July 2003

Spooky. In an effort to explain to my wife precisely who Daniel Davies is, and why we’re now co-bloggers, I fired up my browser, and hopped to a “random spot”:http://d-squareddigest.blogspot.com/2002_12_29_d-squareddigest_archive.html in the D^2 Digest archives. It turns out that the prophetic Mr. Davies did a long post on December 31, 2002 on a list of topics, starting with (a) a discussion of fridge magnets and, (b) thoughts on how digital video recorders allow you to skip ads. Which subjects have been dealt with by Kieran and me in loving detail in the first 24 hours of this blog, as you’ll see if you bother to read down a bit further. Your guess as to how Mr. Davies has done this is as good as mine. I’m leaning towards a Manchurian Candidate type scenario myself – quite possibly Kieran and I have been pre-programmed without our knowledge to blog on certain topics. Assuming that Mr. Davies’ prophetic powers/subliminal commands hold good, expect this blog to cover the following subjects in order over the next several days.

* Shania Twain
* Robert Mugabe
* The politics of Malawi and Brazil
* Corrupt Irish-American pols
* Ann Coulter
* Defining the left v. right dichotomy
* JK Galbraith’s maxim that “the project of the conservative throughout the ages is the search for a higher moral justification for selfishness”
* The singular of Weetabix
* More meat in pies
* File-sharing confessionalism

A diverse agenda, you’ll agree.

Up until recently, I had rather arrogantly assumed that a lot of people were either terribly ignorant about world affairs or were telling lies on purpose. However, ever since the run-up to the war on Iraq, I have been troubled by a much more worrying possibility. In the first few months of this year, I read a number of short articles containing references to the appeasement of Hitler in the 1930s which, from the context, caused me to suspect that my internet connection was in some way dragging in material from a parallel universe; one in which the USA entered the Second World War in 1939 as a pre-emptive measure rather than 1941 in response to an attack. It just began to seem more plausible explanation than to assume that so many people were making precisely the same error.

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“Ed Felten”:http://www.freedom-to-tinker.com/archives/000414.html points to an interesting aside in a recent Richard Posner “opinion”:http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-4125.PDF on a lower court injunction against Aimster. The interesting nugget is mostly irrelevant to the case at hand: Posner argues that if someone videotapes a TV show and fast-forwards through the commercials, they’re breaking the law.

bq. commercial-skipping, [amounts] to creating an unauthorized derivative work …, namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.

This may seem like so much legal pie-in-the-sky. Even if Posner’s opinion were to become the accepted interpretation of the law, nobody expects the copyright-police to come knocking on the door asking about your video-watching habits. But it actually touches on some important issues for owners of digital video recorders (such as TiVo).

As happy TiVo owners testify, one of the joys of the machine is that it allows you to speed through obnoxious ads with alacrity. TiVo owners (myself included) wax evangelical on the subject. There’s even an “undocumented hack”:http://www.bigmarv.net/how/tivo30secondskip.html that allows you to skip through the ads 30 seconds at a time. But ad-skipping threatens to eat TV networks’ revenues. One of TiVo’s competitors was sued by various networks for including a more advanced ad-skip option on its boxes; the case was never decided, because the company went bankrupt. The new manufacturer has “dropped the feature”:http://www.adage.com/news.cms?newsId=38045, most likely in order to cosy up to the content providers. TiVo itself isn’t being sued – but it’s also keeping rather quiet about some of the more advanced features of its product. If a Posnerian view of the law prevails in future cases, it’s fair to expect nifty ad-skip features and their like to be declared illegal, unless they have substantial non-infringing uses.

Larry Lessig “talks up a storm”:https://www.crookedtimber.org/archives/000074.html about how copyright law and restrictive content management systems hobble artistic creativity. And he’s doing a good job of it. But the war is as much about consumption as production. Important set-battles are being fought over our TV remote controls, digital video recorders, and DVD players (those bloody “unskippable commercials”:http://www.washingtonpost.com/wp-dyn/articles/A17791-2003Jun20.html?nav=hptoc_tn on new DVDs). I suspect that more and more people will get upset about this, as these technologies spread, and as content providers become ever greedier. Couch potatoes of the world unite. You have nothing to lose but your chains.

Update: “Larry Solum”:http://lsolum.blogspot.com/2003_07_01_lsolum_archive.html#105784887890316026 has a good take on the technical misunderstandings behind Posner’s aside – it hinges on the difference between a performance and an unauthorized derivative work. Convinced me in any event. But does Posner’s interpretation apply to digital video recorders? I invite TiVo owning IP lawyers and former IP lawyers (yes Michelle, that means you) to comment.

Update 2: “Derek Slater”:http://blogs.law.harvard.edu/cmusings/2003/07/10#a258 has a good critique of Posner’s argument.

Larry Solum’s Legal Theory Blog is one of the jewels of the blogosphere. One of his most recent posts is a discussion of the tangled notion of “legitimate state interests” in the US legal system. Here’s his specification of the project:

What makes some state interests “legitimate” and others “illegitimate”? That thorny question is the topic of this post. Here is my strategy. We shall begin with a bit of history, discussing the historical origins of the phrase “legitimate state interest” in jurisprudence from the turn of the century, the New Deal, and the modern era. Next, we shall take a closer look at Lawrence, investigating in depth the idea that the state lacks a legitimate interest in promoting morality. Then, we shall back up and interrogate the concept of “legitimacy.” In the end, we will ask the question: does the notion of a “legitimate state interest” do any useful work in constitutional law?

Brian’s post on Nozick (immediately below) prompted a certain kind of reaction in me. I felt rather like the boy in the class who wants to interrupt with “But sir…, but, but …” The reason I have this reaction is, I think, not because I believe Nozick to be right (I don’t) but because I’ve always found Anarchy State and Utopia to be a challenging and stimulating book, and not one to be too lightly dismissed.

Nozick was certainly a great writer among philosophers, but also one with an eye to the good thought experiment which could discomfit his complacent leftie readers by taking their intuitions and working with them to produce unwelcome conclusions. The Wilt Chamberlain parable is one good example of this as are the immediately following paragraphs on the socialist entrepreneur. His use of the public entertaiment system example to undermine the Hart-Rawls principle of fair play (ASU 90-95) is another. To be sure, Nozick rarely has the kind of knock-down argument for his premises that we might like. But in the dialectical context, he doesn’t need to have, since he’s appealing to intuitions we already share (for whatever reason).

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It seems like it is Nozick-bashing day Down Under. First Ken Parish links to his favourite online criticisms of Nozick. Then John Quiggin follows up with a different criticism. Quiggin’s argument is that given some plausible assumptions about history, we can justfy (heavy) taxation even by Nozick’s lights. Premise one is that Nozick agrees that if one person, say the king, or one group, say the parliament, owned all the land, then they could justly charge rents on all who inhabited that land. Whether we call these taxes or not doesn’t change the fact that they are justified. Justification does not turn on whether something is called a rent or a tax. Premise two is that at some stage the land was owned by some such person or group. Premise three is that current states can be construed as owning the land they govern because they traded for it with the previous owners. Conclusion, all taxes are justifiable rents.

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I’m in the process of moving house. While packing up the kitchen last night, it occurred to me that the moral center of many houses (in the Durkheimian sense) is not the living room fireplace or even the TV. It’s the fridge. The Romans had their lares and penates, the ancestral spirits and household gods who kept an eye on everyone. We have the fridge and its family photos, magnets, possibly poetry, timetables, assorted cards, drawings and the like. Together the accumulated stuff represents the social world of the household’s inhabitants.

Surely someone has written a bit of amateur (or professional?) cultural anthropology about this before. For instance, given that there’s a fridge in the house, will it always be co-opted as the moral focus of daily life? Does this vary by class? Ethnicity? Has the shift away from homecooked family meals increased the practical — and by implication cultural — importance of the fridge in everyday life?

I see a short New Yorker article by Malcolm Gladwell or Adam Gopnik. A few well-chosen illustrations. An amusing fridge story. Historical speculation. (What was the functional substitute for the fridge in Victorian households?) The whole held together by an aphorism just plausible enough to be believed for as long as it takes to read the article. If it works out, they could spin the thing out into one of those “A Cultural History of x” books (watches, pencils, mauve, cod, etc), making sure to point out that x changed the world. As fridges undoubtedly did.

Via “Harry Hatchet”:http://hurryupharry.bloghouse.net/archives/2003/07/07/talking_bloggocks_2.php, this “piece”:http://www.samizdata.net/blog/archives/003862.html#003862 by Libertarian Samizdata‘s Andy Duncan on the new European Union (EU) requirement that all businesses with more than 50 employees have work councils. Duncan (and Perry de Havilland in comments) see this as a step on the path to compulsory workers’ Soviets, and the subjugation of employers to their paid employees. Compare this however, with the Socialist Worker Party’s rather different “take”:http://www.socialistworker.co.uk/1853/sw185312.htm on the EU. The SWP claims that the EU is all about creating a “bosses’ Europe,” which allows “market forces to let rip.”

Now clearly, both can’t be correct. Either the EU is a worker’s paradise in the making or it’s a playground for global capital. So who’s right? In one sense, of course, neither; they’re both exaggerating for effect. But the Socialist Worker crowd are probably closer to the truth than the British libertarians. Like it, or like it not, the European Union’s driving force is market creation.

Wolfgang Streeck provides a good account of the reasons why, in this “paper”:http://www.mpi-fg-koeln.mpg.de/pu/mpifg_dp/dp98-2.pdf on industrial relations in the EU (readers be warned: Streeck has a distracting fondness for italics). As he says, major changes within the European Union require the consensus of all fifteen member states, especially when they touch upon sensitive issues such as workers’ rights and the organization of companies. It’s rather difficult for all fifteen to reach agreement on any but the most anodyne proposals in these areas (the workers’ councils in the Directive are rather limp by comparison with their German equivalents). In contrast, member states do usually agree that market integration is a good thing; they’re more likely to reach consensus quickly on measures that promote liberalization. Thus, proposals for works councils and the like get trapped in the legislative pipeline for decades, and finally emerge (if they do emerge) as pale and stunted things, blinking in the sunlight. Proposals to liberalize markets, in contrast, are usually (though not always) easier for member states to reach agreement on; they come out of the process as altogether beefier creatures. The bosses don’t have much to be worried about.

A.S. Byatt is “splendidly caustic”:http://www.nytimes.com/2003/07/07/opinion/07BYAT.html?th=&pagewanted=print&position= in the NYT about the success of _Harry Potter_. It’s rather an interesting piece. Byatt rips into the Potter phenomenon, which she sees as part of a dumbing-down of fiction.

bq. It is written for people whose imaginative lives are confined to TV cartoons, and the exaggerated (more exciting, not threatening) mirror-worlds of soaps, reality TV and celebrity gossip.

But she does so without dismissing either good popular culture or children’s literature. The problem with _Harry Potter_, as she sees it, is that it’s too comfortable. It’s unoriginal, “a secondary secondary world, made up of intelligently patchworked derivative motifs from all sorts of children’s literature.” And it has no mystery about it – the Potter books are remarkably prosaic for all their emphasis on magic. In Byatt’s view, the books don’t have any counterbalancing concern with the serious things of life. Byatt contrasts Rowling with “children’s authors”:https://www.crookedtimber.org/archives/000163.html like Ursula Le Guin, Susan Cooper and Alan Garner, who convey a real sense of mystery and danger in their books. Magic should bite.

Now Byatt is going a bit far – comfort books aren’t necessarily bad, even if they don’t have a scintilla of seriousness. First witnesses for the defence are the wonderfully scruffy _Molesworth_ public-school comedies (for a Molesworth-Hogwarts collision, read the wicked parody “here”:http://www.alice.dryden.co.uk/ho_for_hoggwarts.htm). And silly adult books can be good too; Wodehouse’s _Jeeves and Wooster_ stories are utterly frivolous, but they’re undeniably works of genius.

Still, Byatt puts her finger on something. _Harry Potter_ has been so successful because it feeds into two sets of fantasies. It gratifies children, who dream of being popular, good at sports, and possessed of spiffy magic powers. It gratifies adults, who fantasize about the uncomplicated joys of childhood. It has very little to say about the awkward in-between stages in which children become teenagers and then adults. Talking about messy and complex stuff like this would break the spell. This is why _Harry Potter_ doesn’t have the sense of mystery that Byatt is looking for. Magic is dangerous and exciting for the young adults in Garner and Cooper’s books precisely because it’s tied up with their burgeoning sexuality. Here be dragons. If Byatt’s right, the Potter series is likely to become increasingly awkward and dissatisfying as the protagonist moves further into his teenage years. Rowling won’t be able to pull off the balancing act for very much longer without looking silly.

Update: interested parties, pro and con, should read Ruth Feingold’s bit in the comments section to this post, as well as John Holbo’s “response”:http://homepage.mac.com/jholbo/homepage/pages/blog/blog22.html#9

A common device in the broad-canvassed social-realist novel is to have events throw together people who don’t seem to belong in the same universe, in such a way as to reveal the deeper social reality. Bonfire of the Vanities is a good modern example (why was the film so bad?). Such a real-life even occurred yesterday when an express train hit a minibus in central England. On the train were the Bishop of Hereford and a Tory MP, in the minibus were men variously described as arabs and as Iraqi Kurds. Several of those in the bus were killed and the TV news thought the incident sufficiently serious to send crews to the scene. They interviewed some young women who had east European accents and probably came from Poland or the Baltics.

These people had all been drawn to Worcestershire by the promise of work. The agribusiness that hired them obtained their labour from gangmasters based in cities like Birmingham. Perhaps some of the shoppers who bought their broccoli or cabbages did so because they had a preference for “English produce” over the sugar-snap peas flown from Zambia. Who knows? Anyway, those fields are not tilled by cap-tipping yokels with pieces of straw between their teeth living in tied cottages.

The Times report of the incident blames the supermarkets for forcing low prices on producers. Certainly the domination of the British food market by a very few small chains – Sainsbury, Tesco, Walmart – puts the squeeze on farmers, but the firms who employed these Kurds and Poles would surely be trying to minimize costs anyway. These new migrants are, in any case, just the functional descendants of the Irish who built the railways and roads, the West Indians who drove the buses and the Pakistanis who worked in the textile trade.

I’m surely not writing this to say that it is bad that Latvians and Iraqis are here (though the ways they get treated may often be very bad indeed.) I want, rather, just to notice, that, though yesterday’s incident exposed something of the real workings of Britain and the world, that won’t prevent most of us (me included, unless I think about it) slipping back into a false and illusory view of the English countryside. Afghans, Poles and Estonians who keep us fed are usually invisible – and they will be again.

The bringing of a new blog before the public is a practice now so common as scarce to need an apology. Nevertheless, such lists, assemblages, diaries, complaints, lamentations, polemics and records of triumph and disaster are now so common and so diverse that new entrants into the field must perforce struggle to be noticed. Notwithstanding such difficulties, we believe that our new enterprise – combining as it does the skills, talents and intelligences of personages of experience and distinction – will assuredly meet with the approval of readers of judgment and taste. Crooked Timber is a cabal of philosophers, politicians manque, would-be journalists, sociologues, financial gurus, dilletantes and flaneurs who have assembled to bring you the benefit of their practical and theoretical wisdom on matters historical, literary, political, philosophical, economic, sociological, cultural, sporting, artistic, cinematic, musical, operatic, comedic, tragic, poetic, televisual &c &c, all from perspectives somewhere between Guy Debord, Henry George and Dr Stephen Maturin. We hope you’ll enjoy the show.