Copyrights ad Nauseum

I was going to write on another aspect of writer loopiness about copyrights, and maybe more, but I’ve been following another long discussion over on Making Light (May 25th). The links to Macaulay, and Legionseagle on Keith DeCandido and amateur law, are hugely useful.

To those I’d add material from Ray Patterson. There’s a link on my Color Cycling article that contains a link to an excellent essay by Patterson that has since been removed, (probably because of Patterson’s death in 2003), so that link is now broken and I need to update the article. I have that linked article of Patterson’s saved somewhere, and I may put some of his philosophy into action by posting excerpts sometime. I imagine that the material is also in Patterson’s book, Copyright in Historical Perspective, and at some point I’ll no doubt read the book for review.

The comments thread on the Making Light entries are quite revealing of the other aspect of writers’ perceptions of copyrights: ego involvement. One writer made it clear that they consider someone else’s use of “their” characters in “fanfic” as akin to rape, and the mere thought of it creates an inability for that writer to function as a writer. This strikes me as being a potentially career ending handicap, similar to horrible stage fright in a performer.

Of course, this is easy for me to say, given my own view that writing itself is a collaborative art, even if it is never published, since I hold that individuals change sufficiently over time that a single individual often collaborates with other selves. For that matter, the idea that a single individual self contains multitudes means that even a solitary soul is a collaboration. When other people are added, when a work is published, in other words, even more people are added to the collaboration (albeit one at a time for readers), and I do not think that I can or should have a proprietary right over what goes on in others’ heads, nor the expression of that in material form.

But cause and effect are tricky here. Do I read things I wrote years ago as if they were written by someone else because of the way I feel about these matters, or do I feel that way because I’ve found that reading old stuff is like reading someone else’s work? I don’t know.

What I do know is that the debate is to a large extent a distraction from the shell game. The arguments are always made predicated on the benefits that will go to “artists” and “creators,” but somehow it is the organizations of lawyers and moneymen who get the lion's share.

Now, for no particular reason, other than the obvious, here's Cab Calloway and Betty Boop:

Heinlein's Curse

A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently and die gallantly. Specialization is for insects. - Robert Heinlein

Versatility is a curse; one dimensional people make all the money.- Jonathan Winters

I wonder, did Asimov ever ask Heinlein why a Jew would want to butcher a hog?

One always takes some risks writing about Heinlein. A sizeable cult of personality has grown up around RAH, its members being quick to pounce upon errors of omission and commission, and also ready to invoke Heinlein to bolster claims of their own political sagacity. To be fair, Heinlein did at least run for political office at one point (while still part of Upton Sinclair's Socialist movement), which gives him more practical political experience than most of his fans. On the other hand, running for office is not at all the same as governing.

Still, of the Big Three, Heinlein, for all his anti-specialization preaching, was a very specialized writer. Now it's unfair to compare anybody with Asimov in this regard. Okay, maybe Silverberg can pass the I-wrote-more-different-kinds-of-stuff-than-Isaac test, but, Isaac would then reply that he signed his own name. (Which wasn't always true, since he did write some juveniles under Paul French and he had a couple of minor "pulp pseudonyms" that never had books attached to them).

But even ruling out the comparison to Asimov, Heinlein had less range to him than Clarke, whose non-fiction was abundant and interesting to those without much interest in SF per se. Here Clarke's abiding interest in oceanography comes into play. Similar work from Heinlein would have required RAH write non-fiction about politics, naval topics, or non-SF engineering, and he just didn't do much of that.

Also, and I write this with much trepidation, when it came to science and engineering, Heinlein talked a better game than he played. We forgive him for the technical lapses, because he was writing crackling good yarns, but he'd often show basic gaps in his technical knowledge. I have the beginnings of an essay on "The Long Watch" enumerating the large errors in basic radiochemistry contained therein, and the description of the nuclear rocket drive in Rocket Ship Galileo demonstrates a significant misunderstanding of the idea of specific velocity in rockets. In The Rolling Stones he describes a rocket propulsion system as being "almost 100% efficient," which is a bizarre description of a form of transportation that puts the great majority of its energy into its exhaust, rather than its motion. It's not entirely clear that Heinlein ever got Special Relativity; despite using of the time dilation effect in Time for the Stars, he has one of the major characters baffled by a question about relativity that has a pretty trivial answer.

And so forth.

Heinlein's version of authorial versatility was essentially selling the same stories to a broader range of markets. He tired of the limitations of Astounding so he became a regular in The Saturday Evening Post. He wrote juveniles, then wrote off the end of the program with Starship Troopers. He wrote science fiction, and then when he wrote fantasy, it still read like his science fiction.

None of this is a bad thing. Limitations are not bad, and specializing is not a crime. Nor, for that matter, is it a crime for a specialist to advise his readers to specialize less and be more generalist in outlook. Versatility may not be the most efficient path to worldly success, but it has its rewards, and the specialist is more vulnerable to changes of fortune. If Heinlein had been a totally specialized naval officer, good for nothing else, then he'd have not been able to make the career jump that his tuberculosis mandated. Perhaps that is the source of his dicta about avoiding specializion.

Still, I am bound to note that Heinlein's list that begins this piece seems an awful lot like a list of things that Heinlein himself could do. There are so many things missing from the list. Play an instrument? Sing in an opera? Pilot an aircraft? Explore the Great Barrier Reef? Publish a scientific paper? Prove a theorem? Sketch a portrait? Calibrate a spectrometer? Blow a glass vase? Smith a wagon wheel? Spin and fire a pot. Catch a fish bare handed?

And when you ask me to program a computer, do you want that in Fortran, C, or Java?

Keys

When I got to RPI in 1968, they’d just opened a spiffy new Student Union building. Its top floor consisted of a lounge/balcony area that overlooked the Student Union Dining Hall, plus outer offices and meeting rooms. Since those were all on the outer perimeter of the building, practically every meeting room and office had windows. Pretty slick design, I think.

At the four corners of the top floor were office areas, the main Union office, plus three “special interest” office clusters. One of them was for student publications. Most of the space got taken by The Polytechnic, the school newspaper, because it was, by far, the largest organization. There was also a darkroom (in one of the few spaces without windows), and the Poly guys used that a lot, but all the publications had access to it. There were three other main publications on campus, The Bachelor (humor magazine), The Gorgon (literary magazine), and the Rensselaer Engineer, which was my equivalent of pledging a fraternity (albeit a very small one).

There were three editorial jobs on The Engineer: Features Editor, Managing Editor, and Editor-in-Chief, usually occupied by a sophomore, junior, and senior, respectively. Taking the Features Editor position traditionally set you up for a three year gig, and that’s what happened to me. Actually, the transition usually took place in the spring semester, so there was overlap with the outgoing editor-in-chief for the one semester, at least theoretically.

So I became Features Editor my freshman year. I got a key to the office, and kept it for three years. I spent a lot of time in that office, and why not? It was on campus, in a cool new building, and better than the offices that most faculty members got.

Having the key to that office was a source of comfort, or so I learned when I gave it up. Suddenly, bereft, I had to find other places to store my stuff, eat lunch (or sometimes breakfast; I kept cereal in on of the desk drawers), hide out when I felt like hiding. The office hadn’t been exactly property, but it wasn’t not property, either. I mean, how else to explain the feeling of loss when it was no longer “mine.”

Keys are interesting for a number of reasons, but here I’m interested in the fact that they define and protect property without specific legal recourse. They prevent theft or unauthorized use even in the absence of police protection. Access is both freedom and power. Property is both freedom and power.

When they were planning the new RPI Library, during the time I was in graduate school, there was a suggestion to put one of those electronic theft detectors at the entrance. The new Head Librarian and I were dead set against it. He held the very admirable position that students were part of the University Community, and that one does not begin with the assumption that members of your community are thieves. Trust them and they will reward that trust was his belief.

My own position was that putting a technical barrier in at an engineering school was just asking for it. There would be students who would never consider stealing books who would begin to do so just to show they could do it. I’d known too many students who’d gimmicked telephones, cracked the main RPI keying system, and otherwise gotten into trouble, just because it had been a challenge. Well, okay, the challenge and the getting free phone calls and getting parts for their electrical engineering projects from the labs at 3 A.M.

The two of us won the argument, at least temporarily. I think I saw some of the electronic detectors at a reunion or so back, but at least someone could maybe check to see if it did any good, because we had some years as a baseline.

So we come to copy protection (CP) and Digital Rights Management, both pernicious and foolish ideas, in my estimation, but apparently very seductive to those who want control of “intellectual property.” But CP and DRM differ from the sort of protection that keys provide in fundamental ways, ways that underscore the difference between intellectual property and chattel property or real estate.

The message that is sent by copy protection is that you don’t own what you bought, someone else owns it. So where does that leave you? Wherever it leaves you, it leaves you with less than you otherwise would have. Copy protection is never transparent; it’s a pain to deal with. It makes whatever is being “protected” less valuable.

Now an automobile that can’t be stolen would be more valuable to the owner, not less. So CP and DRM isn’t protection for the owner; it’s just restriction.

How much is that reduction in value actually worth? Hard to say, really, though I note that there is currently a move to sell non-DRM music for about 30% more than DRMed music. So somebody thinks the vigorish is about 30%.

But the other message that is sent by CP and DRM schemes is that anything goes if you can break the protection. And some people have made it their mission to do just that. The result has been an ongoing arms race, with the latest moves being to make such attempts illegal. In fact, the idea is to make even the transmission of information about how to break DRM illegal.

Me, I’m just fascinated at all the different ways there are to invent the Thought Police.

But What Kind of Dog?

A guy goes into a psychiatrist’s office, first visit, and the psychiatrist says, “I’m going to show you some things, and you tell me what you see.”

The first thing the shrink holds up is a photograph of a man and woman having sex in the missionary position. “That’s a man and a woman having sex,” the guy says.

The psychiatrist holds up the next picture, and it’s the same couple, but this time there’s another woman with them. The guy says, “That’s a three-way; two women and a man are having sex.”

The psychiatrist nods and holds up the next picture. This time there are eight people in it, men and women, all intertwined, halfway between a pile and a daisy chain. The guy scowls and says, “That seems to be an orgy of some kind. It’s hard to tell what some of them are doing, but they’re all naked and having sex.”

The psychiatrist holds up the last picture. It’s the first couple, but there’s also a dog and donkey in the shot. The guy wrinkles his face in disgust and says, “That’s bestiality, man woman, dog, donkey.”

The psychiatrist puts down the stack of pictures and says, “Well, you certainly do seem obsessed with sex.”

The guy says nothing, as it slowly dawns on him that he is in a joke that has gone terribly, terribly wrong.

A Bit of Fast/Slow Sculpture

[Crossposted to We Are All Giant Nuclear Fireball Now Party]

Several years ago, I was walking up Folger Avenue towards San Pablo Avenue in Berkeley. The University of California owns a building that sits between Folger and 67 St. on San Pablo Avenue, or at least they did. They’ve been trying to sell it recently, and I’m not current on its status, but they still occupy a lot of it. The building itself is huge, and, as I understand it, actually straddles the boundaries of not just Berkeley and Oakland, but also Emeryville.

I was headed toward the offices of a non-profit that I was involved with at the time (that backstory is ‘way too complicated), but my path took me by the U.C. Berkeley surplus and overstock sales area, at 1000 Folger St., where they have auctions every Tuesday and Thursday. So there are often people loading stuff into trucks, vans, and whatever, starting at about 9 A.M. on those two days each week. There’s a lot of old surplus computer stuff that gets sold that way.

I was carrying a briefcase, which isn’t important to the story, but it’s part of the “sense memory.” I was passing by a guy who was loading a lot of surplus computer stuff into a panel truck, just as the pile of stuff he’d loaded shifted and began to topple towards him.

The wall of electronics included a lot of monitors. Imploding CRTs and glass everywhere: not so good. I stepped in and put my shoulder in an appropriate spot and halted the avalanche. I looked at the guy, who had an interesting combination of gratitude and terror on his face. I realized that he had no idea what to do next, as we were both holding up a wall of computer monitors that was trying to fall.

Okay, here’s where I get to brag a little. There’s a cluster of mental aptitudes that gets called things like “3-D visualization” and “geometrical intuition” and like that. I am nearly off the charts in this particular cluster of aptitudes. I can pack a car trunk or a suitcase like you wouldn’t believe, and I would have made a very good mechanical engineer.

So I shifted my body to where I was doing almost all of the job of keeping the stuff from falling, and I began giving him directions. Move that one over there. Now take that one down and put it one the ground. Now that one, no not that one, the other one. And so forth. We deconstructed the unstable pile in fairly short order, then I began helping him put the stuff back into a better arrangement, one that wouldn’t shift when the drove the truck to wherever he was going.The whole adventure only took maybe ten minutes.

At the end of it, the guy thanked me profusely, I smiled and said, “You’re welcome. It was actually kinda fun,” and I headed up Folger once more. Spring in my step? Probably.

The idea of altruism is considered to be problematic in evolutionary biology, economics, psychology, and moral philosophy. It obviously exists, yet these disciplines don’t feel that they adequately explain it. It may be noted that each of them also has its own special definition of what “altruism” is, one that excludes a lot of behavior that is normally called altruistic.

Part of this nomenclature problem stems from trying to exclude actions that benefit both others and one’s own self, with the notion of what constitutes “one’s own self” being the real slippery one here. Take my little adventure described above. Let me describe the ways I benefited from it.

There are many things that can ruin a morning, bad traffic, being awakened by a wrong number half an hour before it’s time to get up, seeing a dead dog in the road, or watching a tower of computer monitors come crashing down. That would have been quite unpleasant, even if no one wound up injured, and there was a real possibility of that happening.

Moreover, I got to show off a competency, not only at the time, but in the later telling of the tale.

There is also a very abstract pleasure that comes from making sculpture, and that was what I was doing, taking apart a defective sculpture and replacing it with one that was both aesthetically pleasing (to me, anyway) and utilitarian as well. And the sculpture, taken in the larger sense, was kinetic, deconstruction, reconfiguration, then the later driving and final disassembly. I didn’t get to witness the last part, but I’m pretty sure it turned out all right.

Also, the guy thanked me, which is a form of applause, validation, and better than a dead catfish under the driver’s seat.

Playing the Rent VI –Qualms About Copyrights

“No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.” —Mark Halpern, The New York Times, May 20, 2007

“When I appeared before that committee of the House of Lords the chairman asked me what limit [on copyrights] I would propose. I said, ‘Perpetuity.’” —Mark Twain

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it."—Thomas Jefferson

Yes, I have been hesitant about writing about copyrights, in part because the idea is apparently so difficult for some to understand, and the “some” to which I am referring includes a large number of writers.

I think the reason why writers are sometime more that a little loopy on the subject is that copyrights are our lottery tickets, chips in the Big Casino. Of course, it’s not just professional writers who are a party to this, and it’s certainly not restricted to fiction. Anyone who hits sudden notoriety has a story to tell, and if the notoriety is salacious enough, it’s worth money, sometimes big money.

But fiction seems to be where the real lure arises. There’s the ego involvement thing. Behold! I have created something where nothing existed before! I am like unto a god, and you should bow down before me, or at least pay me a lot of money, because it’s mine, mine, I tell you! Bwahaha!

Yeah, there’s a lot of that. Never mind that it’s most likely a slightly below average attempt at a bit of genre fiction, derivative, clichéd to hackney’s depths, it took effort to produce and guts to put it out there, and it’s someone’s angel child.

I don’t usually put blog links into these essays, but there was a May 20th thread on Patrick and Teresa Nielson-Hayden’s “Making Light” that was prompted by the Halpern article I quoted in the beginning of this piece. Teresa, I believe, makes several good points in the comments:

Most works are somewhat derivative. Even much-imitated landmark works like Star Wars or Neuromancer are in many ways powerful new syntheses of older material. If you own the rights to such a landmark work, then to the extent that you can keep subsequent works from copyrighting implicit or potential aspects of that synthesis, your own right to such implicit or potential derivative works will be more valuable…

…nibbling-away of the uniqueness of influential works is a normal literary process. How, then, does the entertainment conglomerate maintain its long-term hold on the valuable rights to the source work? The obvious way to do it is to make sure that other authors don't hold the copyrights on subsequent works. Any story or narrative mindspace they and their heirs own is a story or narrative mindspace you don't own. You might have to pay them something for it, further on down the road. Best not to let them lay claim to it in the first place. –Teresa Nielson-Hayden

Copyrights are not “natural.” When scribes did all the copying, there was no further need for state control of copyright, as the labor cost itself was the limiting factor in the spread of information. But with the invention of the printing press, publishing became a lucrative endeavor, all the more so it there could be some sort of monopoly on publishing generally, or, failing that, the publishing of a particular work. Copyrights, in other words, benefit publishers, the Owners of The Casino. We writers are just the gamblers holding the chips in the Big Game. But the Casino always winds up owning most of the stakes.

Without the Casino, there is no Jackpot, so writers often identify their fortunes with those of the publishers. Well, fair enough, without the publishers there are no fortunes to be made.

The Jackpot is a cruel temptation. I’ve said before, in other circumstances, that if you take up all the money spent by would-be writers of fiction, from the creative writing course fees, to the postage spent, to the paper and ink cartridges bought, not to mention the scams, dodges, vanity presses, phony agents, “readers’ fees” and all the rest, add it up and subtract it from every royalty and advance paid by the publishing industry, and you get a negative number. Maybe movie sales push it back into positive numbers, but I have my doubts, since movies don’t pay their writers that much, and it’s work-for-hire besides. And if I’m wrong, if it isn’t negative sum, it’s because of maybe ten writers, starting with J. K. Rowling and Stephen King, and ending with some writer that you’ve also heard of, Grisham, Clancy, the Usual Suspects. And you’d better ignore the vast amounts of time spent staring at the hellish blank screen, (formerly the blank page), or typing words that no one but the spouse will ever read, because if you add up that time and count it as even a quarter of minimum wage, then not even King and Rowling could make a dent in the debit.

So, one way or another, you’d better enjoy writing your stories, or at least enjoy reading them, because the likelihood of your making a living at it is comparable to winning Powerball, and in fact depends less on how well you write than a hundred other things.

Whew. I hope that’s out of my system for a while. Maybe I can get to actually writing about copyrights now.

Birth of a Catchphrase

In 1978, I bought a new car, the only dealer-new car I’ve ever bought. I drove it for the next twenty years.

It was a Honda Civic, two doors, with a luggage rack on top that I used a number of times. I didn’t carry a weight equivalent to the car, but it sometimes felt like it. It got 35-40 miles per gallon, doubtless assisted by the fact that for much of the time, 55 was the speed limit, and I didn’t drive much above the speed limit, because I got the 4 speed model.

I got the Honda in part because I was impressed with the engineering of the CVCC engine. I’d just recently done a survey on nitrogen oxide emissions into the atmosphere, and part of that involved reading a lot of Society of Automotive Engineers publications on IC engines and emissions. The CVCC stratified-charge engine was one of the most intrinsically clean designs ever, low in hydrocarbons because it was “lean burn” but also low in NOx because of a very clever “slowly moving flame front” technique they’d developed, that kept the NOx from being “frozen out” by a sudden quench in combustion temperature that usually went along with the IC cycle.

Of course, the low emissions thing kinda stopped when I finally blew one of the valves and began running the thing on three cylinders for the last 18 months of its life.

Anyway, my own personal auto has been a Honda since that first one; Amy drives a minivan, because here show has a lot of stuff in it, and besides, minivans are handy for cross country trips. Still, I drove more times across the country in my ’78 Honda than I’ll probably ever do again.

I got my most recent Honda Civic about five years ago, and I didn’t drive it much for a couple of weeks, because I still hadn’t gotten rid of the previous one. When I finally did make the changeover, I noticed an odd smell in it, something that hadn’t been obvious when I originally test drove it. It took me a day or two to investigate, and when I did, I found a dead catfish under the driver’s seat.

I surmised that the last trip by the previous owners had been to go fishing, and one of them had “gotten away,” just not into the water. So it lay under the seat, probably buried in whatever freshener they’d used as part of the “clean the car so we can sell it,” endeavor. But the time I touched it, the catfish had gone slimy and, well, pretty disgusting, really. I got some paper towels to pick it up, then tossed it into some bushes behind where I worked. I looked for it the next day, but it was gone, I assume to some animal, domestic or otherwise. My workplace bordered a Bay Area Nature Area.

It took no small amount of effort to clean up the residue. I used soap, ammonia, vinegar, and bleach in sequence (not together, I’m quite aware of the hazards of ammonia and bleach), as well as substantial amounts of rinse water. The smell still lingered for a week or so, but then faded.

Some people say about some minor boon, “Better than a poke in the eye with a sharp stick.” I sometimes say, “Better than a dead catfish under the driver’s seat.” If you ever hear anyone else say that, they got it from me.

Dominance

• In Aikido, one blow can determine life or death. When practicing, obey your instructor, and do not engage in useless contests of strength.
• Aikido is an art in which a person learns to deal with not only one but multiple attackers. It therefore requires that you practice at all times with careful awareness not only in front of you but in all directions.
• Practice at all times with the feeling of pleasurable exhilaration.
• The teachings of your instructor constitute only a small fraction of what you will learn. Your mastery of each movement will depend almost entirely on individual, earnest practice.
• Daily practice begins with light movements of the body, gradually increasing in intensity and strength. There must be no excessive strain. That is why even an elderly person can continue to practice pleasurably without bodily harm, and will attain the goal of his or her training.
• The purpose of Aikido is to train both body and mind and to develop a person's sincerity. All Aikido techniques are secret in nature and are not to be idly revealed to others in public, not shown to rowdy or unprincipled people who will misuse them.
  --Etiquette for Practicing Aikido (by Morihei Ueshiba O'Sensei)
  

The first rule of Fight Club is you do not talk about Fight Club. --Fight Club by Chuck Palahniuk (1996)

Unarmed fighting techniques can be loosely divided into three categories: strikes, holds, and throws. There is also the wealth of ancillary behavior, which mostly comes down to either countering moves (blocks), or getting into a good position to use the techniques (called “irimi” or “entering” in Aikido).

The folks who are adamant that Aikido is of no use in a “real fight,” are generally hypnotized by the throwing techniques. But Aikido is also holds, and Aikido holds overlap substantially with other martial arts, and also form part of the core of most police and military unarmed combat techniques.

There are a set of Aikido holds that are essentially numbered (in Japanese) techniques: ikkyo, nikyo, sankyo, yonkyo, gokyo, and rokyo, the latter two being generally considered to be knife taking techniques, but they work against an unarmed opponent just as well. Most of these have analogs in other schools; ikkyo is commonly called an “arm bar” in wrestling, as is a related technique, ude gateme, which also looks a bit like a half nelson. I’d also add another couple of techniques, kote gaeshi and shiho nage to the core list of things that makes anyone claiming that they “wouldn’t work in a real fight” either ignorant or a blithering idiot.

Throws are a different matter, and throwing techniques generally depend upon the movement and balance of an attacker, and it’s generally true that opponents who do not “commit,” i.e. who do not throw the weight of their body into whatever they are doing, do not grab, etc. are difficult to throw. It’s also true that if someone isn’t even attacking you, it’s very hard to throw them. I’m all in favor of not using martial techniques of people who aren’t attacking you.

It’s also commonly believed that Aikido does not use strikes, punches, or kicks. This isn’t true, since it’s necessary to defend against such attacks, so the Aikido uke must simulate punches, knife thrusts, etc. with some verisimilitude, and not being “sincere” about the simulation can get you scolded.

There is also a event called “atemi,” which is a strike of some sort. Some practitioners de-emphasize atemi, believing it to violate the “non-violent” aspect of the art. Others emphasize that the Founder taught atemi as central to practice (notice the first sentence in the quote that begins this piece). The difference is most often split as holding atemi to be a feint of a sort; pulling the attention of the attacker in order to do a technique. But I’ve heard instructors who were pretty blunt about the notion that if you’ve used a wrist lock on an attacker to bring him to his knees, kicking him in the face may well be the most reasonable next step.

As I said in my original essay, “But Does it Work?” sometimes those fancy rolls are because the next event in a “real fight” would be a strike to the throat.

In re-reading that essay, I notice that I missed one of the reasons why I think some people have such an investment in arguing that Aikido is “fake,” and “wouldn’t work in a real fight.” I did note that most “real fights” aren’t exactly “real,” at least not in the sense of proceeding until one or the other participants is unable to continue. No, the idea is for the other guy to “cry uncle,” that is, to concede dominance. The practice of Aikido does not lend itself to showing dominance, “winning,” in other words. Practice is supposed to be harmonious. It’s not a sport, or a “contest of strength.”

I’ve been in three, well, let’s call them “physical altercations” in the last 30 years. That’s a pretty low count, I think, and I’m obviously not much of a brawler. I haven’t written about them previously, partly because there were more than two people involved (which is usually the case), even though only two of us were fighting. But mostly I’ve refrained because I’m a little ashamed of one of them and a lot ashamed of another. So please excuse me if I leave out the reasons for the fights and other things that would make them better stories, perhaps, except not so much better for me. This means that I’m leaving out a lot of prologue in each case. Sorry.

We’ll join the first encounter with the guy throwing cold coffee in my face after I’d rolled down the window to demand that he move his truck from blocking my way. We will ignore the question about whether under slightly different circumstances the coffee might have been scalding hot.

This was several years before I began Aikido training. As a consequence of frequent nose bleeds as a child, I never learned boxing, but I did wrestle for a time at the YMCA. I believe that my weight at the time of my “competitive wrestling career” was roughly 85 pounds. But grappling was pretty much all I knew and I did weigh more than 85 at the time of this particular fight.

I don’t think the guy was expecting me to get out of the car to attack him. I’m positive he didn’t expect me to rush at him, coming in low, to grab him between the hips and knees and lift him completely off the ground in a takedown maneuver. Under other circumstances, that would have been very bad for him, because falling onto pavement, on your back, with someone else’s full weight on you can do pretty unpleasant things to you very quickly.

However, he was standing in front of the open door to the cab of his pickup truck, so we instead went back onto the seat. There was a general struggle, which finally ended when he managed to get his hands to my face and threatened to gouge my eyes. I released him and backed away.

He was pretty much still yelling insults at me as I got back into my car and drove off.

Did I “win” that fight? He could have put my eyes out, remember, or at least he could have made a try for it, and it might have worked. Whatever. It didn’t feel like I’d won anything.

The next one is the one that I’m thoroughly ashamed of, because it was at least 80% my fault, in part because I’m the one who made the threat that initiated the fight. The closest thing I have to an excuse is that it was several years into that-which-we-will-not-call-chronic-fatigue-syndrome, and I was susceptible to mood swings and flashes of rage. I was also still weak, often fuzzy-headed and I hadn’t practiced Aikido for several years, so what occurred is no reflection on that art.

The other guy was small and sturdy and built like a wrestler. In any case, he was a natural grappler, and pretty much marched straight through any techniques, Aikido or wrestling, that I could remember or try. I gave ground and tried to get lower; a tall man can be at a considerable disadvantage against a stronger man who is shorter than he is. Eventually, I wound up on my back, though I’d managed to keep my legs between me and him.

We were in an industrial district in Oakland, in one of those buildings that had been converted to (basically illegal) “live/work” spaces, and we were on top of a large wooden platform that formed the roof of some of those spaces. The platform was maybe 15-20 feet high, and our scuffle had put us maybe 5 ft. from the edge of what amounted to a balcony with no guard railing. His back was to the edge, and I had my legs cocked between him and me.

I whispered, “Keep it up and you’re going for a ride.”

His head snapped around and he realized the danger. He pulled off of me and stomped off. I think there were some more insults involved. It looked for a little while like there might be a rematch, but the words finally cooled, and certain explanations were made. There were no apologies, but some things became better understood.

Did I win? Lose? Would I have risked seriously injuring or killing him? When the matter had been mostly my fault? As I say, I’m just thoroughly ashamed of the altercation.

The last incident took place a few years ago, after I’d re-entered Aikido training. I was working for a time in a “rough neighborhood,” running a thrift shop for a non-profit agency during the Dot Com Bust period. I never felt endangered in the area, but I was aware of the subtle (and sometimes not so subtle) ways that some people act to establish a sense of physical domination of the people around them. This is, I think, automatic for them, and doesn’t really reflect so much on them personally as their surroundings. In other times and places, the dominance behavior is more abstract, more socially derived, less physical and personal.

There was one fellow who I actually like quite a bit, but he was in the habit of doing those little physical dominance things. Joking threats and dominance hypotheticals, as it were. I’d gotten a little tired of it.

One day, when I was out on the sidewalk talking to someone, he came up behind me, stuck his finger in my back and pretended it was a stickup, sorta, kinda jokingly, was the idea, I expect.

I probably recognized his voice, but as I say, I was tired of that sort of thing. Also, he’d stuck something in my back; I did not know what it was. What I did next, I did in much less time than it takes to think it over.

The move is called tenchi nage. As I spun around, my left hand caught his right arm between the wrist and elbow, knocking it aside. (If he’d been using the other arm, I’d have used a different technique). My right hand went up, more or less parallel to his body, sliding off the center line just before it reached his head. He reacted pretty well, flexing backwards to avoid the strike to his head, but the fact is that I could have easily hit him in the throat, chin, or face with a fist or the heel of my palm, if I’d wanted to.

Instead, my arm was outstretched across his body, and he was off-balance, bending backward. All I would have had to do was take a step forward and turn my hip and he’d have been out into the middle of oncoming traffic. Instead, I stepped back and smiled at him.

He smiled back. He never tried anything like that on me again.

Aikido gets called “fake” because it is seen as not using punches or strikes, because it is not aggressive. It doesn’t have tournaments; it’s not a sport, so it doesn’t make for a competition where there are winners and losers.

But I’m pretty sure I won that last one.

But Does It Work?

Yes, I'll get to copyrights, but I'm still thinking about it. Besides, there's something else I want to write, and I need this up here first.

[originally posted to my newsgroup on Mon 19 Jun 2006]

This past weekend I rode over to San Francisco with another member of Eastshore Aikikai. On the way, we got to talking about Aikido on the net, me about my recently going to YouTube and looking over the Aikido videos, her about how she used to read the rec.martial-arts newsgroup.
She spoke to something I noticed on the YouTube comments, that a major theme of any public aikido discussion is whether or not aikido is “real,” i.e. whether or not it would actually be of use in a “real” fight. Moreover, she noted that this kind of question was almost entirely confined to aikido; no one seems to ask it about karate, tai kwon do, kung fu, etc.

So I’m left with two related questions, why aikido, and why not the other martial arts?

Certainly it would be a fair question to ask of any martial arts training, because that’s what it is: training. You can train a soldier to a fair-thee-well, but you won’t know how he’s going to behave in combat until he’s actually been in combat, until he’s been “blooded” in the jargon of the trade.

That’s not to say that there aren’t various methods that attempt to simulate combat in one way or another. For the military, this is “war games” or “maneuvers” of one sort or another. Such simulations can remove some of the unknowns from the equation, like snarled communications, supply disruptions, and sudden gaps in the chain of command. “The Fog of War” is a useful concept, and every time it’s different, so it’s a good idea to give the men a taste of it. But it’s not the same thing as being under fire.

In the martial arts, there are different kinds of simulation. Some arts make the transition to a sport, so you get competition, the pressure of public performance, and so forth. Unfortunately, to make a martial art into a sport, you have to have rules, otherwise it’s far too dangerous. So either you eliminate what might be considered your strongest moves—the lethal ones, in other words—or you pull the punches, as it were. You can, like in fencing or boxing, use special equipment, padding, foils with blunt tips, gloves that protect the hands (though ironically, boxing gloves make the sport less dangerous to the hands and more dangerous to the brain). But such modifications change the essence of the art; there are moves that would be insane in a real situation that are perfectly sensible ways of scoring points in a sport.

Some martial arts are almost pure kata, ritualized forms that are meant to give the student a set of well-practiced reflexes. That is pretty much the way that everything starts out; you can’t learn the language until you have the vocabulary. In those arts, the way of adding some real consequences to the training is through testing. That at least adds some personal ego involvement, which adds some real pressure to the matter.

A major reason why the “does it really work?” question occurs so often for aikido is that it often looks faked. The uke (attacker) comes at the nage (the person doing the technique), the nage does the technique, and the uke goes flying, all as pre-determined as a Wrestlemania bout. The encounter is usually pretty stylized, but the idea of “the uke is just going along with it,” misses an important point. Usually, the rolls, falls, twists and turns, etc. are there because the alternative is much worse. Yes, the guy bends his back and that makes him easy to knock down, but the alternative was an elbow in the throat. We don’t do the elbow strike, but we know it’s there.

As for the throws and all those pretty rolls and slapping falls, yeah, they don’t hurt us. But taking the fall isn’t really optional; the choice is between taking it correctly or getting hurt. I once saw a sensei yelling at his uke, “Protect yourself! Protect yourself!” Doesn’t quite jibe with the “it’s all just a fake” notion, does it?

At Aikido of Berkeley in the early 1980s, there was a student who confided to me that he’d taken up aikido because he found that guys would often try to pick fights with him in bars. He didn’t know why they did it, or even why it was guys who were, in his words, so easy to beat, but he wanted some alternative to pounding the crap out of them. Aikido gave him alternatives.

Don’t laugh, but I once used an aikido technique to take a butter knife away from a 5 year old. He was waving it around, and I was literally worried that he’d “put someone’s eye out.” So I caught his hand in a grip called kote gaeshi, twisted slightly and the knife just slid into my hand. It didn’t hurt him; that was pretty much the point, of course. But he did look awfully surprised. Sure, I was a lot bigger than he was. The outcome wasn’t in doubt. But it certainly helped that I knew exactly how to take it away from him with a minimum of force.

Occasionally, you run into someone who brings some external issues “onto the mat” as the saying goes. Once, I was performing a technique called “nikyo” (Hold your hand out as if to shake someone’s hand, then flip it over so the little finger is uppermost. Now grab that hand with your other hand, thumb on top, and try to bring the first hand’s wrist to your body, with the little finger going up to your nose—that’s nikyo). My uke straightened his arm, went down toward the ground, but tried to grab my leg, to maybe lift me off the ground. I automatically shifted my grip and brought my elbow over his in a related technique called ryokyo. Ryokyo is usually considered a knife taking technique because it is not at all kind; it takes power from hyperextending uke’s elbow. My uke forgot all about lifting my leg, since he was suddenly very concerned about not having his elbow dislocated.

I might not have done it if I’d thought about it, but then again, the point of the training is to teach your body how to do those things. Your thinking has to catch up later.

I’ve been in a number of physical fights in my life, but I’m not sure if I’d classify any of them as “real.” The vast majority of fights are about dominance in one way or another, stopping well short of serious injury, because that isn’t the point of them. In fact, they usually end when one or the other party threatens real injury. On the other hand, I have witnessed fights that were deadly serious, that would not end until someone was badly injured, dead, or the cops showed up. When someone who is used to the one sort runs into someone who is prone to the other sort, Very Bad Things can happen.

I have some confidence in my own ability to Do the Right Thing, if pressed, but also the fear that I nevertheless might fail to react properly. So whether or not aikido would aid me in a "real fight" is an open question. What I do know is that I will expend considerable effort to insure that I never get the answer to that question.

Playing the Rent V—Trademarksism

There is nothing in the world that some man cannot make a little worse and sell a little cheaper, and he who considers price only is that man's lawful prey. --John Ruskin (1819-1900)

When AOL bought Time Warner last January, it paid $147 billion to form the world's largest media concern. But the accounting value of Time Warner's assets was only about $51 billion. What was the other $96 billion for? It was the premium AOL paid for scores of brands, trademarks and other so-called intangible assets. The value of this stuff - called goodwill - now sits on the asset side of the balance sheet of the combined AOL Time Warner. In the magical world of accounting, all assets, from factories to machinery, fall in value. The process can take anywhere from four years (at tech companies) to 40 years (old-line factories), depending on the asset's expected usefulness, and is accounted for in a quarterly expense to the income statement. In AOL's case, this amortization of goodwill, as the expense is called, currently subtracts an astonishing $1.5 billion a quarter from the bottom line, leading the company that owns the publisher of MONEY to post a near-billion-dollar net loss in the third quarter. [Source: "The Goodwill Games." By Pablo Galarza. Money 30 (13): 61. In ABI/INFORM.]

Every business has “intangible assets” and it’s long been a problem in accounting for them. Realize, though, that there are intangibles and “intangibles.” Is a promissory note, an IOU, more “tangible” than a trademark? Apparently, as the former is considered a “financial asset,” while the later is called an “intangible asset.” That doesn’t keep companies from trading in trademarks, however.

A trademark is part of a company’s “good will,” the respect (or, in some cases, fear) that a firm possesses in the marketplace. In “the good old days,” trademarks and brand names were a sign of the quality of the goods, and that still has some relevance. Almost everyone shows a certain degree of brand loyalty, and the most common and useful form of it is, “These guys haven’t screwed me yet. They do good work.” The trademark as an indicator of quality makes “counterfeiting” a real crime, akin to fraud, trying to pass off something inferior as something of superior quality.

Still, there are, if not exceptions, at least some interesting variations on the theme. Those guys on the street selling $20 Rolexes, I mean, I doubt that anyone thinks they are genuine (and anyone who does, also believes they are receiving stolen goods). So it might be said that there has been a strange “counterfeit Rolex” brand that has been established. Illegal, sure, but not as immoral as one might think at first.

The quality assurance part of trademark doesn’t look a lot like intellectual property. It really does look like a reification of true “good will,” the respect that customers have for the quality of an enterprise. It’s hard work to establish and it’s so very easy to lose. The story goes that when Sarah Lee was sold, the contract stipulated that the purchasing company not change the recipes in any manner. When they tried anyway, the founder took them to court and refused a monetary settlement; only adherence to the original terms would do. “I named this company after my daughter,” he explained. “I’m not going to sell out my daughter’s name for mere money.”

Harlan Sanders made the mistake of not getting such a clear-cut contract. He spent the last years of his life bad-mouthing the product that bore his name.

Some brands try to hook into image and identity, to varying degrees of success. Harley-Davidson was a huge comeback story. The original Harleys were bikes that were just perfectly suited to garage modification into “choppers,” highly individualized bikes. Then came the Japanese imports, better bikes, but not as easily customized. After years of languish, the owners began emphasizing the customization, and took out magazine ads that just showed a highly muscled arm, with a Harley-Davidson tattoo, and the words “When was the last time you felt this strongly about anything?”

It didn’t hurt that they also began a stringent quality control program at about the same time.

But there is no idea so good that human beings can’t find a way to overdo it, and so we come to the “famous brands,” “brand extension” and “brand dilution.”

Let me give an example of a reasonable use of the idea of protecting “brand extension.” A while after the introduction of “V-8” the vegetable juice, someone introduced a brand of vitamins called “V-8 Vitamins.” Since one of the marketing points of V-8 Juice was that it contained vitamins, a court held that there was a real possibility of confusion on the part of the consumer and the vitamin makers were ordered to change the name. And, of course, if V-8 Juice were to actually introduce a line of vitamins, that would be an obvious bit of “brand extension.”

But then you head toward “lifestyle” branding, and Harley-Davidson shows up again, along with Nike, Apple, Abercrombie and Fitch, Gucci, Star Wars, and the New York Yankees. These are “famous brands,” things that might show up on almost anything. Star Wars toothbushes? Absolutely. Gucci golf clubs? Why not? Nike baby carriages? I wouldn’t be a bit surprised.

MacDonald’s has sued any number of small, family owned restaurants into changing their names (or out of business if they tried to resist). There used to be a coffee shop in Berkeley called “Fat Albert’s;” it’s “Fat Apple’s” now.

Disney has trademarked just about every character that paraded through a Disney movie, including some that were originally public domain. You can use Frankenstein in your work, but he’d better not have rivets in his neck; Universal owns those. Tarzan? The Burroughs estate is very litigious. Better use some other jungle man; maybe have him raised by elephants.

Now realize, an awful lot of this has nothing to do with “confusion in the public mind.” There was zero chance that the Air Pirates’ version of Mickey and Minnie Mouse were going to be mistaken for anything other than an underground comix parody. No, this heads over toward toll-taking, barratry, and, in many cases, legal departments making work for themselves, to no real corporate benefit whatsoever.

Well, that does depend on whether “control” counts as “good will.” I’ll certainly agree with the “will” part of it. I certainly do.

Playing the Rent IV—Patently Obvious

Word derivations contain a lot of history. The word “patent” comes from the Latin verb patēre, to be open via French, lettre patent, meaning “open letter. The “letter” was from the King. In short, a patent was a Royal Edict, and there are land patents, also known as land grants, as well as patents on inventions and processes.

So patents were, from the beginning, a form of patronage, and industrial patents were by no means limited to the inventors of an industrial process. In 1589, the English Gunpowder Patent was awarded to a man named George Evelyn, who invented neither gunpowder nor any particular process for its manufacture. However, Queen Elizabeth I (and her advisors; I’m going to go out on a limb here and conjecture that there were some substantial links between Evelyn’s family and the advisors to the Crown) believed that the manufacture of gunpowder would be more efficient if centralized in the form of a private monopoly.

Ah, there’s a question for libertarians: how much do you think times have changed?

The granting of patents in exchange for disclosure of trade secrets and other information about an invention is a very clever idea, and also has a long history. It makes very good sense, from almost everyone’s perspective, and it protects against the loss of vital information is a few critical people die without proper documentation of a process. Giving the patent a limited span is also a very good idea.

But we shouldn’t make the mistake of thinking that a patent is anything other than what it is: the use of the power of the state in service of a monopoly power. It can be considered “property” in the same sense that any other legal grant can be property. A long term supply contract has value, can be marketed, and so might be considered property. Financial obligations are also property, in a legal sense. But they are not the same as real estate or chattel property.

The patent on an invention gives someone control over all expressions of that invention for a period of time. That includes control over anyone who might independently come to the same invention, even if they had no knowledge of the prior invention. In fact, “priority” of invention is mostly a product of U.S. patent law; elsewhere it is more the custom to give priority to the first to file for the invention.

So what we have here is another example of “winner take all,” and what the winner gets is another example of toll-taking, the ability to block someone else’s use of an invention, even if that someone independently invented it.

There is a myth that a Commissioner of Patents by the name of Charles H. Duell once resigned or recommended that the patent office be closed because “everything that can be invented has been invented.” He said no such thing, but the number of Google hits for the mythical quote much larger than the number of hits on those who debunk it. To be fair, the highest ranking on Duell’s name does lead to a debunking site, with a guess as to its origin:

While that statement makes good fun of predictions that do not come to pass, it is none the less just a myth. Researchers have found no evidence that any official or employee of the U.S. Patent Office had ever resigned because there was nothing left to invent. A clue to the origin of the myth may be found in Patent Office Commissioner Henry Ellsworth’s 1843 report to Congress. In it he states, "The advancement of the arts, from year to year, taxes our credulity and seems to presage the arrival of that period when human improvement must end." But Commissioner Ellsworth was simply using a bit of rhetorical flourish to emphasize the growing number of patents as presented in the rest of the report. He even outlined specific areas in which he expected patent activity to increase in the future. –The Charles Duell Rumor (see also Sass, Samuel. "A Patently False Patent Myth." Skeptical Inquirer 13 (1989): 310-312).

I have heard, but have been unable to confirm, that Duell did once write a report where he suggested drastically curtailing the number of patents awarded, and the ease of obtaining a patent, not because “everything has already been invented” but rather because corporations had taken to using patents to suppress innovation rather than to advance it.

That has some truthiness to it, doesn’t it?

Patents are often used as weapons in the epic struggle of corporations, after all, and it is seldom innovation that comes out the winner. Corporations also use other things to similar purposes, one famous example being the duel between Philo Farnsworth, the actual inventor of television (more precisely, the orthicon tube), and David Sarnoff and RCA. RCA used its market dominance to try to suppress Farnsworth, and tried to “invent around” Farnsworth’s patent. RCA failed in the latter attempt, but had substantial success in the former endeavor, with the result that the battle, plus the advent of WWII, essentially delayed the introduction of television for at least a decade, and maybe twice that. And RCA propaganda credited Vladimir Zworykin with the invention of television long afterwards.

Recently, the Supreme Court has decided to make it more difficult to obtain a patent, or, more accurately, easier to claim “obviousness” in a patent challenge, in order to make it more difficult to patent such things as “buying groceries over the internet.” So maybe a little more sense is creeping in.

I have a friend who got a patent on what amounts to “machine based telepathy,” based on MRI imaging of the brain. He observes that it will probably be 20 years or more before MRI technology advances to the point where it would have any practical applications at all, and by then, the patent will have expired. That, in fact, was exactly his purpose: to make sure no one tied up the technology and delayed it longer than the natural advance of engineering would take.

Cowboys and Indians

Hey, man! Don’t let him bring you down, now. There’s a lot of young people in this country, just like myself, who really know where the Indian’s at. And don’t worry. Soon we’re all gonna be out here on the Reservation, livin’ like Indians, ‘n’ dressin’ like Indians and doing all the simple, Beautiful Things that you Indians do. Hey - got any peyote?

–Temporarily Humbolt County, Firesign Theater

In my recent essay False Positives, I mentioned several racial/ethnic groups for which I have a “slight positive bias,” a tendency to look upon favorably, give benefit of doubt, and so forth. It might be said that this comes at the expense of my own ethnic group, i.e. middle-class white guys, but the fact is that I know my own group well enough so that other factors come into play almost immediately. Notice, for example, that there would be separate entries for “female” and “non-middle class,” if I’d just started with the group, “white folk,” but that barely begins to cover it. We all automatically respond to such things as accents, use of language, height, weight, perceived intelligence, and all the rest, so the “white guy” part gets lost in the mix pretty quickly. Truth to tell, the “slight positive bias” doesn’t go very far either if I’m confronted with someone who is pushing some of my other buttons. And yes, I have plenty of buttons, some of which are still unknown to me, I’m sure.

The racial/ethnics groups I mentioned were African-Americans, Asian-Americans, Hispanics, and Jews. There was another one that I considered, but left off the list: Native Americans. The “racial bias” test is actually one for skin tone, so there’s some probability that my bias would extend to them. For that matter, Hispanics, primarily Mexicans and other Latin Americans, have a high percentage of persons having pre-Colombian ancestry, and the dark-skinned thing may explain some of the good will there.

So why didn’t I include Native Americans in my bias group? Let’s see where this introspection trail leads.

Notice that, in the above paragraph, I used the phrase “pre-Columbian ancestry.” There’s one of the problems. I have, in fact, some problem with the term “Native American,” and it’s related to the same problem that I have with “Indian,” which was the term used when I was young.

I generally use “Native American” because that seems to be the preferred term used by those who “self-identify” as the jargon goes, and I like to use the names that people wish to go by. I will call a guy “her” if she insists on it, (unless he pisses me off in the right sort of way). African-American, black, or “person of color,” yes, I’ll go along, fair enough. I might have a mild objection to the term “Native American” because it’s a bit jargonesque, since, by ordinary usage, anyone born here is a “native American.” Then, if you dig deeper, it gets worse. The word “America” isn’t itself native; it’s a word applied originally by Europeans to a newly discovered (by them) continent.

I’d like to use the word the pre-Columbian natives used for the continent, but they didn’t have such a word. Indeed, they had no idea that they were living on a “continent” because that’s another external invention.

So, as you can see, what I’d like to do is to use the original names of self-identification, but there we run into a wall. There is no group name, because the grouping itself is a racial group, imposed by outsiders. The actual pre-Columbian tribes and nations had separate names for themselves, Cherokee, Inca, Mohawk, Seneca, Shoshone, and yes, I know that these are imperfect transliterations, but it’s a step towards politeness, and back from racialism, so I take it when I can.

And this is just the trouble I have with the names. What the hell do you do about the stereotypes?

There have always been both positive and negative stereotypes about the native American peoples. Noble savage. Blood-thirsty redskin. Pocahontas, Sacagawea, Crazy Horse and Sitting Bull. Tonto and Kemo Sabe. Cowboys and Indians. Ah, Jeez, I could keep this up for far too long. Davy Crockett, “Indian Fighter,” but he broke with Jackson over the Trail of Tears.

There are very few ways of repelling the stereotypes. From the very beginning, there were stories of “Good Indians” and “Bad Indians,” with the difference between good and bad always being a matter of how they related to white immigrants. Ultimately, however, both kinds mostly wound up as “dead Indians,” in one of the greatest population declines in human history. There are libraries of scholarly arguments about the size of the native population of North America pre-Columbus, with estimates ranging from less than ten million to over one hundred million. There are debates as to whether the European occupation amounted to “genocide” or “democide.”

What is not really open to debate is that the native cultures were virtually obliterated. Sociology is now history and archeology. Anything other than scholarship becomes stereotype.

Where I grew up, there were more than a few people who claimed at least some Native American ancestry. My mother’s family claims some, and there’s at least some evidence of the truth of it.

But that’s just genetics. It’s essentially racialism to hold that somehow the survival of the genes negates the destruction of cultures and peoples. I can take a little comfort in the belief that, over the centuries, some cultural diffusion occurred, that Philip Rahv’s distinction of writers as “redskins” or “palefaces” might have some deeper taproot into the American psyche. Certainly there were hundreds of years of cultural contact, before the final—and largely successful—attempt to herd all remaining tribes onto reservations, teach them English, and inculcate them with the self-loathing that can only exist in someone who has been told, and shown, from birth that they are second-rate, not even citizens really, but some lower form of life. So God knows I’d like to think that some of the original native cultural influences still survive, if only to hold the hope that it wasn’t all lost or reduced to pop culture crap.

I’ve known several “professional Native Americans” over the years, individuals who found a way to make a living by playing on all that was really left to them, stereotypes of their history and nature. There’s some money to be made from liberal guilt and I won’t scorn anyone who chooses to scoop up some of it.

But I’m stuck with the pity of it, and there’s not a lot of money in pity, not mine anyway, and besides, they don’t want or need that sort of thing from the likes of me. I like the fact that some tribes have figured out how to get some of that paleface gambling cash, and good on them. I hope they manage to keep it more of it than was the case with the Oklahoma oil money. I expect they will, as they aren’t dumb, and not quite as many are out to take it away from them this time around, or so I hope.

I don’t really have a conclusion here. That’s the reason for the omission in the previous essay: confusion and bewilderment. I hope that this is largely a product of my own ignorance; that somewhere there are native tribes that maintain a deep culture, or who have managed to re-invent themselves for the modern world, the way that so many others have done. I imagine that there are some such, and I have absolutely no doubt that there are admirable and amazing individuals who self-identify as Native American. That I have none as personal acquaintances is my failing and my loss, yes, absolutely.

So hey, man. Got any peyote?

Soul Coughing + Betty Boop = Magic

Because I wanted to see if it's as easy as it looks:



Besides, I'm going to make the plunge and start babbling about intellectual property soon. If the video goes away, that will be interesting, too.

Like a Dog in the Manger

Nobody knows anything. –William Goldman

Come in here, dear boy, have a cigar.
You’re gonna go far, fly high,
You’re never gonna die,
You’re gonna make it if you try;
They’re gonna love you.
Well I’ve always had a deep respect, and I mean that most sincerely.
--Pink Floyd

William Randolph Hearst was a man of extraordinary power and influence. Some credit him with launching the Spanish American War. His newspapers set styles, boosted political candidates, and ruined careers.

Marion Davies was one of the standout comediennes of the early Silent Era. She began as a “Follies” girl, then graduated to films and became substantially popular. Then she met William Randolph Hearst, fell in love (or some reasonable simulation thereof), and became his mistress. Over the next several years, the Hearst newspapers did everything in their power to boost Davies’ career.

The attempt was close to disastrous. Despite amassing a sizable body of work, her career has generally been overshadowed by her relationship with Hearst. Worse, Hearst liked putting her in costume dramas, whereas her main talent was for light comedy.

Of course, Davies was already a woman of accomplishment before Hearst took a shot at elevating her still further. There are innumerable other actors, singers, models, musicians, comedians, writers, etc., who have been hyped as The Next Big Thing, only to slide quickly into obscurity.

John Gilbert was also major star of the Silent Era, rivaling Valentino and sharing the screen with Garbo. His career came to a screeching halt with the introduction of sound. One legend holds that Louis B. Mayer, with whom Gilbert was often at odds, ordered his sound technicians to use a high-pass filter on Gilbert’s voice to make it high pitched and squeaky (his natural voice was tenor). Current conventional wisdom in the critical community is that it was merely ludicrous scripts that did in Gilbert’s career. Either way, Gilbert became an Object Lesson.

I made you and I can break you just as easily. –The Rocky Horror Picture Show

The entertainment industry has two important characteristics, mass production and personalized appeal. Printing was close to the first example of mass production (I’ll allow grain milling as old #1). The economies of scale can produce gigantic jackpots. H. G. Wells once said, "I went to bed one night a fairly well-to-do man and woke up the next morning wealthy beyond dreams of avarice." Similar things have happened to other writers, actors, singers, athletes. And these success stories are each individual, idiosyncratic. They don’t happen to large groups of people, any more than an entire town can hit the lottery.

The connections between the performer and the audience are personal, magical. They are inherently hard to predict, because there are too many factors involved.

"Weird Al" Yankovic has said that his movie UHF had one of the most successful test screenings in its studio’s (Orion Pictures) history. Unfortunately, it came out at the same time as Lethal Weapon 2, Batman, and Indiana Jones and the Last Crusade. Oops.

But Goldman’s “Nobody knows anything,” quote only applied to the upside of the market. Every motion picture studio knows how to bury a film. Every publisher can insure poor sales of a book. Every record label has lawyers available to tie up anyone who has signed with them in endless litigation if they wish to Make a Point.

So it is that the gatekeepers take their tolls. Toll taking is not facilitating a journey; it’s ability to extract payment comes from the ability to deny the journey.

I’m using the entertainment industry here because it’s an egregious example of an industry where dog-in-the-manger tactics are rampant. The other obvious example of it is politics, where the jackpots are even bigger, and the faces uglier. The tactics are pretty much the same though; straight out of the Protection Racket. It’s SOP to hang somebody up, just to show that you can do it. If you do it often enough, then you become important, and that’s were the money is made. Because all it takes is a little piece of a jackpot to change your life forever.

Everyone who calls wants to know one thing.
They want me to say yes to them and make their movie.
If I say yes, they think that come New Year's...it will be just them and Jack Nicholson on the slopes of Aspen.
That's what they think.
--The Player, screenplay by Michael Tolkin based on his novel.

The Apex

[Another "lottery" example. Originally posted to my newsgroup, Dec. 8, 2006]

As I usually do before I write one of these essays on some subject where I can be caught in an error (as opposed to those reminiscences where it’s my word against anyone else and I’m sticking to my guns, Jack), I did a little background research on the subject of the Anaconda “Copper Wars.” Imagine my delight to discover that Don Rosa based an incident in “The Life and Times of Scrooge McDuck” on the situation.

The situation was this: part of the mining law of 1872 was a thing called the “extralateral right,” more commonly called “The Apex Law,” which said that someone who owned mining property where an ore vein came closest to the surface had the right to follow that vein in mining, even if the vein ran beneath someone else’s property.

There’s some irony in the story (my taste for irony being well-known by now), in that the law was written in part with the Comstock Load in mind, and several of the participants in that mining enterprise were behind the Amalgamated Copper Company, including George Hearst (father of William Randolf Hearst). But the law that had been written in part for them was then turned against them by a rascal named Frederick Augustus Heinze (nicknamed Fritz). Heinze was a geologist who first familiarized himself with the area of Butte, Montana, the location of the Anaconda mine. Then he made two important purchases, a small mining claim that had not been part of the Amalgamated consolidation, and a District Judge by the name of William Clancy.

The actual geology of the Butte area copper deposits was far more complex than the law had envisioned, but with Clancy on the payroll, Heinze obtained favorable rulings and then began basically looting the Anaconda mine. This led to more-or-less open warfare, with the Amalgamated interests obtaining rulings and injunctions from their own tame judges, Clancy overruling them, then gunplay and bloodshed taking place above ground between different law enforcement agencies, and below ground between miners for the different companies.

Eventually, Amalgamated bought out Heinze, who took his winnings east, where he was cleaned out by stock market swindlers. He died of drink at the age of 44.

Obviously Rosa had to omit a number of facts in adapting the tale for Scrooge McDuck.

The “Apex Law” has as its philosophical basis the good old American “winner take all” philosophy, leavened with the interesting notion of how hard it is to keep it all, what with all those unscrupulous characters running around. Another bit of background for this piece came from a paper “THE ORIGINS OF AMERICAN RESOURCE ABUNDANCE” by Paul A. David and Gavin Wright, which notes first, that the mineral resources of North America in the latter 19th and early 20th centuries were exploited much more rapidly than elsewhere, and second, that a great deal of this exploitation was assisted by obviously unscrupulous behavior, such as the sale of “mineral” lands as cheaper farmland by corrupt Federal agents, thereby avoiding legally required royalties.

Similar behavior allowed for the exploitation of coal reserves in West Virginia and Kentucky, where farmers sold “mineral rights” at a time when shaft mining was all that existed. Then strip mining was invented and it was held by the courts (populated by men like William Clancy), that the mineral rights contained an inherent easement that allowed their exploitation by any means. So some farmers then had their farms literally ripped out from under them.

A few years back on the Compuserve Sci-Math Forum, a geologist noted that there was now practically no “hard rock” mining east of the Mississippi, essentially because practically all the property east of the Mississippi is in private hands, and people have learned from the example of the West Virginia farmers. NIMBY is the most primal form of environmentalism, and it’s the one with the most steam behind it. You can decry NIMBY all you want, but you need to think long and hard about the MY part of it. It’s interesting how many people who are against environmentalism (and sneer at NIMBY), also claim to be in favor of private property. Maybe they’re just in favor of corporate property, which would explain a lot.

In the West, hard rock mining continues, but here’s another little irony: it’s almost exclusively on public lands. This makes American mining basically a socialist enterprise that is primarily conducted for private (corporate) benefit. Indeed, like logging operations, it’s not uncommon for the expenditure of public money (for things like logging road or environmental remediation) to exceed the franchise fees paid to the government for the mining rights.

So if you hear an old Trotskyite uttering the platitude “Socialism for the rich; Capitalism for the poor,” that’s part of what they’re talking about.

Playing the Rent III—Lotteries and Casinos

In reading over the previous essay on tolls, I think I gave the subject short shrift and I’ll have to cycle back to it at some point. I do notice, for example, in this week’s Economist, (May 3rd, 2007) a news story, “Rules of the Road,” that references a paper on the sort of toll-taking behavior I described. In this case it was extortion from a series of military checkpoints in Indonesia, but the economics of checkpoint extortion and toll-taking should be the same:

“The Simple Economics of Extortion: Evidence from Trucking in Aceh”, by Benjamin Olken and Patrick Barron.

Also, to backfill yet some more about what I’m doing here, I’m looking for alternative models, and especially nomenclature to what is nowadays commonly called “rents” by economists. The term has seemingly come to mean “the difference between price paid for a good or service and what would exist in a purely commodity (perfect competition) model of the transaction." I’ve already noted that this makes what we usually call rent a subset of “rent.” I also realized last night that, since ordinary rent usually also includes payments for some service functions (e.g. repairs and maintenance), then not all of what people usually call rent is “rent” in the jargon sense.

Sloppy nomenclature makes for sloppy thinking.

Anyway, to one of my favorite subjects, chance and randomness, and its problem child, gambling.

From the standpoint of conventional equilibrium “rational expectations” economic theory, the lottery makes no sense whatsoever. There is an easily calculated probabilistic “expected value” of a one dollar lottery ticket and that value is less than one dollar. So what gives?

Behavioral economics gives us some hints, and even conventional economics allows for “psychic rewards” and “entertainment.” The fact is that holding a lottery ticket assists in the holder’s ability to dream about how nice it would be to be rich. The lottery ticket adds just that little dollop of realism that we writers of fiction call the “willing suspension of disbelief.”

It’s true that there are some pathological cases where people spend the rent money on lottery tickets, etc., but those come more under the heading of obsessive-compulsive disorder than anything else. Some people also send the rent money to televangelists, and for rewards that are somewhat less likely than a Powerball Jackpot.

But lotteries aren’t at all the most popular forms of gambling, and one doesn’t play craps, roulette, or bet on the ponies or other sports because one dreams of getting rich. No those players crave action.

In action play, the jackpot or the “big score” may exist in the back of the mind, but the real payoff is the adrenaline rush. The Kentucky Derby is called “The Most Exciting Two Minutes in Sports,” a phrase no doubt coined by someone with money on the nose.

There is this notion in economics of a “risk premium,” which is the spread between stocks and bonds, the latter being safe and boring, the former being risky. Supposedly, investors are “risk averse” so that explains the difference.

But let’s consider the possibility that at least some individuals are not “risk averse” but rather seek risk. They crave the action, in other words. Of course, this is hardly an original observation; we have words for such people: speculators, traders, and at its most honest, gamblers.

The commodities pits are notorious for the action guys, but over the past couple of decades, more and more of the action ahs been spilling over into markets generally. I ran across several papers by the authors Owen A. Lamont and Richard H. Thaler several years ago, looking at the odd behavior of 3Com and Palm Inc. stock during the period when the latter was being carved out of the former. Here’s one of them: Anomalies: The Law of One Price in Financial Markets.

The upshot of Lamont and Thaler’s work was that certain stock option and warrant behaviors made no sense whatsoever from the standpoint of conventional stock valuation. Instead, the stock in the new company was so thinly traded that it was susceptible to wild swings in pricing, and that attracted, well, basically gamblers. Shares of the thinly traded stock were the “chips” needed to get in the game, and most of the players only held onto them (or horted them) for a few hours.

Why do you play this game? You know it’s rigged. Yeah, but it’s the only game in town.

In The Big Casino, I compared American economic exuberance to casino gambling and lottery payouts, and I think there’s a great deal of truth to that. If people will pay to play a game that is against them, just so they can dream, how much better is it to play a positive-sum game, where the pie expands, so, theoretically, everyone can be a winner.

In practice, of course, a lot of people still wind up losing the rent money. That is a testament to the power of dreams. But you don’t look at the guy who makes 10 passes in a row at the craps table and say he’s collecting “rents.” No, the guy to watch is the casino operator. He’s working what’s called “house odds.”

Playing the Rent II – Tolls

Of all the alternatives to the jargonizing of the term “rent” by economists, I think that the most useful is probably “toll.” People generally know what it means, and they know how it differs from rent. Rent is what you pay for the temporary use of some material good. A toll is what you pay for access, usually to a transportation or communication system.

The key factor with tolls is that it is not necessary to control all of the things that may be accessed by the transport system that takes the toll. In fact, one does not even need to control the entire transport system, just a “choke point.” This is the epitome of “positional advantage,” an easily defended position that can extract value from a much larger area that need not be under the toll taker’s control or ownership.

There are a great many economic models that have been developed for the specific cases of transportation and communications tolls. In fact, there are so many such models that it is difficult to tell if there are examples of the use of toll models for more general processes, i.e. as a more specialized model for “rents.”

Consider, for example, that every major port city represents a choke point on a transport system, and hence represents some tolling potential. Some of that tolling potential is certainly captured by dock fees, local taxes on businesses, even by actual rents of property connected to the port itself.

But the situation is broader than that. Although the U.S. Constitution forbids tariffs between states, various sorts of “local” taxes still have the effect of capturing some tolls from transport. For example, diesel fuel taxes in California, a state that receives a great deal of foreign shipping, represent some monetary input from what is basically interstate (and international) commerce. Similarly, gasoline prices are observably higher near interstate highways than are prices at some greater distance, which represents a toll on highway drivers, especially those who are less familiar with the local area, where there may be cheaper gasoline sold in filling stations known to locals. It would be interesting to see a study of how gasoline prices cluster in sparsely served areas. Intuitively, large service areas, having major economies of scale, depress prices to some distance, with state taxes, etc. further modifying the economics of the situation.

On a more abstract level, controlling “barriers to entry” can probably be better considered as a toll than a rent. The vesting period for pension qualifications is a toll that is extracted from new employees—a toll that is forfeited by those employees who leave before vesting, and thereby passed on to either the remaining employees, the firm, or both.

This feature, incidentally, is one of those places where, in the past, unions have shown their darker side. A long vesting period allows a union to claim to have obtained great benefits from negotiations, but those negotiations result in greater privileges to current employees at the expense of those newly hired. In recent years, this tendency has grown, as union contracts have sometimes resulted in “multi-tier” pay and benefit schemes, with current employees grandfathered into the greater benefits. This has also often led to the selective firing of employees who near the time of greater benefits, as they become more expensive to the firm. One might suggest that this shows the folly of allowing wedges to be driven into group and class divisions, but such divisions are, sadly, typical when large groups such as employees, deal with smaller groups such as professional managers.

The academic/professional/guild model of employment also has elements of toll taking. The current professionals (tenured professors, physicians, guild members), benefit from the labor of would-be entrants (doctoral candidates, interns, apprentices), who are paid what would be a less-than-market wage, with the promise of later ascending to the ranks of the privileged. Added to this toll taking is a generous dollop of risk; many of the candidates for entry fail to achieve their goal, and the ongoing labor of their class fuels the much smaller class of those who have achieved entry.

Thus, we reach the next method in which wealth is accumulated and transferred from the efforts of the many to the hands of the few: lotteries and gambling. And that is a big subject, so I’ll stop for now.

Playing the Rent I

I’m pretty sure this is going to take more than one essay.

Because of some running commentaries on several economics blogs, especially the much esteemed Economist’s View, I’ve undertaken a review of Ricardo’s Theory of Rent. The problem, as I see it, is that economists these days are very much given to using phrases like “rent seeking behavior,” and other bits of jargon that depend upon a specific economics model, tied to a specific terminology (Ricardo’s) and which use the word “rent” in a different way from the way that it is commonly used.

“Rent” in ordinary parlance is a payment for the temporary use of a material good. You rent a house, a car, a woodchipper if you need one, and so forth. We also have words for payments for the temporary use of non-material goods. Rent on money is called “interest.” Rent on many other non-material goods, like a copyright, or part of the broadcast spectrum is called a “license.” Also, certain kinds of contracted rental arrangements are called “leases,” and those often include non-material goods, as when you “license a patent.”

But in economics jargon, all these things tend to be called “rents,” and a lot more besides. So let’s begin by reviewing Ricardo’s basic theory. In fact, let’s begin a little earlier with Adam Smith.

IN that early and rude state of society which precedes both the accumulation of stock and the appropriation of land, the proportion between the quantities of labor necessary for acquiring different objects seems to be the only circumstance which can afford any rule for exchanging them for one another. If among a nation of hunters, for example, it usually costs twice the labor to kill a beaver which it does to kill a deer, one beaver should naturally exchange for or be worth two deer. It is natural that what is usually the produce of two days' or two hours' labor, should be worth double of what is usually the produce of one day's or one hour's labor. If the one species of labor should be more severe than the other, some allowance will naturally be made for this superior hardship; and the produce of one hour's labor in the one way may frequently exchange for that of two hours' labor in the other...—Adam Smith, The Wealth of Nations

This is sometimes cited as the origin of the “labor theory of value,” but Smith is very clear that this is only true for an “early and rude state.” In a hunter-gatherer society, the “commons” have not been privatized, and the accumulated capital is small, and may be said to be dominated by accumulated wisdom, skills, and lore. Interestingly enough, this makes such societies “knowledge-based,” something that technological societies are now said to in the process of becoming.

But the labor theory of value fails right at the beginning, with Smith’s description. I may well be, for example, that it takes as much labor to catch a mouse as a beaver. Does this mean that a mouse is worth as much as a beaver? No, it means that no one bothers to catch mice.

What Smith does, as with Ricardo later, is conflate a standard of value with the source of value. For hunter gatherers, labor is the primary standard of value; it’s the easiest way to get an indication of the value of things, with the exceptions noted by Smith.

There is, incidentally, a good rant that does the same thing in relating the value of gold to the labor it takes to obtain it, in The Treasure of the Sierra Madre:

A thousand men, say, go searching for gold. After six months, one of 'em is lucky - one out of the thousand. His find represents not only his own labor but that of nine hundred and ninety-nine others to boot. That's uh, six thousand months or five hundred years scrabbling over mountains, going hungry and thirsty. An ounce of gold, mister, is worth what it is because of the human labor that went into the finding and the getting of it. -- B. Traven

One could, of course, have men spend the same amount of time and effort searching for seashells of a particular shape, and at the end of that time, those seashells would purchase just about nothing, perhaps a mouse from a hunter gatherer, but probably not a deer.

The labor theory of value holds that all value derives from labor (though there is an occasional nod to nature and “natural resources). From there, it’s a short step to Marx’s exploitation theory, that any acquisition of wealth by means other than labor is, in some fashion, an exploitation of the working class.

Now I’ll allow for the existence of exploitation; in fact, I’ll stipulate that it occurs. As the man says, “Do I believe in baptism? Hell, I’ve seen it.” Well, I’ll say the same for exploitation. But there are any number of ways that the labor theory of value fails to capture reality, not the least being that it basically winds up saying that a bird in the hand (present value of an asset) is worth the same as two in the bush (future value of an asset). In this case we’re talking about the rent on money (interest), and whether or not it’s really necessary to wait the ten years before the trees bear fruit. Again, I’ve owned trees, and they give when they give and not before.

Ricardo did have an important observation that every economic theory needs to take into account, however. He was interested in the agricultural economy, because he felt that farmland was the most important limited resource. Ricardo noted that, as the demand for food increased, owing to population increases, land of lesser and lesser productivity would be brought into service. The owners of the most productive lands, therefore, could charge greater and greater rents to the farmers who farmed them (with the assistance of farm laborers who were the ultimate source of wealth in Ricardo’s view). And these rents were unearned; they just went to the owners for no other reason than their ownership or the land.

Now let’s skip forward a bit, to the development of the so-called “Perfect Competition Model,” (PCM). The PCM was developed during the last quarter of the 19th and first quarter of the 20th centuries particularly in the hands of Alfred Lord Marshall (1842-1924) at Cambridge University. It was so important in economics that it was also called The Standard Model or alternatively the Marshallian, Neoclassical or sometimes the Commodity Model.

The assumptions in the PCM are unrealistic at the limit, but there are quite a few commodities that approximate those assumptions fairly well. The commodities in question must have many producers, none of which can move the market by its own actions, e.g. reducing its own supply will have a negligible effect on supply. The product from any supplier can be substituted for any other supplier. And there must be no price-fixing or other interference in the pricing mechanism. It also turns out that practically every PCM commodity has inelastic demand; a fractional increase in supply results in a change in price by a greater fractional decline.

For producers, the results from PCM are pretty brutal. It basically says that, under most circumstances, increases in total supply result in less income to the totality of producers. If every producer becomes more productive, everyone makes less money. Alternately, this is a great deal for consumers. The market won’t absorb an infinite amount of the product, so at that limit, it’s price is zero. That limit never gets reached, because there is (almost always) some cost of production, so the producers get squeezed to the marginal cost of the least efficient producer. More efficient producers make a profit.

At some point or another, somebody noticed that the difference between the most efficient and least efficient producer looked like what Ricardo was calling “rents,” so economists began conflating profits with rents.

The problem, however, is that once you broaden the term “rent” to that extent, you get into the strange nomenclature where actual rent is considered to be a subset of “rent.”

I would say that the train leaves the rails right about there.

So I think we need some better terminology. I’ve done a fair amount of reflecting on the nature of the acquisition of material wealth, and I’d like to offer a series of terms for specific sorts of situations, qualitative models, if you will, that may get fleshed out into quantitative things if I ever have the inclination. My primary goal here is to develop a terminology that uses words as close to there ordinary meaning as possible, because while there are times when jargon is useful, it’s only after ordinary language has been exhausted.

Here are some of the terms I’m considering:

Tolls, winnings, jackpots, vigorish, fraud, insurance, house cut, fees, taxes, tax farming, premiums, good will (an old favorite), patents, licenses, and transfer payments.

I told you this was going to take more than one essay.