European Vacation

This blawg's only feline friend the IPKat notes two European matters of interest to authors everywhere. Any American author who is writing anything other than ephemeral, pure-local-interest material but denies that anything going on in Europe — and especially European legal disputes — has any meaning for this side of the Pond is either stupid or a doctrinaire isolationist... if, that is, there's a difference. After all, Europe essentially forced the 1976 Copyright Act upon us!

First, there's a fascinating decision that may founder on Winston Churchill's lament: That the Brits and the Yanks are a common people separated by a common language, in this instance the term "moral prejudice." The Court of Justice of the European Union (the EU's equivalent of the Supreme Court, albeit with somewhat less authority to restrain unruly national courts than our Supreme Court has over state courts... and, more to the point, no federal courts of appeals beneath it to refine the record and the reasoning) has just today held that:

However, as is apparent from paragraph 20 of the present judgment, setting the amount of damages due as a lump sum on the basis of hypothetical royalties alone covers only the material damage suffered by the intellectual property rightholder concerned; consequently, for the purposes of providing compensation in full, that rightholder must be able to seek, in addition to the damages thus calculated, compensation for any moral prejudice which he has suffered.

Liffers v. Producciones Mandarina SL, No. C–99/15 (CJEU 17 Mar 2016) ¶ 26.

What the heck is "compensation for any moral prejudice which he has suffered"? Well might you ask — it's not at all clear. Indeed, it's arguably and primarily a trademark — not copyright — concern, specifically related to the morass of tarnishment and disparagement. It's somewhat akin to the "author's right of integrity" (not a part of our copyright law except for visual fine arts under 17 U.S.C. § 106A, and even then not an independent right), but not exactly. "Moral prejudice" also includes damage to the author's ability to benefit — artistically and commercially — from his/her (it is restricted to natural persons, and I don't have a good grammatical solution for transgender/nongendered identification of natural persons that doesn't ambiguously include entities and organizations)¹ rights to both further license the underlying work and to create derivative works. And that's the distinction that matters here.

What the CJEU appears to be saying is that a copyright infringement remedy may — and perhaps must — consider the damage to both direct and indirect continuation activities, perhaps well beyond the specific illustration in Liffers of "actual damages for infringement of x" plus "hypothetical damages of a license fee of y." One illustration is the notorious "Dr Juice" parody (sorry, Ninth Circuit, you were wrong: It is a parody under the literary analysis, and is fair use). Under Liffers' reasoning, the remedy would also need to include consideration of harm to the Dr Seuss brand resulting from the "Dr Juice" parody, and more particularly any commercial or artistic restrictions that might have placed on the late Mr Geisel's personal ability to create and commercially exploit further derivative works based on The Cat in the Hat and further license — or properly license to the "infringers" — that work itself (had he not already been deceased). This is an interesting conundrum... at least to IP nerds and civil procedure geeks.

On the piracy front, the Advocate General (somewhat similar to our Solicitor General) thinks that free wi-fi providers whose services are used to download pirate copies aren't liable to the copyright holder, but can be enjoined from future enablement. I have more than a modicum of experience in this area. The Advocate General is trying to give both sides half a loaf. On the one hand, there are bad actors out there; there's no reason whatsoever that I should be able to walk into Starbucks and use its relatively anonymous² wi-fi services to connect not to the latest Drumpf outrages, but The Pir4t3 B4y to download a crappy cell-phone-camera capture of Zootopia. But it's also not entirely reasonable to expect Starbucks to filter even ardent and outright piracy without specific prior notice, and in this instance validated by a judicial order and not mere assertion.

On the third tentacle, "entirely reasonable" is not the standard here: Not for free speech (especially in Europe!),³ not for internet access, not for commercial internet services, not for copyright holders. And we're going to leave aside some of the practicality issues, such as "How does one expect a free wi-fi provider to deal with changing addresses, let alone torrents and Tor and even darker access systems?"

---

1. And this is the best solution I have for necessary, but excessive, parentheticals. Not a very good solution for a blawg, where I can't easily ensure that there's an easy way to see everything at once...
2. If one takes even moderate precautions, such as using a free VPN while sipping that fourth extra-large, two-extra-shots mocha of the morning, that are utterly necessary to avoid hacker intrusions and other security vulnerabilities.
3. Noted principally for unfunny irony: But for the US government's disclaimer of copyright in its official works — which is not the case in Europe at all — this reasoning could be used to prevent access to WikiLeaks and Snowdenization. It also undermines the reasoning in Nation Enters. for that particular context, but that's for another time, and another fifty to sixty footnotes.

Lingering on the Palette

If there's an overarching spice profile to this platter of link sausages, it's a lingering sense of "this is all so predictable"... with more than a stale aftertaste of "missed opportunities."

• I'm somewhat amused, and completely appalled, by the current arguments over the posthumous San Bernardino phone tap. I have a four-word, two-element response: Edward Snowden; Chelsea Manning.

  As bad as giving the government the capability to actually obtain that information would be — if nothing else, the current environment demonstrates that only the targets of Hooverism have changed, not the underlying attitude — the government's demonstrated inability to handle, compartmentalize, and protect the information that it obtains is far, far worse. Imagine, for a moment — it shouldn't be too difficult — that the government obtains a warrant to silently obtain the entire phone contents of someone it arrests (rightly or wrongly) for involvement in a terrorist incident. We don't need to imagine an inimical foreign government seeking to protect its covert operatives (or expose ours!) that might seek to exploit the government's inability to protect information; we only need to imagine Gawker looking for dirt on Hulk Hogan.

  That's what should scare people: Not the siphoning of the information, but its storage in a relatively central location, with all of the technological and human flaws of any such storage system. But that concern is entirely absent from this debate, which assumes (a) that the government will only ever target the truly guilty, and (b) that the information is only ever immediately useful. Umm, not so much.

• One of the greatest hopes for lasting peace in the Egypt/Israel/Lebanon/Syria/Jordan powderkeg is simple: Israeli politicians need to listen to their generals — about economic development. It seems to me that there's a pretty significant example of how well that works off to the northwest — a little something called the Marshall Plan...
• Yet again, PW manages the bury all of the worthwhile analysis in one of its rare stories about structural and other endemic problems in commercial publishing... because its own ownership is notoriously worse than norms. "Why Is Publishing So White?" indeed — but the only meaningful analysis begins two-thirds of the way into the story.

  Unger’s colleague Retha Powers, who serves as assistant director of the CUNY program, was more blunt in her assessment of the situation: “I’ve heard the word pedigree used many times. There’s this assumption that a student who comes from NYU—who is more likely white—is going to be better suited for the publishing industry than our students, who have incredibly diverse backgrounds, racially, culturally, and also in terms of class.” She went on: “I think it’s odd that a student who is the editor-in-chief of the newspaper, interned at ABC and MTV, and is Phi Beta Kappa doesn’t even get a call back for an interview. On paper that’s a student who stands out, but what’s missing is that the student has a very [racially] identifiable last name and goes to City College as opposed to NYU.”

  Powers acknowledged that the CUNY program receives support from a number of publishers, some of which offer stipends to students taking on unpaid internships. Nonetheless, she feels the industry doesn’t practice what it preaches when it comes to hiring. While she does not expect publishers to “blindly place someone in a position because they’re a person of color,” she believes houses remain fixated on qualities that put CUNY students at a disadvantage.

  “[We have] students... who are amazing on paper, and they aren’t even talking to them,” Powers said. “There has to be a change in the business as usual. I don’t want to hear again, ‘Sorry, they really want someone from NYU or the Ivys.’?”

  (italics in original) And then the story completely drops this line of analysis in favor of the easy/easier white-man's-burden skin-color conclusion that was trotted out at the beginning of the piece — primarily because it's easier (and lazier) to do surveys of that nature. It's not that such surveys are worthless — it's that they are, by design, both incomplete and self-fulfilling prophecies. They assume that they are studying independent variables, such as ethnicity, when they are instead merely isolating surface characteristics from complex interactions.

  PW has, for decades, functioned as an echobox for a certain inherited (and largely whitish) economic stratum; when it does criticize something cultural about any aspect of commercial publishing, it buries it and deflects it. And if you think things are any different in N'ville or H'wood, you've definitely had a few too many multiple-martini business meetings... or other intoxicants. Sadly, things are much the same elsewhere among trade publications — one should ponder staffing at WSJ/Barron's/Bloomberg, H'wood Reporter/Variety/Deadline, the ABA Journal, and JAMA, too. And ponder how to keep America — or anything — great in just a little bit more personal detail.

• Carrie Vaughn metamuses on Deadpool at Lightspeed.

  Much has been said about the film’s R rating. Whether comic-book inspired movies ought to be rated R at all (coming from people who still aren’t convinced that adults should be into this sort of thing in the first place), and what to tell kids who know and love the character from video games and cosplay who might now be barred from seeing it. The character isn’t necessarily, inherently a rated-R character. But the feeling in fandom seems to be that with the heavier rating, the character could stretch into his full potential without the worry that one more drop of blood or f-bomb might be too much. It’s an interesting discussion, since the whole rating system often seems to be out of whack. I personally thought The Dark Knight should have been rated R — the film is a meditation on senseless violence, but despite its ridiculous body count and impressions of pencils stabbed through skulls, it didn’t actually depict sprays of blood and didn’t have a whole lot of swearing, so it’s somehow instantly okay for thirteen year olds? I’m not sure that follows.

  And that's just the obvious — oblivious? — stuff. The film rating system is fundamentally broken because it panders to a certain subset of fundagelicals. At a broader level, consider two films that in terms of their "suitability" for younger audiences should have gotten an R rating under the stated standard of what it takes to qualify for an R, but for industry-politics reasons (among others) were given the "teen-friendly" PG-13 rating: Skyfall and The Avengers — which is not an attack on either one as a film, but a criticism of the marketing thereof. Conversely, Janis Ian asked the obvious question that torpedoes the entire premise:

  I watched the news last night at nine
  Saw a head blown off somebody's spine
  The women moaned and the children screamed
  Doesn't anybody else think that's obscene?
  

  In short, as Ms Vaughn implies, we're asking the wrong question(s) when we "rate" film based upon distorted hindsight-biased 1950s values even more rigid than Babes in Toyland or Leave It to Beaver or Happy Days... and the less said about TV, the better. Sex isn't the only danger; neither is violence. Age isn't the only designator of maturity, either, as the current political campaigns more than adequately demonstrate.

Link Sausage Mythology

Maybe it really is all about myth and metaphor... if, too often, that myth or metaphor concerns the economic exploitation and not the property itself. It's fairly clear, though, that Egyptian "myth" isn't, umm, exploited properly.

• There has been a recent miniresurgance among record/CD/video stores and bookstores that seems to be puzzling entertainment-industry pundits... because they've got loopy blockbuster-driven definitions of "success" (and, concerning Gods of Egypt, what it takes to prepare for it). When one's business model depends upon the latest blockbuster, of course scale and efficiency is going to be more important to business sustainability in the eyes of financiers, landlords, etc. And when the distributors (publishers, record companies, etc.) are overpricing their goods to start with, that leaves more room for "efficiency" to take place. In short, a marketplace with overpriced goods is begging for predatory pricing, but will eventually recover when the predatory pricing is no longer itself a (usually unfair) competitive advantage. There will be casualties in the interim, but that's what one gets for basing everything on the magic of "markets."
• All of which is more than the now-definitive Wormyfruit antitrust result can make a mogul swallow, isn't it? The Supreme Court has refused to hear Apple's final appeal. Technically, this means only that (a) the Second Circuit's opinion linked previously in this sausage stands as the final result, and (b) for some unstated reason the Supreme Court thought either that the case as presented in the petition was unworthy of review or that there was an internal-dynamics consideration (such as perceived inevitability of a 4—4 split until a successor to Justice Scalia is confirmed, although I discount that in this particular matter) making review inappropriate.

  Two additional points remain. First, this does not dispose of the maneuvering regarding the follow-on class action and attorney's fees (and stalking-horse objections, which may nonetheless have a little merit) in that matter (PDF); the time to even apply for Supreme Court review has not passed. Second, this is not going to dispose of the "self-help" advocates, who believe that it's ok to break the law in the face of someone else's perceived lawbreaking (or just "unfairness"). Judge Coté said it well in her opinion:

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

  United States v. Apple, Inc., 952 F. Supp. 2d 638, 708 (S.D.N.Y. 2013).

• I suppose it beats overt theft, looting, and imperialism as the foundation of museum collections, though. There's a yuuuuge difference between the tour of Tutankhamen's tomb artifacts (managed by conservators and museums, with or without culturally dubious musical accompaniment) and the practices of most "ancient artifacts" collections in European museums — and too many elsewhere. Then, some artifacts don't actually need tours of their own — although the contrast with post-military-conquest origins is instructive...
• Or, for that matter, unauthorized reproductions/homages to cultural artifacts that remain in copyright or otherwise protected intellectual property without a real fair use. I can do no better than quote the underlying Ninth Circuit opinion: "Holy copyright law, Batman!"
• Or you could just try being original and not relying upon clichés as a substitute for actual communication, thought, or art. Yeah, that's gonna happen.

Sausages Vaguely Resembling Thüringerwurst

Not "Mayer" — the other "Oscar" in American culture.

• And so the Oscars are over. At least two months too early. After allowing the diversity conversation to yet again focus on the "magician's assistant" — the "talent" — instead of the overwhelmingly nondiverse "money"'s refusal to provide opportunities to succeed (or, as the case may be, fail) on an even moderately diverse basis.

  And in the end, a basketball player has it right. OK, so he's got an actual undergraduate liberal-arts education. But his point is still valid, if somewhat too narrow. One simply does not enhance diversity of opportunity by substituting in another disfavored group for ridicule (or worse). Life isn't a bloody fraternity hazing ritual, with today's freshman pledges looking forward to their near-future opportunity to be in charge of pledge classes of their very own. Or, at least, we should strive to do better than that: We all win when we visit neither the sins of the parents nor the virtues, neither the ethnicity nor the finances, upon either sons or daughters. That is especially so in the arts, and indeed in anything even peripherally related to the First Amendment. (Intentional irony alert: This atheist's paralleling not just a biblical statement, but one from that particular translation, in this context.)

• But what about the awards themselves? I did not see enough new film this year to judge. I liked some of the performances/pieces honored, and disliked others, and have utter disdain for allowing artistically/critically-unsophisticated beancounters the majority say in both nominations and voting. I greatly approve of the Academy not turning Best Supporting Actor into a career award for a man whose oeuvre leaves me utterly unimpressed, and most especially whose "seminal" works make me think the side of beef made better hamburgers (or cheesesteaks) than film. On the other hand, it did exactly the opposite with Best Actor, and it continues the logic-hole of not providing a group award for "Best Ensemble Cast," so...
• <SARCASM> The Heffalump Governor of New Jersey has just thrown the election to the Jackasses by endorsing Donald Drumpf. Even the most populist Americans will pause at the second-biggest bully on today's political stage endorsing the biggest one. I hope. </SARCASM>
• The appropriate running mate (or, perhaps, opponent!) for Donald Drumpf has seldom been more obvious, particularly when he/it has a story in the Grauniad extolling his/its... virtues.

Other Variables

I applaud particular parts of President Obama's guest piece on SCOTUSBlog describing his intentions for appointing a new Supreme Court justice. I want to focus for the moment on this bit:

[T]he third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

I hope he does... because it will give four opportunities to upset the demographic apple cart that are all desperately necessary.

First, I respectually suggest that there be strong consideration for an individual who did national service. Right now, we don't have one — not even one who served three years as a JAG right out of law school; and we haven't had one who had done truly significant national service since the 1970s. And that need not be just military veterans, either; the Peace Corps, among other opportunities, is equally important. In part, this is because national service almost inevitably involves engaging with international issues in a way that very, very few lawyers do, and the increasing interaction between purportedly domestic considerations and the world is inherently part of "the daily reality of people's lives in a big, complicated democracy, and in rapidly changing times." For example, I don't know a single military-veteran lawyer, or Peace Corps-veteran lawyer, who thinks that the Court's reasoning regarding the validity of convicting foreign nationals without ensuring prior notice to their embassies is even defensible, let alone right.

Second, I am hoping that President Obama puts forth a candidate who got some of that important life experience before law school. If he's choosing only from sitting judges, that's going to be very difficult — the profession's blind spot about "second-career lawyers" extends down to spending even three years between undergraduate studies and law school (see previous paragraph!). Even if he's choosing from among tenured law professors, that's going to be very difficult. Ideally, I'd like to see at least one justice who — despite a distinguished legal background — also knows what it's like to make important, and even critical, decisions without that legal background. Unfortunately, the last such justice was either Taft or Holmes... and that's just not good enough.

Third, I am hoping, but really expect otherwise, that President Obama will appoint someone who does not have strong ties to the howling barbarian wilderness east of the Hudson River, and I don't mean just That City either. No ties to New York/New England law schools, or law firms, or upbringing, please. There are fine aspects to all of them... but their presumed hypercompetence, let alone universality of experience, is far from one of those aspects. And this is not just some "tough as nails litigator" posturing, either; indeed, if that "rapidly changing world" includes the implications of the 'net and of IP-heavy technology, the region east of the Hudson is third-rate for legal talent (including, as a whole, the law schools).

Fourth, as a pure pipe dream, please nominate someone with a science or engineering background of some rigor — at least a minor in one of the core scientific or engineering disciplines. There is no excuse whatsoever for Justice Scalia's lament of ignorance that was, sadly, the only honest such statement in the entire case (even considering the backgrounds of all twenty-odd clerks... and too many of the lawyers arguing the case!) as reflecting our "rapidly changing times." Of course, the hostility of the legal profession and legal academy to scientific backgrounds is not going to help provide candidates here. Part of the problem is that undergraduate science grades tend to be slightly lower than those in the social sciences and humanities (let alone business!), meaning that equally intellectually capable candidates have lesser numeric credentials... and those credentials are essentially lifelong branding, with a very hot iron indeed. <SARCASM> Another part of the problem is that scientists and engineers have a deplorable tendency to want to change theory to match the facts, which is not consistent with stagnans decisis or classroom decorum under the Socratic Method (example: the entire chain of reasoning in Palsgraf is bad science/tech now, and was bad science/tech then, but it is a rare Torts professor who will even allow discussion of that problem and what it implies for the entire field of negligence-based tort law). </SARCASM>

But I expect that none of this is going to happen. The only "demographics" that are going to be considered — by anyone — are gender and ethnicity. Economic background will be ignored, except as it directly relates to ethnicity; geographic diversity will be, at best, an afterthought; religion (and particularly an ardent absence thereof) is right out.

Usual Suspects

I'm pissed off at media moguls again... and even more so at their sycophants, whose words seem to suggest ways to improve things in the entertainment industry. Two items in diverse locations actually point at something else (besides the obvious bad faith).

First up, one of the usual suspects. At HR, we find this not-so-subtle "aside" that is the actual point of the article:

That’s because it’s almost impossible in this Peak TV environment where an excess of (often very good) scripted material from an excess of outlets has watered down the overall viewing numbers in a way that makes almost no financial sense for big-tent broadcast networks.

* * *

The only way to have the money invested in creating network television make any kind of sense to the ratings that they deliver is to first upend the entire system so that the cost of making shows and paying talent is more in line with what’s going on in cable because the majority of shows on broadcast networks are now regularly returning cable ratings — on a good day.

Tim Goodman, "As Paul Lee Era Ends at ABC, Channing Dungey Steps Into a No-Win Job," Hollywood Reporter (17 Feb 2016) (emphasis added).

Second, a very not-so-usual suspect concerning an even more usual suspect.

[Stephen Hull is] an editor for the Huffington Post, and was asked why the HuffPo doesn’t pay its writers.

I love this question, because I’m proud to say that what we do is that we have 13,000 contributors in the UK, bloggers… we don’t pay them, but you know if I was paying someone to write something because I wanted it to get advertising pay, that’s not a real authentic way of presenting copy. So when somebody writes something for us, we know it’s real. We know they want to write it. It’s not been forced or paid for. I think that’s something to be proud of.

See, you’re inauthentic if you get paid fairly for your work. You can trust someone if they did the work for free, which implies that you ought to be deeply suspicious of people who expect to get paid.

P.Z. Myers, "Stephen Hull Must Work for Free," Pharyngula (18 Feb 2016) (italics in original).

It's not just that both of the mouthpieces point at a "need" to reduce, or even entirely eliminate, compensation paid to those actually creating the works as financially necessary for the distributors' profitability. It's that the suspects in question (Messrs Goodman and Hull) have — as is all too usual — put the cart before the horse. In both online journalism (the cognitive dissonance in comparing Mr Goodman's employer to "journalism" is entirely intentional) and television-based entertainment, bad product leads to bad profits... and prophets. The very existence of HuffPo is supposed to fill a content vacuum; it's very difficult to fill a vacuum with only stale cotton candy. Or at least to fill that vacuum in a way that will withstand any further disruptions like, say, actual and effective antitrust enforcement — even just once (PDF).

There's a subtler problem with the imperative to improve short-term profitability by decreasing costs as the primary (and, too often, only) method. It's not that waste and inefficiency are good things; it's that treating the people who produce nonfungible material presumptively as sources of waste and inefficiency is just slightly counterproductive. Financial capital is certainly entitled to attempt to accrete... but doing so without allowing any other actor to also benefit — indeed, explicitly disfavoring nonfinancial sources of capital, labor, and logistics — leads to just a few problems with ensuring that a system is stable. Financial capital (or, for that matter, any other overprioritized element) then ends up in a self-scavenging positive feedback loop; and when one hears "positive feedback loop" regarding human behavior, one can almost always anticipate a negative outcome.

The lesson that was missed by Apple and its publisher-conspirators in Wormyfruit is that nothing in the arts, entertainment, or even journalism is merely fungible widgets. The appropriate and proper entry barrier is improving the quality of one's goods (while not excessively raising price) such that a new market entrant fails of its own uncreativity and, perhaps, incompetence. Unfortunately, that also requires recognizing that the purpose of a corporation (or any other business entity) is as part of a system, not as an isolated actor... and analyzing anything in the entertainment industry (or pretty much anywhere else) as part of an interactive system is definitely not in fashion.

Definitely Do Not Watch These Sausages Being Made

Well, that was utterly appalling.

Early yesterday evening, I flipped the TV on to a random channel and saw crybabies whingeing about how the fact that they weren't previously declared the winners, and therefore the most powerful people in da bidness with not just the right, but the sacred obligation, to dictate all that is right and good, and who may speak on matters of import, obligated them to pitch a hissy fit and prevent anyone else from playing. There's just one tiny problem:

Contrary to what the links in the preceding paragraph imply, I was watching a news summary of Heffalump reactions to Justice Scalia's death and the impending nomination/confirmation crisis. Which, I might add, is also dominated by white men of a certain age (and socioeconomic background). Frankly, I'm not sure which group should be more appalled with this comparison: Selfish, self-aggrandizing, immature entertainers should be insulted by being compared to selfish, self-aggrandizing, immature politicians... and vice versa.

For all of you "originalists" out there, please explain to me how "advice and consent" of a legislative body as a whole had an "original meaning" that a subset of that body may operate to obstruct another branch of government's (hell, two other branches) efforts to fulfill duties laid down in the same bloody document. Specifically, please explain to me how this provides Constitutional authority to:

• Refuse, as a partisan matter, to hold a committee hearing on a nominee to a coordinate and coequal branch of government;
• Refuse, as a partisan matter, to hold a committee vote after the committee hearing on that nominee to a coordinate and coequal branch of government;
• Refuse, as a partisan matter, to allow floor debate on that nominee to a coordinate and coequal branch of government; or
• Refuse, as a partisan matter, to allow a floor vote on that nominee to a coordinate and coequal branch of government,

in the face of the clear duty of another coordinate, coequal branch of government to make that nomination in the first place. I'll wait, but I won't hold my breath...

Oh. Wait a moment. As quoted by another character, Emmanuel Goldstein already stated the original position (with no apologies — none whatsoever — to John Rawls, who also did so in the negative and at much greater length, and pondering that will tell you what is really being negated):

The object of power is power.

And the source of that quotation should tell you a great deal more than you really want to hear.

Perhaps you morons need to adopt a cat or two. No, it's not a perfect solution, nor even appropriate given all the facts right now; it's just a framework to find a way forward. And the next time that a mediocre musician tells me to shut up based on the color of my skin (which does not accurately reflect my ethnicity, or for that matter much of anything else) instead of the content of my character, I'll just slink back to partisan politics where the racism and bigotry are at least less overt.

Good Morning to You

(for some value of "good morning" not related to prior caffeination). Today I present a three-sausage appetizer, then an utterly indigestible main course.

• I'm very much in favor of forcing multinationals to report their tax arrangements all across Europe — publicly. I would include a much larger group of firms in this (the current proposal is rumored to be for firms with more than €750m, about $830mUS at the present exchange rate, in annual gross revenues, which would exclude many of the biggest abusers of tax arrangements). Whether individual states and localities should be required to do something similar within the US is left as an exercise for the student (I'm lookin' at you, Boeing... but that's just an obvious example).
• The next stage of "Brownie, you're doing a heckuva job": Cheap cockroach-like operatives not just in emergency management, but actually helping out with disasters. But nothing bad has ever happened by entrusting the world to experimental robots... oh, wait, that's just in movies and manga (both far more realistic than the current political campaigns).
• I'm in favor of some of the concepts behind the Trans-Pacific Partnership... but absolutely not its process or its details. I'm really getting tired of financial capital being privileged over all else — not just over labor, but over other forms of capital and over civil rights and civil responsibility. It's not that this is somehow unique in history (as obvious ancestors, consider the various East India companies); it's that we haven't learned that makes this worse.

  The real problem with the TPP is that both structurally and fundamentally it simultaneously disfavors the rule of noncommercial law and reifies mere financial investment as providing superior in time and right interests in everything. Leaving aside any issues of justice, this is bad economics... and bad policy for actually creating, exploiting, or protecting intellectual property. Trade isn't just about arbitraging comparative advantage.

*  *  *

And so it appears that Warner-Chappell Music has capitulated and implicitly acknowledged (while explicitly reserving/disavowing, as is normal in these kinds of settlements¹) that "Happy Birthday to You" is in the public domain. This begs three questions, though, all related to the overbearing arrogance of the music-publisher subindustry in Nashville (especially, but not only, Acuff-Rose Music, Inc.), and indeed across the entertainment industry.

First, there's the question of compensation not for those who paid license fees — which appears to be part of the settlement, although in far too small a quantity (then, that's the nature of settlements) — but for those who were deterred from making speech protected by the First Amendment by Warner-Chappell's historical overaggressiveness. Bluntly, I don't buy either that "there was room for disagreement" or "they made a mistake" regarding "Good Morning to You" on the factual basis of ownership.

Second, there's the unequal-enforcement issue that was not raised in this litigation. It's all well and good for a retailer to focus on the most-profitable part of its product line; that's just good business. When it's not a retailer but a sublicensor² — with a fiduciary duty to each of its actual licensors to treat them fairly and equally, not purported ownership of the underlying property — things are little bit murkier. Actually, a lot murkier given dubious ownership claims... and not unique to the music segment of the entertainment industry.³ And the implications for publishing are immense; as Dean Wesley Smith notes (paragraphing omitted),

It would sure be interesting to see the top 50 major bestseller numbers pulled from that traditional publishing number to see how really, really small it is for the normal writer. Hugh? Data Guy? Would that be even possible? Just a thought. Might help the traditional mid-list genre writers understand their positions a little more.⁴

Third, there's a legal ethics issue in here: Counsel for Warner-Chappell was, at minimum, on inquiry notice regarding the questionable factual basis for its claims not later than 1991 (if I'm reading everything correctly), but there appears little evidence that appropriate inquiry was made. Leave aside whether the corporation itself had an appropriate business model (unfortunately, a number of music-industry decisions over the last sixty years or so arguably support overreaching claims as a business matter), because that's not this issue. This issue is not overreaching interpretation, but overreaching claim of ownership... and that's not some legal grey area. It's the equivalent of slapping a Motel Six sign on the only motel for a hundred miles, with the enthusiastic approval of The Blackstone Group (because all of the nightly fees are being paid to The Blackstone Group), although both the local operator and The Blackstone Group know full well that the property is actually a mismarked national park (because actually checking the surveying records shows that). As bad as that is in a business-ethics sense, it's much worse for lawyers to continue to assert it; they should be glad they're in Tennessee or California and not Texas (and the stakes — death penalty or infringing artistic rights — shouldn't matter).

In short, this matter exposes some subindustry-wide problems that merit further examination. I'm not saying that Warner-Chappell's conduct was the worst in the industry... just that it wasn't acceptable, and hasn't been for years. And that it's got company.

---

1. And inherently disserves the public, the legal system, and usually the parties... but is considered absolutely essential by insurers, so these settlements simply do not happen without such language. I say this from personal experience negotiating a lot of such settlements; it's parallel to your automobile insurance company's imprecation not to admit fault at an accident even when you know you were at fault. It has the same bad interpretations of outdated precedent behind it, too.
2. Not the case here, although pretty clearly implicated and actually the majority instance in both dollar volume and number of claims.
3. I have personal knowledge and experience with Samuel French's policies and practices concerning both fiduciary duties aspects and the factual accuracy of ownership/authorization/licensing claims. Without breaching confidentiality issues, Samuel French is all too eager to continue asserting licenses and collecting income even when a purported licensor admits that it never had the right to authorize Samuel French to act... and tries to withdraw the unauthorized material. And that's not from just a single instance.
4. Even more helpful would be showing any kind of smoothing calculations — not just a comparison between "before smoothing" and "after smoothing," but the actual calculations — necessary to deal with data this noisy. However, the very nature of the reported data provides yet another barrier to doing so meaningfully (as opposed to "makes spreadsheet sense because it's an allowed operation"). All of which points back to the underlying theme of this meal: That one's conclusions are no better than the reliability of one's data. Shrieking louder doesn't make things more reliable; neither does having the financial resources to shut up a critic.

Heretical Link Sausages

• In a surprisingly sensible move — given its historical reasons for existence — the Académie Française is doing away with some previously officially sanctioned diacriticals in the name of rationality. Of course, that item appears in a paper that prints the name of the current Premiere League leader with three silent letters... in the middle of the word...
• Over at the IPKat, there's a piece on commercialization of myth-making methods that, I'm afraid, founders a bit on two bad assumptions: That Lucas's references to Campbell's theory of myth were accurate descriptions of his method and not just post hoc rationalizations, and that Campbell's "theory" of myth is good anthropology and/or literary analysis. Umm, not so much, to any of these assumptions.

  More to the heretical point, Star Wars is uniformly badly conceived, and — with the exception of parts of Episode V — it is badly written and relies upon idiot plots. If that's "mythic" or "mythmaking," I think we're missing something. My theory has long been (for nearly forty years) that each grey cell of anyone in the Star Wars universe can be devoted to one of two things, and exclusively so: Rational thought, or the Force. Sadly, this explains an awful lot about how predictably stupid the various plots for galactic domination are... and, perhaps, the absence of a true Trickster archetype (which is pretty universally present in mythologies on this planet).

• From the Department of Unintended Irony, consider this article on the dubious "ethics" and "user mistreatment" of many pirate websites... posted at T0rr3ntFr34k. The earnestness is astounding — but, given that it's primary season, not even the most simultaneously self-righteous and self-defeating that I've seen in the last couple of days.
• R.I.P. Edgar Mitchell. We're running out of men who've touched the ground off the Earth.

Link Sausages Taking (Uncopyrightable) Selfies

Oops — the lens was covered by a flap of the phone case, so no selfie for the blawg. Darn.

The "Monkey Selfie" opinion discussed earlier (second sausage) has issued as a written order. It's a clear and short dismissal with leave to amend (the amendment period extends to 17 February, so this may not be over!). The written version of the opinion makes two subordinate points that I wish had been made more clearly.

First (but not first in order in the opinion), Judge Orrick notes that not everything about intellectual property — and, in particular, many lacunae in the various statutes — can or should be resolved by judges.

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

Naruto v. Slater, No. 2015–cv–04324 Doc. 45 (N.D. Cal. 28 Jan 2016) (PDF), slip op. at 6 (bracketed text in original, internal cross-reference omitted, emphasis added). This should bring another jurist's not-quite-lamentation on an obvious lacuna in the Copyright Act to mind:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); accord Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product."). In Sony, the Supreme Court noted that it was Congress's responsibility to adapt the copyright laws in response to changes in technology:

From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment—the printing press—that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned new rules that new technology made necessary.

464 U.S. at 430–31 (footnotes omitted).

Authors['] Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011) (Chin, J., now on Ct. of Appeals) (footnote and parallel citations omitted, hyperlinks supplied, paragraphing corrected).

Second, of particular note is Judge Orrick's specific discussion of the Act's "plain language" (although couched much more diplomatically than is this sentence):

The Copyright Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium of expression must be done “by or under the authority of the author.” 17 U.S.C. § 101. The Copyright Act defines neither “works of authorship” nor “author.” The Ninth Circuit has observed that the Act “purposefully left ‘works of authorship’ undefined to provide for some flexibility.” Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015).

Naruto, slip op. at 4 (hyperlinks supplied). Regrettably, this is post hoc rationalization of the worst kind; the twenty-year-long legislative history reflects not an intentional lacuna left for flexibility, but a dissonant combination of failure to consider "because it's obvious" and a profound failure to agree at the last moment — contrary to the conclusory statement appearing in the treatise lurking in the background.

Copyright policy, jurisprudence, etc. would all be better off if we would stop pretending that there's anything "plain" about the language of the Copyright Act of 1976, or its amendments. It just isn't; it's badly organized, and badly written at just about any level of inquiry appropriate. (The irony that this relates directly to a statute whose constitutional mandate is to advance the progress of the useful arts and sciences is a bit much for a foggy Saturday morning.) Consider, for example, the probably unconstitutional redefinition of "author" that even allows non-human persons a claim of authorship:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C. § 201(b). The necessary internal cross-reference to the definition of "work made for hire" — which is not actually necessary but for that definition's disingenuously convoluted nature — is bad writing in itself, because it doesn't explicitly cite the source of the definition. Under no intellectually honest understanding of the phrase "plain language" does either § 201(b) or the definition buried in § 101 qualify as "plain". And that's before considering § 203, or § 512, or...

That is, making a claim that something is compelled by the "plain language" of the Copyright Act is all too often either (or even simultaneously) overly diplomatic or sarcasm of the highest order. Authors, composers, artists, reusers, distributors, rights-acquirers, and everyone else deserve better. Perhaps, however, given that it was the respective Judiciary Committees in Congress — most of whom were lawyers — involved, the result was inevitable.

This is not fine prose nor, by itself, terribly clear. It would appear to have been drafted by lawyers.

Bourke v. Dun & Bradstreet Corp., 159 F.3d 1032, 1037 (7th Cir. 1998). Remember: The creative impulse is institutionally discouraged in law; the highest aspiration of legal writing is to demonstrate that someone else has already said the exact same thing (with, at most, easily dismissed variances). And this is true for "civil law" systems, too, mainly with slight changes in the "someone else." The irony of this denigration of creativity making a statute regulating rights in, and purportedly encouraging, creativity almost impossible for creative people to understand is perhaps too obvious to be left implicit.

Naruto reaches the right result at a policy level — animals can't be "authors" — relying on dubious authority and ignoring some obvious implications. But that's the best one can expect given the nature of the available authority...

Link Sausages Blotted Up With White Paper Towels

Pass the dark mustard, please...

• One of the problems with pure-public-domain approaches to the arts is the three-part question of who pays for it, who gets paid, and what gets paid for. Contrary to the implications in the article, though, there almost certainly is not an optimal "solution"; the history of the arts in Soviet Russia (and Maoist China, and for that matter in pre-Renaissance Europe) should be more than sufficient demonstration of the repressive power of conformity. Further, governments and other monoliths have never demonstrated an ability to pay for art that challenges the status quo simultaneously in form and in content (at best, it's one or the other). In short, there's a place for a safety net, but that's what it needs to be: Not a primary source of security, but a backstop for survivial. Starving artists are too busy pushing up daisies to paint them...
• Then there's the corollary: Who works there. <SARCASM> I suppose that the daughters of hereditary wealth need something to do with their lives if they prove unruly, unwontedly intelligent and/or independent, or — worse yet — unmarriagable (the worst thing that can befall a social subclass that models itself on failure to read Austen with any sense of irony). </SARCASM> One of the flaws of the Low & Low study is that it doesn't seem to recognize the even-worse demographics of promotion from entry- and entry-plus-one-level positions. In publishing, that means looking at not just editorial assistants and assistant editors, but at midlevel and senior editors; not just at marketing assistants, but at account reps.

  It's not just H'wood, people: The demographics of the decisionmakers and support staff throughout the entertainment industry skew horribly toward upper-middle-class whites who are at least two generations removed from immigrant status. Even they're not getting rich, or at least not predictably... except if they come from the hereditary-owner subclass. There's still a disturbing prevalence of the "Guildmaster's Offspring" phenomenon all too familiar to pre-Industrial-Revolution Europe. Exhibit A: The Sauron Murdoch family.

• All of which is reflected in the reification of the "original" as the only thing worth owning in the visual arts. Admittedly, some of my sneering here comes from my disdain for too damned many of the people involved, and even more from my visual impairment. Let's translate this to another area in the arts: Imagine that the singular print made in the cutting room of Apocalypse Now! was treated — culturally, aesthetically, artistically — the same way as a Rothko original; or the final copyedited manuscript of Galatea 2.2; or the score actually used for the recorded symphonic performance of "Conquistador" (Procol Harum). Instead, though, the "nonsharing patronage" of fifteenth-century Italy seems to be the norm... and the visual arts retain their special-snowflakiness.
• As a sideways second bit of the first sausage on this platter and grudging acknowledgement of the third (which was a bit overspiced and poorly mixed), there's a fascinating — and difficult to understand, if only because I'm not strong enough in any of the languages offered thus far — opinion by the Advocate General concerning how to assess — and, at least by implication, distribute — copying levies. The key point is that levies must be related not to anticipated harms, but to harms actually suffered... which implicitly assumes that reliable data exists to measure the harms actually suffered (and, further, that nobody is cooking the books in issuing royalty statements analyzing that data). Implicitly, then, copying levies may be moving toward death.

  The logic problem with this Opinion is that it relies upon a false dilemma: Either copying levies or nothing. This kind of false dilemma pervades all discussion of intellectual property law, with a particularly stale aftertaste of that first sausage on the platter spiced with the near-rotten weregeld presumption of modern law (that virtually every harm can and should be reduced to an economic transaction in an amount that society at large is willing to accept and enforce). Guys, if it was all about agreed piecewise economic value we wouldn't even have that third sausage...

#OscarsSoStupidandPredictable (Part 2)

Just a short follow-up to yesterday's posting...

Yeah, there's been backlash already. THR quotes one unnamed Academy of Motion Picture Arts and Sciences member as follows (and, regrettably, I have to assume that this quotation is accurate and not wrenched from context):

Another member of the PR branch who wished to remain anonymous fumed, "They did a knee-jerk reaction, when in fact the issue around actors [of color not receiving nominations] is in the actors [sic] branch — they are the ones who do the nominations!" He continued, "This 30-year rule is going to hit the PR branch and executives branch the hardest. What are you going to tell Bob Iger? He got in in 2005 when he took over Disney. He leaves in a year and goes to the NFL. So is he out? He is only building the Academy Museum."

Scott Feinberg, "Academy's New Voting Rules Raise Questions, Concerns and Anger Among Members" (23 Jan 2016) (bracketed insertion in original, emphasis added).

The irony that this is coming from an anonymous member of the PR branch is disturbing enough; but the irony gets rustier after thinking about it. One only becomes eligible to even be considered for membership in the actors' branch by being cast in at least one qualifying film, and usually several. The actors' branch then has some say over who gets in, but first one must be cast... and that prerequisite is almost entirely controlled by the executive and PR branches, because historically those two branches have together operated (all too frequently consciousely and overtly) to restrict opportunities for persons of color — and, for that matter, women and East Asians and gays and every other distinct grouping other than white Christian men — out of concerns utterly unrelated to merit. No, the executive and PR branches have far too often barred the majority from film roles based on perceived difficulty in "selling" the resulting film; just ask Ramón Antonio Gerardo Estévez why he felt it necessary to adopt an Irish-sounding stage name in the 1960s, and ponder the consequences of the most-successful-in-acting-recognition of his children following that practice while his daughter and other two sons did not.

In short, the inability of a (presumably) "senior" member of the PR branch to see the problem is precisely why the inactive "senior" members of the PR and executive branches most need to be weeded out. Of course, there is going to be a transition period, and there will be shrieking in all directions. But it seems to me that demographically weeding out those who historically established, embellished, and enforced the demographic roadblocks makes a nice bed for Procrustes.