Unparalleled Postulates

There's an inaccurate saying foisted upon first-year law students in common-law jurisdictions (and even in Louisiana!) claiming that the law is a seamless web. It's not — the law is seamy indeed, and any tour into election law will demonstrate that rather definitively — but most areas of the law do share common methods of reasoning. Those of you who remember high-school geometry and the misguided, watered-down concept of "formal proofs" taught there are more than entitled to cringe. Of course, "analogous comparison" is one of those methods of reasoning...

• Apparently, I'm not the only one who believes that the best defense against terrorism based on "offensive" speech is the First Amendment. There are prices to be paid for speech no matter what; getting government out of that role not only makes sense, but it reduces the stakes to a private dispute. Private disputes can still be nasty, can still be widespread, can still result in bloodshed; they seldom, however, erupt into either warfare or tyranny... at least until a governmental function gets involved, at which point we end up in a company town near Mobile, Alabama.
• The Authors' Guild has finally given up one of its lost/botched causes: the HathiTrust matter. Loathe as I am to cite PW for anything requiring legal interpretation or acumen, that article is less self-aggrandizingly deceptive than the press release announcing the settlement.... This was not a lost cause in principle — only in execution.
• Yet another culture vulture has missed the target in claiming that academics suck the joy out of literature. Mr Giraldi has — as is usual in this argument, and he's far from alone — confused "demands imposed by the tenure process" with "what literature professors and grad students actually think, say, and do." Had he limited his critique to Publications of the Modern Language Association and to unironically linguistically imperialist Yale deconstructionism, he might have had a worthwhile point. As it is, though, he's damning every journalist on the basis of counterfactual crap on Faux News... just like Faux News itself.
• A piece praising gatekeepers in publishing, I'm afraid, misses the point. Daniel Menaker praises editors at print publishers as gatekeepers, while missing the identity of the real gatekeepers... and the real publishing. Most publish-or-not decisions are not delegated to the editorial department, even in the relatively small minority of the publishing industries that focuses on trade and literary fiction (the focus of each article)... and Mr Menaker worked at an outlier — if a nontrivial one — in any event. Particularly in trade and specialist nonfiction (the majority of print publishing by almost any measure by a considerable margin), the acquisition meeting at which editors open the conversation — but never close it and never make the actual decision — is not just a sad event; it is the default, and has been for at least a quarter of a century.
• Then there's the argument over the proper purpose of the corporation — an argument that bears a disturbingly solipsistic resemblance to Alexander Pope's imprecation that the proper study of mankind is man. Lurking underneath the argument, though, is the question of who has the right to determine corporate affairs... and how that person obtains that right. In reality, corporations are almost never directed for an extended period of time by a team — there's always a single decisionmaker, and the bucks really stop with him. Almost always that gender, too.

  There's a hint lurking in the specific examples cited by Professor Kwak: Many of them result from "family businesses" that, like Topsy, just grow'd, helped along the way by corporatism (and not incidentally by at least some variety of unfair labor practices, in the environment if not necessarily internally). That's the unstated subtext of the "sad" story of Timken Steel: That as it turns out, the fifth-generation kid was judged to not be the best custodian of fortunes that had outgrown a reasonable family-business boundary. I'm not at all sure that recognizing that is a bad thing... if only because I've seen dynasticism in action, up close and personal, in government, in business, in the military, and in the arts, and it seldom turns out all that well. It's not that shareholder activism is always justified, or even always (perhaps not even most of the time) well considered; it's that the alternative of trusting every corporate titan to be D.D. Harriman is worse, because that is emphatically not the case.

  Working out the implications of denying shareholder activism as a (not the) legitimate means of controlling corporations for the republican form of government is left as an exercise for those with more free time on their hands than I have right now. And applying that to corporations in the arts (including, but not limited to, publishers) will require more free time than anyone has on their hands.

Je suis Charlie

No, really. Hebdo today... instead of Gordon...

Frankly, if France had the First Amendment, this would have been less likely, which is in no way an attempt to excuse terrorism — just an attempt to explain one particular incident. But over here, we do...

This isn't about insults, or religious respect, or anything. It's about pluralism — and that's not something that any religious fundamentalist can, or does, tolerate (just ask the shade of Dr George Tiller).

I Don't See Any Horns

Aristotle gave us lots of good things... and lots of bad things, ranging from his cantankerously illogical and restricted view of nature (he's among those who popularized the "four element theory" of nature and refused to adapt that view to the actual evidence) to the single most-common logical error. One of the names for the "false dilemma" is "the Aristotelian fallacy": Reasoning that only A and B are valid (using that term carefully), that A is necessarily untrue, and that therefore B is necessarily true. An obvious example of this for those of us who had our ballots counted for President in 1980 is "If not Democrat, then Republican"... despite voting for John Anderson because I feared the incompetence and corruption of both Carter's and Reagan's coterie (and history shows I was right). With that in mind:

• The opposite of "abused" is not "privileged." More to the point, the absence of a particular kind of abuse in one's background does not mean that one's lot in life is/was puppy dogs and trust funds and sneering privilege that makes Lake Woebegone look like pikers: It's not just that all the children are above average, it's that they're 1%ers.

  That certainly explains so-called nerd privilege, too. Ms Penny's otherwise thoughtful essay goes off the rails with its unstated assumption of opposition, of false dilemma; it's a not-so-subtle attempt to proclaim a certain group as having been "more bullied"... and therefore more entitled to take unfair advantage of, or at minimum unfairly castigate, anyone who can be labelled as one of the oppressors. I also think she's slightly understating the causation; it's not just "patriarchy," but prior-generation pressure to inherit what that generation has — the family farm, the family appointment to West Point, the family oil business, the family trust fund — regardless of the desires, capabilities, or anything else of the individuals involved.

• The Grauniad provides a seriously understated perspective on the future of libraries that rather unconsciously echoes one of the consequences of Ms Penny's piece. It's not just about horny teenagers, but horny adults who cannot imagine having passion for learning or reading at all. As a particularly sharky aside, those adults cannot imagine Hermione Granger, whose defining characteristic — even more than her brains — is her passion for everything. And because "library" is not associated with "passion" in the minds of those who are not already heavy users of libraries, that consideration never enters the conversation. Of course, they're missing out on The Decameron in favor of the Playboy Channel while they're doing so...
• As has become all too usual over the last two decades, The New Yorker shows its limited education and perspective with another false dilemma, incorrectly headlining (the underappreciated) Michael Moorcock as "the anti-Tolkein". The pretense that there can be Only One Anti-Tolkein neglects Le Guin, Beagle, Ellison, and Jemisin — and that's just four respectable, obvious examples who write in English. It's not writers, or even readers, who have made any false binary divide: It's sales and marketing dorks in the publishing industry (all the way down to the bookstores) who haven't themselves read enough to be entitled to make such a judgment, and who on the basis of their often-incorrect surface analysis (that utterly neglects library readership...) find it easier to perpetuate such myths than investigate them. Which rather explains The New Yorker itself over the last two decades.
• Ryan Britt ponders whether characters in Star Wars are largely illiterate. It's not the characters who are the problem: It's the scriptwriters, directors, and producers. Of course, that goes far beyond Star Wars into the entire foundation of H'wood, and indeed of popular entertainment.

* * *

Application of the above toned-down outrage to each of the following is left as an exercise for the student... and the terminally frustrated:

• Occupy Wall Street
• National Brotherhood Week
• Eric Garner and the fundamental question of whose lives matter
• The continuing struggle over museum collections that neglects reproductions as a viable alternative

Life and people are complicated, and the sooner we stop trying to reduce that wonderful complication to binary us-or-them logic the better.

Black ALL Lives Matter

Just some end-of-year musings — now that 'net access has been restored after the winds of a few days ago, albeit not the phones — on the latest civil-rights issue causing irrationality and self-defeating behavior. And that's just among the cops...

Nobody should kid themselves. We have a serious attitude problem in the law-enforcement community, from cops to judges (PDF) to legislators. It's the kind of attitude problem for which I would have assigned substantial, umm, "additional training" during my tenure as a commander... in the hope that it would work as much as one third of the time, meaning that only two thirds of the offenders would be back in front of me for related disciplinary offenses.

But attitude isn't everything. We also have a serious technology problem that makes things worse: The lack of effective means to apply nonlethal force at a distance, whether on the part of cops or on the part of those who encounter cops. Most of these incidents involve guns on one or both sides of a cops-versus-citizens confrontation; Eric Garner is merely a horrifying exception, but actually reinforces my point. These confrontations almost always involve one (or both) of these factors:

• Actual, perceived, or feared possession of a firearm by someone who is otherwise suspected (rightly or wrongly, rationally or otherwise) of breaching the peace
• A substantial difference in apparent close-combat ability, usually — but not always — a significant size disparity between individuals, often complicated by apparent intoxication/impairment

And so, in a self-protection reaction, cops (and others, too) resort immediately to use of lethal force so as to keep themselves out of the clutches of those who are perceived as significant threats to their physical safety.

Any study of military policy and history between 1897 and 1992 would demonstrate that this is self-defeating. It is bad policy. It is, above all, stupid. The era of weapons of mass destruction as the default deterrent/application of force — which is not to say that weapons of mass destruction no longer present a danger, just that they no longer represent a default and legitimate instrument of state policy, if they ever did — led us to little fiascos like the Vietnam conflicts (not just for the US, but also for the French), in which desperate and clearly oppressed populations demonstrated that there always, always needs to be an effective means of asserting force short of ultimate force. Meanwhile, however, nuclear-deterrence doctrine had essentially eviscerated not just the capability, but the the mindset and logistical preparation, of major-power militaries to do anything less than refighting the ugliest parts of the Second Thirty Years' War.

And that's what we have on the streets of America today: There is no effective middle ground between brawling and firearms, just as the US military in 1963 had no effective middle ground between up-close-and-personal, high-risk-of-casualties-to-the-sons-of-the-nation mechanized warfare and nuclear annihilation. We don't give cops (or citizens) an effective means of avoiding that dangerous-to-self brawl other than ranged application of lethal force by firearms.

I'm not advocating that everyone on the street needs a Taser (which, after all, isn't all that effective, despite H'wood's dramatics). I'm not even advocating that all cops should reach for a Taser or similar device first. I'm pointing out that we need something better than that, and that it needs to be in more widespread use among everyone so that the personal equivalent of nuclear warfare isn't such a default.

In the end, the race, gender, religion, social class, or whatever other easy-to-glibly-differentiate characteristics of either victims or perpetrators don't matter. All lives matter. Instead of relying on "sociology" that is obviously bad to adherents of Ayn Rand and prejudices that are unacceptably irrational to Torquemada, we need to provide alternatives... because, unfortunately, conflict happens. It's to everyone's benefit for conflicts to have more nonlethal means of expression, and thereby more nonlethal outcomes.

Then, too, there's the problem so understatedly noted by Walt Kelly: "We have met the enemy, and he is us." That applies to everyone in these "law enforcement v. thugs" oversimplifications. Law enforcement too often becomes thuggish, relying upon might-makes-right rationalizations... which, in the end, is what the "thugs" (and they are out there — no matter his/her race/ethnicity/whatever, someone who is extorting protection money is a "thug") are doing, too. Too often, it's difficult or impossible to tell who the "real" miscreants are; I'd be much happier if it were more possible for both sets of miscreants to lose without dying. Of course, it's not in the interest of certain segments of society to allow the less-empowered a means of attacking the more-empowered as a reaction — justifiable or not — to perceived abuses of that power... but that's a complex matter for another time and that probably has no solution (or at least no solution that does not require a few people to walk away from Omelas).

I Passed Eighth-Grade Typing

...and, therefore, I despise the Macintosh user interface; and most phone interfaces; and, more to the point, Windows 8.x and the moronic Metro interface. Especially, but not only, when the Metro interface is used as a way to hide privacy- and security-invading "apps", their settings, and means of disabling them. This is particularly annoying in protecting confidentiality: It's not the Microsoft App Store's (or iTunes', or Google Play's, or anyone else's) bloody business what pictures I may (or may not) have viewed recently, or media files I may (or may not) have played, etc. It's not even their business whether I've viewed/played anything on this machine.

I work with and alter and edit words all day, and sometimes numbers in the same way. My computer is not just for small-furry-animal videos interrupted by incessant ads for "cheaper" home loans/male "potency" pills/hair-loss cures/anything else. That some people do use their computers that way is their business... but the perception that everyone's computer should arrive out of the box prepared for endless hours of grumpy cats, while hiding everything I need, is more than a bit offensive. It's entirely understandable once one accepts that (a) marketing dorks did not pass middle-school typing, as a rule, or at least got poor grades; (b) are in control of far too many businesses; and (c) are best at marketing themselves as the solution to problems (whether real or imagined).

Yes, I'm grumpy. It has taken four days of concentrated work to get this machine somewhere close to productivity-ready, after the catastrophic failure of its predecessor (not just "hard disk error," but bricking; but I make backups!). And this machine has less crapware installed on it than most.

So, if I'm grouchy, that's why. (Like anyone would notice.) And replacing both computers and my phone in three weeks (two changes unplanned) sure hasn't made for more blawg entries, has it?

My Grinchly Side Takes Over the Blawg

Still recovering from device crashes and replacements...

• Well, this is truly offensive: The possibility of dynasty v. dynasty in 2016. I'd complain that this seems unusually tone-deaf for that family (and that means both of them), given the recent release of the Senate Intelligence Committee report... except that it's not. Not unusually tone-deaf, that is.

  It's not just that I don't think it's a good idea to have close family members rotating through federal offices; it's that I think it fundamentally incompatible with anything resembling the values on which this nation was founded, the Adams family notwithstanding. (Sure, they made mistakes; "three-fifths of all other persons," anyone?) But for the Attainder Clause, I'd even propose that spouses, siblings, and children of federal elected officials should be barred from elective office — it's not like there aren't plenty of other opportunities for public service, such as the military and the Peace Corps, that don't implicate dynasticism at the ballot box. All of this is aside from policy preferences: I lived in Illinois for too damned long to ever accept that as justification for keeping politics in the family.

• And the less said about how a former Vice President demonstrated that he is not now, and probably was not in 2000, fit for office, the better. I would expect better, and more consistent, logic from a sophomore taking a slightly advanced composition class; an honest speaker or writer does not have the privilege of changing an entire argument by redefining a term with converging common and technical definitions to mean something entirely different. The issue is not whether someone else did something bad; it's whether US personnel did evil under color of law, because "he did it first!" doesn't even come close to a justification — let alone an excuse. They were, after all, only following orders... or something like that.

  Dick Cheney is turning into a corollary of Godwin's Law.

• Here's an example of everything that is wrong with the American education system, stated blandly in the "paper of record" without any qualifiers:

  The system, enacted into state law in 2010, was created, in part, to make it easier to identify which teachers performed the best so their methods could be replicated, and which performed the worst, so they could be fired. Although very few teachers in the city were deemed not to be up to standards, state officials and education experts said the city appeared to be doing a better job of evaluating its teachers than the rest of New York State.

  Kate Taylor, "New York City Teachers Score Highly Under New Evaluation System" (17 Dec 2014). "Bad" teaching is seldom about technique — or at least not solely and directly. It's much more often about ignorance... and the lack of achievement required for the undergraduate degree in education both takes good examples out of the classroom and locks ignorance into it. Too many teachers, especially at the middle- and high-school levels, simply don't know enough to teach some of the material that they need to... and because they themselves (on average) have lesser academic credentials than those who earned core subject-matter degrees, their very existence is a subtle put-down of academic achievement in the classroom. And then there's the not-unusual problem of students both knowing more than and being smarter than their purported instructors, and all that does for both the learning experience and general behavior...

• After several weeks now using an Android phone, I have to say that Android sucks. It sucks less than IOS and Windows Phone, though. Fundamentally, the problem is that all three phone systems — and, indirectly, the hardware they're running on — are fundamentally hostile to selected two-way communication; they are, instead, optimized for pushing data at the user — for advertising. And that's bad writing, even when the data is fully graphical by nature.
• I've never been a fan of The New Republic; I'm not particularly enamoured of ideological filters on broad-based discussions. I'm even less a fan, though, of essentially forcing out long-term staff for the new owner's ego... especially given the source of the new owner's money. I'm not saying that no staff turnover was appropriate; I'm saying that absent actual misconduct, the existing staff at least deserves respect from the new ownership. If you really want a "new staff," start your own damned magazine from the beginning instead of carpet-bagging your way in.
• Here's another data point demonstrating that judicial elections are a bad idea. We'll leave aside anything about policy in particular areas, and just note that judges subject to electoral approval would not — did not — attack popularly-passed Jim Crow laws. This is, fundamentally, the reason that I prefer easy removal of matters to federal court from state courts: The appointed federal judiciary struggles through one fewer thumb on the scales of justice. I also found it interesting that the Trib's short bio of the author of that opinion piece noted that he's a "trial lawyer"... but not that he's a former president of the Illinois State Bar Association.

Just Whelmed

I'm just whelmed; not over-, not under-, just whelmed.

Some significant technical difficulties in the last couple of weeks have kept me from updating this sausage factory: Changing out all three connectivity devices... two unplanned, one catastrophic failure.

And then there's this (PDF, large file), which just really sort of made my day. Even several days before, when it became apparent that it was going to be released. And the blame extends back into the 1980s, because that's when the supervisors who kept pushing conduct like this were hired... often at the expense of those who had actual expertise and/or experience with the cultures, the people, the regions, the concepts. All under the less-than-benign ideological supervision of the Greatest Generation.

A Leftover Mock-the-Turkey Sandwich

Nerd alert. Dangerous nerd alert. And this time, it's not just Jaws and I coming near you for a visit...

The American Law Institute has announced several forthcoming Restatements of the Law, and I have some significant worries about how one of them is going to turn out. Restatements are unofficial — but highly influential, often being adopted by courts as nigh unto definitive — attempts to "restate" (as distinct from "establish") the existing state of the law in specific areas. Sometimes, this is a very good thing indeed: The First and Second Restatements of the Law of Conflicts of Law each advanced both efficiency and the causes of justice, and the Third Restatement appears to be in good hands. Sometimes, however, not so much. The Restatement of the Law of Contracts so blatantly reinforced the "sophisticated commercial parties" presumption in commercial contracts that it has actually inhibited start-up businesses by essentially insulating some unfair practices and clauses from review.

And that leads to a truly troubling problem area just announced: A proposed Restatement of the Law of Copyright. On one hand, it's actually a necessary and helpful concept. Even if the fragmentation of the circuit courts did not lead to illogical decisions when encountering "new" problems but viewed through only the circuit's own precedent (for example, the Second Circuit's obstinate refusal to actually overrule its 1909 Act fair use decisions), the Copyright Act itself is so badly written that it desperately needs clarification. My fear is that this will not be an even-handed effort — not through corruption, but through blind spots. All four of the Reporters identified for the Law of Copyright have backgrounds, and for that matter academic C.V.s, that reflect an incredibly strong pro-transferee bias in their thinking on copyright law. In theory, and even in practice, this can be overcome. It really shouldn't be necessary, though; the Restatement of the Law of Contracts included academics with extensive experience representing and arguing from the perspective of both buyers and sellers in a wide variety of industries.

The particular danger in dealing with copyright from such a limited perspective is that the abstraction called "copyright" is already far too broad, and neglects the process/fixation problem that transferees just never seem to acknowledge, let alone understand. Consider, for a moment, a sculptor. At some point during the production of a sculpture, the part that is being chipped away is still so extensive that the final result has not become clear to anyone (except perhaps — and only perhaps — the sculptor). As more is taken away, more people can infer a final result. At what point, though, does copyright come into play? If the sculptor's process is interrupted for an extended period of time — perhaps a lung infection caused by marble dust — and another sculptor finishes the piece to her own vision, would that infringe any copyright in the incomplete work, or constitute a fair use, or a derivative work? Could one apply the same reasoning to music... and, more to the point, improvisational performance? This is a potential danger of a Restatement approach to copyright: That it will further ossify the judicial tendency to treat all copyrightable works as having the same characteristics, in a rather ironic rejection of the phenomenon of negative space. Now throw in the "how many notes constitute infringement?" problem raised by some really strange decisions from the Sixth Circuit, and attempt to apply whatever principles one can extract from that in Restatement form to digital photography ("how many pixels?"), animation ("how many frames?"), poetry ("how many feet?"), narrative prose ("how many words?"), and so on. As silly as that sounds, that is exactly what courts are asked to do, and Justice Holmes's warning in Bleistein is directly on point — for all lawyers, not just judges.

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. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250–51 (1903) (citation omitted, emphasis added). I would more than quibble with the bolded phrase: If anything, judges and lawyers tend to be far less educated in the arts, and in the creative process, than the public at large, let alone actual creators of works, and what education they do have tends to be extraordinarily narrow. Indeed, the inherent reliance upon the derivative work as the operative mechanism of the law — and that's not just in the common law — results in a subtle devaluation of creativity in the fundamental thought processes of lawyers and judges that leads to foolishness like the (alleged) parody/satire distinction (which is the equivalent of saying that only sculptures made in marble with a chisel qualify as such, and that no metal castings or chainsawed logs are really "sculptures").

Another problem with a proposed Restatement of the Law of Copyright arises from the ex ante/ex post problem... and from multidirectional ignorance of other perspectives well beyond the failure of judges (and lawyers) to understand, or even acknowledge, creative process. Law based upon transferee rights is inherently ex post. A creative process is inherently ex ante. Although there's a little bit of cross-influence between the two, it is only at the margins — the wrong margins, because it leads to messes like the Garcia fiasco in which a failure to respect transfer (not creation!) formalities redefines what is a creation. There's not a lot to like about the reasoning from either the panel majority or the panel dissent in Garcia, if only because they persist in looking at the entire dispute through the current version of a Restatement (the Nimmer treatise) that is, to put it charitably, overtly written to favor certain transferees in its description of what the law "is" that all too often substitutes a pro-certain-transferees vision of what the law "should be" for "is."

And that, ultimately, is the unstated conceptual problem with a Restatement of Copyright: We already have one, in multiple volumes, in the Nimmer treatise. Whether I agree with it or not, it does represent what courts (and litigants, and even transactors) rely upon as authoritative. However, it's huge and indistinct and at least pretends to nuance. A Restatement, by its very nature, is none of those things. The ALI is a better-balanced source than is a single law professor with a lucrative side gig representing H'wood studios (and his son with a virtually identical background). The fundamental barrier, though, is that copyright is inherently about nuance — even when the particular copyright dispute is just between transferees, determining the scope of what they're fighting about requires substantial attention to particular facts and nuance. Given the market power of the Nimmer treatise — despite the general superiority of both the Goldstein and the Patry treatises, especially for photography/fine arts and music respectively, they've been unable to displace Nimmer, even in those areas — I don't see much hope of success (particularly given the tactics historically employed by the publisher of the Nimmer treatise... which raise copyright-related questions themselves...).

The 2014 Turkey Awards

An annual tradition for over a decade and a half! This is my list of ridiculous people from 2014 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to confidence-game-playing boosters of vanity- and self-publishing as a legitimate business plan. Again. It's not that self-publishing is never appropriate; indeed, it is both more possible (and more necessary) in the face of dysfunction in commercial publishing than it has been since Gutenberg. It's that self-publishing a single work and expecting that to, ahem, kickstart one's career is still just as silly. That expectation is precisely what the con artists play upon.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the FCC. Watch the video... and realize that things have, in many ways, gotten worse since. Even though, amusingly, the trolls did exactly as requested.
• The Broken Wishbone Award for shattering dreams goes to the long-term, old-white-xtian-guy leadership of Ferguson, Missouri; St. Louis County, Missouri; and the state of Missouri. I'm sure there are additional mistakes they could have made in handling the utterly unjustified shooting... but they've each made so many that it would be very difficult to separate them from the mess they've made with errors ranging from a governor calling out the National Guard for a law enforcement function (prohibited by the Posse Comitatus Act) to police and prosecutorial demographics that would have been questionable thirty years ago.
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to the Hon. Jeffrey Sutton and the Hon. Deborah Cook (PDF), who together (under Judge Sutton's signature) assert that judges have no power to do what the Supreme Court did in Brown or Mapp... or the ironically named Loving, which is directly on point. Those who advocate for judicial restraint may hope and wish that judges will exercise their authority sparingly (although the mere fact of judging is far, far more powerful than those from outside of empowered demographics understand), but that is a preference — not, as the Sixth Circuit's remarkably obtuse opinion asserts, lack of power. In dissent, Judge Daughtrey eviscerates the absence-of-power argument... so she gets a nice, gristle-free serving of meat today.
• The Crabapple Pie Award for marketing something sour as something sweet goes to Cliven Bundy and similar morons who haven't yet figured out that that evil federal government is the reason that they have the right to protest on behalf of their own greed in the first place.
• The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to the reactionary SMOFs who actually control the World Science Fiction Society and refuse to change. Change the awards; change demographics; change damned near anything. The irony that this is fandom for the literature of change is both too much and entirely expected.
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes jointly to Hachette USA and Amazon for their little contretemps regarding pricing that utterly failed to consider the interests of either the suppliers — which, for at least some works, Hachette was obligated to protect — or the interests of damned near anyone else. In short, AmazonFail 5.x was a startling example of selfish bullying... fought out between two bullies.
• The Dried-Out Breastmeat Award for overcooking the books goes to banks ignoring that debts discharged in bankruptcy are, well, discharged. This is exactly the kind of behavior I've come to expect. One must also question if those banks have been paid already from other sources, such as credit-default insurance, for those very same debts...
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to the "protest" about "journalistic ethics" that became gamergate... and most especially to those who continue the argument, refusing to let it die, because girl cooties.

LA Traffic Is the Link Sausage

Yet another epic-driving whirlwind trip to and from LA: 0100 on Monday to just a few minutes ago. Naturally, the traffic was horrid, including quite a bit of stop-and-go traffic in LA on 405. At 10pm. Not to mention the road deconstruction. In any event, there will be Turkey Awards tomorrow; in the meantime, here are a couple of cocktail weenie appetizers:

• I'm shocked — shocked, I say — that a white-dominated grand jury in one of the most-corrupt and least-effective white-dominated-county-governments-despite-its-demographics outside the Confederacy (I say that having spent four years there as an undergraduate... with little apparent change since) refused to indict a white cop for even a lesser-included offense when he shot and killed an unarmed black teenaged boy. The real question is this one: If nobody had known the races or job titles of either participant, would the result have been the same? I sort of doubt it (and a walk anywhere near Florissant Valley after dark will convince you of this). This is one of the most-compelling pieces of current evidence for entirely removing the entire justice apparatus from voter control: I think it may still have happened — but both the refusal to indict and the incident itself would have been substantially less likely — if the top law enforcement officials for the city, the county, and the state were appointed professionals and not self-interested politicians running scared simultaneously of seeming "soft on crime" and of police unions with far more bark than nibble. Professionals are not infallible; they are inherently less fallible than politicians, especially partisan politicians.
• The passionate and eloquent acceptance speech by Ulyssesrsula Kingfisher. Le Guin during long-overdue recognition of her contributions to literature is a cry for the future as much as it is a cry for the present. American publishing is now acting very much like the American automobile industry in the 1970s: Waves of consolidation, fashionable management memes, and a need for sales-and-marketing cred to get promoted above a certain level are resulting in an incredibly fragile industry just waiting for foreign invaders. In this instance, the invaders are those durned furriners from west of the Hudson... and I mean the audience as much as I mean the authors. Censorship of the marketplace is real, and as dangerous as censorship by the government in environments like ours in which the government increasingly proclaims the market is the best regulator... and market success is simultaneously such an important precursor to electoral office.

Pre-Thanksgiving Sausages for the Dressing

I used to be a hard-core stuff-the-turkey guy, but that's back when (a) I had a family with hungry boys to feed on Thanksgiving and (b) I had a worthwhile kitchen (one of the reasons that San Francisco has earned a reputation as a good restaurant town is that below-the-top-10% housing tends to have a kitchen useful primarily for reheating leftover takeaway and preparing salads and the occasional stove-top breakfast). I've now transitioned to cook-the-dressing-in-a-separate-dish... because I can do the dressing in a slow-cooker on high at the same time as the bird without overcrowding the pathetic oven.

• A provocative piece on collaborative creativity ignores the fundamental problem with collaboration: That it's about doing something that cannot be done alone. Fiction is an excellent counterexample: Although there are a few — very few — examples of jointly written works that are substantially superior to the possibilities of any individual contribution by those authors at that time, they are extraordinarily rare (even more than just plain good fiction). There still needs to be someone truly in charge; the corporatist method of filmmaking that has taken over H'wood is a good example of why this is so, even when no one person actually has the skills to make a film alone.
• A self-aggrandizing, self-justifying bit of bullshit from a UK publishing executive asserting that publishers don't take "too much" of the revenue from books seriously undermines itself at the very top. Really? Wearing a not-inexpensive business suit, pearls, etc. for what is fairly clearly a non-posed picture doesn't imply all by itself that there's a revenue-split problem? Buried farther down there's implicit reliance on "some books lose money, so we have to screw all of the authors" accounting.

  If publishers were really paying attention, they'd look at the model of spectator sport, and football (all varieties) in particular. Suppressing wages and preventing free agency didn't actually advance either football itself or the economic interests of the various clubs. Although there has certainly been excess at the top since the advent of free agency — Over Here, in the NFL, long before Over There, via the Bosman ruling — the overall quality of the competition and its presentation, of the individual players, and the financial returns to nonrapacious investors (which is to say those who don't overleverage and/or treat the cash flow like a personal piggy bank/lifestyle enhancer) is substantially more robust now than it was in the days of Jim Brown (here) and Stanley Matthews (there). That's a hint about how publishing should be thinking about itself... but because it's a hint that does not come with enough numbers (of dubious reliability) attached, it's not going to be given much consideration. If any.

• Damned arrogant monolingual disciples of Miss Grundy and their unjustified horror of split infinitives be damned! In some prominent European languages, splitting infinitives is required... and the less said about that sort of structural imperative in non-European languages the better!

  That's just one example; Romanes eunt domus! Then, the flip side of that is that one needs to be perhaps more careful about grammar in languages other than one's native tongue.

• And then there's the real downside of tenure: resistance to generational change. It's perhaps worse in law than virtually anywhere else in the modern university system... because one doesn't entirely lock senior research law faculty away from the students. There's substantial deadwood on every law faculty (except, perhaps, UC Irvine... but it's not even a decade old). Deadwood leads to deadfalls, which can take healthy trees down in collateral damage.
• The nice English intellectual property kitty notes that although unanimity in European copyright is lacking (even more than it is across the circuits over here), that doesn't justify a nation ignoring directives from higher authority because it doesn't like them. There's a rather subtle purity-of-civil-code meme hiding in this particular dispute, but that's theoretical stuff for another time, another venue, and another few hundred footnotes; the short version is that Spain is objecting that its own civil code preferences cannot, and should not, be modified by durned furriners even when Spain has agreed in principle to allowing the durned furriners to have that influence as part of the bargain for getting access to the money from the durned furriners. This is parallel to, but by a different path from, the state's-rights/federal power argument over here. <SARCASM> Gee, you think the Old World might learn something from the way the New World has dealt with this sort of thing? I didn't think so, either. </SARCASM>

I Wanted a Mission

Berlin. Ich bin immer noch nur Berlin.

Life has won the past week or more, between fall allergies, laryngitis, and 25th anniversaries that should be a joyous occasion but are tarnished by other things. In any event, several recent events seem to require comment. For some value of "require" that includes me inflicting my opinions on internet passersby.

The "hottest" news is that Hachette and Amazon have "settled" their "differences" on e-books pricing. Leaving aside what Judge Cote might think about this — judges don't tend to like it when litigants who are under their supervision go ahead and do almost the same damned thing anyway, alleging (with straight faces) that this time they did it legally — the key thing to note is that the utterly misnamed "agency model" appears to have won out... at least for e-books. As I've remarked before, it's not an agency model, but a consignment agreement that is slightly different from the existing consignment systems used for trade books. We'll also leave aside any comparison of Mr Pietsch's e-mail to authors and agents (which I saw in the wee dark hours this morning) to either epistomological truth or, given that obvious futility, actual compliance with legacy contracts, many or most of which make reference to and set author compensation based upon "list price." Entire phalanxes of accountants and financial consultants are being imported from H'wood (or, if paying moving expenses seems too much, from derivatives desks on Wall Street) to supervise the impending chicanery over royalty statements... the first of which won't be issued until September 2015 at earliest.

This is closely linked to the latest "greedy artist" controversy: Taylor Swift's decision to pull her music from Sp0tify. The money quote from Sp0tify's leader is this:

Our interests are totally aligned with yours. Even if you don't believe that's our goal, look at our business. Our whole business is to maximize the value of your music.

It's literally the "money quote." Mr Ek might be lying to the rest of us, and to artists in particular, by asking us to trust him that he really means the missing words at the end of the statement ("that we pay to you"). He might also be lying to every investor and shareholder of his company by blatantly refusing to conform to the shareholder-wealth-maximization norm inherent in for-profit corporate law. Or both.

Ultimately, Marx was completely misguided in his analysis of capitalism; control of the means of production is virtually meaningless, and particularly so for anything that requires significant individual skill or creativity to produce. That ranges from bespoke tailoring to complex machines like automobiles to virtually every aspect of the arts. It is actually substantially less expensive to build and staff a factory than it is to build and staff a fulfillment operation for that factory's products — or, indeed, for any factory's products; or for any kind of products of any kind at all. The potential problems are with control of the means of distribution, for the simple reason that "manufacturers" will pop up to meet product needs without much regard for the path from the manufacturer to the customer. In short, just like the last couple thousand years of military history teach, it's logistics that ultimately matters — and the more protracted a campaign, the more the logistics matter. For all of the whingeing from automobile manufacturers, the automobile dealers have been doing just fine (as an increasingly concentrated group, with disturbing structural similarity to booksellers...).