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May 25, 2012

“Felony Interference with a Business Model”
Posted by Patrick at 11:04 AM * 156 comments

Fox, CBS, and NBC have sued DISH Networks over its “Auto Hopper” feature, which allows viewers to auto-skip commercials in programs they record.

What’s wonderful isn’t that the TV networks are claiming that skipping commercials is “copyright infringement.” I mean, that’s insane, but no, there’s more. The networks are also claiming that if you record a bunch of shows intending to skip the commercials…and then, the next day, you watch the commercials anyway…you’re guilty of “copyright infringement” anyway, because you intended to skip the commercials back when you recorded the shows. They’re arguing that this supposed “infringement” (which is, of course, not actually infringement) inheres in the intent.

It goes without saying that the word “copyright” is here being used in ways that would be utterly unrecognizable to the people who originally devised the concept. Beyond that, this is Because-We-Say-So legal reasoning of the purest, most flamboyant kind.

The problem isn’t that these loopy arguments are going to win in this particular case. The problem is that the entertainment conglomerates have the resources to keep doing this kind of thing nearly forever, endlessly wearing away at the legal system and at our notions of what’s just and unjust.

Pretty much the same way the energy conglomerates have nearly unlimited resources to keep propping up the notion that there’s a “controversy” over whether we’re undergoing anthropogenic global climate change.

The problem is that in order to spur economic development, we created a class of human organizations that are sociopathic. Our army of killer robots has made it clear: they work for themselves, not for us, and they will break the world.

Comments on "Felony Interference with a Business Model":
#1 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 11:57 AM:

I'll confess to some surprise that you're not more sympathetic to the networks. It's difficult for an industry that's built a business model on an accidental trait of its distribution technology (that it's difficult to do anything other than watch a TV show linearly as broadcast; that it's difficult to make and distribute copies of books) to adapt to a world in which the underlying technologies have changed, and those long-time constants no longer hold true.

The difficulties that ad-supported TV is having with a world in which it's easy to remove those ads are a pretty close mirror to the difficulties that copyright-based publishing is having with a world in which it's easy to make and distribute copies. In both cases, the creators need to be rewarded; in both cases, the traditional way of rewarding them is facing an existential threat; in both cases, the companies tied to that model are afraid for their continued existence and the existence of the art they distribute, and are lashing out in fear and demonizing the people who are engaging in the perfectly normal and sensible activities that disrupt their business model.

I don't like the corporate reaction, in either case; and I think these sorts of change-denying lashing-outs have a lot of potential for harm at both the individual and systemic levels, and that it'd be better to figure out how to operate in a world where commercials/copyright aren't really feasible anymore. But I think anyone who can use the word "piracy" with a straight face ought to have at least some sympathy for industries undergoing similar disruptions.

#2 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 25, 2012, 12:12 PM:

I see two solutions to the problem of sociopathic corporations:

  1. Take away the "rights" of corporations like "free" speech, right to life1, and the right to protect its property as if it were a person protecting its home.

  2. Make corporations responsible in law for their actions as if they were persons: sociopathic acts that hurt others would be considered criminal, and much more appropriate penalties would be imposed than are given now.

Or both, which would be my choice. The idea here is that there is a massive imbalance of responsibility versus power in our definition of "corporation"; reducing power and/or increasing responsibility would correct that imbalance.

One way to implement these changes would be to make a corporation legally equivalent to a domestic animal, with the CEO its handler. Any damage it causes becomes the legal responsibility of the handler, and in case of serious sociopathy, the corporation can be put down humanely.


1. IIRC, In some states any damage award or settlement in a civil suit that could result in a corporation going bankrupt is illegal, on the theory that corporations have the right to life and forcing bankruptcy is attempted murder.

#3 ::: RiceVermicelli ::: (view all by) ::: May 25, 2012, 12:26 PM:

Am I permitted to use the commercials to go to the bathroom? Is it still copyright infringement if the need to pee came upon me suddenly, or only if I turned the telly on knowing that I'd have to hit the loo in a little bit? Could I be accused of infringing copyright on the basis that I had a beer during the lead-in to a show, which I should have known was almost certainly going to lead to a potty break? OTOH, what if I skip parts of the show itself? Is it only missing the commercials that's a violation?

#4 ::: Dave Bell ::: (view all by) ::: May 25, 2012, 12:28 PM:

ObSF

One of the near-by mounds lost its opacity. It was filled with swirling, gyrating bands and streamers of energy so vivid and solid as to resemble fabric; with wildly hurtling objects of indescribable shapes and contours; with brilliantly flashing symbols which Samms found, greatly to his surprise, made sense—not through the Rigellian's mind, but through his own Lens:

"EAT TEEGMEE'S FOOD!"

"Advertising!" Samms' thought was a snort.

"Advertising. You do not perceive yours, either, as you drive?" This was the first bond to be established between two of the most highly advanced races of the First Galaxy!

From First Lensman: E. E. "Doc" Smith, 1950

I reckon we know where the zwilniks come from.

#5 ::: Serge Broom ::: (view all by) ::: May 25, 2012, 12:35 PM:

I hope fastforwarding thru ads would be ok, although I wouldn't do that for the K-Y Gel ads.

#6 ::: albatross ::: (view all by) ::: May 25, 2012, 12:55 PM:

If the dispute were in some sense about rights or responsibilities or the social purpose of copyright law, their lawsuit would be silly. But in reality, it's about the fact that big established industries with lots of money and connections have power, and can get the help of other powerful people when some newcomer is messing up something they've come to depend on. (Among other things, the powerful as a group are broadly conservative, not in the sense of the ideology marketed under that brand name in the US, but in the sense of broadly liking things to work as they have worked in the past, since that's how those people came to power.).

Bruce: That sounds so outlandish, I would really like to see some kind of reference or link. Among other things, it doesn't seem to track with the common situation where companies do go bankrupt, often as a result, I think, of being sued by their creditors attempting to get their money back.

The example of the overlap between these two things that sticks in my mind is the tobacco lawsuits. Basically, what happened there is that the big tobacco companies engaged in a decades-long multi-million-dollar conspiracy to suppress and cast doubt on evidence that smoking was seriously unhealthy. And the result was a set of settlements which bound all future tobacco companies somehow to new restrictive regulations, along with fines that let the existing tobacco companies survive.

Now, if anyone had been concerned with justice, the right outcome from decades long conspiracy that cost hundreds of thousands of lives would be, at the very least, liquidating the companies and using the money to pay off the victims, with no effect at all on any tobacco companies not involved in the conspiracy. But my understanding is that this would have hurt important companies with friends and shareholders in high places, and damaged the local economies in some places, so it wasn't done.

#7 ::: Lizzy L ::: (view all by) ::: May 25, 2012, 12:56 PM:

How the hell do the corporations plan to prove that they know the intentions of people who record shows?


#8 ::: Dave Fried ::: (view all by) ::: May 25, 2012, 01:19 PM:

The dumb thing about all of this is that the contract between the networks and the carriers could have stipulated that the carriers not provide hardware to skip commercials when time-shifting.

In other words, it's their own dumb fault for not thinking of this when they were coming up with the agreement that let Dish carry their signals in the first place.

#9 ::: Fragano Ledgister ::: (view all by) ::: May 25, 2012, 01:26 PM:

In the immortal words of the Mighty Sparrow: "It's sad and getting more bad because, doudou, capitalism gone mad!"

#10 ::: Nangleator ::: (view all by) ::: May 25, 2012, 01:53 PM:

Of course, if I 'accidentally' pause playback, I can have the subjects on the screen arrested for loitering, right? Perhaps at the rate of 29.97 counts per second?

#11 ::: Nangleator ::: (view all by) ::: May 25, 2012, 01:55 PM:

Dave Bell @ #4: They have no more sense than a Zabriskan Fontema.

#12 ::: Bill Higgins-- Beam Jockey ::: (view all by) ::: May 25, 2012, 02:09 PM:

In #1 Mike Kozlowski writes:

I'll confess to some surprise that you're not more sympathetic to the networks. [...] The difficulties that ad-supported TV is having [...]are a pretty close mirror to the difficulties that copyright-based publishing is having...

That he is an employee of a large company in the copyright-based publishing industry does not keep Patrick from being Patrick. He has, as you may know, some pretty nuanced opinions about such matters.

#13 ::: Michael Straight ::: (view all by) ::: May 25, 2012, 02:35 PM:

“Felony Interference with a Business Model”

You SF writers with your frighteningly plausible imaginations. It's a lot more believable than "United States Dept. of Homeland Security" would have seemed 20 years ago.

#14 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 02:45 PM:

Bill: To be clear, I'm not making the analogy because of his employer, I'm making it because in the comments to the last blog post, TNH mentioned "the cheapskates who claim to love fantasy, and want convenient ebook editions of it, but can't be bothered to reward those who created it." Which, with maybe two word substitutions, seems like precisely the sort of things that people at the networks might be saying about ad-skippers, and for the same reasons.

To switch so quickly from the perspective of the producer ("What consumers want isn't the point, the point is that we need to reward creators, and consumers need to deal with that") to the perspective of the consumer ("Rewarding creators is all well and good, but the point is what consumers want, and producers need to find a way to deliver that") whiplashed me right up.

(And yes, I know that TNH isn't PNH.)

#15 ::: lorax ::: (view all by) ::: May 25, 2012, 02:55 PM:

Mike, the issue of how strongly one supports copyright isn't, as I see it, the main issue here.

Can you please explain how fast-forwarding through commercials, or making that practice easier, is in any way copyright infringement? Copyright infringement is not, after all, defined as "something that makes a copyright holder unhappy" or even "something that costs a copyright holder money".

#16 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 25, 2012, 02:56 PM:

albatross @ 6:

My memory was based on a FrontLIne episode I saw a couple of years ago, and I'm unable to locate any info on it just now, but here are the raw figures in the laws of two states that I think formed the basis for the claim. Failing additional information I'll admit that the theory FrontLine gave may not be reflected in the actual laws, although I'd be surprised if it weren't in the intent of the writers of the Mississippi law, considering the history of tort cases against large corporations there.

Caps on medical malpractice awards:
Mississippi:

no award of punitive damages shall exceed the following: (i) $20 million for a defendant with a net worth of more than $1 billion; (ii) $15 million for a defendant with a net worth of more than $750 million but not more than $1 billion; (iii) $5 million for a defendant with a net worth of more than $500 million but not more than $750 million; (iv) $3,750,000 for a defendant with a net worth of more than $100 million but not more than $500 million; v) $2,500,000 for a defendant with a net worth of more than $50 million but not more than $100 million; or (vi) Two percent of the defendant's net worth for a defendant with a net worth of $50 million or less.

Montana:
§27-1-220. A judge or jury may award, in addition to compensatory damages, punitive damages for the sake of example and for the purpose of punishing a defendant. An award for punitive damages may not exceed $10 million or three percent of a defendant's net worth, whichever is less.

Late breaking news: the Mississippi law was overturned by a Mississippi circuit court judge 2 weeks ago. The case is almost certain to be appealed, so stay tuned.

#17 ::: Chris Suslowicz ::: (view all by) ::: May 25, 2012, 03:06 PM:

Serge @ #5

You get K-Y Gel ads?

Luxury!

Here in the benighted UK, Dick Emery is not just a comedian.

#18 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 03:07 PM:

lorax: I don't like talking about laws, because a) I'm not a lawyer and laws are subtle things, but also b) laws are pragmatic, empirical things that have grown up to serve purposes both generally beneficial to society and also specifically beneficial to corporate interests.

Fundamentally, publishing's modern use of "copyright" is no less absurd than the TV industry's -- you don't really own a copy of an ebook the way that you owned a copy of a paperbook, and you don't have the rights that you took for granted with the paperbook (libraries, for instance, can't just buy 20 copies of an ebook at Amazon, crack the DRM, and then put them up on their site for their patrons to borrow, keeping count of how many are checked out/returned). Everything works on a licensing model, and it's not more silly to say that broadcast TV has an implicit license that when you watch it you agree to watch it unmodified and unedited.

Is that the law? Not right now, I don't think, but if it were, I don't believe that changes any fundamental points of principle.

Which is the long way of saying: Copyright law is a red herring.

#19 ::: Russell Letson ::: (view all by) ::: May 25, 2012, 03:14 PM:

Mike @1: The "accidental trait of . . . distribution technology" is not a single trait, nor even a pair of similar traits, unless "difficulty" is the crucial element. Nor are the business models of network TV and book publishing all that similar. The direct customer of the network is the advertiser, who pays for access to eyeballs. The customer of the publisher is the purchaser of the book. The primary customer of the for-pay video-content distribution organization is the equipment/service user--though nothing prevents the satellite or cableco operator from piggybacking, say, advertising onto their base service, in which case the ad buyers are also customers.

Pirating and distributing a text does constitute a kind of theft as well as the violation of various rights granted the rights-holder under copyright law. A technological means of circumventing complete, linear, real-time viewing of a datastream is not really equivalent, except insofar as it might threaten an income stream--which could also be threatened by, any number of other factors (e.g., the famous bathroom/sandwich break).

I suspect that neither the networks nor their lawyers are being as dense or dumb as one might think. They may be playing a long game, going less after commercial-skipping itself than the underlying technology--which enables recording not only for timeshifting but for archiving--and that latter *can* be construed as cutting into the revenue stream for commercial DVD releases of TV series, which was hardly a gleam in the industry's eye when the Betamax decision declared that home recording for time-shifting was OK. And the long-game goal doesn't have to be as clumsy as trying to rewrite copyright law--all it has to do is set the stage for extensions of the kinds of control already in place--HDMI restrictions, cableco no-record flags, and other tech-based limits on what can be done to a data-stream.

#20 ::: Serge Broom ::: (view all by) ::: May 25, 2012, 03:15 PM:

Chris Suslowicz @ 17... I seldom watch regular TV, as my preference is for movie channels, but I caught one once. Also, they're all on YouTube. I especially liked the one that climaxed with a cruise ship's foghorn.

#21 ::: Jim Macdonald ::: (view all by) ::: May 25, 2012, 03:49 PM:

Information wants to be free.

Entertainment wants to be paid-for.


The argument here is on how exactly to pay for that entertainment.

Recall that, on practically every list of "bad predictions" floating around the 'Net, you'll find this item:

«The wireless music box has no imaginable commercial value. Who would pay for a message sent to no one in particular?» Associates of David Sarnoff responding to the latter's call for investment in the radio in 1921.

Turns out it wasn't a bad prediction; it was a remarkably astute one. Just a century too early.

The basic foundation is this transaction inside of each person's skull: "I wish to be entertained by X. I will pay for X by (buying a ticket|watching an advertisement for hair-care products|donating to National Public Radio|giving a jump, a whistle, and a fart)."

#22 ::: Torrilin ::: (view all by) ::: May 25, 2012, 04:07 PM:

you don't really own a copy of an ebook the way that you owned a copy of a paperbook, and you don't have the rights that you took for granted with the paperbook

Depends on who you buy from.

Tor is in the process of changing over to DRM free, Baen is already there, and I believe the Book View Cafe cooperative is also already there. Not sure about other electronic book options.

However, right now Adobe has something of a monopoly on library electronic rights management. I'm not sure there are any software packages that would assist a library in managing a collection of DRM free ebooks, even tho this prevents them from offering a number of popular SF authors in ebook form, and it ensures that they don't offer ebooks of anything Project Gutenberg has digitized.

The whole thing is very odd and technology makes it more complicated, not less.

#23 ::: Jim Macdonald ::: (view all by) ::: May 25, 2012, 04:11 PM:

you don't really own a copy of an ebook the way that you owned a copy of a paperbook, and you don't have the rights that you took for granted with the paperbook

This is the equivalent of arguing that don't own the apartment that you rent like you do the house you buy.

Yes, it's true. But so what?

#24 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 04:14 PM:

Torrilin: DRM is a red herring, too. Even without DRM on an ebook, you don't own it, you're only licensing it. Amazon's licensing terms (which, despite anti-Amazon sentiment in these parts, are not worse than anyone else's) specify clearly that "you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party"

Can't resell your books, can't lend them to friends, can't buy them and use them as the basis of a library. Nothing to do with DRM.

#25 ::: Serge Broom ::: (view all by) ::: May 25, 2012, 04:20 PM:

Torrilin @ 22... Book View Café indeed is already there.

#26 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 04:23 PM:

Jim@23: So, 'fundamentally, publishing's modern use of "copyright" is no less absurd than the TV industry's' -- they're both based on a set of restrictions that you implicitly agree to by licensing their content, not traditional buying/selling agreements.

#27 ::: joe McMahon ::: (view all by) ::: May 25, 2012, 04:32 PM:

lorax@15: Agreed. Calling skipping commercials copyright infringement is about as sensible as saying the same about skipping a section of a technical book that focuses on a particular product.

If the same applied to books, there'd have to be a means to prevent you from turning the page until the book had judged you had read it. (Nanotech robots holding the page down? There's a nugget to start a story from.)

#28 ::: Jim Macdonald ::: (view all by) ::: May 25, 2012, 04:54 PM:

#25:

No, Mike, I don't agree with that at all. This is reasoning by analogy, and it's a false analogy.

The publishing industry's use of "copyright" is, quite literally, the right to make copies.

#29 ::: Kip W ::: (view all by) ::: May 25, 2012, 05:06 PM:

"HBO and your VCR: Best friends!"
— from a house ad in the late 80s, which I have on tape

#30 ::: Kip W ::: (view all by) ::: May 25, 2012, 05:08 PM:

In the religion class I just finished, I wrote that illiterate people in the middle ages got their Bible from the artwork in the church — windows, paintings, and sculpture. They knew who all the figures were and what they represented, and they ignored the kneeling figure of The Patron as easily as they've ignored advertising ever since.

#31 ::: Caroline ::: (view all by) ::: May 25, 2012, 05:14 PM:

TV networks and book publishers (and record labels and movie studios, etc.) have to offer something that their customers think is worth paying for.

We can argue about the ethics of torrenting a TV show or an e-book, but whether or not anyone thinks people should do it, they can do it. I don't think that's going to change. Genie not going back in bottle, cat not going back in bag, choose your cliché.

So entertainment-content sellers now have to convince people to choose to buy their products over two alternate choices: 1) not acquiring their products at all; 2) acquiring their products through non-paid means. I'm not trying to coyly euphemize "stealing" there; I mean to include situations where the creator/owner chooses to make something available for free, but also makes it available for sale.

There are various ways to convince someone to give you money in exchange for a product, even if they can also get it for free.

One way is to make the paid product significantly more convenient and reliable. For example, I choose to pay Netflix and Hulu monthly subscription fees in exchange for knowing I'll get good-quality video that I can stream directly to various devices I own. The lack of futzing is worth that money to me.

Another way is to cultivate fans -- if customers feel a personal connection with the creators/owners, they'll want to support them. For example, I buy Cory Doctorow's books even though he makes them available for free, as a way of showing my appreciation for his work.

What generally doesn't work: Trying to forcibly block off the "acquire through non-paid means" option, especially if you do it in ways that make the product you want people to pay for significantly less convenient or reliable than the product people would get through non-paid means.

Extra specially if you do it by introducing inconvenience and annoyance, then proceed to try to punish people further for trying to mitigate the annoyance. Which is what's going on here, as I see it.

#32 ::: Mike Kozlowski ::: (view all by) ::: May 25, 2012, 05:20 PM:

Jim @28: No, it's really, really not.

If I buy a license to an ebook, I can make as many copies of it as I want, AS LONG AS only I read it. I can put a copy on my phone, a copy on my Kindle, a copy on my laptop, and even print out a half-dozen physical paper copies.

What I can't do is violate the terms of the license, which includes prohibitions on resale (even of the copy I "bought") or lending.

And really, if you were focused on copying as the key, it's worth noting that using a DVR involves you copying the broadcast stream (and then editing your copy) -- the only thing that makes it possible to watch a TV show without commercials is making copies of it.

But that's all beside the point, because focusing on legacy copyright concepts is so much argument about angels doing pin dances -- scholastic quibbling about premises that no longer have any relationship to the real world.

#33 ::: lorax ::: (view all by) ::: May 25, 2012, 05:26 PM:

Mike @32:

And really, if you were focused on copying as the key, it's worth noting that using a DVR involves you copying the broadcast stream (and then editing your copy) -- the only thing that makes it possible to watch a TV show without commercials is making copies of it.

Yes, but the copyright ramifications of that were settled way back in the VCR days. See Sony vs. Universal City Studios. (It's entirely possible that that case would be decided differently if the issue were raised for the first time today, but it's hardly uncharted legal territory.)

#34 ::: Serge Broom ::: (view all by) ::: May 25, 2012, 05:36 PM:

Caroline @ 31... situations where the creator/owner chooses to make something available for free, but also makes it available for sale.

Nina Paley's "Sita Sings the Blues" is a good example. I could have stuck with the copy someone made for me, but I now have the DVD in a nice container, bought off the site, along with a Sita pin, and the peacock-gramophone pin.

#35 ::: Lylassandra ::: (view all by) ::: May 25, 2012, 05:49 PM:

So what happens if I fast-forward the Superbowl so I can watch the commercials?

#36 ::: Serge Broom ::: (view all by) ::: May 25, 2012, 05:59 PM:

Next, popup-ad blockers?

#37 ::: Jim Macdonald ::: (view all by) ::: May 25, 2012, 06:31 PM:

Okay, Mike, clearly we aren't understanding each other. Because I'm not at all grasping what you're saying here.

Let's take it back to first principles, and single-step through it, okay?

#38 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 25, 2012, 07:05 PM:

Mike Kozlowski, #14: "Bill: To be clear, I'm not making the analogy because of his employer, I'm making it because in the comments to the last blog post, TNH mentioned 'the cheapskates who claim to love fantasy, and want convenient ebook editions of it, but can't be bothered to reward those who created it.' Which, with maybe two word substitutions, seems like precisely the sort of things that people at the networks might be saying about ad-skippers, and for the same reasons."

Mike, you ninny, Teresa was putting you on. The "free pirate text version" of The Lord of the Rings under discussion is in fact a chapter-by-chapter parody of The Lord of the Rings. Your quotation of it to impute some kind of inconsistency or hypocrisy on my part ("I think anyone who can use the word "piracy" with a straight face ought to have at least some sympathy for industries undergoing similar disruptions")--along with your hasty to-be-sure about how TNH and I are separate people--doesn't leave me with the warm feeling that you're here to argue in good faith. It leaves me with the feeling that you're looking for cheap shots and not too careful about how you source them.

If you actually cared about the fact that TNH and I are separate people, you wouldn't have characterized me--in your comment #1--as someone who "can use the word 'piracy' with a straight face." In fact, you insinuating poltroon, I have a long record of publicly criticizing the use of the word "piracy" to describe innocent acts of sharing; I've frequently and forcefully deplored the kind of EULAs and shrinkwrap agreements that make bought-and-paid-for e-books and other digital assets into revokable licenses rather than normal personal property; and I'm well-known inside of Tor and Macmillan as an opponent of DRM. Indeed, you may have heard that all Tor e-books will be DRM-free by the middle of this summer. You're welcome.

"Can use the word 'piracy' with a straight face," my eye. You can take your imaginings and insinuations and get stuffed.

#39 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 25, 2012, 07:55 PM:

The hell of it is that I actually agree with Mike Kowzlowski that the EULAs and shrinkwrap agreements that ebook retailers and Big Six publishers put onto ebooks are barely less absurd than the arguments being made in this court case by Fox, CBS, and NBC.

Not only do I agree, but I've spent the better part of a decade making points like this, not just on blogs but in arguments with the upper management of the company I work for. I'm not trying to portray myself as some kind of workplace hero--one of the many good things about Macmillan is that its upper management tends to be composed of people who are open to being argued with and don't fire people for intelligently disagreeing with them--but the effort hasn't been cost-free, either. Now along comes Kozlowski, who's barely interacted with me online for years, attributing to me a set of views based on (1) his inability to notice that TNH was putting people on, (2) his inability to notice that TNH =/= PNH, and (3) his imaginings about what I think, the entirety of which he appears to have pulled out of his ass.

What I was trying to provoke was a conversation about how we deal with the army of killer robots we appear to have built. Having it go in this direction instead makes me cross.

I'll say this to Kozlowski's #1: I am sympathetic to the distress that people working for the networks feel. I don't actually think that every "disrupter" is a hero or that every settled business model ought to be overturned just because someone can. In keeping with this worldview, I also don't think that large media corporations--or anyone else--are entitled to criminalize vast ranges of normal human behavior and demand dystopian measures of social control just so they (we!) can keep operating as if it's still 1975. In a sane world my outlook on these issues would be what got called "conservative." We don't live in that world.

And here's the point: I'm entirely sympathetic to the feelings of the human people inside the control rooms of the killer robot armies. Been there. Am there. And yet when you come right down to it, the killer robot armies behave like killer robot armies--whether the control-room staff are reading Rainer Maria Rilke and being kind to children, or shouting "BLOOD GORE YAY" while their robots laser down helpless old people. What do we humans do? Inside the control rooms, and outside? That was the question I was asking.

#40 ::: Megpie71 ::: (view all by) ::: May 25, 2012, 08:16 PM:

The whole issue with the sociopathic corporation is that, as some great writer put it, "they have neither bodies to be hanged nor souls to be damned". All they have is profits. And thus it is through their profit we have to punish them. I've long thought the appropriate punishment for a corporate body, whether for frivolous lawsuits, legal time-wasting, or outright wrongdoing should consist of a fine of 1% of gross income. Per instance (so if they get convicted twice, they pay a 2% fine, 3 times is 3%, 4 different offences means they're paying out 4% of their gross income, etc). For as many years as a person would be jailed for (so for a 10 year jail term, the corporation is paying 1% of their gross income per year for the next 10 years) or at least a minimum of 2 years. If nothing else, it would hopefully act as a sufficient corrective means.

I chose gross income as the levying point deliberately: it means that any fines are levied on the money coming in before the corporation in question can get onto any financial jiggery-pokery which reduces or vanishes the amount of their "profits" in a particular jurisdiction.

Of course, I see the likelihood of this ever being introduced (particularly in the US, where your corporate masters would shriek blue bloody murder at the thought) as minimal, but it's a nice sort of thought.

#41 ::: KayTei ::: (view all by) ::: May 25, 2012, 08:49 PM:

Mike @ 18

"I don't like talking about laws, because a) I'm not a lawyer and laws are subtle things, but also b) laws are pragmatic, empirical things that have grown up to serve purposes both generally beneficial to society and also specifically beneficial to corporate interests."

I think your use of pragmatic here, in this context, is potentially on thin ground. But even pragmatic laws are no guarantee of just laws, or evenhanded laws. Which is to say, I don't understand what believing laws are pragmatic and empirical has to do with not wanting to discuss them.

What I will note is that those explicit laws are exactly why Amazon's explicit licensing agreement, agreed to in writing at time of purchase, is a wholly different animal than Network TV's suddenly asserted "implicit" license.

You can't have a verbal agreement if you never said anything about it before the contract was struck. You can't arbitrarily impose new terms mid-contract. If the networks could get this through negotiation, they would. They can't, so they are trying to convince everyone that "we all agreed ahead of time."

IANAL, but here's my personal take: The Network's lawyers accepted as "understood," something that should have been made an explicit contract provision. They had plenty of time to change this via contract before now (recording technology is not new, it is simply continuing to be refined).

Now they have seller's remorse. Tough.

#42 ::: Nanette ::: (view all by) ::: May 25, 2012, 09:06 PM:

And- with almost no exceptions, I buy paper. Sorry trees, but I own it, I can burn it, loan it, sell it, or drop it in the bathtub. Take your Kindles and kram them...

#43 ::: Kip W ::: (view all by) ::: May 25, 2012, 10:39 PM:

And-

I looked, but can't find a previous comment of yours in this thread. Was it meant for a different one?

#44 ::: Avram ::: (view all by) ::: May 25, 2012, 10:49 PM:

Or— maybe someone just likes prepending arbitrary conjunctions to their comments.

#45 ::: Lenny Bailes ::: (view all by) ::: May 25, 2012, 11:22 PM:

What I was trying to provoke was a conversation about how we deal with the army of killer robots we appear to have built.

My take is that we're more or less at the mercy of any remaining benevolent civil servants, humanitarian powers in the corporatocracy, and gifted, visionary media participants to help us fight the most horrible excesses of the corporate state, while attempting to strike down the "Citizens United" decision, appoint a public service oriented Supreme Court, and return to public consciousness the notion of justice through regulation and oversight of the most powerful corporate entities.

If we ever manage to re-establish a public service oriented government in the United States through a rational electoral process, we can think about Courts that have the power to receive civil suits against corporations and rule in the public interest through laws passed by better Congresses and enforced by better Attorney Generals than we've seen in awhile.

In the short run, do just what you're doing now. Good on you. If we have any insanely great (or just reasonably wise and stubbornly dedicated) public organizers among us -- keep organizing. We might, even now, have a few persistent lawyers, class action suits, and courts left to work with.
Semi-autistic oldpharts like myself can probably best help by reminding ourselves to cough up a few bucks for Norman Solomon, keep ourselves informed, and involve ourselves more in community processes that we can understand.

#46 ::: Mike Kozlowski ::: (view all by) ::: May 26, 2012, 12:05 AM:

Patrick: I know the LOTR thing was a parody, but I apparently misread TNH's point in that comment.

And beyond that, well, everything you say in your comment is sensible (although I have a hard time agreeing with "poltroon") and I'm sorry for having badly misread your position. I may not comment here often, but I have been reading the blog regularly, and... well, like I said, I badly misread your position.

#47 ::: Harry Payne ::: (view all by) ::: May 26, 2012, 03:14 AM:

#3 RiceVermicelli

Am I permitted to use the commercials to go to the bathroom?

Are you perhaps thinking of this (from May 2002...)

"Jamie Kellner is the chairman and CEO of Turner Broadcasting, which encompasses everything from CNN to TNT and is a part of AOL Time Warner. On Monday, an interview with Kellner appeared in CableWorld.

"In response to a question on why personal video recorders (PVR's) were bad for the industry, Kellner responded: "Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming."

I laughed then, I laugh now.

#48 ::: Dave Bell ::: (view all by) ::: May 26, 2012, 05:57 AM:

I can't compare advertising patterns in the USA and the UK, but I recall my parents saying, after a long-ago visit to cousins, that the American TV advertising was horribly intrusive; more adverts, and nothing to mark the transition from show to advert.

#49 ::: Dave Bell ::: (view all by) ::: May 26, 2012, 07:03 AM:

1955: the invention of the TV remote control. One of the advertised uses: turning off the sound during commercials.

#50 ::: Walt ::: (view all by) ::: May 26, 2012, 10:06 AM:

Dave Bell @48: "more adverts"

When I started buying DVD sets of modern and older TV series, I noticed that current "1 hour" shows in the US are about 42 minutes of story and 18 minutes of commercials + closing credits.

Older (8-10 years ago?) "1 hour" shows were (I think)) 50 minutes of story, or so.

So I'm certainly willing to believe that we have more (too many) commercials, and it's only getting worse on the ad-supported networks.

#51 ::: P J Evans ::: (view all by) ::: May 26, 2012, 10:50 AM:

47
I get the impression he gets his TV viewing free.

Someone needs to explain to these people how cable TV works in practice: you pay by the month for a menu of channels, from which you choose what to watch. The viewer pays, whether they watch or not, so the networks are getting their money, whether people watch or not.
How they heck did they get to be CEOs without understanding this?

#52 ::: Jim Macdonald ::: (view all by) ::: May 26, 2012, 11:05 AM:

How they heck did they get to be CEOs without understanding this?

By being MBAs, which means that they don't have to know anything about the business they're in.

(Pause here to Google on "MBA Jokes.")

#53 ::: Serge Broom ::: (view all by) ::: May 26, 2012, 11:43 AM:

Jim Macdonald @ 52... What you said reminds me of what writer (and former Navy person) John Hemry observed, about how the real work is done by Chiefs because they're the ones who know how things really work, not the officers. Or words to that effect.

#54 ::: Erik Nelson ::: (view all by) ::: May 26, 2012, 11:59 AM:

Wasn't there a thing in the TV show Max Headroom where they gave all the poor people free television sets? That couldn't be turned off.

#55 ::: Serge Broom ::: (view all by) ::: May 26, 2012, 12:06 PM:

Erik Nelson... And 'off' switches were illegal.

#56 ::: beth meacham ::: (view all by) ::: May 26, 2012, 12:24 PM:

The network-killer-drones might have some kind of case about expecting people to watch their advertising if in fact they were providing the entertainment content for free. Might. Maybe. But in fact, they are not providing it for free. Dish Network pays for the content they distribute to their subscribers. Their subscribers in turn pay for the content. The relationship is that of a magazine to the subscriber, and as a subscriber if I want to tear out the ad pages, I am free to do so. If I want to skip over the commercials in stuff I've recorded, or just put the tv on pause while I go do something else, and then skip the commercials when I get back, what is it to them? They have received the price they set for the entertainment.

Now, if they want to start supplying the content for free, thus reducing my subscription costs, that would be a different matter. Maybe.


#57 ::: Jim Macdonald ::: (view all by) ::: May 26, 2012, 01:46 PM:

I'm temporarily taking "DISH Network" out of the spam filters, 'til this conversation runs its course. DISH Network is a big believer in comment spamming guerrilla marketing. Sorry about any up-tick in spam comments. I'll get to 'em as quickly as I can.

#58 ::: Jim Macdonald ::: (view all by) ::: May 26, 2012, 02:25 PM:

Fox, CBS, and NBC are using a ridiculous legal theory to amend their contracts. It doesn't pass the laugh test.

Next time they should include the following in the contract they sign with DISH:

DAWGGIEZ HAZ NOMS
KITTEHS HAZ SADS
IF U WANTS R STUFF
DEN U HAS 2 SHOW ADZ KTHX.

The solution to the problem from the POV of Fox, NBC, and CBS, is already available and intuitively obvious: Run the ads superimposed on the programs themselves. (To get the show without ads, buy the DVD.)

Note that this is already done, notably on cable shows where 'no commercial breaks' are the standard.

#59 ::: P J Evans ::: (view all by) ::: May 26, 2012, 02:44 PM:

58
And on the local 'no-commercial-breaks' version of the Rose Parade. They use see-through overlays, instead. (But they don't leave the parade when the do it, unlike the other coverage.)

#60 ::: geekosaur ::: (view all by) ::: May 26, 2012, 07:35 PM:

FIFA doesn't allow commercial interruptions during broadcasts of officially sanctioned soccer games. In the past, I had access to Mexican and South American (and, rarely, Central American) soccer telecasts; they all had ways to show ads during the game without interrupting or significantly obscuring the game.

US telecasts are not as sophisticated with the ads, which are limited to logos in the graphics and mentions by the commentators. I have wondered how long before that changes, and suspect NBC will be experimenting on Major League Soccer now that they are the major rights-holder.

#61 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 26, 2012, 08:19 PM:

Mike, I take back "poltroon." Also, thanks, and let's just reset.

#62 ::: John Mark Ockerbloom ::: (view all by) ::: May 26, 2012, 08:55 PM:

"The network-killer-drones might have some kind of case about expecting people to watch their advertising if in fact they were providing the entertainment content for free. Might. Maybe. But in fact, they are not providing it for free"

Well, the networks mentioned in the post are providing it for free for those who us who still get TV over the air instead of paying a satellite or cable company. I do wonder if at some point some of them will decide to pull the plug and go pay-TV only; but hopefully not as long as a fair number of us still only watch them over the air.

Sports has to some extent gone that way already; you used to have all the baseball playoffs on over-the-air networks, as far as I can remember, and now many are on (pay-TV-only) TBS. And NBC pulled their "Universal sports" sideband channel off the air and onto cable after Comcast bought them out. And some of the broadcast channels here in Philly now seem to be completely devoted to home-shopping, or in one case, a test pattern just holding the frequency. (I'd thought the FCC had a requirement for stations using the airwaves to provide at least some public service or other non-advertising content, but perhaps those rules have gone by the boards.) Still, there are more channels with actual content on the air now here than there were in the analog-only days.

#63 ::: J Homes ::: (view all by) ::: May 27, 2012, 02:20 AM:

@54 and @55.

Which would come straight out of Orwell's 1984.

Of course, those were two-way.

J Homes.

#64 ::: Charlie Stross ::: (view all by) ::: May 27, 2012, 09:09 AM:

Jim, @58: The solution to the problem from the POV of Fox, NBC, and CBS, is already available and intuitively obvious: Run the ads superimposed on the programs themselves. (To get the show without ads, buy the DVD.)

Alternatively, stick post-it notes over those areas of the TV screen occupied by ads.

If they start moving the ads around in case the viewers are using post-it notes to block them, I'd say it's game over (because it means so many people have come to hate the advertising that it's impacting their bottom line, and making the ads more intrusive is going to plunge them into a death spiral.)

#65 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 09:18 AM:

J Homes @ 63... Max's parents knew their classics, I guess.

#66 ::: Erik Nelson ::: (view all by) ::: May 27, 2012, 10:54 AM:

Patrick says, at the head of this post, "Our army of killer robots has made it clear: they work for themselves, not for us, and they will break the world."

I remember reading a story, I think it was in Analog in the late seventies, but I don't remember the title or author:

There is a landlord named Sam who has an apartment building that is infested with cockroaches, so he finds an ad in a magazine and orders some little electronic cars that chase cockroaches. In the end the cars chase him down and kill him. The last line of the story was "The cars were no longer working for Sam."

Are we thinking of a "cars were no longer working for Sam" scenario for all our robotic cybereverything?

#67 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 11:06 AM:

What was the title of that awful Tom Selleck movie where he plays a cop who specializes in dealing with malfunctionning household robos? I think it also involved KISS's Gene Simons, and a gun that shot bullets that could go around corners.

#68 ::: Erik Nelson ::: (view all by) ::: May 27, 2012, 11:26 AM:

Serge Broom at #67: Found that.

http://www.imdb.com/title/tt0088024/

It's called Runaway, made in 1984.

#69 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 11:47 AM:

Erik Nelson @ 68... That's the one, one work in the Michael Crichton oeuvre that came and went fast. I was amused by the kitchen's wheeled robot that was a couple of feet high, and confined to the floor, so I kept wondering how it could reach countertops and do any cooking. Maybe it had an antigravity unit like the Daleks.

#70 ::: John Mark Ockerbloom ::: (view all by) ::: May 27, 2012, 01:02 PM:

Nostalgia Critic's Old vs. New: The Lord of the Rings compares Bakshi's version with Jackson's. He sees more to like in the Bakshi version than many people do, arguing that there are some elements that worked better there than in Jackson's adaptation, though he still concludes that the Jackson version is better overall. As for what he thinks of the Rankin-Bass... well, see for yourself.

The review is enjoyable to watch, whether or not your take is the same as his.

#71 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 03:19 PM:

Patrick @ 39... one of the many good things about Macmillan is that its upper management tends to be composed of people who are open to being argued with and don't fire people for intelligently disagreeing

I've heard of such places.

#72 ::: Charlie Stross ::: (view all by) ::: May 27, 2012, 06:35 PM:

Serge @71: I can confirm, as an outsider, that Patrick is telling the truth. Speaking more generally: my experience of working in organizations of varying scales is that shit (and bouquets of roses) flow from the top down. If the people at the top are wise and benevolent, it'll be a great place to work regardless of the job: if not, not.

Unfortunately the late 20th century fad for generic management processes over domain-specific wisdom has given lying shitweasel sociopaths a fast-track to the boardroom in many organizations: wherein they spread the rot and certainly aren't shoveling bouquets of roses down atop the heads of those below. (Publishing, luckily, seems relatively resistant to the disease -- probably because it's so obviously not a route to self-aggrandizement that the worst climbers gravitate elsewhere.)

#73 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 06:50 PM:

Charlie Stross @ 72... the late 20th century fad for generic management processes over domain-specific wisdom has given lying shitweasel sociopaths a fast-track to the boardroom

Now *this* is something I'm familiar with. Along with seeing an organization where the primary goal is to get things done becoming so successful that it's then taken over by folks whose primary goal is to follow rigid procedures. And did I mention that such places manage to obscure the roots of a bad decision enough that they'll be gone before the highest higherups notice that $10,000,000 has been spent on something that will not work, and which will have destroyed an awesome group?

#74 ::: Linkmeister ::: (view all by) ::: May 27, 2012, 08:40 PM:

Serge, I once worked at a place where an ill-spent $50K was enough to blow the company up, but the newly-hired (Harvard) MBA brought in to manage it didn't realize it. Probably because he spent that much on the 5 suits he wore to work, one for each day of the week.

That was during the two-year period in which I had eight bosses in quick succession. I bailed after that.

#75 ::: Serge Broom ::: (view all by) ::: May 27, 2012, 09:09 PM:

Linkmeister @ 74... the two-year period in which I had eight bosses in quick succession

I've had the same boss for two years now, but others around him and just below him have been 'thanked' - as the French euphemism goes for 'being given the boot'.

#76 ::: Andrew Plotkin ::: (view all by) ::: May 27, 2012, 10:26 PM:

Are we bragging? I once worked at a place where, after a year of employment, my teammates tried to write down a list of all the managers we'd had. I think we reached *thirteen* names... and we'd only met twelve of them in person.

We were thanked for our services a few months after that. (And promptly went out for a celebratory dinner.)

#77 ::: Xopher HalfTongue ::: (view all by) ::: May 27, 2012, 11:16 PM:

I've worked with a number of Harvard MBAs in my career. I'm not willing to say that all Harvard MBAs are either clueless fuggheads or slimy underhanded jerks or both, because though that's certainly true of every single one I've ever worked with, I don't actually have a statistically valid sample.

I wonder, however, if people at Harvard know how widely the phrase 'Harvard MBA' is associated with 'clueless jackhole'.

#78 ::: Linkmeister ::: (view all by) ::: May 28, 2012, 01:49 AM:

Xopher, of all the MBAs I've worked with, only the U of Hawaii ones understood that their job was to persuade people what needed to be done.

Note: I should say that I mean in civilian employment. The Navy doesn't believe in persuasion; it believes in orders. I understood that when I was in.

#79 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 28, 2012, 02:58 AM:

Sure, let's brag. I once worked at a company that had, IIRC, 11 CEOs in 14 years. Not a one of them was worth the powder to blow him to hell, and at least 2 of them were crooks. On the other hand, it was in some ways the best 8 1/2 years of my professional career because the engineers were to a man or woman highly competent and a joy to work with. On the gripping hand, when it finally went south, it did so spectacularly, laying everybody off a month before 9/11.

#80 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 28, 2012, 03:02 AM:

Charlie Stross @ 72:

lying shitweasel sociopaths

Towards the last there, before I retired, I was running into so many of these that I was beginning to think it was a job title.

#81 ::: Charlie Stross ::: (view all by) ::: May 28, 2012, 03:35 AM:

Serge @73: I had the eye-opening experience of being a senior-ish developer at a dot com during the IPO-equivalent process (actually a reverse takeover of an already-public shell corporation with an AIM listing, mediated by VCs) in 1999-2000. The school of piranhas in Armani who moved in would have been impressive from a less uncomfortable viewpoint. Up close, it was very ugly.

(Mind you, by the time we got to that stage all of us who were in on the ground floor were working beyond the level of our incompetence, from the CEO down; we'd started out with £30,000 in the war chest and were going public to raise £32M for the next stage in growth, two and a half years later.)

Ahem.

I think my point was something along the lines of: bad management is not only not inevitable, it usually arrives as an infection, after a company has grown up under good management.

#82 ::: Serge Broom ::: (view all by) ::: May 28, 2012, 08:34 AM:

Charlie Stross @ 81... bad management is not only not inevitable

Oh, I agree. I once told a co-worker that, if I had a time machine, I'd stop my team from hiring the one specific person who started us down this road to Hell, and down which our higherups are keeping us going because they'd have to admit to the Big Boss they were bamboozled by that nexus person, and their heads would roll.

#83 ::: Lila ::: (view all by) ::: May 28, 2012, 08:52 AM:

You guys are making me want to kiss the ground in gratitude for my job. I work in one of a small chain of half-a-dozen PT clinics; the partner/owners are PTs. I work PRN; I get no benefits (we have health insurance through my husband's job), no paid leave, no CEU reimbursement. On the other hand I work in an atmosphere of intense concern for patient welfare, high ethical standards, skillful evidence-based practice, and mutual respect. No amount of money would tempt me to leave, unless someone in my family needed a bone marrow transplant or something.

#84 ::: etv13 ::: (view all by) ::: May 29, 2012, 05:29 AM:

bethmeacham@56: But is that really true? The folks at our local pbs station are always pointing out that your cable fees don't actually pay for the pbs programming, that's why they need you to pledge. And my understanding is that most magazine subscriptions may cover the cost of getting the physical object to you (i.e., postage, paper and ink) but it's the ads that actually pay for somebody to write the articles.

#85 ::: ajay ::: (view all by) ::: May 29, 2012, 06:38 AM:

And my understanding is that most magazine subscriptions may cover the cost of getting the physical object to you (i.e., postage, paper and ink) but it's the ads that actually pay for somebody to write the articles.

The advertising/subscription split varies hugely from magazine to magazine. As a rule, consumer magazines tend to be more ad-dependent and specialist titles are more subscription-dependent, but there's a lot of variation around that. Postage, paper and ink are IME a very minor part of the total cost of producing a magazine.

#86 ::: Chris W. ::: (view all by) ::: May 29, 2012, 07:52 AM:

Xopher @77 and others re: Harvard MBAs:

Speaking as the child of two Harvard MBAs I think I can definitively say that not all Harvard MBAs are fools or con men (con persons?) But my parents will be the first to join in in criticizing a system and an institution that tends to produce a lot of people who are.

And it's also the case that the fools and con men are the most salient. The ones who stick to their knitting and actually gain some area expertise by definition don't come sailing into a new company every 6 months with grand plans to reorganize the whole damn thing. (And what's more, they're much less likely to tell everyone who'll listen about their Harvard MBA, since they actually have other experience and achievements to point to to justify their authority.)

(This reminds me that a conversation with my mother about Bush jr.'s management style as typical of 80's Harvard MBAs prompted my very first comment on Making Light: On this thread from 2003

It was the immediate cogent and serious response from Teresa that I think cemented my desire to stick around.

#87 ::: Chris W. has been gnomed ::: (view all by) ::: May 29, 2012, 07:54 AM:

For the first time!

Probably because I tried to link to a very old thread.

[That was indeed the reason. The format "Making Light: [string]" is a filter. We see lots and lots of comment spam in, say, this thread, that read words to the effect of "I'm really enjoying Making Light: Felony interference with a Business Model! Keep up the good work!" -- Goofus Galananti, Duty Gnome]

#88 ::: paul ::: (view all by) ::: May 29, 2012, 10:14 AM:

Although a few people have alluded to it indirectly, I think it's crucially important to recognize the craziness of people suing DISH. Paid subscriptions to cable and satellite distribution -- and to premium channels -- were supposed to be solution to the fact that ad-supported over-the air broadcast wasn't working. I don't know whether the networks were really stupid in negotiating their contracts, or are just trying to double-dip the way all the last-mile ISPs are still trying to get big websites to pay extra to have bits delivered to their subscribers.

Of course, there is a side issue to this, namely that it gives advertisers potential access to information about how many people are really looking at their ads, which in turn may put them in a position to demand make-goods from the networks (until the networks have the sense to renegotiate contracts with either different numbers or a clause that says "if everyone is skipping your ad, that's because it sucks:).

#89 ::: Serge Broom ::: (view all by) ::: May 29, 2012, 10:16 AM:

Chris W...

"...not concerning yourself with the ground-level details means you won't get bogged down in them and miss the big picture..."
- Teresa in 2003

The Devil IS in the details after all.

#90 ::: Serge Broom ::: (view all by) ::: May 29, 2012, 10:22 AM:

Speaking form my own experience... My issue with management has been one of competence, or lack thereof, and the ability of the concerned to acknowledge the situation. As a result, I've dealt with the likes of Captain Queeg more than with Captain Kirk types. They both need power from the engineer, but the latter want it to keep the whole ship sailing.

#91 ::: Nancy Lebovitz ::: (view all by) ::: May 29, 2012, 10:30 AM:

I've wondered whether the Harvard Business School is a mistake of comparable magnitude to the Chinese deciding to stop exploring the western hemisphere, maybe a larger mistake.

Chris, I'd be interested anything you want to say about the good parts of the Harvard Business School.

#92 ::: LMM ::: (view all by) ::: May 29, 2012, 11:13 AM:

@64: Alternatively, stick post-it notes over those areas of the TV screen occupied by ads.

Irritatingly, several cable shows I've seen include pop-up ads that appear with a "swoosh" sound at the bottom of the screen. (To date, they're mostly for other TV shows on the same network, but it's an irritating trend.)

#93 ::: Lee ::: (view all by) ::: May 29, 2012, 12:08 PM:

Re #87: Now I'm insatiably curious. Does Goofus have a brother named Gallant?

Serge, #89: As with most things, there's a balance. If you don't have some understanding of the ground-level details, you make stupid decisions -- but if you can't look beyond them to the larger picture, you make different stupid decisions.

#94 ::: odaiwai ::: (view all by) ::: May 29, 2012, 12:09 PM:

LMM#92: Irritatingly, several cable shows I've seen include pop-up ads that appear with a "swoosh" sound at the bottom of the screen. (To date, they're mostly for other TV shows on the same network, but it's an irritating trend.)

Speaking of terrible TV advertising, I was in Pakistan on work last year, and one of the local movie channels ran advertising in the letterbox. Pakistani TV Advertising on Flickr has some pictures, if the description isn't clear. And of course there would be five minute advertising breaks in the movies, with the same ads repeated several times in succession.

#95 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 29, 2012, 12:13 PM:

Nancy Leobvitz @ 91:

I think it's worse, more on par with the Imperial habit of having all records of the previous Emperor's successes destroyed to prevent invidious comparisons.

#96 ::: Serge Broom ::: (view all by) ::: May 29, 2012, 12:13 PM:

Lee @ 93... Oh, I agree.

#97 ::: paul ::: (view all by) ::: May 29, 2012, 12:45 PM:

Bruce Cohen @95: Worse for whom? China's decision was the "right" one for their governing class for at least a couple of centuries. HBS will probably turn out to have been "right" for the apparatchiks for 100 years or so. Unless you have a very low discount rate for NPV, that's a great deal...

#98 ::: paul ::: (view all by) ::: May 29, 2012, 01:11 PM:

Bruce Cohen @95: Worse for whom? China's decision was the "right" one for their governing class for at least a couple of centuries. HBS will probably turn out to have been "right" for the apparatchiks for 100 years or so. Unless you have a very low discount rate for NPV, that's a great deal...

#99 ::: Chris W. ::: (view all by) ::: May 29, 2012, 01:47 PM:

Nancy @91: In order to answer that question I think we need to make a distinction between the group of people who work, research and study on the Boston side of the Charles River and "The Harvard MBA."

I think that the people do some good research and some bad research, and some teach well and some teach poorly, and ultimately, if you add it all up probably more good than bad comes out. And while the 3 year process of getting an MBA does very little to turn people who are lazy, stupid or greedy into people who are diligent, intelligent and ethical, I don't think it does all that much more to transform them in the opposite direction. To the extent that HBS graduates are disproportionately assholes, I think it's in large part because assholes are disproportionately drawn to high-status MBA programs. MBA programs aren't at all good at weeding out the assholes, but I don't think they're creating them.

But "The Harvard MBA" and more broadly, the idea that a couple of years of study of Management at a prestigious institution is the primary qualification necessary to lead any large organization is a pernicious idea that I see no upside too. (And is part of the reason why all those assholes seek out MBAs.) And while this idea has certainly been pushed hard at times by the folks working and studying by the Charles, I place most of the blame on the American business establishment for embracing it so wholeheartedly.

After all, I could claim that being named Chris gives one unique qualifications to run a company, and therefore I ought to be made CEO of a large company, but that assertion wouldn't do any damage unless the board of a major corporation took me at my word and gave me the corner office.

#100 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: May 29, 2012, 02:18 PM:

Chris W:

But "The Harvard MBA" and more broadly, the idea that a couple of years of study of Management at a prestigious institution is the primary qualification necessary to lead any large organization is a pernicious idea that I see no upside too. (And is part of the reason why all those assholes seek out MBAs.)

Strong agreement. And the answer to the question of "pernicious to whom?" which just another way to phrase "worse for whom" is "society in general". The cost of the mistakes made by MBAs because of their lack of understanding of the very nature of their own jobs and the effects of their decisions is a very real economic one that's borne by all of us. Laying off a quarter of the employees of a large corporation because it will raise the stock value results in shock waves to the economy and an increased load on the safety nets for which we all pay. And it doesn't really benefit the corporation; it benefits the executives of the corporation (and the stockholders, too, but only in the short term).

#101 ::: Russell Letson ::: (view all by) ::: May 29, 2012, 02:23 PM:

I wonder whether the triumph of management-in-the-abstract is rooted in the "efficiency experts" of the early-modern business era--a metastasis of the idea of motion study into a delusional Grand Unified Theory of How Stuff Works.

The uncoupling of management from understanding of and experience in specific areas of endeavor is all over. It certainly has taken over education, and was well under way when I got to grad school in the mid-sixties, with admin favoring outside-sourced Ed.D.s for central-admin jobs instead of promoting internally from the dean's level. A pathology of the university has always been that teachers with a distaste for the classroom wound up as assistant deans and climbed the ladder from there. But at least they might have some vestigial memory of what the whole organization was supposed to be doing. A degree in Higher Ed generally indicated a candidate who had burned out on his content area and retooled or--worse yet--someone with an interest in management-in-the-abstract who saw the university as a softer berth than the secular business world could offer. The result has been an emphasis on the quantification of everything--not just the properly quantifiable (budgeting and fund-raising, resource allocation, salary levels, enrollment patterns) but those things that can't be reduced to simple numbers, like teaching effectiveness. At public institutions there is always support for this approach from politicians fond of short-horizon cost-benefit analysis.

The business-world version of this is made worse by synergy with the machineries of finance, which sees enterprises primarily as reservoirs of fungible assets, which Charlie's LSS can happily manipulate, reconfigure, and finally liquidate--in the words of the Pythonic Stock Exchange member, "suck their brains out with a straw, sell the widows and orphans, and go into South American zinc."

#102 ::: Xopher HalfTongue ::: (view all by) ::: May 29, 2012, 02:40 PM:

Chris 86: Speaking as the child of two Harvard MBAs I think I can definitively say that not all Harvard MBAs are fools or con men (con persons?)

...and that would be why I was cagey about sweeping statements about Harvard MBAs. If I didn't qualify that enough, I apologize. In fact I apologize anyway, for implying that Harvard MBAs were all numbskulls.

As far as the gender-neutral term for con (wo)men, I've heard 'con artist' and (in drama, from characters who were themselves con artists) just 'con', as in "You think you know her? She's a con just like you!"

And it's also the case that the fools and con men are the most salient. The ones who stick to their knitting and actually gain some area expertise by definition don't come sailing into a new company every 6 months with grand plans to reorganize the whole damn thing. (And what's more, they're much less likely to tell everyone who'll listen about their Harvard MBA, since they actually have other experience and achievements to point to to justify their authority.)

Ah! So they're like toupées: you only see the bad ones?

#103 ::: Avram ::: (view all by) ::: May 29, 2012, 02:54 PM:

Xopher @102: As far as the gender-neutral term for con (wo)men

Scammer? Grifter? Swindler? Racketeer?

#104 ::: Xopher HalfTongue ::: (view all by) ::: May 29, 2012, 03:00 PM:

Those would be others, yes. I was going for one directly parallel to 'conman', but those are excellent alternatives. Think outside the box!

#105 ::: OtterB ::: (view all by) ::: May 29, 2012, 03:30 PM:

Xopher @102 Ah! So they're like toupées: you only see the bad ones?

I love this analogy. You only see the bad ones, and you see those because however preferable they may be in the abstract, they just don't ... quite ... match up to the need.

Also, wanted to second Lee @93 on the fact that lack of management knowledge can also lead to bad decisions in different directions.

As someone who went to school part time for an MBA while working in software development, I learned a lot from the larger perspective on how business operated. Then, close to 30 years ago and at a good but not top-notch business school, there was a noticeable difference in attitude between those with work experience (mostly but not exclusively the part-time students) and those who had gone straight on from undergrad to the MBA with no hands-on experience to speak of. A lot of things that might sound reasonable in a classroom aren't, on the ground, and people who had been working saw that more readily.

#106 ::: Lee ::: (view all by) ::: May 29, 2012, 04:10 PM:

Xopher, #102: Off on a linguistic tangent from your comment, I ran into someone over the weekend who said he absolutely hates the shorthand "con" for an SF convention, because to him its primary association is "con artist," and why can't we just say "convention" instead? I get his objection, because I've had non-fannish acquaintances be confused when I use the term, but English does have a long history of attaching multiple meanings to words, and I think this is one of those instances.

#107 ::: Xopher HalfTongue ::: (view all by) ::: May 29, 2012, 04:20 PM:

OtterB 105: It's not original with me, alas. I first saw it in a book, with reference to a...social subgroup to which I belong, in which context it is mildly offensive.

#108 ::: Lila ::: (view all by) ::: May 29, 2012, 05:26 PM:

there was a noticeable difference in attitude between those with work experience (mostly but not exclusively the part-time students) and those who had gone straight on from undergrad to the MBA with no hands-on experience to speak of. A lot of things that might sound reasonable in a classroom aren't, on the ground, and people who had been working saw that more readily.

That was exactly my father's experience, on going back for graduate study in music education after a couple of decades of teaching.

#110 ::: cafl ::: (view all by) ::: May 29, 2012, 08:14 PM:

I hope the thread is long enough that this off-topic bleg isn't disruptive. I attribute great knowledge of science fiction to many who frequent this blog, as well as the proprietors. Thus I come with a question.

I am trying to remember the title/author of a YA science fiction novel that I read in a library sometime in 1964-1966. It was about a non-human young man from a culture of traders. These traders each carried around a symbiotic "pet" who enabled them to have insight into the emotions of the people with whom they were interacting. Humans regarded this race as cheaters and were thus prejudiced against the protagonist who, against the wishes of his extended family, was trying to study at a human medical school.

I thought the author might be Andre Norton, but when I read various bibliographies of her works I have been unable to identify this one.

#111 ::: Jim Macdonald ::: (view all by) ::: May 29, 2012, 08:40 PM:

110 ::: cafl

Star Surgeon by Alan E. Nourse

#112 ::: cafl ::: (view all by) ::: May 29, 2012, 08:58 PM:

Thanks so much!

#113 ::: Laertes ::: (view all by) ::: May 29, 2012, 09:28 PM:

Okay, inspired by that success, I'm going to try again to identify a short story that I asked about in one of my first posts here, some years back:

Every star in the universe, except Sol, has disappeared. The speed of light being what it is, we don't notice right away. The very nearest star appears to go dark first, and then the others in ascending order of distance.

As the story begins, it's not quite clear what's going on. An astronomer is watching a very near star, and it winks out exactly when he expects it to, supporting his (correct, as it turns out) hypothesis.

Our point-of-view character may have been this astronomer, or possibly that astronomer's child.

This story would most likely have appeared in some mass-market paperback or trade paperback collection in the late in the '90s or maybe the early '00s. I was reading a lot of the Dozois anthologies then.

It's not Greg Egan's Quarantine, nor Asimov's Nightfall, nor Clarke's The Nine Billion Names Of God.

Anyone got any ideas?

#114 ::: Xopher HalfTongue ::: (view all by) ::: May 29, 2012, 09:35 PM:

Might this inquiry be better placed in the current Open Thread? I am not a mod, nor am I the son of a mod a gnome, but that's the usual practice in these parts.

#115 ::: Laertes ::: (view all by) ::: May 29, 2012, 09:43 PM:

Oh dear. It certainly would. I think I lost track of where I was. Very sorry about that.

#116 ::: OtterB ::: (view all by) ::: May 30, 2012, 11:13 AM:

Elias @ 116, if you're a real person, would you add something to the conversation?

Message is on topic but from someone with no posting history and has the flavor of potted meat product, corporate variety.

#117 ::: praisegod barebones suspects mutton dressed as SPAM ::: (view all by) ::: May 30, 2012, 11:18 AM:

First time commenter, with content that looks like astroturf advertising.

#118 ::: Serge Broom ::: (view all by) ::: May 30, 2012, 05:18 PM:

Today my boss said to me that our corporation now has an "...increased regulatory environment..."

Talk about stating the obvious.

#119 ::: Serge Broom ::: (view all by) ::: May 30, 2012, 05:20 PM:

Otherwise I'd have wondered why I just spent one hour getting a form approved so that a change made yesterday would be officially implemented today.

#120 ::: Steve C. ::: (view all by) ::: May 30, 2012, 10:15 PM:

Serge @ 119 -

I may be repeating myself here, but a long time ago I composed a rule-of-thumb: the larger and more complex the organization, the more your job is defined by what you may not do.

While controls and oversight are necessary in any organization, there is sometimes a distressing tendency to make them a fetish.

#121 ::: Serge Broom ::: (view all by) ::: May 31, 2012, 12:16 AM:

Steve C... Also, the larger an organization, the higher the number of incompetents who wind up inside, and the harder it is to catch their fuckups in time. Thus the rules, forms and processes that suffer no exceptions, not even for those workers who *can* find their own asses blindfolded and without using their hands.

#122 ::: Antonia T. Tiger ::: (view all by) ::: May 31, 2012, 06:01 AM:

Of course, the lying shitweasel sociopaths have always been around. I was doing a bit of background reading for some of my writing, and the Brewster Aeronautical Corporation, of the 1930s, seems riddled with them.

It's a bit of a tangled story. The Brewster company made carriages, and then automobile bodies, and diversified into aircraft parts, including seaplane floats. One of their problems was the location of their plant at Queens Plaza North in Long Island City. It was great for motor cars, but not for aeroplanes. (It's at the eastern end of the Queensboro Bridge.)

The aircraft division of the company was bought by a guy called James Work in 1932, for $30,000, and by 1942 he was being sued for $10,000,000 over "financial misdeeds".

Anyway, I decided that in my alternate history stories, somebody else might buy the outfit in 1932, and do things differently.


#123 ::: elise ::: (view all by) ::: May 31, 2012, 11:53 AM:

Sorry for being late to the conversation; I was at a convention all weekend and then busy with a delightful house guest.

Patrick's characterization of corporate "persons" as killer robots struck me like a thunderbolt. (In that, I am probably late to the conversation as well, but there ya go.) It makes a person recast a lot of classic SF with corporations in the role of the killer robot armies. (The only classic SF I know which is explicit about the aims and methodology of killer robot corporations is Damon Knight's "Analog Men," published as "Hell's Pavement" in the UK.)

What would a useful set of Three Laws for corporations be?

#124 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 01:03 PM:

State and Federal Courts [should] have the power to hold governing boards and stockholders of corporations responsible for actions of the corporation that are ruled to be against the Public Interest -- under laws that mostly have yet to be enacted.

#125 ::: Jim Macdonald ::: (view all by) ::: May 31, 2012, 01:36 PM:

What's the matter with the plain-old Three Laws of Robotics as they stand?

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

#126 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 01:37 PM:

Sub "practices" for "actions" in #124.

If it's much easier to get public-minded judges than to elect public-minded legislators, then maybe we should try to pass a Constitutional Amendment granting federal courts the ability to indemnify individuals on corporate boards and corporate stockholders for corporate practices judged to be contrary to the public interest.

#127 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 01:43 PM:

Hey corporation! Lend me your arm ....

#128 ::: elise ::: (view all by) ::: May 31, 2012, 02:04 PM:

I've got no objection to those, Jim.

Got a test case?

#129 ::: elise ::: (view all by) ::: May 31, 2012, 02:05 PM:

And it sure looks to me like the current setup has corporations following the first seven words of Rule Three, and mostly ignoring the other ones.

#130 ::: Brett Dunbar ::: (view all by) ::: May 31, 2012, 02:21 PM:

@72

Sometimes getting a chair who has specialised in management rather than the specifics of the business is the right thing to do. ICI's chairmen were almost all chemical engineers some of them, Dr Beeching for example, were vary good at business some were not. A series of bad ones had left the company in serious trouble so in 1982 John Harvey Jones, only the second chairman to have been a manager rather than an engineer, was appointed chairman and was able to turn the company around.

#131 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 02:56 PM:

I'm nerded out into oblivion, apparently, (not the first time) by my reference to arm lending.

#132 ::: Andrew Plotkin ::: (view all by) ::: May 31, 2012, 03:02 PM:

The point of the original Three Laws -- or maybe not the point, but their final determination -- is that they're impossible restrictions for an intentional being. Right? Not just impossibly *simplified* constraints, but impossible in their conception.

How would one go a day without discomfitting another human being, or disregarding another human being's wishes, or risking one's own well-being in some way? And if that is difficult for one person, how much more difficult for a hundred people trying to employ a million dollars to move some beef or etch some circuit boards?

Asimov played with the Three Laws, but ultimately had to carve a hole (the "Zeroth Law") so that his positronic characters could live in a non-trivial way.

But "Do not harm humanity", as a principle, lacks the objectivist-fetishist appeal of the original three laws, right? You can't pretend that it's a rational, computable standard. Doing good will *always* be an act of judgement. Asimov's robots were capable of judgement.

The problem of corporations is not constraining them to behave like slaves, but shaping them to behave like good human beings.

(Geez, I could have scratched my first four paragraphs and just posted that line.)

(I'm not disclaiming legal reform here -- obviously our legal system is a way to get *humans* to behave like good human beings. It should be employed in the same capacity here. The regulatory system is another such tool.)

#133 ::: Andrew Plotkin ::: (view all by) ::: May 31, 2012, 03:07 PM:

(Previous comment gnomed, but I also want to add this link. Which may also get my gnomed, whee. :)

http://crookedtimber.org/2012/05/30/in-soviet-union-optimization-problem-solves-you/feed/

Cosma Shalizi writing (linked by Brad DeLong).

"There is a fundamental level at which Marx’s nightmare vision is
right: capitalism, the market system, whatever you want to call it, is
a product of humanity, but each and every one of us confronts it as an
autonomous and deeply alien force. [...]

"But, and this is I think something Marx did not sufficiently
appreciate, human beings confront all the structures which emerge from
our massed interactions in this way. A bureaucracy, or even a
thoroughly democratic polity of which one is a citizen, can feel, can
be, just as much of a cold monster as the market. We have no choice
but to live among these alien powers which we create, and to try to
direct them to human ends."

#134 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 04:12 PM:

Andrew: yes, thank you.

Maybe I'm guilty of a faux pas by assuming "The Naked Sun" as a commonplace for everyone in this discussion. So I won't be more explicit about it. (Wikipedia summary is here.)

The practices that corporations pursue are fashioned by the human beings who run them. In the United States, in the 19th Century, corporations were granted a legal status that exempted their directors and stockholders from bearing legal and financial liability should the corporations fail. This was one means to encourage industrial growth in the U.S.

In the 21st Century, the suggestion is that the exemptions from personal responsibility granted to the directors and owners of corporations may, perhaps, be subject to abuse not foreseen by 19th Century legislators.

So my conclusion is that we need to redefine the laws governing corporations to assign responsibility to the humans who run them -- or barring the plausibility of getting Congressmen who will do that, a Constitutional delegation of power that might allow the Judiciary to address the abuses we're now seeing.

If we can't get decent Congressmen or decent Judges, either, then our governmental system may be screwed up beyond its capacity to repair itself -- and other types of citizen activism may need to be explored in greater depth.

#135 ::: Serge Broom ::: (view all by) ::: May 31, 2012, 04:21 PM:

"You see, he's helpless... Locked in a sub-electronic dilemma between my direct orders and his basic inhibitions against harming rational beings."

Another Cinema first for "Forbidden Planet"?


#136 ::: OtterB ::: (view all by) ::: May 31, 2012, 04:23 PM:

Andrew Plotkin @132 is headed down the same line of thought I was. How can a corporation never harm a human being? A manager makes a decision to fire a poorly-performing employee. A customer is injured by a product that falls somewhere in the gray zone between "clearly defective product" and "clearly unthinking customer". Etc.

I propose, for discussion:
1. Define the rules you are playing by with respect to your customers, your employees, and your community.
2. Play by the rules you have defined.
3. Decision criteria should include anticipated long-term as well as short-term effects.

I'd like there to be something about delivering actual value in products or services, as opposed to just pushing around value created by others, but that gets to be a judgment call. Obxkcd Crowdsourcing

#137 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 04:29 PM:

[relentlessly, until achieving the perception that I'm becoming an annoyance]

"Robbie, emergency override order Archimedes!"

Order canceled Robbie! Cash in the synthetic diamonds and contribute to Blue America!

#138 ::: Serge Broom ::: (view all by) ::: May 31, 2012, 04:33 PM:

"Robby, I must have a new dress, right away."
"Again?"

#139 ::: etv13 ::: (view all by) ::: May 31, 2012, 07:35 PM:

Lenny Bailes @ 134:

I just want to clarify that the "exemptions from personal responsibility" afforded to shareholders and directors do not extend to excusing people from responsibility from their own crimes or torts, even when those are ostensibly committed on behalf of the corporation. Individuals can still be criminally liable for, e.g., bribing foreign officials, or dumping toxic waste, even if they did it in their capacity as Senior VP of Wal-Mart. You're still responsible for what you personally do, in other words; you're just not responsible for what the manager of the Detroit branch does (assuming your lack of knowledge or participation).

#140 ::: Andrew Plotkin ::: (view all by) ::: May 31, 2012, 08:01 PM:

(Continued noodling, no conclusions guaranteed here...)

Barring the invention of a magic morality pill (but would it then be moral to force people to swallow it? c.f. that Spider Robinson story) we would like to push more legal responsibility onto... onto some sore spot. Is that the Board of Directors?

Lenny wrote: "In the 21st Century, the suggestion is that the exemptions from personal responsibility granted to the directors and owners of corporations may, perhaps, be subject to abuse not foreseen by 19th Century legislators."

If you contract to buy ten thousand widgets from Acme, and they deliver sixteen widgets and a case of moldy bananas, you don't sue the owner, or the BoD, or any human being at all -- you sue Acme Co. (This is one goal of companies *having* legal existence. If you couldn't get a court to look at their business dealings, you'd be scared to do business with them at all. I forget who recently pointed this out -- might have been Atrios or Yglesias.) The company has *way more money* than any particular person involved in running it. The company also has your damn widgets, for that matter, and the money you paid for them.

This seems to be plausible for damages measured in money. In practice, this means offenses (a) with a clear monetary value (b) against someone or something with an comparable-sized legal team.

Cases where this doesn't work so well: Offenses against the commons. Offenses against lots of individual people. (Yes, class-action lawsuits, but I don't think of those as carrying much heft these days...) Offenses where, due to whatever externalities, the monetary damage is smaller than the monetary benefit (so the company just eats the penalty and plow onward). Offenses which are so new that nobody knows how to assign values to them. (What *is* the cost to you of Google/Facebook/etc tracking your web habits?)

OtterB: "...Decision criteria should include anticipated long-term as well as short-term effects."

Would that they always did. But how do you insist on this from outside the organization?

(Possibly this is conflating externalities with long-term consequences. If a company destroys *itself* by its lack of long-term planning, great! It can fail and get out of the way.)

Lenny: "If we can't get decent Congressmen or decent Judges, either, then our governmental system may be screwed up beyond its capacity to repair itself..."

Yeah.

But on the good side -- and getting back to the thread's nominal subject -- I just saw the headline "Judge Alsup Rules: Oracle's Java APIs Are Not Copyrightable". I'm not going to try to read the whole ruling, but the summary is concise, sane, and a relief to me as a vocational programmer.

#141 ::: P J Evans ::: (view all by) ::: May 31, 2012, 09:24 PM:

122
Would that alternate universe still have room for an airplane named the Buffalo, with (I hope) much better performance?

#142 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 10:15 PM:

139: Individuals can still be criminally liable for, e.g., bribing foreign officials, or dumping toxic waste, even if they did it in their capacity as Senior VP of Wal-Mart.

The problem that seems to be magnified in the SuperPAC era is that individuals use corporate money to bribe domestic government officials and would-be officials. Corporate money is disbursed by *individuals* who tie their own personal wealth to the wealth of their corporations. What seems to be lost is the ability of these individuals to distinguish between business practices that increase corporate profits by acting in the public interest and practices that most of us feel are "against the public interest" (mortgage theft and wildcat junk bond speculation by financial institutions, the destruction of the free neutral Internet, the corruption of copyright laws, and the buying of elections to shape laws and public policy to serve the 1% at the expense of everybody else).

If we want to discourage individuals from deploying corporate funds in ways that act against the public interest, we need to develop defensive public interest countermeasures. If SuperPACs are legal, how do we do that?

We're blessed with the benevolent genius of Stephen Colbert to demonstrate the absurdity of the Citizen's United decision on a large scale. We have dedicated media professionals (including bloggers) who do this on a smaller scale. Maybe this reaches some percentage of voters, some percentage of media professionals, and some percentage of public decision makers.

What can we do if we can't elect enough unbought Congress people to repeal "Citizens United" and pass other legislation that serves the public interest? Do we just have to wait it out until some Presidents balance the Supreme Court to throw out "Citizens United" and then try to elect the public interest motivated Congress? Is this actually a realistic gameplan? I think we continue trying to elect the Congress people in the short term -- and continue the public outcry against proposed laws and practices that go against the public interest.

Maybe the Constitutional Amendment process isn't as crazy and dangerous as it appears to be? What if smart people were able to draft the right amendment? I'm not smart enough, myself, to assess the consequences of an attempt to pass a Constitutional Amendment that changes the status of corporations -- the risk of a Constitutional Convention opening the door to passing things that are insane vs. the possibility of an alliance of legislators passing something popular and helpful. There are probably a number of people reading this ML thread who might offer more wisdom on that subject than I'm capable of generating. I'm just throwing the idea of a Constitutional Amendment about corporations out there for my own education -- in frustration with the current seeming hopelessness of electing a decent Congress. We already have Bernie Saunders' proposal, which some career Democrats I know tell me is a grandstanding publicity stunt.

Maybe it is still possible for popular voter sentiment to elect a President and Congress that will move the U.S. forward.

#143 ::: Lenny Bailes ::: (view all by) ::: May 31, 2012, 10:18 PM:

Gnomed at 142. Too long a URL linking to Bernie Saunders' proposed Constitutional Amendment? Or just too long-winded and ineffective?

#144 ::: David Goldfarb ::: (view all by) ::: May 31, 2012, 10:27 PM:

Andrew@140: I will say that according to my idea of ethics, if there existed a magic pill that would force people to act in accordance with my idea of ethics, it would indeed be ethical to force them to take it. One refinement that occurs to me is that forcing them to take it would be a fitting punishment for various offenses.

Of course there is no such pill, and no reason to believe that there ever will be, so the whole thing is a bit academic.

#145 ::: Chris ::: (view all by) ::: May 31, 2012, 11:33 PM:

It seems to me that the first step in bringing corporations under control is to establish an equivalent of jail time, so they can't just write off the current slap-on-the-wrist fines as the cost of doing business.

I'd suggest that a suitable equivalent would be a fine equal to one hundred percent of profits for the duration of the "prison" term (or an alternative minimum percent of gross income, whichever is greater, to prevent accounting games).

#146 ::: Lenny Bailes ::: (view all by) ::: June 01, 2012, 12:35 AM:

After reading up a bit on the Constitutional Amendment Process, I see that its only value in our current political environment would be as a mechanism to stimulate public discussion -- which Bernie Saunders (and many of you) may already have known.

Is there any hope for legislation redefining the legal status of corporations in individual states?

#147 ::: Lenny Bailes ::: (view all by) ::: June 01, 2012, 12:45 AM:

Sanders. (Slinking off quietly...)

#148 ::: etv13 ::: (view all by) ::: June 01, 2012, 01:48 AM:

Lenny Bailes @ 142:

We can't repeal Citizens United with anything short of a constitutional amendment, because it is purportedly founded in the First Amendment. Corporations, on the other hand, are creatures of statute -- generally state statute, and in theory it is possible for the state legislatures to redefine corporations in a way that limits their scope and powers such that they are not "persons" for First Amendment purposes. The actual prospects of getting that done, however, are just about nil. We have a much better chance of changing the composition of the Supreme Court. Citizens United was decided on a 5-4 vote. The thing I find really frightening and worrisome is the possible effect of Citizens United on this year's elections. If we get through that without a Republican landslide (and in particular, without Romney winning the presidency), then I think there is a decent chance we could end up with a Supreme Court that would overturn Citizens United in not too long. If we don't . . . Well, as I said, very scary and worrisome.

#149 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: June 01, 2012, 02:15 AM:

Andrew Plotkin @ 132:

Some interesting points here, but I wonder, can you actually say that corporations are intentional? Not in the same that humans are, I would think. Some human always establishes policy for a corporations actions, and some human usually performs the actions (even if the proximate decision was made by a computer which then took action by communicating with another computer, there's always a human programmer as a previous cause somewhere). One problem of determining the intention of computers is that frequently the humans acting in the decision loop have different intentions than the ones who set policy, and sometimes one or more of the actors does not have the interests of the corporation in mind. So where's the dividing line between the intentions and responsibility of a given employee and those of the corporation?

#150 ::: Rob Rusick ::: (view all by) ::: June 01, 2012, 09:22 AM:

etv13 @148: Even if Obama succeeds in getting re-elected, we still have to hope for the miracle of a sane opposition. Here is a clip of Groucho Marx from Horse Feathers playing the part of the Speaker of the House.

#151 ::: Serge Broom ::: (view all by) ::: June 01, 2012, 10:00 AM:

Rob Rusick @ 150... Mind you, Groucho was a Democrat. So was Bozo the Clown.

#152 ::: heresiarch ::: (view all by) ::: June 04, 2012, 09:55 PM:

elise @ 123: "What would a useful set of Three Laws for corporations be?"

You know, just recently I read an article about the founder of Patagonia--interesting guy, clearly the model for the surfing Earth billionaire in Kim Stanley Robinson's Mars Trilogy--that mentioned that California now has something called a benefit corporation:

Registering as a "benefit corporation" lets a firm declare—in its articles of incorporation—that the fiduciary duty of its executives includes "consideration of the interests of workers, community and the environment," and not just the bottom line. Chouinard marched into state offices on the morning of January 3, 2012, to make Patagonia the very first company to register as a benefit corporation in California.

This reminded me of an idea I've been playing with for a while, to write a clause into incorporation documents restricting a corporations actions in much the way the laws of robotics restrict robots. I thought I'd written about it on ML, but couldn't find the comment.

Your comment, though, on the "killer robots" clicked something in my brain and I found it:

I think a better solution is writing in a morality clause in the incorporation document. Every corporate duty outlined is followed by a "...insofar as it does not cause harm to humans." Sort of a First Law for corporations (which are, after all, giant paper robots whose computing platform is the human brain.)....As it is though, corporations are enormously wealthy, laxly regulated sociopaths. It's no surprise what they get up to.

And this one too.

Benefit corporations seem like a move in the right direction, but the real trick is making it mandatory rather than voluntary.

#153 ::: Terry Karney ::: (view all by) ::: June 10, 2012, 10:02 PM:

I'm looking at the article Patrick linked to, and it seems to be a bit more subtle, and moderately defensible.

CBS, and NBC are claiming that Auto-Hopper is changing the broadcast, and so infringing the expectation of the plaintiffs to control the nature of any reproduction.

Fox is making a different, and less tenable, in that they are making a direct challenge to Betamax.

Fox is also claiming this service does nothing to enhance consumers' choices. I don't see how they get there.

#154 ::: Terry Karney ::: (view all by) ::: June 10, 2012, 10:03 PM:

Linkmeister: Note: I should say that I mean in civilian employment. The Navy doesn't believe in persuasion; it believes in orders. I understood that when I was in.

But, one of the things that applies to lots (not all, but I'd say most) is the people who make them are directly affected by them.

And a unit which is disaffected isn't a fun unit to be in charge of.

This isn't quite the case in business, because most of the things which affect the day to day lives of the workers have absolutely no effect on the people who make them.

#155 ::: Terry Karney ::: (view all by) ::: June 10, 2012, 10:04 PM:

Antonia @122: I'd like to see a universe in which the Brewster Buffalo was never made. One of the worst late 1930s airplanes ever built, and the Aussies actually tried to use them in combat (as the Whirraway).

#156 ::: Terry Karney ::: (view all by) ::: June 10, 2012, 10:04 PM:

Andrew Plotkin: Cases where this doesn't work so well: Offenses against the commons. Offenses against lots of individual people. (Yes, class-action lawsuits, but I don't think of those as carrying much heft these days...)

Not since the Supreme Court made it impossible to avoid Binding Arbitration.

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