Month: March 2019

What do you find at the intersection between the quadrants of Star Trek and Dr. Seuss? Why, a fair-use lawsuit, of course! But thanks to a federal judge’s ruling on Tuesday, that suit’s supply of dilithium crystals might be running dangerously low.

Confused? Let’s break it down. We’ve all heard of the 1990 Dr. Seuss (real name Theodor Geisel) book Oh, the Places You’ll Go! It’s an inspiring children’s story often given as a gift to students graduating from high school or college.

“You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose. You’re on your own. And you know what you know. And YOU are the one who’ll decide where to go…” – Oh, the Places You’ll Go! Dr Seuss pic.twitter.com/qtD9zbUQNB

— Stockport College (@stock_college) March 7, 2019

But you might not have heard of Oh, the Places You’ll Boldly Go!, a 2016 “mash-up” of Star Trek and Dr. Seuss. The book is the crowdfunded brainchild of ComicMix, a company that creates (as the name suggests) content related to comics and other works of fiction. In 2016, ComicMix’s Glenn Hauman teamed up with longtime comics artist Ty Templeton and writer David Gerrold (real name David Jerrold Friedman), who wrote the renowned episode The Trouble with Tribbles for the original Star Trek series. They started a Kickstarter campaign to fund the project, eventually raising nearly $30,000, and considered Boldly to be “a parody, a mash-up, and a transformative work,” according to an order issued Tuesday from Judge Janis Sammartino of the U.S. District Court for the Southern District of California.

Cover #3 I’ve done for a book written by @David_Gerrold ; Oh, The Places You’ll Boldly Go! https://t.co/VMdbONYwzS pic.twitter.com/C1RNquF61O

— Ty Templeton (@tytempleton) August 31, 2016

But Dr. Seuss Enterprises, which controls the copyrights for the late author’s works, wasn’t having it. Beginning in September 2016, the company sent a series of cease-and-desist letters regarding the unpublished Boldly. In November of that year, Dr. Seuss Enterprises filed suit, claiming copyright violations. The book became trapped in a pocket of null space.

A long and complicated legal battle over fair use ensued, culminating in Sammartino’s summary judgement in favor of the Boldly creators.

What exactly is fair use? Under Section 107 of the Copyright Act of 1976, there are several factors that must be taken into account when considering whether one work violates the copyright protections of another work. Those factors are “the purpose and character of the use,” “the nature of the copyrighted work,” “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and “the effect of the use upon the potential market for or value of the copyrighted work.”

Fair-use lawsuits can be tricky. As Sammartino notes in her ruling, there’s no one standard that can be applied in these sorts of cases. Courts must take into account the factors described above, but there’s no rule that says if certain facts are met, then the court must rule in one particular way. As Reason contributor Ken White (of Popehat Twitter fame) explained on his blog in October 2016, the fair use doctrine’s “key elements are subjective and lack bright lines. That means it is rarely possible to use the Fair Use defense to get out of litigation early; usually you’ve got to litigate all the way to summary judgment or even trial.”

In June 2017, the district court ruled that while Boldly was not technically a parody, it was still a “highly transformative work that takes no more than necessary to accomplish its transformative purpose and will not impinge on the original market for Plaintiff underlying work.” In response to that ruling, Dr. Seuss Enterprises filed an amended complaint, and the ComicMix crew asked for the lawsuit to be dismissed.

This week, Sammartino issued a summary judgement ruling that applied each of the fair-use doctrine factors. First, regarding the “purpose and character of the use,” the court upheld its prior determination that Boldly is a “highly transformative work.”

“Defendants did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go!,” the ruling reads. “Although Defendants certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed.”

Also, Sammartino said that while both books are illustrated works with “uplifting” messages, they don’t necessarily have the same purpose, as Boldly is largely “tailored” to Star Trek fans. The second factor, regarding “the nature of the copyrighted use,” actually favors Dr. Seuss Enterprises, Sammartino wrote, “because there is no dispute that the Copyrighted Works are highly creative but have also been long and widely published.”

On the issue of “substantiality,” Sammartino drew parallels to a fair-use case from the 1990s, Leibovitz vs. Paramount Pictures. In an effort to market for the 1994 release of the Naked Gun franchise’s final film, Paramount released posters of a pregnant, naked model with the head of actor Leslie Nielsen. Photographer Annie Leibovitz saw this as a copyright infringement on a nude, pregnant photo of actress Demi Moore that she had taken for a famous 1991 Vanity Fair cover. The movie poster was clearly supposed to be a reference to the Moore photo, “from the model’s posture to her hand placement to the use of a large ring on the same finger,” Sammartino recalled. “The defendant’s photograph was then digitally enhanced using a computer to make the skin tone and body shape more closely resemble that of Ms. Moore in the plaintiff’s original photo.”

In that case, an appeals court ruled in Paramount’s favor on the basis that the photo was a parody. However, the circuit court made sure to differentiate between what is protected under copyright law (unique camera angles, lighting, etc.) and what is not (using an image of a naked, pregnant woman in a given pose).

In the Dr. Seuss case, Sammartino explained that while “plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go!” it “cannot claim copyright over any disc-shaped item tilted at a particular angle,” as doing so “would foreclose a photographer from taking a photo of the Space Needle.”

Finally, the court said the “market” factor was “neutral.” For one thing, Sammartino explained that Star Trek is an adult show with adult themes, and therefore so is Go! “Despite its admittedly Seussian appearance, Boldly is clearly not a children’s book and there is a minimal risk that Boldly will usurp Go!‘s market to the extent it is targeted to children,” she writes.

While both books are also meant for graduating students, the court said the plaintiff didn’t introduce enough evidence that Boldly sales will harm Go! sales. “Although it is certainly conceivable that some would-be purchasers of Go! would instead purchase Boldly for a Trekkie graduate, there is a dearth of evidence or expert testimony permitting the Court to extrapolate the likely effect—if any—that Boldly may have on Plaintiff’s sales of Go!” Sammartino said.

“On balance, therefore, the fair use factors favor Defendants,” she ruled. “Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment as to fair use.”

The ruling “is a big win for the First Amendment,” Michael Licari, a lawyer for ComicMix, told Reuters. Dr. Seuss Enterprises has said it may appeal, though at least for now, ComicMix is in the clear.

This case is in some ways similar to another fair-use lawsuit, this one stemming from a 2008 episode of the irreverent Comedy Central animated series South Park. The show had parodied a viral video, prompting Brownback Films to sue Viacom, which owns Comedy Central. The U.S. Court of Appeals for the 7th Circuit eventually ruled in Viacom’s favor.

These sorts of rulings are important because they affirm the right to transform or parody existing content to create something unique. As free speech lawyer Marc Randazza told Reason TV in 2017: “”Copyright is not just there to incentivize you to create. It’s also there to create a larger marketplace of ideas.”

Presidential candidate and Sen. Elizabeth Warren (D–Mass.) seems to think her argument for “breaking up” large tech companies like Amazon and Facebook was bolstered earlier in the week when Facebook temporarily censored some of her advertisements.

Nothing could be further from the truth. In fact, her disingenuous reaction (and the pandering of a compliant press) highlights how we should not permit powerful elected government officials—of all people—to set the rules of behavior for online media platforms, no matter how big they are.

To summarize, Warren attempted to purchase advertising on Facebook to promote her campaign to break up big tech, including Facebook. Three of her advertisements contained one of Facebook’s logos. Those ads (but not her others—that’s important to note) were rejected temporarily because Facebook has rules against using their logos in advertisements. The reasoning behind this is extremely logical—to avoid the possibility of confusing Facebook users over the difference between ads and “official” messages from Facebook itself.

So, to be blunt here, Warren’s campaign screwed up with its ad design. It’s all their own stupid fault for including the logo. But, no, Warren is spinning this as proof that Facebook is too powerful because it’s able to “shut down debate” about Facebook:

Curious why I think FB has too much power? Let’s start with their ability to shut down a debate over whether FB has too much power. Thanks for restoring my posts. But I want a social media marketplace that isn’t dominated by a single censor. #BreakUpBigTech https://t.co/UPS6dozOxn

— Elizabeth Warren (@ewarren) March 11, 2019

Some observations here:

• They rejected a small selection (three) of several ads. The others ran.
• Each of the ads was limited in reach and cost less than $100, according to Politico.
• The company rejected the ads because Warren’s campaign violated a rule put in place to help prevent people from getting scammed by fake ads posing as Facebook messages (presumably a good rule).
• There is a massive and healthy discussion all over the media landscape about whether Facebook is too powerful that does not apparently require Facebook to host $100 advertisements from Warren to facilitate. There is no monopoly here.
• Warren’s plans to break up big tech appear to include importing over the European Union’s proposal for a huge copyright enforcement regime that will lead to massive amounts of censorship online. If this enforcement system were brought over to the United States, amusingly enough, an image recognition pre-screening tool ordered to be put into place by the government itself would have probably caused Facebook to reject Warren’s ad for trademark violations. Meaning, a government program Warren appears to support would have censored her own ad.
• Facebook has every constitutional right to reject ads that contain content it objects to or finds reprehensible or offensive. That wasn’t why they rejected the ad temporarily, but regardless, nobody has a right to force Facebook to host their advertisements. (Somebody kindly tell this to Sen. Ted Cruz.)

So either Warren is being deliberately manipulative here (by downplaying that there was a reason for Facebook’s decision and that it wasn’t all of her advertisements) in order to bolster her argument, or she’s too dense to understand the implications of her own arguments. Should The New York Times be required to run ads from President Donald Trump calling them “fake news” while using the newspaper’s own logo?

In either case, this response actually emphasizes that Warren and her team lack either the ethical compass or the technological grasp of online platforms (and apparently trademarks as well) to be trusted to make any decisions at all about Facebook’s business practices.

And yet, some media folks are lapping this up with a spoon, probably angered at how online platforms have disrupted the media’s domination of advertising avenues. The “monopoly” is in the wrong people’s hands! Here’s a fascinating defense of Warren’s overblown fears of “big tech” from Brian Feldman at New York Magazine arguing that the “accidental” removal is part of the problem:

Understanding this is the key to understanding why Big Tech is something to be concerned about. Even when it’s assumed to be operating in good faith and attempting to be fair, Facebook still makes the wrong call. It does this many times every day. The threat of Big Tech is not some nefarious Big Brother scenario in which the Thought Police eradicate any dissent; it’s that even when companies like Facebook are earnestly trying to do their jobs well, the scale at which they operate make its screw-ups and mistakes substantial.

But Facebook actually didn’t make the “wrong call.” They, in fact, decided to make an exception to their rule to pander to Warren. Note the invocation of “Big Brother” and “Thought Police” here. Those are terms to describe government policing of speech. Feldman presents this as an omnipresent fear but everybody seems to be oblivious to the fact that what Warren wants to do here is to intrude into these online platforms with the authority of government.

The “substantialness” of Facebook’s mistakes absolutely pale in comparison to the disasters that occur when government officials screw up even when they have allegedly good intentions. People have been stuck in prison for decades due to a stupidly harsh drug war pushed by lawmakers and presidents who delusionally think this is going to save us all from addiction. We are still engaged in thoughtless, aimless military actions overseas that leave both American troops and foreign citizens dead because of powerful people like Warren “earnestly trying to do their jobs well.”

I’ll take Facebook’s mistakes over a senator’s anytime. That this is not the default position of everybody in the media in 2019 who has seen what has come of some of our most intrusive domestic and foreign policies is a mystery to me.

Bonus link: Reason’s Peter Suderman explains how awful and economically illiterate Warren’s tech plan is.

Over the last few days, both Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.)—both of whom are currently vying for the Democratic presidential nomination—have attacked President Trump for proposing Medicare cuts in his latest budget.

Trump’s budget cuts $1.5 trillion from Medicaid, $845 billion from Medicare and $25 billion from Social Security.

Make no mistake about it: Trump’s budget is a massive transfer of wealth from the working class to the wealthiest people and most profitable corporations in America.

— Bernie Sanders (@BernieSanders) March 11, 2019

The Trump administration wants to cut hundreds of billions of dollars from the #Medicare budget, all while giving billionaires and giant corporations huge tax breaks with the #GOPTaxScam. This is immoral. https://t.co/ESk4W672Wa

— Elizabeth Warren (@ewarren) March 12, 2019

You might get the impression from these tweets that Trump is proposing to slash Medicare’s benefits. For the most part, that’s not true. As Trump’s acting budget director said when the budget plan was released, the president is “not cutting Medicare,” and “there are no structural changes for Medicare.” Too bad.

Instead, the cuts, such that they are, are focused on eliminating that conveniently vague Washington standby—”waste, fraud, and abuse.” Trump’s budget, like previous presidential budgets, won’t become law, so this is in some sense an argument about vague cuts that almost certainly won’t happen.

In this case, the proposed cuts mostly take the form of payment reductions to health providers, like hospitals. (In the world of health care policy, you can usually tell whose payments are on the chopping block by which industry group issues the loudest objection.) About 11 percent of the reductions would hit Medicare Part D, the prescription drug program, and could affect how much seniors pay out of pocket.

There are a few things to note about these reductions.

The first is that the total reduction is not the $845 billion Sanders claims. Instead, it’s $515 billion. As the Committee for a Responsible Federal Budget (CRFB) noted in a recent analysis, the $845 billion figure includes money that is being moved out of Medicare and into other parts of the budget for the Department of Health and Human Services, which oversees Medicare. These aren’t really cuts; they’re organizational reclassifications.

The second is that these Medicare cuts are quite similar to the provider reimbursements backed by the Obama administration, which cut Medicare payments by about $800 billion as part of Obamacare. As an Axios report notes, President Obama defended those reductions by saying they wouldn’t affect seniors’ benefits. According to the CRFB analysis, many of the cuts included in Trump’s budget “closely resemble or build upon proposals made in President Obama’s budgets.”

At the time, Republicans criticized those payment reductions, implying they would hurt seniors. In reality, the main effect would be to make obvious hypocrites out of everyone involved. Obama responded to GOP criticism by portraying those payment reductions as necessary to “strengthen and preserve” Medicare. If that’s what Obama was doing then, then that’s what Trump is doing now.

Perhaps Sanders and Warren believe that reimbursement cuts would force providers to reduce service: Pay doctors less, and you’ll get less from them.

If so, it’s worth recalling that both are backers of Medicare for All—single-payer plans that would scrap today’s private health insurance coverage as well as today’s Medicare program for seniors and replace them with a new, government-run program covering all Americans. Sanders’ single-payer plan is premised on paying health care providers far less than they are paid right now, with some estimates putting the reduction around 11 to 13 percent, and others putting it closer to 40 percent. In any case, doctors and other health care providers would, overall, be paid quite a bit less than they are today.

The transition to single-payer would be fairly rapid, with the Sanders plan calling for full-scale implementation in just four years, and another plan recently introduced by House Democrats calling for a two-year timeline, meaning doctors would face a sudden payment cliff.

There is a reasonable debate to be had about exactly how provider rates affect service, and what sort of payment reductions and reimbursement tweaks doctors and hospitals can absorb. Americans tend to pay higher prices for health care services than in other countries, and health care workers at all stations are often paid more as well. Trump’s budget would cut existing Medicare rates; single payer would reduce payments from today’s mix of private and public payers. Too much of the health care industry lacks any meaningful price signals, and even payers and providers themselves don’t always fully understand the various reimbursement systems they interact with. It’s complicated.

But it is hard to imagine that a rapid transition to a nationwide government-run system of health care financing that dramatically reduces provider payments would not significantly impact the quality or quantity of health care delivery in the United States. Yet by supporting Medicare for All, that is what Sanders and Warren are saying they want for every American.

A story in today’s Washington Post makes the case that the Obama administration failed to take the proliferation of fentanyl as a heroin booster and substitute seriously enough, resulting in drug-related deaths that otherwise would not have occurred. The story is formatted in white type on a black background, interspersed with examples of people who died after taking fentanyl, so you know the Post‘s intentions are serious. I wish I could say the same about its argument, which makes much of press conferences that did not happen and reports that should have gotten more attention but fails to identify a single policy that would have made an important difference.

Reporters Scott Higham, Sari Horwitz, and Katie Zezima note in passing that the crackdown on prescription opioids pushed nonmedical users (as well as some bona fide pain patients) toward black-market alternatives, which are much more dangerous because their potency is inconsistent and unpredictable. Initially the main alternative was heroin, which was “cheaper and and more available,” notwthstanding a century of government efforts to eliminate sources, interdict shipments, and put distributors in prison. To the extent that such efforts have been successful at all, they have only encouraged traffickers to replace heroin with more potent products such as fentanyl, which makes it possible to pack more doses in any given volume and is “20 times more profitable than heroin by weight.” Yet the main solution Higham et al. suggest is eliminating sources, interdicting shipments, and putting distributors in prison, a strategy that by their own account has manifestly failed to stop Americans from obtaining the psychoactive substances the government says they should not want.

Higham et al. implicitly fault former Attorney General Eric Holder’s “Smart on Crime” initiative, which among other things urged federal prosecutors to refrain from triggering mandatory minimum sentences in run-of-the-mill drug cases involving low-level, nonviolent offenders. “Out in the field,” they write, “some drug agents and prosecutors said they noticed an immediate difference, just as fentanyl started to show up on the streets.” Draconian mandatory minimums “provide powerful incentives for people to talk,” they explain, and Holder’s policy deprived drug warriors of that weapon.

The Post cites Dominick Capuano, a former New York City narcotics cop, who “said federal prosecutors would no longer take the lower-level cases and morale among his drug agents plummeted as heroin and fentanyl overdoses soared.” According to Capuano, the attempt to curtail the use of mandatory minimums undermined the NYPD’s anti-drug tactics. “The low-lying fish is where you start the cases,” he tells the Post. “Those are the people who flip, who give information, and that’s what leads to these bigger cases.”

Let us leave aside the question of whether threatening “low-lying fish” with manifestly unjust prison terms is morally justified because it “leads to these bigger cases.” Is there any reason to think “these bigger cases,” which had not stopped heroin from being cheap and plentiful, would have been any more successful when deployed against fentanyl? The fentanyl supply is, if anything, harder to disrupt than the heroin supply, since it is a synthetic product that does not rely on crops and enters the country in small packages from myriad sources, including the mail and private courier services as well as hidden compartments of vehicles crossing the border at legal ports of entry.

If there is a pattern to be seen in the facts cited by Higham et al., it is not the Obama administration’s insufficient zealousness in prosecuting the war on drugs. It is the fultility of that endeavor, which never manages to block the supply of illegal drugs, as Donald Trump keeps promising to do, but does manage to make drug use more dangerous. Prohibition created a black market in which potency is highly variable, which leads to fatal dosing errors. Restricting access to prescription analgesics pushed more people into that market, resulting in more fatalities. Attempts to curtail the heroin supply encouraged the shift to fentanyl, which made potency even more unpredictable and drug-related deaths even more common.

But things can always get worse. Already the use of superpotent fentanyl analogs is on the rise, and the strategy implicitly endorsed by the Post is apt to encourage that trend.

“This is a massive institutional failure, and I don’t think people have come to grips with it,” John P. Walters, George W. Bush’s drug czar, tells the Post. “This is like an absurd bad dream and we don’t know how to intervene or how to save lives.” Walters is absolutely right, but not in the way he thinks.