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02 August 2002
WorldCon

My tentative schedule (with two essentially approved changes) is going to keep me quite busy at WorldCon (ConJose). Unfortunately, it's also going to expose me to some potential nastiness.

As far as I know right now, I will have two panels on military aspects of science fiction, a panel on literary scams, two panels on general legal issues for writers, two panels on digital media, two panels on general intellectual property issues for writers, the SFWA business meeting, and a surprise or three. My major concern is the two panels on digital media. One of the two is stacked against me, as it appears to be mostly people who don't believe that internet piracy is a problem, and that those attempting to shut it down are evil. I'm willing to be pleasantly surprised, but I'm not going to bet on it in Silicon Valley. I'm planning on wearing cheap, easily-cleaned suits to each panel.

What may turn out to be more valuable, in the long run, are the two panels on general legal issues for writers. Both of these panels are intended to touch on contracts. On both of the panels there are both other lawyers and publisher representatives. The now-scheduled publisher representatives are reasonable individuals. Even if they are on the Dark Side of the Force. Where I used to be, for that matter. I don't expect complete agreement here; I do, however, believe that the disagreements will be more principled and less apt to end up with a pie on my suit.

In the meantime, I just have to get Harlan's brief done. It's due three weeks from today. It's starting to come together nicely, if I do say so myself. (Just because I don't let my ego rule my life doesn't mean that it isn't a pretty healthy one.)

08 August 2002
Abby Normal

Some days, I feel like I was supposed to get the brain of Hans Delbrück, but ended up with Abby Normal's. (Thanks a lot, Igor.) Today is one of them. It has taken all day to write three pages on a legal brief. That may not sound all that bad, at least not for fiction, but it is for legal writing. My ordinary output on briefs in one day is closer to 20 pages (translating to about 3,400 words exclusive of citations). Five hundred is definitely not a good day.

Of course, it didn't help that today was registration for middle school for my son. He's just as enthusiastic about school as I was. Which is to say I practically had to drag him kicking and screaming into the building. At least he didn't use the sneer he's been practicing all summer for his ID photo.

I'm not going to be updating very often this month, primarily due to the Ellison brief alluded to above. It really needs a lot more attention than I've been able to give it thus far.

20 August 2002
Marque and Reprisal

Arrrrgggggh. Shiver me timbers... Oops. Wrong side. Prepare to be boarded, you scurvy dogs!

That's the sound of finishing up my end of the work on the appellate brief in Ellison v. Robertson, et al., No. 02-55797 (9th Cir.). Off to the printer with it tomorrow, and my colleagues in LA get the joy of managing that. They've certainly done their portion of the brief; that so much of it is "mine," so to speak, is because it's mostly on the DMCA issues (and because I'm more experienced with federal appeals, but that's a side issue).

The most amusing day is going to be not this Friday, when it is filed in San Francisco, but next Friday, 30 August, when the amicus curiae briefs in our support will be filed. (Note the plural.) Amicus briefs are, in theory anyway, supposed to allow a person or group whose interests will be substantially effected by the result in the appeal, but is not a party to the case, to "assist" the court in understanding the entire range and implications of the issues under appeal. Such briefs—again, in theory more than in reality—are supposed to restrict themselves to arguments not raised by the party whose position they are supporting that have a direct effect on the amicus, and on which the court is in danger of going astray if those issues are not raised.

The reality of amicus practice bears little resemblance to this. Frequently, amicus briefs are prepared by the same counsel as is preparing the party's brief. Although not technically unethical, it is improper, because this situation—I have personal knowledge of a recent particularly disreputable instance—is usually just an excuse for the party in question to exceed the word limit on its brief. More fundamentally, amicus briefs are a problem because they necessarily imply that the parties are not capable of putting all of the relevant issues in front of the court, and that the court itself will be fooled by that and make a bad decision. Sometimes that's the case, although I don't think so in Ellison.

One positive thing that amicus briefs do that party briefs are not allowed to do is demonstrate to the court the true scope of the matter. A party, by both rule and law, must confine itself to the particular facts and issues raised below. An amicus is not so restricted. Consider, for example, the current reprehensible nonsense in which Ashcroft's Geheimstaatspolizeistrebener from the Vaterlandsecuritätsburo continue to assert that no judge can review even the most questionable designation of an individual as an "enemy combatant" for the purpose of determining whether said "combatant" has any rights that he has been prevented from asserting. This is the paradigmatic instance justifying the separation of powers. Contrary to the assertions of some idiots who have never dealt with the area, allowing a judge to determine whether an individual has rights does nothing to harm the executive branch's conduct of the "war on terrorism" (and, given that it is not a declared war, one must question whether the executive branch's power is exclusive under the War Powers Act or a number of other restrictions). The only way that the courts are going to get a decent idea of what is really at stake is through amicus briefs—because the major issue in question is that an individual has been denied counsel.

I'm not a big fan of the "slippery slope" arguments that appear all too often in amicus briefs, and as a matter of principle I would never agree to divided argument—allowing the amicus to appear at oral argument—absent strong evidence of a collusive lawsuit or appeal. Again, I think that what is going on in Ellison is an exception to the norm, and I have seen enough of the reality of federal appellate practice to have some idea of what that norm is. I'll definitely be snickering on Tuesday, 03 September, which is the service date upon which AOL will find out just how much of its lunch has been eaten.

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My ConJose schedule is pretty well finalized, but since I'm going as Clark Kent (not Superlitigator) I won't be posting it here. It'll be hard not to run across me, though, unless you're sticking to furry-fandom activities…

23 August 2002
They Never Learn

During the 1940s, the United States government committed a truly appalling set of atrocities. If the US had not so decisively "won" the war,º the internment of Japanese Americans had every essential ingredient for the prosecution of war crimes. The Korematsu and Hirabayashi cases are more important for their dissents than for anything else—because the later case shows three justices changing their minds in a matter of months to say "we were wrong—internment is unconstitutional."

So, naturally, God-who-thinks-he's-just-the-Attorney-General wants to repeat the whole fucking mistake.

One of the critical aspects of sentient (and even subsentient) life is the ability to learn. The higher one goes on the evolutionary ladder, the greater the ability to learn from the experiences of others. For example, a snail can't learn about electric shocks from conversation with another snail. Yes, as a matter of fact I chose this particular metaphor because it would be the most insulting to Ashcroft… and demonstrate his inability to spot the purposeful error in the metaphor, even when I mention that "ladder" is not an accurate description of evolution, because he'll be too busy foaming at the mouth.

As I've mentioned before—not too long ago, in fact—my oath of commissioning required me to protect the Constitution against all enemies, foreign and domestic. General Ashcroft, were it within my power I would relieve you from duty as an enemy of the Constitution. I resigned my commission precisely because of assholes like you. It's pretty appalling when the remnants of the writing staff that made ST:V so wretched does a better job of laying out the issue in a 42-minute episode of Enterprise encumbered by worse-than-usual acting and Plot Devices than you have in your position as the top law-enforcement officer in the nation. If you build those camps… al Q'aida will have won, because the Constitution will have lost.

If I seem obsessed with this issue of late, it's primarily because I've seen the alternatives to an open society, and I don't like them. If nothing else, they lead to stagnation in the arts. Pop quiz: Name a piece of literature produced behind the Iron Curtain that has lasting value that did not result in serious political difficulties for the creator in his/her homeland. I'll wait; I'm not holding my breath. The tyranny of the marketplace is bad, and must be fought tooth and nail. Politicotheological tyranny is inherently evil, and all too often cannot be fought short of violent revolution. I'm not a big fan of violent revolution, because it usually results in needless atrocities (Exhibit A: fraternité, egalité, liberté).

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• Although I was a career military line officer who held command positions and did some of the nastier stuff that I did, I find it hard to call either side the "winner" when that many people died.

26 August 2002
Speaking of Never Learning…

An item in the news today confirmed the deepest, darkest fears of every conspiracy theorist: an alien culture is attempting to take over our government! Specifically, two high-ranking officers of the United Federation of Planets and several lower-ranking officers publicly attempted to influence an Ohio election.

OK, so it was only a fundraising event, and one of the officers, a Captain Janeway, is married to the candidate. (What that says about the candidate himself is for another time… or space-time continuum, anyway.) She called on a famous officer out of the past, one James Tiberius Kirk. That wasn't all that necessary, though; we've already got an overbearing tin-plated dictator with delusions of godhood—the one at 1600 Pennsylvania Avenue, or the one across the street at the DOJ (take your pick).

What was most interesting is that the media eventually ended up treating this as just another Hollywoodish fundraiser; it would not have been too difficult to pop "Clint Eastwood" in for "William Shatner" (who, one might add, can't even vote in the election, as he's Canadian).

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As a matter of fact, I do know the way to San Jose—drive to Chicago tomorrow, take an airplane out at o'dark-hundred Wednesday (hopefully, I won't get nervous because I'm not in full combat gear leaving at such an hour!), then work my way from San Francisco International to the San Jose Fairmont. Somehow.

I will not be actually posting updates until I get back in town, so this is the last "entry" for August. The "Con report" will probably extend over several days in early September. With pictures. Be afraid. Be very afraid…

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