After tonight’s SYTYCD elimination, I went over to Television Without Pity’s forums, mostly because I am a masochist. In between the usual ranting about how Philipchbeeb is ruining the show for them and so forth, I also found the usual bevy of conspiracy theories. Melissa is older than 30 because she has lines on her face! They are manipulating the Bottom Three couples so that people’s votes don’t matter! And so forth. (These complaints are always trotted out for American Idol as well, but I don’t care about Idol so I can let them go.)

I would just like to make it clear: these people are full of crap. I mean, they are full of crap on the level of the guy at that party who tells you that Kentucky Fried Chicken changed their name to KFC because they weren’t legally allowed to call it “chicken” any more, because they invented centipede-chickens with ten drumsticks apiece. They are graduates of the School Of Somebody Told Me.

How do I know they are full of crap? Because 19 Entertainment and Fox have created a happy fun television show that A) invites contestants to compete for a large cash prize, and B) invites the public to vote, at cost, to determine winners. In the case of both groups, the contestants, the show is therefore responsible to them to present the rules of the show publicly and openly, and to abide by those rules. Were the producers to not do this, then they would be liable to both groups; any contestants who felt slighted would be able to sue for the “loss of a chance,” which is well-established in contract law as potential grounds for a suit. There would similarly be grounds for a class action lawsuit on the public’s behalf.

This is why every episode ends with a disclaimer in small print admitting that the show’s producers might just possibly monkey around with partner selection and dance selection as they see fit. (I snark about non-random dance selection as much as anybody else, but if they say the dances are randomly assigned, they’re either assigning them purely randomly, or assigning them randomly and then offering a “trade” option of some sort that the dancers can take advantage of if they wish, or something along those lines.) It’s all about liability.

Seriously, it’s a multimillion dollar television franchise. They’re not gonna kill the cash cow with something that stupid.

People sometimes try to convince me that Mark Steyn’s drivel is worth taking seriously. As counter, I suggest people read his latest screed for Maclean’s wherein he bravely tackles the demon that is empathy:

Then-senator Obama voted against the confirmation of Chief Justice Roberts because the nominee said he saw the judge’s role as that of “umpire.” The President wants someone less hung up on the rule book. He likes to cite the case of Lilly Ledbetter, who sued Goodyear Tire for discrimination but ran up against the pesky old statute of limitations. An “empathetic” judge would presumably say, “Screw the statute of limitations.”

Now, Steyn is actually pretty smart despite his lack of ethics, so presumably he knows that the issue in Ledbetter v. Goodyear wasn’t whether or not to get rid of “the pesky old statute of limitations” but how the statute of limitations was applied, because the question was whether the statute of limitations should start running from the point that the pay discrimination that Ledbetter suffered began, or whether it should start running from the point where she became aware of it. The conservative wing of the Supreme Court decided against all common sense that it should be the former, and that the clock on Ledbetter’s ability to sue in fact began years before she even knew that she was being discriminated against.

Again, Steyn probably knows this. But I doubt he cares; it’s just one more bullet in his gun filled with the usual cheap potshots about how Palestinians are actually savage animals (which he knows because he was in the West Bank for a week this one time and he totally saw tons of convenience stores with “Martyr of the Week” posters, and just because Steyn was just busy completely mischaracterizing a well-known and entirely public legal decision two paragraphs previously, why would we ever suspect him of being a fabulist in this regard?) and then accusing Barack Obama of sympathizing with terrorists in his Cairo speech (you know, the one where he bluntly told the Arab world that violent extremism wasn’t just unacceptable, but also that Holocaust denialism was ridiculous, and that Palestinians needed to come to grips with the fact that the Israelis aren’t going anywhere, and that Muslim countries need to better ensure women’s rights).

He’s a cheap hack. He always has been, he always will be. Don’t ever forget it.

Top comment: Y’know, I notice that people keep angrily bringing up the fact that you called Steyn a cheap hack, but no-one seems to care that you called him a malicious asshole, too. — Skemono

…the American Supreme Court ruled 5-4 that police may question a defendant without a lawyer present.

Naturally, the freedom-loving conservatives on the Court saw no worry about the fears of the tyrannical state this time around (in a police powers case? Shocking). Antonin Scalia, well-known as that brilliant jurisprudential mind,1 wrote in his decision that “there is little if any chance that a defendant will be badgered into waiving his right to have counsel present during interrogation.”

To which all I can say is uh-huh.

1. You know he’s brilliant because everybody keeps telling you he’s brilliant! [↩]

1.) My weekly TV column is up at Torontoist.

2.) My article this week for The Court is about R. v. Middleton, a sentencing case. Be forewarned the topic matter is so dry I nearly fell asleep twice while writing it.

3.) Finally, I made a rare PODCASTING APPEARANCE on Hour 42 yesterday, wherein I articulated poorly about the potential of Gooch the Dark Wonder Dog, among other things.

In the fingerprinting post on Monday, will writes:

I’m still not clear on how the police having my fingerprints — or my DNA — on file could be used to oppress me.

Abandoning the dire fantasies of totalitarian government – for that is what they largely are – we can find the idea of oppression in harm inflicted on the citizen that is, by and large, unintentional. I’m not talking here about the Glenn Beck school of “I have to pay taxes and so I am oppressed.” I’m talking about mistake.

Like I said before: I’m not anti-cop. Cops do a hard job and most of the time they get it mostly right. But they never get it entirely right. There are always people who slip through the cracks of proper procedure. I spent a year working for the Innocence Project at Osgoode, helping people challenge convictions they argued to be unjust, and in every case where I think there was someone genuinely innocent convicted of a crime, there was a common thread: the police had already decided that this person was guilty.

Again: the police are right, most of the time, when somebody is guilty. But not always. And it’s the not-alwayses that become the horror stories of the justice system. The spouse isn’t always the person who murders their partner, regardless of how common it is for that to be the case (and it is common, believe me). The black drug dealer might be a drug dealer, but it turns out he didn’t kill anybody. And so on and so forth.

And so this is how having your fingerprints on file can be used to oppress you: you are a suspect in a murder that you did not commit. The police regard you as the likely culprit. They look for evidence to tie you to the crime, and because you knew the guy, hey what do you know your fingerprints are all over the place. The police have your fingerprints already, which paints you in the eyes of a jury as a shady individual. That combination of circumstantial evidence and worsening of your image is enough to get you sent away to a lengthy jail term for a crime you did not commit. And you can’t appeal based on the evidence being wrong – the justice system doesn’t work like that. You can only appeal on points of law, not points of fact (IE, you can argue that your fingerprints were wrongly introduced as evidence because the potential for creating bias outweighed the probative value of the evidence – but, in all seriousness, good luck with that approach).

The police have a tough job. Sometimes they take shortcuts. It happens, we shouldn’t really judge them for it, and most of the time it doesn’t hurt anybody – except when it does. That’s why we need institutional safeguards built into the system to make sure that poor evidence collection methods aren’t abused. And that’s why de facto fingerprinting of individuals who haven’t even been arrested for a crime is wrong.

The Tories introduced legislation that would allow police to collect fingerprints before a person is charged with a crime and would not require the police to destroy those fingerprints should the person never be charged. The Tories argue that this is about “streamlining” the affairs of police to make them more efficient. But here’s the thing. Consider this quote from Rob Nicholson, the Justice minister:

“Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it.”

Now, I like Rob Nicholson. But what the fuck does that even mean? Let’s be blunt: the only reason for this legislation is to give police the power to collect fingerprints of people who can’t be proven to be criminals, or even can’t be charged with a crime because there’s reasonable and probable grounds to charge them with a crime. How comfortable are you with the police having that power? Because I’m not.

I’m not reflexively anti-cop, or even generally anti-cop. I think cops in Canada do a valuable and difficult job and most of the time they do it very well. But here’s the thing: since policing is always going to be a political hobbyhorse of one stripe or another, the cops always feel a bit besieged. That sucks and it’s not fair to them, but it’s not fair that doctors are expected to be miracle-workers or that lawyers are fodder for jokes about amorality when we all know that we should be making those jokes about accountants instead.1

But the practical public downside of the cops feeling besieged is this: they tend to close ranks when one of their own is accused of wrongdoing, be that accusation merited or not. Usually it isn’t. But when it is, they protect bad actors within the system. And I this is exactly why I don’t like giving the police additional powers that are obviously and blatantly fodder for abuse – and this is definitely an abusive power just waiting to be used improperly.

Top comment: I look forward to you getting telepathic judges and super-speed cops to deal with the rampaging mutant criminal element. — lilacsigil

1. Take that, beanpushers. [↩]

My weekly TV column is up at Torontoist. Also, I have a column regarding the SCC’s lengthy delay in deciding R. v. Suberu here. Guess which one has F-bombs in it!

My weekly TV column is up at Torontoist. But ALSO, I have a point/counterpoint column about the Tamil protests here. And on top of that, my first summer column for thecourt.ca is here, although it’s really just a longer, more serious-sounding rehash of the diversity arguments from last week.

So the American media has decided to get pre-emptively offended about the possibility that Obama might nominate a Supreme Court judge who is not white and male because it might be a good idea to have a judge on the Supreme Court who is not white and male. (Post-Redding v. Safford Unified School District I’m not sure how anybody could be opposed to the idea of more women on the Supreme Court, but then again I live in a country where half the Supreme Court is female anyway.)

Others have already pointed out that the Supreme Court is not exactly a diverse body (seven old white guys, one old black guy and one old white lady, all of whom went to either Harvard or Yale, all of whom served as an appeals court judge) and that diversity in a judicating body is actually, you know, a good thing because breadth of experience allows a judiciary to consider more perspectives with greater fluency. But people arguing this as good reason to not worry about the needs of the white guy – and bear in mind that I am a white guy – are wasting their breath, not just because those determined to complain about quotas and affirmative action will do so regardless of reason or fact, but because it’s an irrelevant argument.

This can’t be repeated enough: at this high a level of competency, there is never, ever a “best candidate.” There isn’t even a “best candidate whose political beliefs are ideologically akin to my own and who is not likely to stray from those beliefs.” There is always going to be a list, and if you’re picking a candidate from that list they’re almost certainly going to be qualified for the position.1 The idea that you can pick the best candidate out of the pack is a fantasy, and almost universally it’s a fantasy exercised by white people who get upset about the specter of affirmative action. It’s time to get over that fantasy and just make the court a more diverse institution that at least somewhat reflects the composition of its people, because there is no Better White Guy Judge waiting in the wings who will be a de facto better choice than the Black Guy Judge, Hispanic Lady Judge, or Asian Eunuch Judge.

1. Just because I think Antonin Scalia is ideologically dishonest doesn’t mean he’s not qualified to be a Supreme Court judge. He’s just a bad one. [↩]

Has announced his retirement from the Supreme Court, and a reader emailed me for reaction. My immediate reactions are twofold:

1.) Although it’s no surprise, because Souter is well-known for not particularly liking the DC culture and it’s been general scuttlebutt that he was tired of the Supreme Court five years ago but wasn’t willing to retire because of a certain president likely replacing him with a nutjob, it’s also a bit of a shame. Souter is a really, really good judge, not just because he has a fantastic legal mind (and he does), but because I’ve always found his decisions and dissents are so effortlessly readable, even for a non-legally minded sort. That’s a skill many lawyers and jurists undervalue.

He was also pretty consistently one of the serious civil libertarians on the Supreme Court, often writing decisions or dissents against the death penalty and consistently one of the most interested in prisoners’ rights. These are important issues that don’t often find champions at the highest level of the judiciary in any country.

2.) I would be very surprised if anybody gets the nod to be his replacement over Sonia Sotomayor of the 2nd Circuit Court. I personally wouldn’t mind seeing Margaret McKeown or especially Kim McLane Wardlaw as the nominee, but both are Ninth Circuit judges and therefore guaranteed to elicit total goddamned psychosis from the right wing. (Granted, that’s going to happen regardless, but there are degrees of this sort of thing.) Sotomayor is moderate and well-respected, nominated to the Appeals Court by George W. Bush, and she’s both a woman and would be the first Hispanic-American nominated to the Supremes. (So would Wardlaw, but them’s the breaks.)

The only other high-profile potential nominees who seem to qualify in most of the areas Sotomayor does are Diane Pamela Wood and Elena Kagan. Wood is from Chicago and would therefore suffer both the “OMG corrupt Chicago” attacks and the “hometown Obama nepotism” attacks. Kagan is terrifyingly smart but hasn’t enough public service under her belt yet, which is probably why she took the job as Solicitor General – she’s being given a seasoning of public service before her nomination. (There is NO WAY Obama doesn’t nominate her before the end of his first term.)

And neither Wood nor Kagan would be particularly “historic,” so – yeah, it’s probably Sotomayor.

Top comment: Predictions:

5: Michael Steele will make no less than three attacks on the nominee using slang that went out of style with Boy George. — plus C

Toronto judge forces witness to disclose information from his Facebook page that the person marked as “private.”

If the case turns on this evidence there is no way it doesn’t get appealed; the judge’s reasoning seems questionable at best.

“Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of `friends’ with whom they can share information about themselves, and on which `friends’ can post information about the user,” he said.

But simultaneously, that information is not intended to be disclosed to the general public, but only to trusted confidantes (to put it in terms more friendly to the individual in question). That should potentially raise a privacy issue. I’m going to keep tabs on this one.

PAD isn’t letting go:

Some people are claiming that Marvel and DC and other major publishers should embrace the concept of having anybody, anytime, do whatever the hell they want with the publishers’ property because the fans have decided that it’s going to be beneficial to the publishers.

You know, the “some people say” tactic was annoying when George Bush used it. It’s not less annoying when Peter David uses it. Outside of a few fanatic comment drive-bys, most of which are motivated more out of spite for PAD than anything else, I don’t see anybody actually arguing what PAD claims they’re arguing.

So, a few points.

1.) When John Byrne is on your side about anything, strongly consider the possibility that you are wrong about everything.

2.) Nobody serious is arguing that reading scans_daily was exactly analagous to flipping through comics in a comic book store from a legal standpoint. The point was introduced as metaphor, to explain that comics – rather uniquely as art forms go – work very well when you can check out an issue before you buy it, not least because of the cost associated with a comic book. (Seriously: $3.99 an issue now? I can finish most Big Two comics in less than ten minutes.)

3.) Similarly, nobody serious is suggesting that Marvel and DC just say “calloo callay, do what ye will with our property!” Even the scans_daily crowd were under the impression (incorrectly, but still) that what they were doing qualified as fair use since they were using the scans for the purpose of discussion and had set (ultimately insufficient, but still) rules to keep their use what they believed (erroneously) to be reasonable; this was not, at heart, a community founded on the belief that breaking the law and/or stealing is fun and good.

4.) That PAD chooses to engage these strawman arguments is just kind of sad. It reminds me of why I hated Bill Maher’s film Religulous so much: there are perfectly good arguments to be made against religion, but Maher didn’t engage serious religious philosophers, the ones who can knock you back on their ass with their thinking. No, he decided to debate a guy dressed up as Jesus in a religious theme park, because he felt it made him look smarter.

5.) I and the other people pointing this sort of thing out aren’t the assholes who sent PAD’s wide hate mail, so stop tarring us all with the same brush.

And finally:

These fans have judged, on the publishers’ behalf, how the publishers’ property should be disseminated and distributed and marketed. And if the publishers don’t agree with it, then they are somehow uncool or evil or, at the very least, not current with the 21st Century.

I really wish PAD would stop taking personal offense when people point out that the Big Two’s business model as regards publishing is outdated and in need of recognizing the distribution power of the Internet. It’s 2008 2009; music and movie and television have all found ways to use the net to distribute more efficiently. This isn’t controversial and pointing that out isn’t mockery – at least, not until Peter David decides to act like a chump about it, because that retroactively turns it into mockery.

Top comment: When you realize that Peter David is trying to become the next Harlan Ellison, things make a helluva lot more sense.

But what do I know? Ants aren’t allowed to condescend to eagles. — Mister Terrific

So the new Internet Nerd War is apparently between the Livejournal community that used to be scans_daily and Peter David.

Short version of events: a scans_daily poster posted half of the pages to the most recent issue of X-Factor, which PAD had told the entire internet not to spoil because he wanted the ending to be a surprise. PAD showed up on the community and apparently got someone telling him he sucked ass in response.1 PAD told Marvel, and Marvel complained to Livejournal, and Livejournal (or their Abuse team, one or the other) suspended the community, possibly because of Photobucket complaining or something instead. (Personally, the idea that Photobucket would all of a sudden complain about s_d using it after, what, five years, seems unlikely to me, and it seems far more logical that Marvel said something to somebody. But if PAD says otherwise, I don’t see the point in calling him a liar.)

People have been asking me for my take on it, seeing as how this site exists primarily because I used to be on Livejournal before I was kicked off for copyright violations along the same lines (although with far less legal certainty about the merit of any said copyright violation charge).

Anyway. Basically at this point you have a goddamned avalanche of bad argument erupting out all over the place, both from scans_daily members and from PAD. The combined force of this stupid is so intense I almost expect Joss Whedon fans to spontaneously show up and tell everybody off for complaining about Dollhouse being a bag of crap and not waiting until episode six when Joss “really gets things going with an episode he wrote himself.” So here is my message to all involved.

Dear scans_daily members: Jesus Christ just shut the fuck up and stop throwing tantrums. This was going to happen sooner or later.

Your entire community – and remember, this comes from a former (haven’t really been to the community since I left LJ) and enthusiastic member – was predicated on copyright violation, and only existed thanks to the whim and good will of every comics company whose material you illegally reproduced. Yes, it may often have been in said companies’ best interests to let you illegally reproduce that work, but that in and of itself is not an argument for why you should get to keep violating copyright if they choose not to let you do that.

Also, do not start talking to me about fair use like you actually know what fair use is, because it’s pretty obvious almost none of you know jack shit about fair use.

If you did know anything about it, you’d know that amount of the work used is a vital component of determining fair use, and that traditionally the amount of work used before a use becomes unfair is fairly low. In Harper & Row v. Nation Enterprises, it was about 300 words of a 30,000-word Gerald Ford biography, which was found to be unfair because those 300 words – or one percent of the total work – contained too much of the vital core of the work.2

Now, consider that the scans_daily “posting limit” rule was half of any given issue of a comic.3 Gosh, do you think that half of the whole work is going to contain too much of the vital core of the work? Because I think that’s some pretty good odds right there. In practice, anything more than ten percent will generally set off alarms. Ten percent of a comic is two pages. I mention this for when the next scans_daily at whatever shitty LJ ripoff site gets nuked for exactly the same reason.4

Short version of above: s_d existed only with the implicit permission of the works’ owners, and you should have been able to figure that out going in. If you were deceived (intentionally or no) by people who told you that the s_d posting policies constituted fair use, that’s understandable – but they, and you, were wrong.

Also: your collective response to PAD’s complaints? Entirely grown up and not making you look like a bunch of spoiled children at all. No, really. The collective maturity being displayed on the Internet this weekend is impressing me no end. I especially like the re-occuring “Pompous Arrogant Dickweed” joke, because HEY THOSE ARE PETER DAVID’S INITIALS! The cleverness on the internet, it just never stops. Seriously, guys, I know something you liked and enjoyed was just taken away from you, but every time you open your mouths and act like you’re three, you just validate the senses of superiority of the people trying to shut you down.5

Dear PAD: A quote.

“My year-long goal is to try and triple sales on this book; putting up free scans of the entire issue so that thousands of fans can read it without having to pay a dime kneecaps that goal. It’s “wow, this issue is great, you should go out and buy it” vs. “wow, this issue is great, you should hit this link and read it for free.”

Ahem. From Paul O’Brien’s Marvel sales recaps at The Beat:

02/06 X-Factor #3 – 48,307 ( -8.3%)
03/06 X-Factor #4 – 48,183 ( -0.3%)
03/06 X-Factor #5 – 46,490 ( -3.5%)
04/06 X-Factor #6 – 45,220 ( -2.7%)
05/06 X-Factor #7 – 44,315 ( -2.0%)
06/06 X-Factor #8 – 76,150 (+71.8%) [“Civil War” crossover begins]
07/06 X-Factor #9 – 68,799 ( -9.7%) [“Civil War” crossover final issue]
08/06 X-Factor #10 – 44,603 (-35.2%)
09/06 X-Factor #11 – 43,431 ( -2.6%)
10/06 X-Factor #12 – 42,909 ( -1.2%)
11/06 X-Factor #13 – 42,844 ( -0.2%)
12/06 X-Factor #14 – 40,208 ( -6.2%)
01/07 X-Factor #15 – 38,693 ( -3.8%)
02/07 X-Factor #16 – 38,240 ( -1.2%)
03/07 X-Factor #17 – 38,067 ( -0.4%)
04/07 X-Factor #18 – 37,851 ( -0.6%)
05/07 X-Factor #19 – 37,898 ( +0.1%)
06/07 X-Factor #20 – 37,105 ( -2.1%)
07/07 X-Factor #21 – 50,227 (+35.4%) [“Endangered Species” backups begin]
08/07 X-Factor #22 – 52,627 ( +4.8%)
09/07 X-Factor #23 – 53,311 ( +1.3%)
10/07 X-Factor #24 – 52,085 ( -2.3%) [“Endangered Species” backups end]
11/07 X-Factor #25 – 79,066 (+51.8%) [“Messiah Complex” crossover begins]
12/07 X-Factor #26 – 84,219 ( +6.5%)
01/08 X-Factor #27 – 81,350 ( -3.4%) [“Messiah Complex” crossover ends]
02/08 X-Factor #28 – 61,173 (-24.8%)
03/08 X-Factor #29 – 54,832 (-10.4%)
04/08 X-Factor #30 – 51,447 ( -6.2%)
05/08 X-Factor #31 – 48,231 ( -6.3%)
06/08 X-Factor #32 – 45,104 ( -6.5%)
07/08 X-Factor #33 – 53,088 (+17.7%) [“Secret Invasion” crossover begins]
08/08 X-Factor #34 – 50,416 ( -5.0%) [“Secret Invasion” crossover ends]
09/08 X-Factor #35 – 44,481 (-11.8%)
10/08 X-Factor #36 – 38,552 (-13.3%)
11/08 X-Factor #37 – 35,754 ( -7.3%)
12/08 X-Factor #38 – 34,425 ( -3.7%)

Not to get all next-generation-of-media/Cory-Doctorow-at-a-copyright-lecture on you,6 but…

…unless the title of that comic becomes X-Factor Starring Wolverine And Spider-Man And Batman, the evidence is pretty obvious you’re not going to triple sales on it without a major crossover, and those sales will quickly vanish after the crossover ends anyway. (And even with the major crossovers, you’ve never done better than to roughly double sales in any case.)

The existing comics market has spoken, and by and large they’ve said “X-Factor? Yes, yes, decent stuff, but where is my comic with Wolverine in it? Ah, yes. Sweet, sweet Logan.” That means if you want to achieve this (ludicrous but admirable) goal of tripling your readership, you’re going to have to actually try and get readers who are new to comics to give your book a try. Now, these “new comics readers” might quite enjoy your comic, but let us be honest: X-Factor is a comic staffed with the B- and C-level castoffs from other Marvel mutant books and so you cannot just say “it is a comic about Madrox and Strong Guy and Siryn,” because Potential New Comics Reader will go “whuh?”

Furthermore, you can’t just point to five-page previews on Newsarama or on Marvel’s website, because nobody who doesn’t already read comics goes there and they’re lousy for actually explaining the ongoing premise of the comic to new readers. Again, you want new comics readers? The existing market has failed you? That means you need alternative sources of marketing, variant methods to hike potential reader interest in your – let’s be honest – niche product. scans_daily was honestly an excellent method of generating new potential reader interest, because there are approximately six billion young nerds – mostly female nerds7 – on Livejournal who would totally be into your comics if only they knew that your comics existed, and some of them are even willing to spend money on them!8

And it’s worth remembering that s_d provided an arena for those young nerds to learn about comics of which they were unaware without first requiring a commitment to becoming part of the “comics fan community.” This is really kind of a big deal, because most of comics fandom seems to think they are not as offputting as, say, LARPers or Trekkers or furries,9 and this is often only marginally true at best. s_d, despite its occasional crankiness, was far more inviting to a noob comic reader interested in comics education and discussion than just about any other avenue available to them.

This is something comics desperately fucking needs in order to survive in any way akin to what we have now, because we’ve seen the results of relying on the direct market and comic book shops to advance the popularity of comics and it just doesn’t work. The fact that s_d was both run independently of any marketing effort by the big comics companies and was hugely popular and successful was not an accident: they have a skillset that DC and Marvel and Dark Horse and Image’s marketing departments do not have and apparently either cannot learn or cannot be bothered to learn.

Now, I understand that you work in comics and are therefore seemingly obligated to mostly not understand or ignore the same market issues that the music and movie industries have been dealing with for over a decade now and also to endorse the repetition of their mistakes,10 and that’s fine, but there’s one fine distinction between those two industries and comics.11 In your comment above, you argue that comics showing up for free on the internet essentially distinguishes the comics audience into “people willing to pay for comics” and “people who would be willing to pay for comics but are happy to read them for free instead.”

This is mostly a fallacy. The comics audience really divides into a bunch of segments: “people who are willing to pay for overpriced monthly comics,” and “people who are willing to buy trades but don’t want to wait for the trade to come out to read the story,”12 and “people who might be willing to buy the comics in some form but don’t want to commit to monetarily jumping into the massive history of a licensed property without reading a reasonable amount of it for free first,” and of course there are “people who just like stealing shit.” Plus a few other categories, but those are the big important ones.

Conflating “people not willing to buy the comics upfront without reading them first in some form” with automatically lost sales is an argument that’s so out of date by now that I am pretty sure it can be found sitting next to cases of New Coke. Arguing that an unauthorized reprint of a work automatically decreases sales potential is contrary to just about all the anecdotal and statistical evidence we have available at this point. And complaining that the reason X-Factor is selling notso-hotso is because people are giving away the thrilling plot twists online is just nuckin’ futs.

Oh, Spoiler Puppy! Now you have ruined that comic book for everybody forever!13

Another quote:

There are plenty of reasons to excuse something that is, at its core, against the law. You can rationalize it all you want. You can explain good things that could come from it… [t]here’s always benefits to someone from theft. But theft remains theft, whether people try to enumerate the benefits or not. As a general rule of thumb, the way you tell the difference between right and wrong is that when it’s wrong, you have to make excuses for it.

This is a bunch of moralizing (remember that any penalties suffered for being found to infringe copyright will be civil ones, not criminal, a point that annoys me every time someone says the s_d folks were “breaking the law”) that overlooks the simple point that there is a proud history of creative types allowing fans to bootleg. The Grateful Dead did it all the time, and they were one of the most financially successful bands ever. Frank Zappa only got involved in “official” bootleg releases because he felt the bootleggers were profiting too greatly from fans’ desire to get copies of his boots. These artists and others like them understood that bootlegs only increased their fans’ loyalty and desire for their official product.

Now, of course you can say “well, the Dead and Zappa and all those others gave permission and that wasn’t the case here.” And that is totally reasonable, as any company whose job is essentially managing (and occasionally creating) valued intellectual properties would of course have no idea about the existence of a web community, reproducing portions of their intellectual property, with membership in the high four to low five figures and readership potentially even higher, that also had multiple working professionals counted as members of the community. As a matter of fact I am dead positive that Marvel and DC had no idea about the existence of scans_daily, a community widely known and occasionally mocked throughout the comics web for its particular peccadilloes, and that their noninterference with that community would of course be ignorance and not implied permission to exist at all.

Or, more succinctly, “yeesh.” Here is a far more likely scenario: Marvel and DC knew about s_d but preferred to turn a blind eye to it.

I don’t see the point in excusing the behaviour at s_d. It was technically illegal and they got pulled down, because Marvel (or DC) had the right at any point to do that. And that is perfectly proper in the legal sense. But that doesn’t make it well-advised to do so, because it isn’t. It’s just stupid.

—

Anyway, I don’t want to repeat previous arguments that I’ve made before. Suffice it to say that this whole kerfuffle boils down to the “professional does something within his rights but tactically stupid, fans react with unfortunately predictable bile, professional says something ill-advised, fans say more stupid things” vortex we’ve all seen too many times to count at this point.

Oh, and one more thing: without scans_daily, I never would have discovered Rex The Wonder Dog. I also never would have bought The Immortal Iron Fist, Fables, The Walking Dead, Runaways, Agents of Atlas, Gotham Central, Phonogram, Dr. Strange: The Oath, .303, Bizarro Comics, Usagi Yojimbo, Banana Sunday, Ed Brubaker’s Captain America, Rex Libris or Garth Ennis’ Punisher MAX. So there you go.

Top comment: That’s where all the female nerds are at? Dammit. — Pat

1. According to multiple sources, it was Livejournal user “kali921,” who has A History Of Similar Behaviour. [↩]
2. Granted, this particularly small excerpt was considered to be more revealing due to it having been reproduced before the actual publication of the work, but that doesn’t change the fact that in the United States and most countries with an existing fair use/fair dealing doctrine, the idea that excerpts have to be relatively brief to qualify as fair use/dealing is well established. [↩]
3. At the new InsaneJournal version of s_d, it is apparently now one-third, which is still too goddamn high. Drop it to twenty percent and you’ll have a fighting shot at fair use, folks. [↩]
4. Granted, you can argue instead that “the work” consists of, say, the entire history of Thor comics when you put up some scans of Thor beating up Loki or whatever. I don’t think this argument is entirely without merit, but I also think it’s reliant on there being less narrative cohesion in your selected sample; if the images in question present a cohesive narrative then I think, given the serialized nature of comics, that they would certainly contain a vital core of a selected subsection of the work. [↩]
5. I know, I know – there are people in comics who enjoy feeling superior to other people? I can’t believe it either! [↩]
6. This is blatant trolling to impress Cory Doctorow. Hi, Cory! [↩]
7. Or “fnerds.” [↩]
8. A side note: I know at least two local comics stores who both place steady re-orders for Warren Ellis’ Freakangels trade. You know, a comic which you can read entirely for free on the internet. Turns out people like paper books in their hand. [↩]
9. Or anything, really, with a tradition of wearing costumes in public when it isn’t Halloween. [↩]
10. See also the Big Two’s repeated argument that “the technology isn’t here yet” for full-scale digital delivery. You know, somebody should really tell all those comics downloaders that the technology isn’t here yet. Maybe that will make them stop downloading comics and reading them on their computers. [↩]
11. Well, other than that those industries are relatively healthy compared to comics. [↩]
12. I’m in this segment. I also have a full run of X-Factor trades, incidentally. Number of single issues of X-Factor I have purchased: zero. [↩]
13. Now they will never get to experience the surprise of one of the main characters in the series predictably returning after a moderately brief absence! [↩]

A commenter over at Ezra Klein’s blog asks:

Again, I’m curious about the reasons for conservatives advocating a tax instead of cap and trade. Why is one more palatable than the other for them?

Because it’s a stealth tax cut.

Make no mistake, of course – when it comes to carbon control policy, conservative viewpoint for the past decade or more has been a variety of do-nothingism/free-market panaceas/”we need to study it more”/etc. However, when carbon control policy becomes inevitable, carbon taxation becomes the more popular alternative among conservatives and moderates as opposed to cap-and-trade.

This is because carbon taxation is inevitably paired with reduction in other taxes, to offset the overall tax burden upon the public. Which in and of itself is fine and good. However, the important thing about carbon taxation is that it is, in essence, a wide-ranging sin tax, and sin taxation exists both to profit off of behaviour society decides it wants less of and to serve as motivation to cease practicing that behaviour.

Consider a hypothetical. I am a citizen of Whereveria, paying twenty-five percent of my income out via income tax. Now, say Whereveria institutes a carbon tax, designed to replace a portion of my income tax, and that my carbon usage, being typically Western and more wasteful than it should be, generates taxation equal to, say, ten percent of my income. Whateveria, not wishing to create an onerous tax burden, institutes its carbon tax at the same time as it cuts income taxes by ten percent. Now, my tax burden personally hasn’t changed; I’m still paying out twenty-five percent of my income in taxes, it’s just that fifteen percent of it is income tax and ten percent is carbon tax.

But. Say also that I decide to be environmentally responsible and reduce my exposure to the carbon tax. I buy a hybrid car, install solar panels, re-insulate my home to make it more efficient, do other vaguely hippie-esque things, and so on and so forth. My carbon taxation payment drops from ten percent of my income to, oh, let’s say three percent. I’ve just dropped my overall tax exposure to eighteen percent of my income from twenty-five percent; in short, I’ve given myself a twenty-five percent tax cut, and the state has no option to recover more income from me short of raising income taxes for everybody, which isn’t going to happen both because it would still create an onerous tax burden for those unable to reduce their carbon emissions easily and because tax hikes have become something only Commie-Nazis do nowadays.

Furthermore, due to the nature of carbon emissions reduction, many of the most efficient methods of reduction are those most easily undertaken by – guess who – the upper classes. Rich people can more easily afford to buy an electric car, to rejigger their home to make it environmentally friendly, to buy carbon-friendly organic food, and all the rest of it. Poor people? Have to keep scraping along on a day-to-day basis because they have trouble generating the capital for a big lifestyle outlay that would positively affect their carbon taxation exposure. So they’ll just keep chugging along.

Does it make more sense that David Frum supports carbon taxation over cap-and-trade now?

Recently, in discussing the proposed bill before Congress to require ISP and wifi providers to keep records of all user access, several commenters made smug “not in Canada” comments.

I didn’t have time to mention it then, but this is not the case, as an Ontario Superior Court judge recently ruled that no warrant is necessary for police to demand access to ISP records. Of course, the ruling is going to be appealed (and let me tell you right now this one will go all the way to the Supreme Court – major new interpretative decisions of how far police search powers extend are always heard by the Supreme Court), but as it stands, in Ontario right now police do not need a warrant to demand access to record logs. (Of course, we haven’t yet crafted a law demanding that ISPs maintain logs, so for the time being we are one up on you there.)

It’s actually a very interesting issue from a legal perspective, because the cases for and against are fairly obvious. The case for this decision, to my mind, is fairly simple: you can’t demand privacy where privacy doesn’t technically exist. The idea that an IP can constitute anonymity (as advanced by James Stribopoulos, who is my boss over at The Court and one of the leading voices on privacy law issues in Canada) only exists in the mind of the general public, who don’t know how well or easily you can be tracked via your IP. Without specific legislation making it illegal to interrupt or monitor cell phone communications, for example, there would be no reason that the police couldn’t follow cell conversations via tracking the airwaves, because the airwaves aren’t private. In this interpretation, privacy via IP is a fraud and therefore the public should not be allowed to argue for it.

Of course, the argument against this is that from a normative standpoint, we expect that our IPs constitute anonymity, and therefore the law should act accordingly so, even though this really isn’t the case. Normative public expectation has a mixed record in Canadian legal decisionmaking, though. After all, I think most people would agree that they have a right to privacy against search while in their significant other’s apartment when said significant other has given them a key – but according to R. v. Edwards, you don’t have that right to privacy, because your right to refuse entry into a private domicile is predicated on ownership and other elements of property law. (Which is very fine parsing, or, to put it another way, kind of bullshit. But that’s the law for you.)

It’s going to be an interesting – and important – set of appeals on this one, and the die is far from cast. So don’t go celebrating how awesome this country is re: privacy rights. Because, well. Not so much.