Life Interventions

This entry is delayed and shorter than usual thanks to various bits of Life. No, the real stuff, not the cardboardy cereal that even Mikey likes. (On one of those aspects of Life: When someone tells you that you've got your facts wrong, assh*le, don't try to pretend that valid confirmation of those facts consists of going back to the very same source that gave you the misinformation the first time around and getting him/her to repeat the misinformation he/she gave you before... especially when the result of your spouting of misinformation was libellous. I shouldn't be surprised; you've been pulling this particular sh*t for decades; but I thought that my warning that you had your facts wrong was clear enough.)

I do want to take a moment for a couple of thoughts on patenting of both human genes and their products. Although the news cycle has spun around elsewhere, this is actually an area that authors should pay attention to — not just for their health (as important as that may be), but for their work. The Supreme Court's decision in Myriad (PDF) last Thursday concerned the eligibility for patentability of both human genes and therapeutic, "corrected" versions of human genes. The actual result was predictable... based on a two-decade-old copyright case cited nowhere in the opinion. As the Supreme Court has previously said about copyright — the authority for which is in the same Constitutional clause as that for patents:

Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors … the exclusive Right to their respective Writings." In two decisions from the late 19th century—The Trade-Mark Cases and Burrow-Giles Lithographic Co. v. Sarony—this Court defined the crucial terms "authors" and "writings." In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.

In The Trade-Mark Cases, the Court addressed the constitutional scope of "writings." For a particular work to be classified "under the head of writings of authors," the Court determined, "originality is required." The Court explained that originality requires independent creation plus a modicum of creativity: "[W]hile the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like."

In Burrow-Giles, the Court distilled the same requirement from the Constitution's use of the word "authors." The Court defined "author," in a constitutional sense, to mean "he to whom anything owes its origin; originator; maker." As in The Trade-Mark Cases, the Court emphasized the creative component of originality. It described copyright as being limited to "original intellectual conceptions of the author," and stressed the importance of requiring an author who accuses another of infringement to prove "the existence of those facts of originality, of intellectual production, of thought, and conception."

The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright protection today. It is the very "premise of copyright law." Leading scholars agree on this point. As one pair of commentators succinctly puts it: "The originality requirement is constitutionally mandated for all works."

It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. "No one may claim originality as to facts." This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its "maker" or "originator." "The discoverer merely finds and records." Census takers, for example, do not "create" the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. Census data therefore do not trigger copyright because these data are not "original" in the constitutional sense. The same is true of all facts—scientific, historical, biographical, and news of the day. "[T]hey may not be copyrighted and are part of the public domain available to every person."

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.

Feist Pubns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346–48 (1991) (citations omitted). This reasoning is outcome-determinative for Myriad, because any result other than the one the Court reached in Myriad would have been inconsistent... and led to more litigation down the road.

That does not, however, explain why and how the Court determined that even though no patent protection could apply to the extracted human genome, including all of its natural artifacts, under the patent-law doctrine of "eligible subject matter" (the direct counterpart of the fact/arrangement-of-facts distinction made in Feist concerning "originality"), that is not the end of the discussion. Had Justice Scalia had any knowledge whatsoever of basic molecular genetics, he would have seen this, too. All this "splitting of the baby" does is send it back to the lower court for further analysis… because "eligible subject matter" does not compel issuance of a patent, or even validity of an already-issued patent. There's still obviousness to overcome. In the context of this specific subject, the next question must be "Would it have been obvious, to a practitioner skilled in the art of DNA-sequencing diagnosis and/or therapies, to use a 'healthy' gene from which introns had been excised to reach this particular result, if that practitioner had the factual knowledge of the underlying genetic sequences?" If the answer to this question is any variety of "yes" (including most forms of "maybe"), then this particular patent fails for obviousness. The analogy to the Feist copyrightability fact pattern is pretty clear: Is the particular "original selection or arrangement" actually chosen to protect the telephone book from lower-cost-provider copying obvious to a practitioner skilled in the arts of printing telephone books? Note that this is a somewhat higher standard than that in the Copyright Act… even if it does have obvious (pardon the pun) parallels in the scenes á faire doctrine, among others.

Last, a note about Justice Scalia's admitted educational deficit. It reflects one of the real blind spots of the organized bar: It is arrogantly convinced that because it knows the law (and has that knowledge exclusively), it doesn't have to know the context in which the law operates. More bluntly, the bar believes that its judgments on law can assist in resolving or preventing disputes in areas it refuses to try to understand. The shoddiness of much law-and-economics scholarship, in the eyes of many leading economists, is just one example. There is no excuse whatsoever for a Supreme Court that will be deciding issues founded on detailed, or even broad, scientific principles to be composed exclusively of persons with no background in the sciences above that of "rock-for-jocks" classes taken decades in the past… nor for a staff equally deficient. Nor for counsel equally deficient as a whole (not necessarily in this case). Both law school admissions and law school job-and-clerkship placements need to meet the business end of a 2x4 regarding their hostility to science and engineering (and particularly given the on-average substantially lower GPAs at the undergraduate level in those programs, which strongly influences law school admissions). If Justice Scalia really cares about his admission of fallibility and its potential effect on the validity of his judgments, he'll take care to ensure that at least one of his next hiring crop of clerks has at least an undergraduate minor (a degree may be too much to hope for) in the natural sciences. And the same goes for the other justices.

Carefully Avoiding What I've Been Doing Since Friday

After a weekend of trying to deal with accusations of unethical conduct made against me and some of my clients when an antagonist succeeded in gaming the system (and no investigation — or at least not any competent investigation was done to confirm any of the accusations — such as, say, calling the accused before going public so that the accused knows it's the accused), some of the following link sausages are extra-spicy. It's rather unusual for me to be the good cop...

• Ironically enough, I had already set aside this nice, rational piece on why being an "infrastructure hawk" is better than being a "deficit hawk"... and it is at the core of what happened last Friday extending through this weekend. Infrastructure includes much more than roads and bridges and fire stations; it also includes systems and personnel. The 911 system (999 in most other countries) is an example of the former; getting the right information to the right people in the right place at the right time is kind of important. And people? Here are two contrasting views on the "right" kind of people for handling infrastructures: systems designed to avoid abuse (although outsiders have to trust that these systems are adequate... and I know some of the people involved, so I don't) and whistleblowers (as a general principle, and not defending this particular one in all, or even most, respects). In end, it really does come down to the human factor, and humans make mistakes... especially when they confuse the "urgent" for the "important."
• RIP Iain [M.] Banks.
• "Johnson" speculates on why Chinese has borrowed so little from English, certainly compared to other Asian languages, but neglects the two most obvious reasons. First, there hasn't been a truly extensive, nationwide occupation of China by native English-speakers (including family members) in the past century, like there has been in much of Pacific Asia (Japan, Korea, and to some extent Vietnam being pretty obvious examples). Second, unlike Japanese in particular, Chinese does not have a truly widespread equivalent of romaji — an accepted, if not always excessively accurate, transliteration system between the single-character syllables and the roman alphabet. These two issues are more than sufficient explanation, even if one includes Taiwan in one's definition of "China." Language does not exist in a vacuum; I'm afraid that "Johnson" was looking for the ether when far more mundane, nonlinguistic explanations would do.
• Meanwhile, a trio of pieces at this blawg's only feline friend the IPKat concerns an aspect of copyright on which, objectively, the US vision is vastly superior to the default elsewhere in the world: The "fair use v. fair dealing" problem. That's not to say that the US conception (let alone its execution) is perfect; it is only to say that fair dealing is far more imperfect, as evidenced in Australia and Belgium (and explained by a Belgian jurist). At the IPKat's companion 1709 Blog, there's a note that even the UK itself may be moving closer to fair use.

Preventing Pearl Harbor

I am outraged — but not surprised — by the revelations of sweeping, not-otherwise-authorized collection of cell phone message-unit data disclosed in today's Grauniad. What follows is not a defense of this conduct; it is at most an explanation, slightly sanitized due to my own nondisclosure agreement, of "what the hell they were thinking?" That I understand the mindset behind it does not mean I share it.

In intelligence-gathing terms, what has been revealed thus far is an effort to collect data for traffic analysis. The intelligence/counterintelligence meme of traffic analysis is a refinement of "where's there's smoke, there's fire": Knowing who talks to whom, when, and how much/long is extremely valuable information in and of itself. A change in traffic characteristics — typically, but not always, a spike or valley — can in a military context be a highly accurate indication of a forthcoming change in posture or operations. Too, the ability to draw a communications net helps focus on the actual communications at issue... and helps determine which members of a conspiracy or operation are worthy of further attention.

And that, rather precisely, is the problem: The presumption of existing hostilities. In the military-intelligence context, one is required to always assume that all communications are potentially related to hostile action. Further, proper intelligence-related traffic analysis begins from the equivalent of "reasonable suspicion": One does not start looking at the call records of a sendai in Honolulu until one has at least some reason to believe that there's a connection between that particular sendai and hostile activity.¹ The gathering of this information in the first place represents a kind of subtle constructive paranoia: That once there's a specific connection to a staff officer at the Japanese Consulate in Honolulu (the Naval Attache trying to determine what vessels are in Pearl Harbor in early December 1941, to be specific), nobody wants to take the time or trouble of getting even a FISA warrant for the communications of that sendai with people other than that staff officer. The second level of paranoia is that nobody wants to reveal that the intelligence-gatherers think that information might be important by disclosing to a third party (the telephone company) what is being sought; therefore, blanket collection of data so that it can be analyzed behind whatever firewalls there are is "best."

But note that this is a contextless justification for broad gathering of data that is extraordinarily subject to misinterpretation and misuse. Traffic analysis is, above all, an art; the problem is that it is cloaked in relatively hard data and uses statistical methods, making it seem to the unsophisticated (such as every member of Congress who voter in favor of the TRAITOR Act,² and especially its domestic-intelligence-gathering provisions) more scientific than it is. Constructive paranoia can be useful when confined to individual analysts scrutinizing a particular, well-defined problem; it's extremely dangerous to everyone when it becomes an institutional mindset. One of the downsides of traffic analysis is that it is, in reality, searching for needles in haystacks... and not all needles are properly the subject of FISA warrants and the TRAITOR Act in the first place.³ More to the point, traffic analysis has a hellaciously bad proportion of false-positive indications, no matter how sophisticated its analysis, without full consideration of human-intelligence sources... and the legal term for that consideration is "probable cause."

There's a helluva lot of blame to go around here. Remember what is paved with good intentions, even intentions like "prevent mass terrorist attacks." Although there are already no doubt rumblings and denials of the authenticity of this information (indeed, it's entirely probable that the program as implemented varies somewhat from what the documentation says — just like every other automated electronic system in the world, including the operating system of the computer on which or through which you're reading this), it's too consistent with what "the authorities" have been doing since 2001 — and have wanted to do since the 1940s — to be dismissed. This seems like yet another prelude to yet another bad episode of 24... and very, very few people have ever considered the graveyard full of innocent reputations and bodies left behind by Jack Bauer in his minimally successful efforts. If you stop and think about it (and it's readily apparent that almost nobody "inside" has done so since the late 1990s), they're victims, too... and a strictly Benthamist analysis ("the greatest good for the greatest number") at least calls into question the balance of victimhoods.

I'm uncomfortable enough with Verizon having all of this data in the first place; sharing it with someone else with whom I did not consent to "do business" is unacceptable. And, by the way, the same goes in reverse; this isn't about the Gummint, but about anyone who seeks to fill an abuse-of-power vacuum, including Verizon itself.

---

1. Cf. Korematsu v. U.S., 323 U.S. 214 (1944); Hirabayashi v. U.S., 320 U.S. 81 (1943). These Second Thirty Years' War cases are every bit as damaging — and wrong — as was Plessy v. Ferguson, 163 U.S. 537 (1896); it's past time to overturn them. Their echoes in the kinds of people targeted in the current "War on Terror" are rather disquieting.
2. The USA Totalitarian Regime Activity Incitement To Obscure Reality Act, Pub. L. No. 107–56. Some people, including its proponents, mislabelled this the USA PATRIOT Act, thereby demonstrating that they were not themselves patriots: They had to destroy civil liberties and representative democracy to save them. Riiiiiiight. What part of "protect and defend the Constitution of the United States against all enemies, foreign and domestic" did they not understand... aside from "all of it"?
3. That's why using this to go after "organized crime" is so wrong. That's why using this to obtain political blackmail material is so wrong. And it will be so used, because to the kind of people who would use these mechanisms for such ends, the ends justify the means... instead of being shaped by them.

Forthcoming Changes in Corporate Culture

• I'm not going to say an awful lot in public about the latest SFWA Bulletin kerfluffle — and I'm using "kerfluffle" just because it's a nice, convenient word, and not to imply that either the process or the substance issues are trivial — beyond this: It was if nothing else predictable, thanks to the decades-long dysfunction in the organization. Indeed, it's merely a symptom of the organization's inability to do either of two absolutely necessary things. The procedural problem is that SFWA has been miserly, without much justification for it, for at least 25 years; it has refused to adopt modern governance structures for a thousand-member benefits corporation, and in particular it has refused to separate governance from management. That latter, guys, is the very definition of "corporation." SFWA should have moved to having a relatively strong, paid-employee manager, who manages other paid employees (even if they're freelancers and/or part-timers) doing the basic corporate operations like running corporate communications, by not later than 1988. That's how you empower those employees to say "no!" when they need to; it appears to me, having edited a number of periodicals, that that is the direct cause of this particular piece appearing in print under SFWA's imprimatur. Instead, though, that runs into the substantive problem: The refusal of members who were active before, approximately, the Brooks explosion made book-length fantasies commercially attractive propositions to accept that things have changed, and that the good old days were often the bad old days in which reminiscences of higher quality of crusts of bread should be viewed as gallows humor and not as aspirations for the future. In particular, SFWA isn't your nice little social club any more, and trying to run it like the Ladies' Gardening Society of Upper Lower Middle East Side just will not do (if it ever did, but that's for another time).

  In SFWA, dinosaurs rule the earth. And they're damned cranky (and loud) about how those cute furry little mammals running around their feet are just annoyances that must be shunned... which is more than a little bit ironic for an organization devoted to producers of the literature of change. This is one corporate culture that really does need a change.

• If you think determining copyright terms is easy, consider this conundrum. G.K. Chesterton died in 1936 as a UK citizen. When do his copyrights expire? Well, in his home nation of England, that's easy: They expired in 2006, seventy years after his death (Copyrights, Patents & Designs Act of 1988, § 12). In the United States, though, if all of the relevant works were timely registered upon publication and properly renewed 28 years later, Chesterton's works published in the US prior to 01 Jan 1923 went into the public domain fifty-six years after publication; those first published in the US after 01 Jan 1923 will expire ninety-five years after publication (17 U.S.C. § 304), although we're in for a good time for any of Chesterton's works that have not yet been published in the US, such as (hypothetically) letters collected for scholarly use (17 U.S.C. § 303). These are completely independent of each other.

  As confusing as that is, it's even more confusing in Spain. Leaving aside for the moment the copyright in a translation — which is measured from the date of translation and upon the life of the translator, thus justifying new editions of The Iliad every so often — what about editions of Chesterton's works in English? A Spanish appeals court has just done something... interesting. Not only did it hold that the older, life-plus-eighty term applies, but more subtly the Spanish court rejected the "rule of the shorter term". In copyright law, if a work's protection has expired in its nation of origin, and that nation is a Berne signatory, some other nations will limit their own protection's duration to that in the work's nation of origin — they select the shorter term. The US has explicitly rejected this rule, but it is the barely-majority rule elsewhere... specifically including almost all of the European Union. Thus, even though protection expired in 2006 in its nation of origin, the Madrid court held that Chesterton's works remain in copyright in Spain until 2016.

• Remember, spring is only planting time. The Arab world needs to understand that, especially by comparison to Burma (which has had a much easier transition than, say, Egypt). Similarly, the rest of the world needs to understand that, too: Totalitarianism lingers.
• Here's a different perspective on a different kind of problem with coauthors. At least, I think it's a different kind of problem...
• Dead trees aren't a problem just for authors; things are strange when musicians have to rely on the USDA's indulgence.
• I don't always agree with EFF — which has a disturbing tendency to ignore the idea/expression dichotomy, and treat all expression as mere ideas and therefore desirious of emancipation — but this time EFF is absolutely right: DRM enablement has no proper place in the HTML5 standard. If nothing else, it's bad cryptography practice and bad technology practice: It presumes that DRM will "hook" into HTML5 webpages based on mid-2003 technological enablements. (It's bad law, too, but that has never been a major consideration at W3C before, and I don't expect it to start now.)

Staring at the Package

• One of the difficult issues just outside the edge of copyright concerns access to fragile or one-of-a-kind works that are no longer in copyright — such as, but not only, museum-displayed pieces (without, of course, stepping into the swamp of who owns pieces found in museums). There's a long history of museums attempting to monetize this by prohibiting photography (only a minority of works in most museums are potentially harmed by flash photography... and consumer nonflash cameras are getting pretty darned good) and charging outrageous fees for acces to too-often-mediocre images. Not all museums seem so blind, though; the Rijksmuseum will allow you to access relatively high-quality digital images of works in its collection for free, without any ridiculous licensing restrictions on how you use those images.

  On the one hand, this does implicate the rights of the photographers who made those images — there's a lot of skill and expense that goes into creating them. I hope they're being properly compensated, even if as employees or through a flat fee. On the other hand, this also grapples with one of the more difficult, abstract issues in copyright law: The originality requirement. Put another way, is a faithful-reproduction-type digital image of an out-of-copyright two-dimensional work of art "original" enough to justify copyright in that digital image in the first place? Or is that digital image, because it is merely a medium through which the out-of-copyright original work is being communicated and is, in essence, communicating a fact, noncopyrightable? I tend to fall pretty far toward the latter — that an equal-dimensions reproduction doesn't merit copyright protection independent of its source — but I recognize that there's some room for argument at the boundaries. I think most of those arguments in favor of copyright also fail (e.g., "It's a textured piece, and it took a lot of skill and judgment to make a faithful digital/photographic image" is just, at its core, the "sweat of the brow" rationale slightly recast with more-sympathetic-than-database-compiler sweathobs)... but not definitively, not categorically. And that is, after all, where much of the fun in art comes from: That there is almost always an exception to categorical imperatives, a Beethoven's Ninth Symphony, Fourth Movement allowing words into the symphony on the way to Vaughan Williams's A Sea Symphony and heavy metal. At the same time, though, there's the question of keeping those starving artists (and technicians) from starving...

• My guess is that the money being offered by FauxNews is now just too much to make the "paltry" salary of a Congresscritter attractive to that crazy-eyed woman from Minnesota. I don't see this as a sign of the impending demise of that wing of the Heffalumps, though; one does not reverse forty years of denying reason and reality that easily or quickly! Remember, there's a huge gap between conservative thought and conservative ideology, and an even bigger one to conservative-tinged partisan politics... almost as big a gap as the one between Bachmann and reality.
• Bridge collapses have been in the news of late, including one I used to travel fairly frequently. This really begs the question, though: Why wasn't a long-distance transfer like this put on a railroad flatbed and taken over routes actually designed for large loads? Yes, trucks need to be used at some point, but not for this kind of distance (especially for something related to hazardous materials). Perhaps the problem is that the trucking lobby is stronger than the railroad lobby... or that nobody even thought of roro (roll-on, roll-off) transit to limit the amount of rehandling. Oh, wait: That might have cost a little bit more money, relating to a highly subsidized industry (petroleum extraction), and BP showed pretty conclusively what the industry attitude toward spending money on safety before a disaster looks like.
• With a whinge sounding remarkably similar to that coming from commercial print publishing, the UK recording industry claims it's supporting new artists just fine and shouldn't be criticized. Unwinding what's actually being said, though, reveals that this is nothing more than deception, and one line is sufficient: "But albums are significantly cheaper than 10 years ago, sales are falling and online piracy is still a major threat, according to Mike Smith - president of music at Virgin EMI records." Note the two critical assumptions in there: That the artists were significantly benefitting from sales success ten years ago (really? ever seen a royalty statement or contract from that era?), and that the higher prices were due only to market forces (and that the corresponding drop has not resulted, at least in part, from decay of antitrust practices).

  Recorded music, both here and in Europe, is largely marked by the industry-segment's price-setting meme: One can predict the price of a work, without knowing a damned thing about its quality or the existing reputation of its actual creator, with a very high degree of accuracy by knowing only the year, the marketing category, and the form of packaging. To say the least, that is rather antithetical to actually growing and supporting new talent.

• But that makes more sense than does this (snurched from Tom Christensen). I wouldn't characterize that as "talent" of any kind.
• But this might qualify. I have fond memories of one of Trudeau's earlier forays into performances, so...
• Or, I suppose, one could just analyze the health of an entire industry segment, and of the workers in that industry segment, solely through analyzing unaudited anecdotal sales proclamations from outliers. As a lab-trained chemist, this is a trap I don't fall into... except, that is, when the problem before me is an outlier, and then I still use all of those lab-trained thought processes to confirm that before proceeding. But I'm a wierdo.

Making Law Is More Confusing Than Internet Link Sausage Ingredient Lists

Writers, and other creative folk, have a difficult enough time dealing with inconsistent copyright and trademark law in the U.S., even when those inconsistencies are detailed questions like "how many notes can I sample before I'm infringing?" (Sixth Circuit: three notes infringes; elsewhere... no consensus, but clearly more than three). When the underlying grievance turns not on the at-least-uniform-everywhere federal statute, but on the various state laws of fifty states, the District of Columbia, the Commonwealth of Puerto Rico, and whatever "federal common law" there is in the area (and one should note that a majority of the states' law isn't statutory!); and when the context of that underlying grievance implicates antitrust law, unfair competition, the Labor-Management Relations Act and related labor laws, and the multibillion-dollar gaming industry — not to mention sovereign immunity of arm-of-the-state educational institutions — we're in for a good time.

And we were. In a 2–1 decision issued by the Third Circuit last week (and, amusingly for those of us with grim senses of humor, the panel included a judge from a different court sitting by designation), a breach of right of publicity claim by the former quarterback at Rutgers (a state university) against Electronic Arts (the maker of an NCAA football electronic game) and the NCAA was returned to the lower court for process toward trial. The 70-page-plus opinion in Hart v. Electronic Arts, Inc., No. [20]11–3750 (PDF) rather transforms a variety of issues.

The facts are seemingly basic and seemingly nuanced; the opinions are... insanely complex, nuanced bludgeons. Mr Hart was the quarterback at Rutgers (the state university of New Jersey) from 2002–05. NCAA shamateurism rules prohibited him from personally profiting from exploiting his rights of publicity as a player; indeed, only his university and the NCAA could do that. And so they licensed a whole buncha stuff to Electronic Arts for NCAA Football, an electronic game that specifically attempts to allow players to select teams and years. Thus, a player selecting the 2005 Rutgers Scarlet Knights for play (either for or against) would be selecting player 13 as the Rutgers quarterback — which, even though the name is not on the back of the jersey (pun intended), was modelled after Mr Hart in both playing characteristics and appearance. Mr Hart sued for a share of the profits, probably in the form of a license fee. The District Court eventually decided that — leaving aside all of the other issues, which are a jurisprudential swamp at best — Electronic Arts' game is protected from a right-of-publicity claim by the First Amendment as free expression.

For the moment, I'm going to focus on just the way this First Amendment analysis relates to depictions of real people. Although the rest of the case is fascinating to me as an IP nerd and civil procedure geek (both the Court of Appeals and the District Court evaded considering their own jurisdiction, for example... and it's not as easy an issue as it might seem), there is plenty of fact-bound material to get lost in. Further, there's that rather passionate dissent. If there's one thing this panel agreed upon, though, it's that the NCAA's rules regarding so-called "student athletes" are unjust and indefensible:

EA's use of actual college athletes' likenesses motivates buyers to purchase a new edition each year to keep up with their teams' changing rosters. The burn to Hart and other amateur athletes is that, unlike their active professional counterparts, they are not compensated for EA's use of their likenesses in its video games. Were this case viewed strictly on the public's perception of fairness, I have no doubt Hart's position would prevail.²

—————

2. See generally Taylor Branch, The Shame of College Sports, The Atlantic, Oct. 2011, at 80–110 (lambasting NCAA "amateurism" and "student-athlete" policies as "legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes," and discussing lawsuits challenging these policies); see also Alexander Wolff, When Worlds Collide, Sports Illustrated, Feb. 11, 2013, at 18; Joe Nocera, Pay Up Now, N.Y. Times Mag., Jan. 1, 2012, at 30–35 (advocating payment of college athletes to alleviate "[t]he hypocrisy that permeates big-money college sports" arising from amateurism rules).

Slip op. at 64–65 (Ambro, J., dissenting). The majority opinion, while not explicitly excoriating the NCAA and Electronic Arts for taking advantage of a captive publicity source, in its "analysis" of the transformative-use test (slip op. at 45–51) silently accepts that the NCAA/EA use of "real athletes" is at least somewhat sleazy.

That, however, takes us back to civil-procedure land, because the Hart opinion relies heavily on California — not New Jersey — law regarding athletes and publicity, while rejecting the much-closer-to-the-facts (in a sick and twisted {pun intended} way) rationale put forth by the Missouri courts in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc) on the ground that

By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics. These two roles cannot co-exist. Indeed, Appellant [Hart] suggests that pursuant to this test we must evaluate "what value [Appellee is] adding to the First Amendment expressiveness [of NCAA Football] by appropriating the commercially valuable likeness?" Since "[t]he game would have the exact same level of First Amendment expressiveness if [Appellee] didn't appropriate Mr. Hart's likeness," Appellant urges us to find that NCAA Football fails the Predominant Use Test and therefore is not shielded by the First Amendment. Such reasoning, however, leads down a dangerous and rightly-shunned road: adopting Appellant's suggested analysis would be tantamount to admitting that it is proper for courts to analyze select elements of a work to determine how much they contribute to the entire work‟s expressiveness. Moreover, as a necessary (and insidious) consequence, the Appellant's approach would suppose that there exists a broad range of seemingly expressive speech that has no First Amendment value.

Slip op. at 25–26 (citations and footnote omitted). All well and good; as noted in my recent discussion of Cariou, there's plenty of good reason to keep artistic judgment out of the hands of lawyers, and that necessarily includes judges. The problem with Hart is that its adoption of the "transformative use test" — and even its dissent's approval of a different variety of "transformative use test" — is ultimately just as "subjective" and "arbitrary" as the predominant-use test of Doe that it rejects. Indeed, there's a more than faint whiff of the unsavory context of exploiting athletes in the specific factual analyses in both the majority opinion (slip op. at 52–54, 57–59) and dissent (slip op. at 71–73); Judge Ambro may have dissented, but he certainly wasn't happy about it!

The fundamental problem raised in Hart is one that writers (whether for print or other forms) and artists must grapple with all the time: How much of "reality" can I put into my work without getting explicit permission, and probably paying for that permission? This extends well beyond rights of publicity claims, like those in Hart, to invasion of privacy claims, to even copyright claims in architecture or works of art that appears in the background of motion pictures (or, presumably, video games!). In Hart, the judges agree to substitute one particular variety of subjective, arbitrary test for a different one; indeed, the particular disagreements between the majority and the dissent on how the facts and expression in this particular video game should be analyzed under that test more than adequately demonstrates that it is subjective!

Of course, the context of this particular dispute matters a great deal, too. Hart is not a political figure, but a commercial-and-entertainment figure; I strongly suspect that if the video game had been a simulation of the New Jersey state government, including real figures from New Jersey politics, the outcome would have been different. Similarly, if the game had been a simulation of the New Jersey waste-management industry — including a variety of stereotypical allegations of mob control — the reasoning might have trended much closer to that in Doe than that in Comedy III.

So, in the end, writers just can't learn a helluva lot about the legal limits of their craft and expression from Hart. Leave aside that this is far from a final decision — it exposes such significant conflicts of authority that I give it a 50% chance or so of being heard by the Supreme Court on certiorari, presuming an even modestly competent petition — its choice of rationale is subjective and arbitrary, and its analysis is subjective and arbitrary. The problem is that the judges essentially had no choice: What they (both the District Court and Court of Appeals judges) were confronted with is something that is inherently subjective and arbitrary, but upon which they must decide because our societal structure has left no other means of resolving the dispute. I wish that they would not have pretended that some version of the transformative-use test is, in reality, any less arbitrary than the predominant-use test (or the Rogers test that was also rejected)... but the majesty of the law, such as it is, often requires pretending that things are less arbitrary and subjective than they are.

Internet Link Sausages Made From Bleeding Hearts

And I do not mean "bleeding-heart liberals," either...

• If it really was the tax code and not pure greed, Apple (and Google, and Amazon, and every other major corporation that has whinged about excessive taxes in the last week... or last millennium) wouldn't be pulling the same crap in other jurisdictions. Stop kidding yourselves: This has nothing whatsoever to do with the actual burden of taxation. It has everything to do with upon whom that burden falls... and the right answer is almost always "somebody else," no matter who is speaking. Indeed, that's the only reason that progressive taxation can ever be imposed — there are more voters whose relative burden is reduced by progressive, as opposed to flat-rate, taxes. These corporate interests are whinging about "double taxation" while forgetting to note that that "double" taxation is on their profits — not, as for individuals, on their revenues. The effective comparable-accounting-standard rate of taxation on a corporation seldom exceeds the US sales tax rate... which is still too much for some of these greedy bastards.

  As has been noted before by more-eminent speakers than I, taxes are the price one pays for civilization. I, for one, want more civilization... and as corporations (unlike natural persons) literally cannot exist without such silly civilized accessories as effective policing and courts and statutes and the rule of law, I find their complaints rather less than credible. My cartilaginous-ichtyhoidy heart bleeds for corporations that want all of the privileges of free speech and lobbying without paying for them; that seems almost socialist. It certainly doesn't make much economic sense; neither does it acknowledge that there's a word before "self-interest" in all non-internally-destructive conceptions of economics: "enlightened."

• I can say only one thing about the Kindle Litter/SandboxWorlds program to "monetize" fanfic: OMFG is this ever going to lead to, like, totally extreme overstatements by, like, everybody in Encino! At least they appear to be smart enough to avoid improperly claiming that the fanfic is work-for-hire — although, not having seen the actual contract, that's not certain, either. Of course, I'm not the right person to ask about this sort of thing, given that I actually know something about the business practices of some of the companies involved and appear to have conflicts of interest...
• Meanwhile, the Bibliothèque Nationale de France really does want that torch-and-pitchfork party at its gates; its most-recent arrogance is to require some rather ridiculous documentation to remove works it has stolen, and (as is usual for the French) it refuses to acknowledge that a substantial proportion of the authors in question are not native speakers of French. One might wonder whether the World Trade Organization would hear a complaint that this constituted unlawful nationalization of the intellectual property assets of non-nationals in violation of about six different treaties to which France is a signatory. Of course, one must also remember that only nations, not individual property owners, have standing before the WTO. Governments are too busy trying to collect taxes at the moment!
• I have only two words to say about exactly why things are so f*cked up regarding GITMO, drones, the CIA, etc.: Posse Comitatus. And if you can't see how that little provision — one virtually unique to the US — makes it that much harder to extricate ourselves from the mess in question, you haven't been paying attention to who is doing what (and not doing what else). Nor, for that matter, paying attention to the loophole in the law that is big enough to pilot an aircraft carrier through, and explains a helluva lot about why it was a SEAL team that visited Abbottabad a while back (not to mention provides the sole operational justification for the continued existence of the Marine Corps).

Smoked Internet Link Sausage Platter

A weekend of professional obligations began early, so I never did get around to pulling these from the smoker at the recommended time.

• Neoconservative economics descends almost entirely from the so-called "Austrian school," epitomized by Friedrich Hayek's political economy... which, as it turns out, is not the pure economics that Hayek's many neocon disciples proclaim.
• Meanwhile, New York City is vanishing — at least as a place for young artists. Indeed, I suspect that it is vanishing as a place for individualism in the arts at all, based on the continuing encroachment of "production values" achievable only through great flipping wads of ca$h. That said, I'm not sure the story is much better elsewhere.
• It's certainly not any better in traditionally-produced-and-financed-and-distributed film. If anything, the studios don't really care if anyone likes it enough to see it a second time.
• But that's a better attitude than the industrial food combine has. Now, as it happens, I eat an organic diet, leavened only with a little bit of inorganic salt. All food is "organic" — it's one of the true idiocies of marketing to proclaim a truisim as a value judgment. Food that we can actually digest is organic in that it is composed almost entirely of carbon, hydrogen, and oxygen... and almost all of the remainder is water.
• Last, and far from least, I need to vehemently disagree with The Perfesser. This time, he has gone much too far with mislabelling, and I'm afraid it's hurting his position and argument. On his blawg today, he rejects Judge Richard Posner as never having been a conservative, all the while throwing in rather snide remarks about liberals.

  Enough. Perhaps Judge Posner does not meet The Perfesser's criterea for "real" conservatism. (I think he does, having practiced before him and seen how his opinions are actually viewed by other judges, but reasonable minds may differ.) But, as I'm not myself a conservative, I'll defer... for the moment. The problem here is not the "false attribution" problem, but a different failure of privilege: Does an outsider have the privilege of labelling others? As a specific counterexample, consider the FauxNoose label of "liberal" being applied to people who, according to those of us who call ourselves "liberals," are not liberals at all. President Obama is a moderate, and not even a consistenly left-of-center moderate. Hilary Clinton is a straight-down-the-middle moderate, with the single exception — perhaps, and due to its economic basis only perhaps — healthcare. More to the point, John Newton — the individual whose opinion led to The Perfesser's screed — is not a liberal, in either the American or European sense of the term. (I'd also disagree that Solis is a "hard-core liberal" — she's much closer to Labour than to any internally coherent variety of liberalism.)

  I'm sick to death of this kind of resort throughout the American polity to the tribal magic of the Rule of Names, in which one obtains power over something by attaching a label to it — usually a label that would be relatively neutral but for the special meaning ascribed in this context. I welcome actual engagement with conservative thought; I do not welcome yet more engagement with labels, as in the days of the Evil Empire and Iron Curtain and all of those other rhetorical devices used to make enemies out of those whose opinions are different (sometimes inimically so, far more often not).

Why Do We Never Get an AnswerWhen We're Knocking at the Door?

Sometimes it really is more important to ask the question than to find "the" answer; after all, those answers are often fixed in time and avoidance.

• There is — at long last — increasing controversy about the "right way" to treat mental health issues. There's an incredibly simple and obvious answer, but it's not one that the various constituencies are going to like: There is no one right way, and any attempt to remove judgment from the art of determining (and implementing) an appropriate treatment protocol for a particular individual and his/her circumstances is doomed to being an incomplete answer. This is not just because we don't know how to separate cause from effect in neurology and psychiatry (example: it's easy to say that there are genetic linkages between schizophrenia and certain chemical imbalances in the neural cortex, but we can't say what makes those genetic predispositions express themselves with any degree of accuracy... and since that is a historical event that we can't unwind in any case, it doesn't tell us what to do about it).

  There's a more fundamental problem lurking underneath, though: The presumption that some set of social norms accurately implies the acceptable underlying individual thought- and personality processes... and that having a distinct, describable, nonnormative condition is somehow defective and must be corrected. A number of years ago one of my clients was going through a divorce proceeding (I wasn't counsel in that proceeding). In the course of the proceeding, the spouse and the spouse's lawyer kept shrieking "hypergraphia!" as some kind of evidence that my client would be an unfit parent and therefore must not be allowed custody of any kind. They neglected to put any context on their claims, though... such as noting that my client was a multiple-bestseller author whose working process involved writing summaries of research to ensure understanding of the material before writing the science-based books for which my client was known.

• Perhaps the most important thing that astronauts do during their rest periods is the ultimate human activity: create art (and explain what the hell they're doing).
• Just as there's no such thing as a free lunch, there's no such thing as a free market (or at least not the kind of free market that's at the core of first- and second-year college microeconomics).
• The Supreme Court issued a unanimous decision yesterday in a patent matter that has some important implications for digital copyright. In Bowman v. Monsanto, No. [20]11–796 (PDF), Justice Kagan wrote that:

  Bowman principally argues that exhaustion should apply here because seeds are meant to be planted. The exhaustion doctrine, he reminds us, typically prevents a patentee from controlling the use of a patented product following an authorized sale. And in planting Roundup Ready seeds, Bowman continues, he is merely using them in the normal way farmers do. Bowman thus concludes that allowing Monsanto to interfere with that use would “creat[e] an impermissible exception to the exhaustion doctrine” for patented seeds and other “self-replicating technologies.”

  But it is really Bowman who is asking for an unprecedented exception—to what he concedes is the “well settled” rule that “the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Reproducing a patented article no doubt “uses” it after a fashion. But as already explained, we have always drawn the boundaries of the exhaustion doctrine to exclude that activity, so that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.

  Slip op. at 7–8 (citations omitted).

  This is not, as it might at first seem, inconsistent with the recent decision in Kirtsaeng. To begin with, copyright is (a) fundamentally about copies in the first place, as opposed to right to "practice" an invention, and (b) unfortunate in using "exhaustion" to mean something analogous to, but still quite different from, what "exhaustion" means in patent law. The key distinction is this: In Kirtsaeng, the only "violation" alleged was a purely commercial one: Mr Kirtsaeng's scheme only acted to (perhaps) reduce the publisher's income from its book (although given the different cost bases, etc., it's entirely possible that the overseas editions are actually more profitable to Wiley), not to increase the actual supply of the copyrighted articles. Mr Bowman, however, engaged in conduct fundamental to the patent: He increased the supply of a patented article without a license to do so.

  And, thus, the implications for e-books and other digital copyrighted works. Bowman reinforces that one may not sell (or otherwise dispose of) copies made of an electronic copy purchased/licensed by an end-user. (We'll leave aside the epistomological question of when one makes a "copy," given the technology involved.) Kirtsaeng reinforces that one may dispose of one's own lawfully purchased copy as one sees fit. The middle case, though, is troubling: Is one entitled to repurpose a lawfully purchased copy for a different use, such as translating a non-DRMed epub into a mobi file that can be read on an older Kindle? What if DRM is involved (see 17 U.S.C. ch. 12, which appears at first glance to prohibit breaking the DRM... even though each lawfully purchased device arguably breaks DRM)? What if there's patented software involved? And, most crucially, what if one's policy preferences in the answers to these question are not clearly the way the law is written — particularly if the law was written decades before any of the actual "violations" became possible, let alone widespread and socially acceptable (among a subset of the populace, anyway)?

• This blog's only feline friend the IPKat notes that making legitimate products of desired quality at a reasonable price available to consumers is a good way to fight counterfeiting, as this blawg has been proclaiming since before it was born. Indeed, the historical record back to the seventeenth century shows that every successful anticounterfeiting/antipiracy campaign has involved precisely that... and that a high proportion of the unsuccessful campaigns did not. Now combine this with a publishing industry that sets its price based not on the distinctive qualities of the content it sells, but on the packaging in which that content is provided, and I think you'll see some interesting implications for e-books — and precisely why the so-called "agency model" is per se unlawful price-fixing.
• Carrie Vaughn disses Gatsby for not engaging with reality, among other flaws. Now, I've not seen this most-recent film (and won't until it's available for me to view at my leisure at home), but I have seen prior filmings and have read the book. Frankly, I think Ms Vaughn was unduly generous... because from her description, the film actually did a better job of teasing out ill-handled themes from the first half of the book than did the book itself. The Great American Novel is the ether of literature; the primary problem is that nobody has done the literary equivalent of the Michelson-Morley experiment, and indeed never will (because publicizing the results of that experiment would not be politically or socially acceptable, if nothing else).
• Last, and far from least, there's data privacy in Europe to consider. This has a disturbing implication for current US software trends toward putting everything in the cloud instead of on individual machines. It also has interesting implications for "how the hell do we pay for the 'net anyway?" But implications are all I can offer at the moment; anyone who pretends to have answers is probably selling something. It is possibly new and improved... but it is no doubt being offered to you as a targeted advertisement.

The Downside of Branding

Just some miscellaneous notes in passing —

• Here's an irritated note to the fashion industry — especially that portion of the fashion industry that "serves" men:

  Your customers are not your bloody billboards.

  Especially not those of us who have worn a uniform. I do not want, and will not wear, your logo or brand identification on my casual clothing (or, indeed, any clothing). It's especially ridiculous for not just casual clothing, but inexpensive casual clothing, to be "forced" to show where I shop. A simple, solid mesh polo shirt should not tell everyone that I shop at Target, or at Kohl's, or wherever. You should be paying me to be your bloody billboard... and it should be strictly my choice, not mandated by everything in the store bearing somebody's external logo. The only such logo I've ever tolerated is the shiny metal "U.S." on each side of my lapel, so you can keep your bloody polo ponies. I'm not about the clothes; I'm about me.

• A long, fascinating decision from the Federal Circuit yesterday on patent eligibility has some important implications for a wide variety of issues. In CLS Bank Int'l v. Alice Corp., No. 2011–1301 (PDF), the Court of Appeals sitting en banc held — across half a dozen opinions filling 135 pages — that merely converting an existing, noncomputing process to a computer is not, without more, eligible for a US patent. In a sense, this opinion is about the disjuncture between legal words and scientific thought, as implied by Chief Judge Rader's closing "additional reflections." This is a particular problem for computer science because the relevant words were written by lawyers in the 1950s.

  The implications of CLS Bank for the Internet are many and varied. For one thing, seven, or perhaps eight, of the judges imply that merely creating an algorithm and embedding it in a computer system can never be eligible for a patent. This obviously implicates Amazon's "one click" patents; it also implicates the very data on (and off) the 'net, particularly compressed graphics (.gif), video (.mpeg), and audio (.mp3) files — all of which are or have been subject to patents, licensing transactions, and litigation over the years. Perhaps this is merely a long-overdue recognition that computers are no more fundamentally different from "ordinary" processing (and worthy of a patent) than is a specification that a banking transaction must take place in an artificially-lit space on the thirtieth floor of a skyscraper. Perhaps this is merely a long-overdue recognition that an awful lot of things that lack an "inventive concept" (see slip op. at 27) are nonetheless being patented because the examination process has historically neglected subject-matter eligibility, particularly in the face of "process" patents. Perhaps there's even more going on.

  And perhaps the entire apple cart is going to be overturned yet again in the next few weeks when the Supreme Court decides, in Myriad, whether or not isolated human genes are patentable subject matter; CLS Bank implies not. The most important implication, though, is that patentability is often a sufficient motivation to do basic research, but not a necessary one... because not all scientists, engineers, and innovators are in it solely for the money.

• So the Infernal Revenue Service has been criticized for selectively giving greater scrutiny to certain 501(c)(4) applicants. Leaving aside the "sauce-goose-gander" schadenfreude for a moment, recalling treatment of the NAACP during my lifetime, because two wrongs don't make a right, there's something subtler at work here, too. If I'm a police officer, I'm going to be skeptical of new businesses with "Pawn" in their names — not because all pawn shops are illegitimate, but because some are (and most draw other problems to them). As Klein notes, the problem is that there wasn't enough skepticism directed to the entire universe of 501(c)(4)s as much it was the misuse of discretion in choosing which 501(c)(4)s got extra attention.