19 June 2017

Presolstice Sausage Platter

No real theme here today, just a couple of semirandom sausages each more resembling a "rope" than a "link" sausage. Sort of; I think this metaphor is getting a wee bit overstretched.

  • I have to laugh at the earnestness and colossal ignorance found in a piece trying to explain Marvel's recent "cancellation" of its Black Panther comics:

    Quite simply, World of Wakanda wasn’t selling well enough — but the solution isn’t as simple as going to your local comic store and buying more copies of Gay’s books. That’s because, in Marvel’s eyes, the number of copies of World of Wakanda that were sold in comic book stores was decided months ago. Considering the numerous ways and formats in which we are now able consume different kinds of pop culture, from books to music to television shows to movies, the comic book industry is unique in that it still relies on an outdated method of distribution.

    Every major US comic book company — Marvel, DC, Image, etc. — relies on one company, Diamond Comic Distributors, to print and ship their books to independent retailers, a.k.a. the owners of comic book shops. Diamond sells comics to comic book shops as final sale, meaning owners aren’t allowed to return or exchange books that didn’t sell. This is in contrast to traditional book retailers, which can sell back the books they weren’t able to sell.

    "Marvel canceled Roxane Gay and Ta-Nehisi Coates’s Black Panther comics. The problem goes beyond Marvel" (16 Jun 2017) (italics in original, hyperlinks omitted, inept quasijournalistic paragraphing corrected).

    This particular screed — as reasonable-sounding and generally accurate as it is — misses reality by implicitly claiming that "books to music to television shows to movies" are all distributed so inherently differently from and superior to comics that it's just the distribution system at fault. Not so much; a nonexhaustive list, in no particular order—

    • Just try getting digital works into the library market (which is not exactly trivial, and especially so for teen/YA material like many digitized comics) without being on Overdrive. Just try. Better yet, go to your local library and request an e-book from a major university press that is not obviously a purely academic work and see what reason you're given for the library's refusal to acquire that work — say, any of Michael Klarman's well-written, accessible works on the history of the US Constitution, published by the Oxford University Press.
    • The later-in-the-piece description of "pre-ordering" still describes exactly how commercial publishers treat all works. The only distinction — and it's a narrowing distinction given the recent wave of reconsolidation — is that book distribution is oligopolistic, not monopolistic. Otherwise, the tyranny of pre-orders is exactly the same… and it's actually even worse in non-comic periodicals.
    • Holding up the returnability of books as a feature, not a bug, is more than slightly insane, especially for trade nonfiction… if only because the timing of "returns" and "returnability" was set in the 1930s, ignoring countless changes in both production and fulfillment technology/practices and financial systems that should have collapsed the timelines (but haven't because that would be to the publishers' disadvantage — the current system favors them because it delays and reduces payments to authors). And it's not only that.
    • It's really no better for music. Perhaps you might recall, a few years ago, that an antitrust consent decree was entered against the major distributors of CDs… and if you really think things are better in listenable/downloadable distribution, you haven't been paying attention. The details differ slightly, but that's about it.
    • Television is a laughable distinction, again being an oligopoly-with-conscious-parallelism instead of monopoly issue. Realistically, even "cord-cutters" are still stovepiped through a very small range of distributors, at remarkably similar prices when recalculated on a per-viewer-hour-expended basis.
    • Movies? Really? Does this writer understand a damned thing about film distribution, whether first-run or otherwise, whether archly-commercial-aspiring-blockbuster or anything else?

    Overall, this article gets a C-. It accurately notes problems in comic distribution (and that's leaving aside any particular perfidy at Diamond itself, which is nontrivial but difficult to demonstrate at article length). It stumbles, however, in trying to overdistinguish those problems from the rest of the distributed-copies-of-entertainment industry so as to make its own chosen subject seem unique and important. It ultimately founders in its ignorance of the nondistinctiveness of oligopolies (especially once conscious parallelism is considered) and monopolies, and particularly so in the distribution as opposed to manufacturing phase of an industry.

  • In an interesting decision this morning, the Supreme Court decided that if it's ok for Paul Cohen to wear a jacket proclaiming "Fuck the Draft" in a courthouse (despite posted rules demanding decorum), it's ok for a music group led by a man of East Asian ancestry to call itself "The Slants"… and register the trademark in the name. Frankly, Matal v. Tam is not a hard case: As the Court held (PDF slip op.), the Lanham Act's prohibition of registering marks that "disparage… or bring into contemp[t] or disrepute" anyone (whether alive or not) facially violates the First Amendment. (The court failed to note that sometimes this is more subtle, such as the Aunt Jemima mark, than "mere word marks" can easily communicate.) On this point, the court was 8–0; there was only a nominal plurality for part of the reasoning, but all eight judges (the matter was argued before Justice Gorsuch was even nominated) affirmed the Federal Circuit's judgment below rejecting § 1052(a).

    The key point (which is not all that clear in the opinion) is that although a mark and its registration by themselves constitute commercial speech, the government's actions in registering (or refusing to register) a mark are most emphatically not. The government's actions are, instead, intertwined with the First Amendment's prior-restraint-on-speech issues… because registering a mark is as much, itself, about the markholder's own speech as anything else. Tam obviously makes possible the registration of such marks as "Jailbird Hillary" or "Lying Donald" so long as they meet the other requirements of the Lanham Act (use in commerce, first use, etc.). On the other hand, there's something darker in here, too, given the intertwining of commercial, "moral," and political speech in things like branding and advertising of contraceptives… or the converse.

    Of course, the NFL and its intransigent Washington-DC-based franchise will welcome this decision as some kind of vindication. That ignores that whether something is constitutional (or not) often has very little to do with whether it is a good idea (or not)…

14 June 2017

Three Left Feet

The courts have been busy on intellectual property matters of late — not just Over There, but Over Here (and Over Yonder, too).

  • First, there's a two-part, two-decision, two-jurisdiction dance (in 13:8 time) concerning piracy and attempts to screw copyright holders in the name of "information access." By Google specifically, and "the internet means everything expressible digitally must be free" advocates in general.

    Part 1 is simple and directly concerns Google. Google has a long history of posting verbatim, unredacted takedown requests to Chilling Effects (now known as Lumen), which semiassiduous pirates (among others) then search to find interesting material for piracy (or, for takedowns related to defamation and/or invasion of privacy, blackmail/extortion/direct shaming). After all, if the URL is quoted in the takedown request — as is required by the takedown rules, whether for copyright, for trademark, or for other rights — the notice substitutes for a Google search result that is being challenged, doesn't it? Apparently, the German courts have caught on that Google is merely using the takedown request itself as both a shaming device (to deter takedown notices) and, more to the point here, an ersatz search result. Amusingly — to those of us with grim senses of humor — the injunction notice (PDF image file) does precisely what it demands Google do: It fully redacts the identifying information so that it is not itself an ersatz search result. The IPKat has a useful, plain-English summary… as far as it goes.

    But that just leads to Part 2, which also goes to ersatz piracy: Link-and-search sites that claim not to have any infringing material, just the links/metadata to find it elsewhere. The Court of Justice of the European Union didn't like this dance any better than did the Oberlandesgericht M√ľnchen from Part 1. I recommend the IPKat's useful, plain-English summary over the CJEU's infelicitous translated opinion, but the result is the same: "Link sites" induce copyright infringement and are therefore blockable (notwithstanding GS Media' notice concepts) under core European and Berne Convention doctrines. And the links offered in this sausage are with malice aforethought and an acute appreciation for the well-hoisted petard.

  • In Design Basics, LLC v. Lexington Homes, Inc., No. [20]16–3817 (7th Cir. 06 Jun 2017), Judge Hamilton attempts yet again to grapple with "the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single-family homes… [while] administering intellectual property law to discourage so-called intellectual property 'trolls' while protecting genuine creativity" (slip op. at 1). Judge Hamilton is not entirely successful, but that's not his fault at all: It is, if anything, the fault of the parties, their lawyers, and to a lesser extent the poor writing in the Copyright Act itself.

    The case actually turns on the fundamental distinction between copyright and patent law. In copyright law, there is no "copying" without actual access to the source work; put another way, "independent conception" is a complete defense. In patent law, however, the patent application itself is as a matter of law universally known, so "independent conception" is not a defense. But the court did not stop there, because it took the opportunity to smack down transferee misuse of enforcement actions as a "revenue model." Perhaps what this Design Basics matter (as Judge Hamilton's opinion notes, in the last decade Design Basics has been plaintiff in over 100 copyright-infringement actions) demonstrates more than anything else — particularly when read together with the Sherlock Holmes matters — is that if you're a troll, you need to stay away from the Seventh Circuit because the judges will turn you to stone. Gleefully.

    The policy-level matter that "troll" litigation exposes is one that the various affected industries, the various legislatures, and indeed damned near everyone else have evaded even mentioning: Transfer of ownership (not just rights) from those whose personal efforts led to "Progress in the useful Arts and sciences" to those whose personal efforts consist solely of exploiting that "Progress" for financial advantage, usually via a portfolio of similar increments of "Progress" originating from multiple creators. This is a problem across both copyright and patent law. It is also a problem with treating intellectual works as "mere" property, with the underlying assumption that they are therefore freely alienable because all property "must" be. I point this out precisely because applying fourteenth-century notions of the immutable characteristics of tangible property seems to be putting the cart before the breeding rights to the horse.

Over Yonder is going to have to wait for a better copy of the opinion...

12 June 2017

Of Lamps and Golden Doors

President Drumpf, you're descended from immigrants, and in particular on one side of the family from immigrants from a region that was historically hostile to the (then much-younger) United States at the time. It's bad enough that across the Pond, your allies in the ruling party are getting in bed with the Northern Ireland Unionist successors to Ian Paisley (a group that has committed more violent crimes and killed more Americans than have citizens of the Suspect Six Nations) after campaigning on a platform indicating that only they could fight terrorism. But:

Two United States Courts of Appeal have handed you — and your marginally competent and marginally ethical advisors, both attorneys and otherwise — your head on your "corrected" Executive Order, no thanks to Kathy Griffin. One court eviscerated your position primarily on constitutional grounds; the other, primarily on statutory authority and interpretation grounds. More to the point, the Fourth Circuit (the entire roll of active judges, in fact) rejected your unconstitutional animus, while the Ninth Circuit (a panel of three different judges than those who rejected your first Executive Order) engaged in a close reading of the relevant statute and rejected your sweeping policies as simultaneously unfounded in fact and unauthorized by statute (PDF). That is, the circuit ordinarily considered "most likely to be curmudgeonly, short-sightedly, and counterproductively anti-activist" reached to the Constitution, while the circuit ordinarily considered to be "most likely to be judicial activists" was restrained in its method… and both rejected you without giving you any unearned credit for having two intellectually honest brain cells to rub together. They weren't quite that vicious in their rhetoric — only in their fact-finding and reasoning.

The Ninth Circuit's opinion today is founded on exactly what a judicial opinion is supposed to be: A careful consideration of facts as they relate to the dispute in question, not to broad policy objectives. That's something that neither you nor your advisors did, since I don't think "policy" or "facts" were really at issue for you — only bigotry.

Two versions of a report from the Department of Homeland Security (“DHS”) surfaced after EO1 [the January Executive Order, previously enjoined] issued. First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2’s [the currently-at-issue Executive Order] issuance, concluded that citizenship “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by EO1 are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.” Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Id. Of the six countries included in EO2, only Somalia was identified as being among the “top” countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded “that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns” (emphasis added).

Hawaii v. Trump, No. [20]17–15589 (9th Cir. 12 Jun. 2017), slip op. at 10–11. That is, even your own hypersuspicious purported "experts" couldn't support the terms of the restrictions you would actually impose.

I'd suggest that you grow up, but telling a two year old who can't decide which temper tantrum to have next to "grow up" is both unrealistic and frankly counterproductive. And now that I think about it, that's insulting to the two-year-olds I raised — even at their worst they didn't act from the sense of entitlement you display every day.

05 June 2017

Harsh Language

<SARCASM> I think I may have figured out a tweet's real meaning. Sort of: It's that The Donald is a poor language student and can't even name the letters in his new language accurately, at least not when tired.

"covfefe" = "КОВВ"

which is my best guess for an American (that is, who really knows no other language) learning Russian so he can speak to his new masters, and slightly fumbling the letter names (it's actually fairly close, phonetically). That's a nonsense jumble, but might be an acronym for something in the Foreign Ministry… or ФСБ… </SARCASM>

04 June 2017

Head Cheese?

There is no head cheese on this platter of link sausages. <SARCASM> I would have fired her long ago just because I don't find her performances amusing, but as a fan of Richard Pryor I clearly don't understand contemporary stand-up and sketch comedy. </SARCASM>

  • The French courts have indirectly begun prying away at some really dubious publishing/entertainment industry practices through exercising the original purpose of trademark law. Trademark law originated not as an intellectual property right, but as a consumer protection statute. In Anglo-American law, the "trademark" was specifically a mark applied to silverware by silversmiths, often in London's East End, and it was the counterfeiting of that mark on "inferior" merchandise (often containing little or no silver at all, let alone with the "authentic" craftsmanship) that led to a criminal offense for "passing off." Enforcement was eventually privatized to the proper "owners" of the respective marks except in the most egregious circumstances (usually those involving evasion of import duties), and after another hundred years or so became an intellectual property right in "modern" trademark law.

    The French courts — without, so far as I can tell, ever making this comparison explicitly (one of the reasons that I rely upon the IPKat for goings-on in France is that the opinions are difficult to access, and not just due to the general language but to inconsistent legalisms) — have considered Renaissance-patronage interpretation of mark "ownership" regarding copyrighted works. A recording company registered marks related to two songs commercialized from a cartoon character. The French Supreme Court has now ruled that the recording company — the patron — had no right to claim ownership of those marks; it is not the "origin" of the related "goods," and therefore its claim of ownership in the marks deceives the public.

    This has some fascinating implications for various publishing and entertainment-industry practices, well outside of the obvious question of "Who gets to be Pink Floyd after Roger Waters leaves?" In no particular order:

    • Is a ghostwritten book that does not disclose the true, natural name of the ghostwriter now a deceptive designation of origin, at least in France?
    • How about a celebrity-coauthored book in which the celebrity — or, more to the point, packager (I'm thinking specifically of you, J___ P___) — provides nothing more than a marketing umbrella, at least in terms of actual expression that remains in the work as published?
    • Do film production companies have a right to claim a mark in character names from previously published novels, as Warner Brothers so blatantly has in the Potterverse (look at the copyright page of any American edition of the fourth and later novels)?
    • What about "house names," like "Franklin W. Dixon" and his "colleagues"?
    • What about publisher-forced pseudonyms for authors with existing track records (and, therefore, discernable "origins" known to the public)?

    These are not easy questions. They are seldom even being asked.

  • Then there's the potential mootness issue (that's just one example) concerning the racist/bigoted "travel ban." I'm a bit disturbed that the mootness analyses generally tend to confine themselves to literal mootness without looking at the most-important exception to mootness: capable of repetition but evading review. This isn't an easy question, either, but it exposes what is really at issue: May the Judicial Branch anticipate the possibility of future bad faith in fleeting actions founded on bad faith in the elected branches, and anticipatorily exercise its checks-and-balances powers on the elected branches by (essentially) stopping the clock? I would argue "yes, particularly when the purported basis is not a policy disagreement but the limits of the political branches' inherent authority," but that's not a popular opinion these days… because it can be made to seem in favor of so-called "judicial activism." Of course, that "activism" is almost always in response to someone else's action, so that's not an accurate label in the first place! And that is the point of the Rule of Law.

29 May 2017

The Last Monday in May

Most Americans think of Memorial Day as the beginning of summer barbecue season, which I suppose is all well and good. Too often they forget that Memorial Day was initially intended to recognize Union veterans. At least the Mayor of New Orleans seems to understand that mere bravery in That Conflict does not justify honoring bravery exerted for dishonorable causes. It's easy to cotton-pick self-aggrandizing (and at times even "honest," if self-deception qualifies as "honest") statements from the 1840s through 1860s that characterize the Second War of American Secession as concerning "state's rights." Of course, it's just as easy to do the same with Rhodesia and the Republic of South Africa in the 1960s through 1980s to characterize their regimes as having a religious foundation, and if we accept the Vatican and Sultanate of Brunei we have to accept that, right?

No. We don't. It has been a century and a half since we amended the Constitution to try to make all persons equal, however much we've screwed up in practice. Mayor Landrieu appears to understand that. Mr Christian — a name with a few historical issues — appears to be too self-centered and confident in his entitlement to even try to do so.

Sometimes it's harder than others to accept — even to understand — what passes for honoring veterans. This Memorial Day I'm adding Mr Meche, Mr Best, and Mr Fletcher to the list of those entitled to that Guinness. "Support and defend the Constitution of the United States against all enemies, foreign and domestic" is what soldiers do (and that "empty chair" has a longer and more intense meaning than civilians really comprehend). And they did.

28 May 2017

Rights Said, Fred

Context matters to meaning. Pretending otherwise leaves one no better off than Fred Korematsu… or Right Said Fred.

The Trump travel restrictions implicate a difficult — and historically ugly — aspect of jurisprudence that our appellate courts (and our Supreme Court in particular) have gotten wrong approximately 80% of the time that they have confronted it. It breaks down into two parts, both of which can create difficult decisions that appellate courts would just rather not deal with.

What part of the nonofficial context of an official action is admissible evidence, preserved for appeal, of the intent behind that action?
How much evidence (of any kind) does it take to overcome the presumption that policies adopted by elected officials were adopted in sufficiently good faith that the courts may reject the policies on rights-based grounds?

The Fourth Circuit's decision Thursday in IPAR just makes this two-step inquiry more obvious than most… if far from explicit. Or clear. Or easy.

There are several sources of this problem. One is that judges (and, more broadly, the legal profession) don't understand — or care — about the distinctions among "fact-gathering process," "fact," and "proof." I realize that's a pretty broad smackdown, and that there are a few exceptions… but it makes a difference even when "fundamental rights" are not directly at issue. The judiciary and the profession have so little personal experience with the process of rigorous fact-gathering that they overly discount lab technique, contaminated samples, poor recordkeeping, confirmation bias, and overt fraud — except, perhaps when some combination of the above rises to a level that would shame a Bond villain, such as overt insertion of religious doctrine into public schools in an overt effort to ensure conformity of thought. But these rare exceptions occur almost entirely at the trial-court level when they do at all. Even when it's excrutiatingly obvious — that there is no possible explanation but for Bondesque villainy — appellate courts just won't go there, such as Santa Fe Ind. Sch. Dist. v. Doe (<SARCASM> it was entirely the kids' decisions, untainted by any parental pressure to conform to majority religious belief in the community </SARCASM>) and darker self-inflicted wounds like Korematsu, Plessy, and Dred Scott.

The inquiry noted above is also one way to understand the late Justice Scalia's disdain for so-called "legislative history." He answered the first question "none" so that he never had to even ask the second question. The nicest thing that I can say about this is that it respects the limits on judicial review too much by presuming not just that elected officials tend to act in good faith and therefore should not be second-guessed, but by presuming that they always do so and therefore are never subject to second-guessing. (Except, that is, when the "elected officials" in question are state prosecutors — the one class of government actors Justice Scalia consistently did subject to substantive review for their good faith.) I reject this view because, thanks in part to that tour as a Protocol Officer, I know too many of Those People: Elected officials, appointed-and-confirmed-by-the-Senate officials, and apparatchiks. Far too many to accept a blind, or even broad, presumption of "good faith without improper pretext." And that's primarily because they're human (most of them, anyway), not just because I agree/disagree with the particular pretexts.

This refusal to examine legislative (or executive) motivation matters to authors and others in the arts in a very direct manner. Consider, for example, the foolishness and invidiousness of 17 U.S.C. § 201(b):

Works Made for Hire.— 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.

Now combine this with the definition of WFH found in § 101, and the actual legislative history of this clause. The constitution grants Congress the power to protect authors (Art. I, § 8, cl. 8), but § 201(b) redefines "author" to mean something that no native speaker of English would recognize as an "author": The patron. We recognize "Leonardo da Vinci" instead of "Ludovico Sforza" for good reason. Congress chose to do otherwise — under immense pressure from, well, patrons — but its "good faith" in doing so has remained largely unquestioned.

What these disparate examples demonstrate is that these are hard questions. Unfortunately, since Justice Warren left the bench there has been an increasing tendency for the courts to evade hard questions, usually on the premise that those questions are for the elective branches. Sometimes, though, there really isn't an opportunity to discern elective anything. "True foreigners" were breathtakingly rare in the US of the 1860s more than a mile or two from a seaport or clearly delineated border. Just why, then, does the Fourteenth Amendment's Equal Protection Clause limit itself to United States citizens? It probably has at least somewhat to do with the occupants of this continent who preceded the Northwest Europeans… but one can't discern that from what passed for an official record in the mid-nineteenth century. And that's wrong, but by burying it elsewhere so it's harder to get into evidence, it's not a clear concern.

25 May 2017

Doing It Yourself

The United States Court of Appeals for the Fourth Circuit gave the Executive Orders concerning them daaaaangerous Muslims trying to enter the United States exactly what the orders deserved: Strict scrutiny followed by incredulity.

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

International Refugee Assistance Proj. v. Trump, No. [20]17–1351 (PDF) (4th Cir. en banc 25 May 2017), slip op. at 12.

A few items leap out on initial reading (sorry, guys, I've only had this 205-page monstrosity for a couple of hours):

  • The one bit of reversal is that the injunction cannot issue against the President himself (see slip op. at 78–79). What that means, I suppose, is that Mr. Trump can, himself, stand at Customs and Immigration at JFK and impose his Executive Order. He can't have any help, though: The injunction does stand against everyone in the Executive Branch, except the President himself.
  • A majority of the en banc court held Trump's campaign statements against him, specifically holding that those statements constituted sufficient evidence of improper religious purpose (even if the Orders were treated as facially neutral… which they're not, any more than a proclamation that no book cover may appear in crimson, ruby, or amaranth, but regulates no other color, doesn't inherently express animus against red). One concurring opinion went farther by discounting the campaign statements… but reaching the same conclusion based just on public statements made since the inauguration.
  • There are many citations to Korematsu in the controlling, majority opinion — specifically, to Justice Murphy's dissent, as if the dissent is the accurate statement of Constitutional law. (It is.) IRAP thus provides an opportunity for the Supreme Court to specifically adopt the reasoning in the Korematsu dissent as good law, and thereby abrogate one of the most serious errors it ever committed. If, that is, the Drumpf Administration appeals… For that reason alone, I would recommend granting cert.: It's an opportunity to, if nothing else, put a bandage on a self-inflicted wound.

18 May 2017

Burn the Witch!

Somewhere — perhaps in the White House, more likely on one of his other properties where he can visit it frequently to engage in the kind of narcissistic self-reflection we've come to expect of him — there's a picture of Donald J. Trump. It's a magical-realist picture, in the same vein as Gabriel Garcia Marquez, and Mario Vargas Llosa, and perhaps more to the point Oscar Wilde.

Oscar Wilde? I hear you ask. What does he have to do with South American magical realism, with its archly political context? There's a simple answer: The Picture of Dorian Gray. It, too, is archly political in the same kind of personal sense as are One Hundred Years of Solitude or Midnight's Children or any of the other recognized core works in twentieth century magical realism. Indeed, there's a very good argument that the real ancestor of magical realism is Voltaire… but that's just a bit too tangential for the moment.

My point is that the Picture of Donald J. Trump is a witch who spews forth defectively-spelled curses. And he should be afforded all of the due process from being accused of witchcraft himself that he would afford the modern-day witch: Immigrants from nations that sometimes produce terrorists… on the basis of their immigrant status, because he has no intention whatsoever of applying any of this to native-born white 'murikans. Like Timothy McVeigh.

At this stage, I'll light the first torch, using a copy of The Art of the Deal for something more useful than its contents: Tinder. And spell the prominent English family name "Grey" correctly, in contrast to Wilde (in his futile effort to avoid libel proceedings)…

16 May 2017

Rose Mary's Baby

A long time ago, in reclaimed swampland just shy of 4600 kilometers away, Rose Mary Woods said she caused an 18½-minute gap in a tape. Leaving aside for the moment the contortions involved (of both her physically and the truth), I'm not sure whether I really want to know what was in that gap, one of the key reasons that the then-President resigned.

Application of this excursion down amnesia lane to recent events in the same damned building is left as an exercise for the student.

* * *

When pontificating, it's always helpful to remember what you're actually pontificating about. Even, and perhaps especially, when talking about the ethics of serving a hyperpoliticized/hyperpartisan administration. The article's list of "the five additional factors that inform decisions at [licensed professional] level" in the administration include only:

  1. Service to the President and Administration
  2. Political Pressure
  3. Institutional Commitment
  4. Reputation
  5. Personal Integrity

The problem is that there's an overriding factor that neither this list nor the remainder of the article acknowledges explicitly; it is, at best, buried as an implicit consideration (but only consideration) in the third factor. Any military officer knows what it is: The mission. For military officers, it is "to support and defend the Constitution of the United States against all enemies, foreign and domestic." In our oath of office, that comes before respecting the chain of command or doing anything else. It is the mission statement.

Nowhere in that article do I see an acknowledgement that the mission comes first, and must be properly defined (not just "killing commies for mommy"). If, indeed, the OLC operated that way, it explains a great deal about other lawyer problems. For every member of the Administration — not just military officers, but all officers of the United States, whether of grand title or merely "inferior officers" — the Constitution comes first. The object of power may be power, but the definition of power is the Constitution. It's too easy for apparatchiks to forget that… and, apparently, too easy for lawyers (and law professors) to do so, too.

Since it's finals time, I'll give that article a C.

09 May 2017

Fake (Publishing) News

Apparently, PW never learns, or just doesn't care about getting its facts straight before publishing party-line bullshit. I shouldn't be surprised, and probably shouldn't even be appalled, to see PW yet again trying to blame Amazon for everything that is wrong from the perspective of large commercial publishing conglomerates (and unsophisticated/agency-captured related organizations).

Today's example includes this turd:

Those objecting to this policy say it is allowing Amazon to deprive publishers of sales and authors of royalties. (Because re-sellers are not buying their copies from publishers, these sales will not be counted as sales, and money derived from them will not go to publishers or authors.)

with a mealymouthed noncorrection at the end (italics in original):

Update: After this story ran, we heard from Amazon that while the phrase "new condition" was used in a letter sent to resellers what Amazon defines as new is found in its guidelines as: "brand-new, unused, unread copy in perfect condition. The dust cover and original protective wrapping, if any, is intact. All supplementary materials are included and all access codes for electronic material, if applicable, are valid and/or in working condition."

Amazon did acknowledge the letter may cause confusion and also noted that since resellers need to rate what shape the book is in they would use "new condition" rather than just "new."

Jim Milliot, "New Amazon Buy Button Program Draws Ire of Publishers, Authors" (09 May 2017).

This is fake news.

  1. That nature of "update" calls for an in-story correction and withdrawal.
  2. The reporting of speculation by mostly unnamed "industry figures" (the only ones named are the Authors' Guild, which doesn't exactly have a track record of reliability, and the author of a HuffPo article, which is a strange place for a for profit publisher) as "fact" is not dealt with by the update.
  3. In any event, the implication in that first paragraph — that authors and publishers get exactly zero from the unspecified "resellers" — is false as a matter of law and fact. On the initial transfer, the books (consistent with Amazon's definition stated in the "update," which I've known about in substance for years) are paid for. That means the publishers were paid and the authors are paid.

    Whether they are being paid fairly is a separate question entirely. In particular, the article never notes that for most books contracted for before approximately 2006, Amazon's current customary discount already makes any sale through Amazon a "cut-rate" sale: The discount falls under older "high discount" clauses, and perilously close to presently-being-imposed "high discount" clauses. Thus, this is at best an illusion… or, more to the point, should have been treated as an opportunity to actually inquire into the facts and their context.

  4. Kirtsaeng is the law. So is the First Sale Doctrine embedded in § 109. This entire article is based upon assuming that the First Sale Doctrine (which has been statutory law for a helluva long time) is somehow new or a surprise to publishers and authors or makes used book stores somehow inimical to publishing. Of course, the article can't be bothered to examine its assumptions.

I could go on, but I won't. I will, however, point out an undisclosed conflict of interest: PW's ultimate ownership has (and even under prior ownership also had) substantial interests in the textbook market — perhaps the most notorious "used books hurt new book sales" area of all.

The entire turd is an attack on Amazon made while ignoring existing bookselling custom and practices… with the unstated implication that no other vendor/seller/reseller/industry player is engaging in similar practices. Technically, every bookstore "listing" or "shelf" containing returnable books is subject to the same objection. Had the "new" "new book" policy actually been pointing at advance reader's copies and reviewer copies, or other used books being sold "like new (but not new)," there might have been grounds for further investigation. Of course, one must then wonder just how a reseller would have enough copies available to consistently "win" a "new book" button, if the source is ARCs and review copies (many of which, admittedly, are never read, but that's another issue entirely); and the same goes for any vendor of used books in "like new" condition. That, however, would have required actual investigation, exposure of dubious industry customs and practices that the major commercial publishers and booksellers would rather keep out of more-general awareness, and discussion of the mechanics and dubious legality of the returns system. It probably couldn't be done in an 800 word article that doesn't cite to facts, only to third-party whingeing.

Amazon is not an angel or savior (and certainly not when it comes to actually infringing material!). Neither is it the devil. Get over it.

07 May 2017

Thirty-Five Characters

The Ninth Circuit — or, at least, the former Chief Judge of the Ninth Circuit — demonstrated some real judicial independence on Friday, with four words (thirty-five characters including spaces and punctuation). In context, those four words demonstrate some that is right and much that is wrong with contemporary American law.

KOZINSKI, Circuit Judge, ruminating:

Fisher v. Kealoha, No. 14–16514 (9th Cir. 05 May 2017) (PDF), slip op. at 11.

  • I'm pleased to see a judge actually labelling his opinion as "just thinking about something I don't have to decide, but that I think is necessary for nonlawyers to understand why the main opinion is so free of context." Such ruminations appear throughout opinions from other jurists, if seldom so explicitly labelled… and many of them at least advance the conversation, if not necessarily the case at issue.
  • But "ruminating" is not an approved signal appearing in the BlueBook — or any other manual of legal citation. And it's a per curiam opinion. So Judge Kozinski has just created an exceptionally interesting quiz question for first-year legal writing classes.
  • That has no precedential value at all. It is, at best, an advisory obiter dictum opinion saying that something else needs to be decided in the abstract, but that some kind of flaw in the matter at hand keeps it just a side issue. (It's a "something else" on which I think both he and the Supreme Court are wrong on linguistic, historical, and rational grounds, but that's just… ruminating with no precedential value at all.)
  • It also indirectly points out the problems with overrigid application of the advisory opinion doctrine by overnarrow consideration of what is a "controversy." It is perhaps understandable to allow a legislature a short period of time to revise existing legislation after being given a clear and final judicial directive that existing legislation is constitutionally infirm. It is perhaps understandable to allow the executive the same privilege regarding its nonlegislative policies and procedures. This is part of "separation of powers."
  • But there comes a point when the time for all deliberate speed has passed. Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 234 (1964). And even though the judiciary is only a part of a system of government — with highly proscribed powers on when and how it may act — there necessarily comes a point when it must take responsibility for the government acting as a whole. I think "a decade" is a reasonable period of time for legislation… presuming good faith in the legislature… darn, I've just destroyed my whole argument, haven't I?

Because, ultimately, that's what Judge Kozinski's rumination really is. He's relying upon a nine-year-old Supreme Court opinion that made further legislation and administrative directives necessary, however much (and with however much justification) one disagrees with that opinion, and poking various legislatures and executives in the ribs with his rhetorical elbow. "Do your job, man, before someone structures a mandamus action and I have to tell you formally to do your job." Given that firearm distribution is an emotional issue (leaving aside any substantive complexities and the evolving interpretation of Heller as "final but fatally flawed," albeit not quite a "self-inflicted wound"), that's about all he can do. So, perhaps, it was the wrong signal. Perhaps it should have been:

KOZINSKI, Circuit Judge, discontented but neither concurring nor dissenting:

except that the actual opinion is too civil (in the "civil conversation" sense).