The Long View 2007-10-17: Tolerated Use; Cold Civil War; Counterknowledge; Electoral Voting by District
Steamboat Willie
By Source, Fair use, https://en.wikipedia.org/w/index.php?curid=15880997
John J. Reilly here proposed a more formal solution to the current unsatisfactory state of copyright law:
I did a little research before I uploaded my single foray into fan fiction, The Gray Havens, which is an alternative ending for the Tolkien trilogy. My conclusion was that I could make a colorable defense of the story as a fair-use parody, but that I would fold like an umbrella if Tolkien's publisher objected. Lots of life works like that, but in this context, I don't see that it's necessary. How about an amendment to the copyright laws to define fair use as any use of an author's material that is both non-competing and non-commercial?
In practice, this is what happens, but copyright owners are very much within their rights to go beyond what is commonly tolerated.
Tolerated Use; Cold Civil War; Counterknowledge; Electoral Voting by District
Between Clenched Teeth: Tim Wu's thoughts on the Tolerated Use issue should be much on the mind of anyone who produces content for the Internet:
Mass, industry-threatening piracy is still never tolerated. But the tough-guy act typified by the music industry of the early 2000s, and recently in the case of the $222,000 fine imposed on Jammie Thomas, may be going out of fashion. Instead, media companies—particularly in television and film—are at least sometimes practicing a mellower concept called "tolerated use." They watch and see whether infringements are actually harmful or not before sending out their copyright pit bulls...Fan sites are another example where approaches to copyright enforcement differ. Such sites cannot help but violate copyright laws. As they fawn over some person or product, they are almost certain to use copyrighted content. But it doesn't take a marketing genius to realize that suing adolescents who worship your product may not be the ideal way to promote the product...
[However, if] you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? ...[P]olitical failure [is why.] The failure in this case is one of the oldest stories in political economy. Big media is the kind of politically effective group that economist Mancur Olson recognized back in the 1960s: small, well-organized, and with much to gain from government. Meanwhile, all the people sitting around in basements creating fan sites and YouTube videos are, to Washington, political eunuchs—too diffuse and underfunded to exert much influence on the nation's laws.
I did a little research before I uploaded my single foray into fan fiction, The Gray Havens, which is an alternative ending for the Tolkien trilogy. My conclusion was that I could make a colorable defense of the story as a fair-use parody, but that I would fold like an umbrella if Tolkien's publisher objected. Lots of life works like that, but in this context, I don't see that it's necessary. How about an amendment to the copyright laws to define fair use as any use of an author's material that is both non-competing and non-commercial?
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Cold Civil War is a new term that Mark Steyn seeks to conjure with:
William Gibson...is famous for inventing the word "cyberspace," way back in 1982. His latest novel, Spook Country, offers another interesting coinage:...cold civil war. ...A year before this next election in the U.S., the common space required for civil debate and civilized disagreement has shrivelled to a very thin sliver of ground. ...if you want to discuss the best way forward in the war on terror, you can't do that if the guy you're talking to doesn't believe there is a war on terror, only a racket cooked up by the Bushitler ...Let's assume...a narrow GOP victory dependent on the electoral college votes of one closely divided state. It's not hard to foresee those stickered Dems concluding that the system has now been entirely delegitimized...
In the half-century from 1945, most Americans and most Russians were not in active combat. The war was waged by small elite forces through various useful local proxies...[That is the case domestically today]..[T]hink of cultural institutions in the U.S. and the West. The grade schools no longer teach American history as any kind of coherent narrative....the outward symbols are retained -- the flag, the Pledge of Allegiance -- but an entirely new national narrative has been set in place. ...it takes two to have a cold civil war. The right must be doing some of this stuff, too, surely? Up to a point. But for the most part they either go along, or secede from the system ... read Christian publishers' books that shift millions of copies without ever showing up on a New York Times bestsellers list.
Actually, the Cold War might be described as a struggle in which both sides avoid open hostility in the hope that History will destroy its opponent in good time. The Red State-Blue State divide of the US is analogous: For the Left, the train of progress may have been diverted from the Finland Station to Brussels, but its arrival is still inevitable; the Right, increasingly (and not least in the person of Mad Demographer Steyn), is waiting for the Left to implode from the low fertility rates caused by its sordid personal life.
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Counterknowledge is apparently not a new coinage; it seems closely related to Michael Barkun's notion of "rejected knowledge," the stuff of pseudoscience and conspiracy theories. Counterknowledge differs, perhaps, in that it routinely appears in the light of day. Anyway, Damian Thompson and a number of collaborators have started with looks like a useful debunking blog, Counterknowledge.com, to expose "conspiracy theories, quack medicine, bogus science and fake history." They have already done a number on that factoid about Muslims discovering America; and as for the Templars, go and see.
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Getting back to the prospect of Civil War, Rhodes Cook at Opinion Journal explains the proposed ballot initiative in California that could decide the presidential election of 2008. It's full of high-fiber statistics:
It would not be surprising if the most important single primary in 2008 takes place in California. But don't look for it to be the presidential primary on Super-Duper Tuesday Feb. 5. Look instead to the state primary on June 3, up to now a low-profile event that could become fraught with significance if some California Republicans succeed in getting a highly controversial proposition on the ballot.
If successful, it would ensure the party's nominee 20 or so electoral votes from California next fall, even if the GOP candidate loses the state for the fifth straight election. And if the 2008 election is as close as the last two have been, that could be enough to keep the White House in Republican hands.
The political weapon of choice for the GOP is a plan that would distribute electoral votes to congressional district winners (one per district, plus two to the statewide winner of the popular vote) instead of the winner-take-all format that nearly every state currently favors....in both 2000 and 2004, the district plan would have actually expanded George W. Bush's electoral vote margins--from a razor-thin five in 2000 to 38, and from 35 in 2004 to 96.
As we saw above, Mark Steyn has had some fretful thoughts about what would happen if the Republicans won the presidency through the electoral college but lost the popular vote again, noting that Democrats might not accept the result as legitimate. I think that works both ways. Bill Clinton's election in 1992 was never accepted as legitimate by the Right, for reasons I never understood. Suppose Hillary got 49.9% to Ron Paul's 50.01% but still won an electoral college majority?
As readers of this blog will know, the right answer to this problem is the interstate compact, under which a group of states with an electoral college majority would agree to cast all their electoral votes for the winner of the national popular vote. This plans preserves the real merits of the electoral college while avoiding the drawbacks of the popular vote. Unfortunately, the allocation of electoral votes by congressional district preserves only the worst features of those options while losing their benefits. That is what the California initiative would do.
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You want a Cold War? Here's a proper Cold War for you.
Copyright © 2007 by John J. Reilly
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