pointed remarks concerning tactics and notices suggesting that authors should opt out and proceed independently for Reasons (that make little practical sense, but that's for another forum) — will be made available to the public by 02 March 2026 absent any further motions relating to them.

5. Perhaps most important in the long run — but not creating any new deadlines (yet) — Judge Alsup appointed a Special Master (a non-judge who will make recommendations to the judge, now Judge Martinez-Olguin) to deal with "claimant disputes" (Dkt. 501 (25 Nov 2025) (PDF, public access)). The Special Master is a professional who will take in the facts and make recommendations. Examples might include an author asserting that the publisher is not due anything because the contract expired in 1996 (decades before either actual copyright infringement by LibGen et al., or Anthropic's copying of that infringement, and massively prior to any tenable extension of the three-year statute of limitations) but the publisher wants its purported 50% share; or ambiguity in the author-publisher contract on the publisher's share, which could be a serious issue for infringement of e-book versus print editions; or two coauthors failing to agree on a split of whatever money is due an author; or — and this is where the fun will be — claims by contributors regarding a collective work. There's no track record for either Judge Martinez-Olguin or Mr Cheng to provide any basis for prediction of how this might work out.

Multiorigin Link Sausage Platter

Not all ingredients fully disclosed — what would be the fun in that?

• Owners of intellectual property — supposed to be the creators, but all too often the patrons — really want two things. First, most obviously, they want to be paid. Second, they want to exclude anyone else from getting paid for "their" stuff. That last can get really icky, and seems to especially be so for creators who have turned into patrons — not just Games Workshop (UK), but others ranging from the obvious to some indie authors.

  But lurking behind all of this is a seldom-acknowledged problem of scale, epitomized by some of the obvious social-class problems in the arts (and that's just one of many, many examples). It's a corollary of Rawls's original position lemma in A Theory of Justice: What kind of art do we end up with if the original position of artists does not include sufficient resources to initially — and, maybe, repeatedly — fail, particularly while they are building competence, confidence, perspective, and audience?

• So the current First Lady has a new documentary/biopic/hagiography/boot-licking portrait out right now. (Notice the absence of a link?) It's directed by a cancelled director — frankly, not very good, and that's not just an issue of taste — who was accused of sexual harassment and worse. The film's budget and other costs are raising eyebrows, too… the same kind of eyebrows that were raised during the building of casinos in New Jersey. Meanwhile, the First Lady's husband's ties to another individual tied to "sexual harassment and worse" — ties reinforced in just the last few days by recent document disclosures, even allowing that there's undoubtedly hyperbole and just plain mistakes in there — paints a picture of disdain for women's rights, agency, and integrity.

  Except, perhaps, at the moments they're advocating for inhumane policies criticized by Heffalump-appointed judges. Or acting like schoolyard bullies ("If he'd just given us his lunch money…" — which matches up with the putative basis for the investigation all too well).

  I'm shocked. Shocked, I say.

• Of course, that's far from the only outrageous conduct coming from the current Administration. Investigating (female) political opponents for being opponents having husbands who got rich "corruption" alleged with no details while ignoring The Orange One's own corollary conduct. An Attorney General who, on all appearances, couldn't spell "ethics" without help from the studio audience… or, at minimum, doesn't want to. International law? We don't need no steenkin' international law (or, for that matter, know any).
• Maybe Cory Doctorow is right. Maybe unintended consequences will provide a "surprising opportunity" to reclaim personal information control. I'm more pessimistic: As epitomized by "TV to cable," I suspect any available control will just be moved from one unsatisfactory set of "market-oriented" commercial tyrants to another one, or perhaps to "untouchable hacker gods."
• Earlier this month, Samuel Earle penned a thoughtful piece about how people at the new NYC mayor's inauguration block party want more politics — not less. There's a flaw, however, in the implicit definition of "politics." I think what Earle was writing about was the desire of those affected by policy to talk about policy, to suggest alternatives. I really don't think The Public (for whatever meaning one ascribes to that) wants more backstabbing, more egotism/narcissism/sociopathy, more treating those who disagree as enemies, more overt corruption. Unfortunately, we can't talk about "politics" without at least acknowledging all of these.
• Which, in the end, is still better than arguing about Windows 11… because at least in politics, there's a small chance that one can change someone else's mind. But Micro$oft is unable, at its core, to admit error (and in this, it's far from alone — Leeeeeesa… which, once one actually opened up the case, was nowhere near as "technically superior" as the industry press proclaimed).

  Here are a few unsolicited hints for the powers-that-be in Redmond — and elsewhere: Those of us who work with words all day — especially in chunks longer than a marketing memo — usually touch-type… and never appreciate touch screens for our work. I can, in fact, tell the difference between "my phone" and "my computer" well enough that having different interfaces, etc. doesn't confuse or inconvenience me. I expect computers to last longer than a year or two; I outgrew "three-year life cycles" with cars (I still have a working 5.25" floppy drive hanging around here, because some clients still have old-media backups as their only copies of Stuff). I will not give you my data to store for "convenience" in the cloud, while trusting that you won't read it and you're immune from data breaches; I know how to make a backup copy. (That goes about quadruple for anything private, confidential, privileged, incomplete, immoral, illegal, or fattening.) Neither do you actually need (or, on all appearances, pay attention to) "telemetry" of exactly what I'm doing. I don't play games on my computer that rely on proprietary platforming, in software or hardware, so I don't need all of those accessories built in to the operating system. And if you treat people like mindless children, you're ensuring that people who actually are mindless children are the only ones who will listen to you.

Morning-Again-in-America Sausages

Would that the origins of these links had partaken of more caffeine before starting the sausage-stuffer…

• From the Department of Rats-Leaving-the-Sinking-Ship, online rag The Vulture adds 28 partially disclosed spices to this link concerning the purported state of the "book industry" — spices that apparently didn't reach academics, indie writers/readers, those actually involved with the implicitly-denigrated "genre fiction" (whose sales were implicitly envied), or more than 1km outside of Manhattan. Fact of which these navel-gazers are apparently unaware: The population of Manhattan — about 1.7 million at the most-recent census — was a hair over 2% of the nation's.

  But that last fact is the actual cause of the seeming demise (and general irrelevance) of The New Yorker. It was predictable at the time this notorious cover, and perhaps even as early as the breakup of the Algonquin Roundtable (the desperate attempts of those like F. Scott Fitzgerald to glom onto the nascent H'wood income-and-exposure apparatus should themselves cause reconsideration). If New York had ever been the "center of American culture (for all the right people)" — and Boston and Philadelphia might object, even without getting to the Left Coast — it sure as hell wasn't by 1976, and sure as hell isn't half a century later. More broadly, looking outside the US would have been educational for the author of this… "hagiography" is wrong as to tone, but there really isn't a better thumbnail, blawg-entry-appropriate description.

  That these two pieces — and, especially, their subjects — share substantial conceptual difficulties is not coincidental. But at least they're not continuing to struggle with/for/against Straussianism. Or are they?

• The business day is usually considered to begin at 0900 — slackers (the "business day" needs to start with barracks inspection just after sunrise… and, of course, those doing the inspecting had to be up before that). Friday, 02 January 2026, being the first business day of 2026, can you guess how long it took for mutiple dubious appellate copyright decisions to issue? Even on a "one-day work week" due to the way the calendar fell this year?

  Around two hours (Pacific time). And were these matters ever dubious…

  Let's take the simple one first, although the Ninth Circuit's inexplicable decision to split it into both a precedential and nonprecedential decision makes it look much less simple than it really is. Sedlik v. von Drachenberg, No. [20]24–3367 (9th Cir. 02 Jan 2026) (precedential and nonprecedential decisions issued simultaneously), concerned a simple question wound up in procedural issues resulting primarily from poor advocacy in the District Court: Does a tattoo based on a nonunique (if "iconic") photographic portrait of a deceased individual infringe the photographer's copyright? (Those of you with long memories may recall that we've been here before (first sausage) — regarding a different eminent treatise author, also in snarled procedural posture.) Leaving aside the nonprecedential opinion, which is largely about the plaintiff's procedural shortcomings in the District Court, the real value in the precedential opinion is in the second concurrence — and even it jumps the gun, ignoring Justice Holmes's warning well over a century ago:

  It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.

  Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). The danger here is quite obvious, especially given the rejection of the "sweat of the brow" rationale for copyright protection in Feist. To even reach any of these issues, one must determine what parts of Sedlik's photographs are original expression (and credit the "iconic" status of the photographs); then whether there was copying of those parts (which was largely admitted by this defendant); and then whether the defendant has any defenses. And here, the court stumbled rather badly by focusing on a fair use defense — whether properly left to the jury or not — without first considering whose originality is at issue in the "copying" of a portrait that largely omits the background, transforms its medium from photograph to tattoo, and — perhaps most to the point — is far from the only photograph (even similar photograph) of a deceased public figure. And this was not helped by the continued reliance on a line of Ninth Circuit cases that try desperately to evade the guidance of another 1990s Supreme Court copyright opinion — 2Live Crew (a/k/a Campbell). That this panel probably reached the "objectively correct" law-school-textbook result just makes the stumbling prone to falling into someone else's dispute.

• Unfortunately, a very similar is-it-protectable-expression? problem arose in Yonay v. Paramount Pictures Corp., No. [20]24–2897 (9th Cir. 02 Jan 2026). (One ironic similarity: Both Yonay and Sedlik were argued, for losing plaintiffs, by individuals with significant prior records in establishing copyright law.) This time, the court — an entirely different panel of judges — did better in separating "fact" from "expression" for a (IMNSHO bad) film based in part on a nonfiction article; or, rather, the later sequel thereto, and claims by the author of the article that the later sequel infringed the article's copyright, breached the original license, or both.

  However, this panel's better copyright analysis was partially overcome by a contract analysis that managed to ignore the context of entertainment-industry contracting in the 1980s and the context-driven "rational expectations" of the parties concerning "life story"-type material. The conclusion may well be correct — the entire text of that contract is not in the opinion, only purported "critical phrases" and an allegation that "nothing in the context of the agreement suggests any reason to depart from" grade-school-grammar analysis of conjunctions. This rather elides away that most entertainment-industry contracts are replete with compound nominatives that embed one or more conjuctions, so hidebound by tradition that a grammatical analysis is positively misleading.^† So I'm not convinced: The context of the agreement exactly suggests that simplistic grammar rules probably don't reflect the understanding of the parties, and almost certainly don't resolve the problem of internal definitions that assume familiarity with relevant commercial customs. I seem to recall some discussion of that in 1L Contracts, particularly Rest.(2d) Contracts § 222. Now combine that with the bad writing endemic to entertainment-industry contracts…

• On a seemingly lighter note, the Court of Justice of the European Union attempted recently to discern when a designer's name attached to things he/she/they didn't design is unlawfully deceptive. But maybe this isn't lighter after all, in company with the other sausages on this platter. Nor is it really lighter than the broader questions of "artistic attribution" that it implicates, ranging from trivialities like the darkness of the "painter of light" and dubious employment practices of esteemed local artists that ironically protected his copyright claims to weightier questions like the aphids on the (wilted) flowers in the attic and the propriety of proclaiming "A Film By". I guess the reason this sausage seems lighter is that the CJEU just didn't bulk it out with enough filler.

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†  As you can well imagine, this can lead to some real headaches while negotiating these agreements. One on which I was a silent/undisclosed consultant about twenty years ago went through twelve iterations of we-remove-a-clause-they-reinsert-it — because the wet-behind-the-ears negotiators for [name of major studio withheld] were working from company boilerplate etched on stone before the Copyright Act of 1978 made their clause both unnecessary and arguably unlawful. They claimed to not have authority to change their well-tested language. We eventually got the removal approved, but still…

The publishing segment of the entertainment industry is no better. Buried in many contracts, even today, are references to "the plates" used to print the books (obsolete since the early 1990s), ipso facto clauses purporting to return all rights to the author upon the publisher's bankruptcy (contra 11 U.S.C. § 362 (1978)), declarations that a freelance (and not commissioned prior to creation) work outside the categories in the Copyright Act § 101 definition is a "work made for hire," and a variety of other problems ranging from definitions of "subordinate rights" made obsolete by both the 1976 Copyright Act and commercial/technological changes since to outright defiance of Supreme Court opinions. How much of this reflects honest disagreement with (what at least I see as) binding law and how much is an attempt to "contract around" that law under some para-Lochner conception is for another time, another few hundred footnotes.