7.2.09 CABLE TV, RHETORIC, AND SILLINESS

This article originally appeared in the 7.2.09 issue of Metroland

Amid all the hoopla about famous people dying last week, the Supreme Court announced that it was refusing to undo a federal appeals court ruling that allows cable companies to offer customers remote recording and playback of programs. People have for years been able to use Tivo digital recorders and other set-top boxes (often provided by cable companies) to digitally record programs for later playback. But these systems involved having the hard drive that stored the programs in your living room, and what the cable companies wanted to do was move that recording function back to their own servers. The customer experience would be exactly the same as before, although presumably cheaper and more convenient, because you no longer needed a hunk of hardware in your house. Doesn’t sound like that big a deal, does it?

Of course all of the big TV and movies studios went nutso over this, claiming that the cable companies were somehow stealing their programs by allowing customers to copy the programs onto cable companies’ servers. That the Supreme Court refused to hear the case may or may not be particularly momentous, as the Court generally only takes up copyright issues every couple of years; perhaps they didn’t think this one was big enough or ripe enough to warrant a second look. What was interesting, though, was that the Obama administration submitted a brief siding with the cable companies, one the first indications of where Obama’s going to come down on intellectual property issues. The Justice Department’s IP lawyer hires have been mostly from Big Media-related organizations and law firms, so it was heartening to see the administration go the other way.

In any event, expect your cable company to be serving up some much-needed flexibility for your viewing habits over the summer.

Of course, after the Supreme Court announced it would let the ruling favoring cable companies stand, various Big Media mouthpieces decried the decision as being detrimental to the rights of “creators”. Yes, absolutely, it’s so very bad for “creators” that it’s now become much easier for people to see the television programs that they’ve already paid for! Right!

It’s all part of the rhetoric of copyright issues. Big Media trumpets the rights of “creators”, when they’re actually talking about execrable behemoths like Disney and Universal Music Group. My favorite Big Media public relations ploy is labeling anything that benefits the end user as a big conspiracy on the part of some ephemeral conglomeration of evil computer hardware and software people who are clandestinely plotting to destroy intellectual property law for their own (dramatic pause) profit. This twisted, paranoid, Rovian argument basically takes the position that anything that allows people to move information around more freely is bad. Mmhmm!

I’ve heard similar arguments being made about the perennially proposed orphan works legislation, which would allow the use of otherwise copyrighted works where a copyright owner can’t be identified or located. I’ve heard plenty of people who should know better refer to orphan works laws as some dark conspiracy by nameless bureaucrats at nameless trade organizations to invalidate artists’ copyrights!

Crazy talk like this does nothing but obscure the actual issues and derail rational discussion about the huge problem that was created when Congress decided that everything that gets created by anybody for any purpose was subject to automatic copyright protection for years after the author has died. While the orphan works laws are problematic for certain types of artists, the laws are a rational attempt to at least emulate something resembling a public domain, which has been stagnant since the copyright laws changed in 1978. And I know plenty of educators, writers, librarians, archivists, historians, and, yes, even visual artists, who can’t wait for Congress to finally move the orphan works laws along. And they’re not evil doers, thieves, knaves or baddies. They just want their culture back and want to be able to use it without fear of getting their asses sued.

You may have heard about the Jammie Thomas file-sharing retrial in Wisconsin. In her first trial, the jury banged her for around $220,000 in damages the 24 songs she allegedly downloaded. On the retrial, represented by higher-profile lawyers, the jury banged her for $1.9 million! D’oh!!! That’s $80,000 per song, and the record companies’ actual damages from the lost sale of a song (assuming that every “illegal” download is a lost sale, which is a nonsensical assumption, but there you go) is something south of fifty cents.

Ms. Thomas’s options now are to settle, or to appeal, or to declare bankruptcy. And the latest news is that she ain’t settling. So we’ll see where it goes, but the Thomas case does little more than underscore how comically silly copyright law can be.

6.25.09 BIG BOZ MAN

This review originaly appeared in the 6.25.09 issue of Metroland.

Shortly after getting this assignment on Monday I learned that Boz Scaggs’ last couple of albums were of jazz standards, so that was what I was expecting, and not too keenly. But this, his first Albany appearance ever, turned out to be a greatest hits show, which meant:

Silk Degrees, Scaggs’ 1974 masterpiece, in which he and the future members of Toto took a mess of fern-bar lounge-band affectations and made them somehow OK. Silk Degrees is basically one big hit, and the album you played when you had a girl visitor you didn’t know very well—you knew she was gonna like it, and despite its steady undercurrent of unctuousness, well, you really liked it, too. You even listened to it when there was nobody around.

Anyway, Scaggs and a crack 6-piece band (including the stellar guitarist Drew Zingg) chugged through most of Silk Degrees and the handful of hits from his other ‘70’s-80’s albums with style and grace, and a good measure of deep groove. Most songs got a rise from the audience reaction during the first bar, which was often little more than a beat. Scaggs sang great, and nailed the occasional guitar solo; people forget that he was an early lead guitarist for the Steve Miller Band, and an ace player. The sound was big and lush and delicious, with the keyboards pumping out vintage synthesized waves and everything absolutely in the right place. Talk about ear candy.

Back-up singer Monet nearly stole the show with a slightly over-the-top blast of Stevie Wonder’s “Until You Come Back To Me,” but the real meat of the matter arrived with the encore, an epic version of “Lend Me A Dime,” a blues classic from Scaggs’ first solo album, originally recorded with Duane Allman at Muscle Shoals. Scaggs dedicated the song to famed Muscle Shoals keyboardist /arranger Barry Beckett, who died last week, and then the band dug in for a ten-minute plus orgy of electric blues. It was jaw-dropping.

Speaking of jaw-dropping: Sean Rowe made a roomful of new fans with a gripping 30 minute set. Rowe’s voice is every bit as soulful as Scaggs’, and his delivery was dramatic and engaging. He completely reimagined two iconic classics, Richard Thompson’s “Vincent Black Lightning 1952” and Leonard Cohen’s “Bird on a Wire”, and played a bunch of originals that trade on silence as much as audacious bursts of sound. He commanded the undivided attention of the packed house, and got a big and deserved ovation at the end. Kudos to the local promoters who are putting Rowe on these shows. He belongs on the big stage.

6.18.09 ROCKIN ROBIN

This article originally appeared in the 6.18.09 issue of Metroland

We’ve had an interesting (and inadvertent) progression at the music biz panel part of the monthly CRUMBS Night Out events. Two months ago we had the heads of a couple independent labels, and last month we had members of local music collectives. This month we’re going right down to the roots with three expert and extremely successful practitioners of home music recording. We’ve got Dan Berggren, who makes magic out of his home and taught audio engineering at Fredonia State for 25 years, Sara Ayers, whose DIY recordings have garnered her an international fanbase and lots of TV play, and Troy Pohl, who recently transitioned from making beautiful home-based recordings to making beautiful studio recordings for Collar City Records. We’ll be talking about things like maximizing what you’ve got, knowledge vs. equipment, and when it’s time to leave home. 8 PM, Thursday the 25th, Linda Norris Auditorium. Music at 7 with Eric Margan and the Red Lions, whose album Midnight Book has been turning heads and blowing minds throughout the Northeast ( myspace/theredlions ).

The epitaph for newspapers was delivered last week by, of all people, Jason Jones on the Jon Stewart show. The New York Times, incredibly, allowed Jones to interview several Times bigwigs, apparently not realizing that these things never come out well for the interviewees. And it didn’t. Sitting across a desk from assistant managing editor Rick Berke, Jones pointed to a current copy of the Times and said, “Show me one thing in there that happened today.” Berke was left speechless and yammering.

And the epitaph for the rest of the mainstream media may have been delivered last weekend, when Iran erupted into massive protests over the stolen election of Mahmoud Ahmadinejad. Now, even from under a rock one should know that a populist protest of any magnitude in a prong of W’s “axis of evil” is big news, and that one in Iran could have major repercussions in global geopolitics. A direct line can be drawn from Obama’s Egypt speech, where he asked Muslims to reject demagogues and to embrace peace, and the Tehran protests. And the energy of the youth-driven movement that spontaneously erupted in Tehran and elsewhere last Saturday, a combination of optimism and rage, recalled nothing more than what happened right here a year ago, when America rejected the politics of fear and embraced hope.

But last weekend you’d never have known about what was happening if you were watching TV or reading the newspaper. Or even looking at Google News. As for television, CNN was oblivious, MSNBC was running those hideous inside-prison shows it seems to think people like to watch on weekends, and the networks were talking about the Palin-Letterman feud and whatever nonsense Newt Gingrich just said. The newspapers and wire services were merely parroting what governmental spokespeople were saying on both sides, as per the MSM’s maddening and insane penchant for providing “equivalence,” or uncritically stating both side’s positions, without regard to the obvious truth. Into Sunday and Monday, whatever reporting there was in the MSM severely underplayed what was going on. Most uncritically declared Ahmadinejad the winner of the election, despite growing unassailable proof that the election was a sham. Protest rallies were described as “large” or “in the thousands”, despite photographs popping up on the internet and eye-witness accounts from non-reporters that showed hundreds of thousands, if not millions, of people on the streets.

Reporters were forbidden on the streets of Tehran, and the government quickly shut down cell-phone service and blocked Facebook (which is apparently wildly popular in Iran), and hacked and interfered with communications any way it could. But Twitter, YouTube, email and photograph sites like Flikr quickly emerged as effective main portals of information from and for the protesters, and in the absence of any MSM interest in reporting from these sources, it was the blogs that performed journalism, filtering the spotty information coming in on the internet, posting tweets, pictures and video, and showing the world, beyond a doubt, that Ahmadinejad and his Mullah enablers were wearing no clothes, and that, as Obama observed on Monday, “there’s something going on in Iran.” I’ve been mainly watching the blogs of The Atlantic’s Andy Sullivan and Huffington Post’s Nico Pitney. I really don’t need (or trust) anyone else.

Apologists for the MSM have tried to brush aside the lack of coverage with the lame “even reporters have to sleep sometime.” Really? But networks don’t. CNN’s supposed to give us the world, and it’s just been giving us excuses. And Nico Pitney didn’t sleep; his blog was posting 24/7 for three days straight. And Sullivan? When it was pointed out that the MSM could have simply done what he was doing, Sully pointed out that he was monitoring tweets and blogging from the end of a pier on the Cape with his two beagles at his feet. That’s his Situation Room.

And ours.

6.4.09 ROT TURNS 100

This article originally appeared in the 6.4.09 issue of Metroland

Why, it seems like just yesterday that Steve Leon called me on the phone. “We just had an editorial staff meeting,” Steve said, “And we’re wondering if you’d like to do a column about what you do.” My first thought was, does Metroland really want a regular column about binge drinking and masturbating like a monkey? Then I realized that perhaps they wanted regular contributions about my so-called professional life—stuff about the business and law of music and art and privacy and this internet thing all the kids are so crazy about.

OK, I can do that. But what to call it? That was tough. My whole life, I’d resisted exploiting any of the obvious stupid double entendres using my last name, but I was stuck. My first list of possible column names included: Crock of Legals, Art Carnal, The Corpulent Hitter, and F. Lee Harvey’s Straight Poop. See? Sure, some of these are good for a giggle, but I was looking for something that would be durable, just in case my column stuck around for a while. Something that wouldn’t be an enduring source of embarrassment, like, oh, say, a really goofy stage name.

So, Rapp on This it was. And it’s worked out OK over the past four years. I discovered, after like a year, that the column’s initials were ROT. Bonus! And this is ROT number 100. I’ve enjoyed writing these things, I’ve enjoyed all the comments (even the rude ones after I teed off on Hilary a year ago), I’ve enjoyed posting the columns with odd hand-picked stolen illustrations on my blog rapponthis.blogspot.com. So, I’ll keep going.

Last week at the Columbia Arts Team’s Songwriter’s Festival in Hudson, I was on a great panel, with the topic of something like “Is Technology Killing Music?” I started, setting up a discussion of digital v. analog, but that’s not what the rest of the panel wanted to talk about.

Henry Hirsch, seated to my right, took the bull by the horns. Henry is a recording engineer / producer, having worked with the likes of Lenny Kravitz, Madonna, Mick Jagger and Vanessa Paradis. Henry just opened a world-class major-league recording studio in a beautiful old church in downtown Hudson, he’s perspicacious and opinionated, like any great studio guy ought to be. Henry’s beef, what he wanted to talk about, was that technology has reached a point where actual music performance, either in the studio or on stage, is no longer necessary. That’s where the panel went, and it was fascinating. Henry was joined by pianist / composer / label chief Lincoln Mayorga, who’s been doing almost everything one can do in the music biz since the ‘50’s, has weathered at least four major technological revolutions, and he had a whole lot to say on the topic, too. When guys like this start talking, I shut the hell up and sit back and listen.


Mulling it over since Saturday, I’m thinking that all the talk about the evolution of music recording, and how it has slowly moved the performer out of the picture. It was interesting enough, but it also raises the question, so what? I saw Bonnie Raitt probably 6 times in college, her band was down and dirty, as was she. Then I saw her at SPAC after she hit paydirt with that John Hiatt song. The old band was gone, replaced by bunch of hired guns with blow-dried hair. The show sounded just like the record, clean as a whistle. I was stunned and pissed. I imagine every show on the tour was virtually identical, right down to the solos.

Was the band actually playing? Probably. Would it have made any difference if they weren’t? Nope.

Ever since then I’ve approached most arena shows for what they are: pure entertainment, like a big Hollywood movie. Do we care that a lot of the movies we watch are largely products of CGI and green-screens? Nope. Should it surprise us that much of what hits our eardrums at big concerts isn’t coming off the stage? Nope. When I review these shows, I rarely talk about the music, which is a given and largely banal and devoid of surprise.

Is all this “destroying music”? Only, I think, at corporate levels. As the main-stream music biz has become increasingly corporate, perfection is demanded, to remove a variable that might negatively affect the quarterly earnings report to shareholders. So, technology supplies pitch-perfect, beat-perfect product, matched with good-looking, market-tested delivery systems, formerly known as major-label artists.

It’s a race to the bottom, and another reason why the main-stream music biz is falling apart. There’s precious little music being made there anymore.

Which is why God made clubs, basements, Garage Band, MySpace, and YouTube. Where real music is still being made. More than ever before.

5.28.09 SHARON JONES AND THE DAP-KINGS

I'm guilty of shooting whilst boogieing.

This review originally appeared in the 5.28.09 issue of Metroland

We’ve been waiting what, oh, five years or so, for somebody, anybody, to bring Sharon Jones to town. Note to local venues: duh-uh people really, really like soul music. Getting her and the Dap-Kings for Mass MOCA’s big party was a brilliant, inspired choice, and while I can’t begrudge the Museum the $80 ticket (it’s their party and they can charge what they want to) hopefully the next local gig, which better be soon, dammit, will be something everybody can afford.

The Hunter Center was packed with a couple of generations of shined-up socialites, Important People (Hey! There’s Michael Dukakis getting’ his jammy on! Fo-shizzle, Gov, and rock on, Bro!) and the-hell-with-my-car-payment artsy types, all yellin’, dancin’, and checking each other out. It was pretty surreal, which in the context of Mass MOCA is saying something.

Which brings us to Ms. Jones. Holy Moly! I have never, ever seen anyone work a stage or a crowd harder, or better. She’s a tiny lady, and she prowled the stage, owned the stage, dancing like a primal dream, engaging and including the crowd, while yelping, howling, and testifying like this was the Apollo in 1961 and everything was possible. She was yanking people onto the stage, almost to the point of distraction. A beaming blind guy, very big people, very little people, a line of young lovelies, shimmying and singing the choruses--and a young man jumped onstage, grabbed one of the lovelies, got down on one knee (as the band vamped quietly) and proposed. Ms. Lovely grabbed the mike and said yes, the band cranked it, Sharon hugged everybody. Next song. Unh! Heh! Good God!

The legendary Dap-Kings band (3 horns, bass, guitar, drums, percussionist) were dead-on, perhaps a little understated. I’m tempted to say they’re too Brooklyn hipster by half, but I won’t. I mean, they’re the friggin’ legendary Dap-Kings band, they made Amy Winehouse sound talented fer chrissakes, and look at everything else they’ve done in the last ten years. All due to respect to Justin Timberlake (or not), these are the folks who brought sexy back. But dudes, you’ve gotta have one of the best gigs in the world. It’s OK to show us you’re enjoying it.

From James to Otis to the beginnings of Sly, this was a greezy textbook of sweaty soul. The only thing lacking was the sound quality, which was distant and not particularly lively. It was clear enough, though, and it may well have been as good as it could possibly get in the big, gymnasium-like room. But this stuff should shake your pant leg, blow your hair back, and hijack your heartbeat.

Next time.

5/21/09 EVERYBODY STEALS

This article originally appeared in the 5/21/09 issue of Metroland

There’s some interesting phenomena going on in the music world. Record companies are shrinking and failing. The cost of making good-sounding recordings is becoming negligible – I have a decently equipped recording studio right here at my finger tips, on my computer (not that I have any idea how to use it). People’s demand for music is, as always, insatiable, whether they pay for their music or not. Listenership is fragmenting among niches, as a result of broadcast radio’s demise, internet services like Pandora and Last.fm, and people’s ability to create massive and portable personal libraries of hand-picked music.

Musicians struggle to get noticed, and the savviest are banding together, creating collectives that pool all the talents necessary to run an independent record company. Except they’re not really record companies, at least not in any kind of formal, traditional sense. These collectives are generating huge amounts great music, are presenting the music in innovative and exciting ways, and are supporting both local and visiting acts, cooperatively with other collectives, on the road and, most importantly, on the internet. I think these collectives are just about the most important force in music today.

And we’ve got a bunch of them right here, and we’ll be talking to some of them at the next CRUMBS Night Out event at the Linda Norris Auditorium on Thursday, May 28. Matthew Loiacono of Collar City Records and Alex Moro of B3nson Recording Company will be on hand to talk about how they do business, how they wound up running their pseudo-empires, and pretty much anything else they want to talk about. And live music will be supplied by Saratoga’s astonishing band Railbird. If you haven’t seen Railbird yet, if you’ve never heard Sarah Pedinotti sing, shame on you. You should fix this arch deficiency in your existence next Thursday at the Linda. Railbird goes on at 7, the music collective panel’s on at 8.

If you follow the rock press even a little bit you’ve probably heard about Joe Satriani’s plagiarism lawsuit against Coldplay. Seems Satriani discovered that Coldplay’s hit Vida La Vida shares a melody line with Satriani’s previously-released If I Could Fly. Almost immediately, somebody posted a mash-up video on YouTube showing the two songs side-by-side, and the similarities were compelling. Until someone else came on and demonstrated that the keys and tempos of the two tracks were manipulated to create an illusion of similarity.

More to the point, as pointed out on Mike Masnick’s ace website Techdirt, the fairly pedestrian melody line, like almost any melody line under the sun or moon, sure didn’t start with Satriani. There’s a track from Argentinian rockers Emanitos Verdes, there’s Marty Balin’s Hearts, there’s Cat Stevens’ Foreigner Suite, Billy Joel’s Honesty, and at least a dozen more that have been pointed out by clever folks on YouTube. Which you can go investigate yourself. At least you can look at the ones that have escaped the efforts by EMI, Coldplay’s label, to remove all these tattle-tale videos off of YouTube, the stupidity and illegality of which could be the subject of a whole ‘nother column, but we’ll move on.

Taking it from the ridiculous to the absurd, Yusuf Islam (the artist f/k/a Cat Stevens) last week announced that Coldplay copied from him, not from Satriani. Islam was apparently alerted to this by his kid, and I’ll bet you a nickel his kid got hipped to it from...YouTube! But hey, does that mean that Satriani ripped off Cat Stevens, too? And does Cat Stevens seriously believe that he came up with that melody line first? Really?

To try to put this in a little perspective, Techdirt quoted a 1940 Federal court decision in a music plagiarism case that I hadn’t seen before and that’s fabulous:

It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.

And that suits the infantile demands of my popular brain! Taking Satriani’s and Steven’s claims to their logical conclusion, one could argue that at least 80% of popular music should be owned by Bo Diddley, Chuck Berry, Otis Blackwell, King / Goffen, Barry / Greenwich and Dozier / Holland / Dozier. And there’s probably hundreds of geezers from the ‘20’s and ‘30’s who’d have a big problem with that.

In other news, get out yer hankies. Mike Pauley pointed me to an astounding set of photos by photographer Sebastien.b of the old Colonie Coliseum / Starlight Theater in decline. You can see them at www.flickr.com/photos/altuwa/. Oh, the memories.

5.7.09 DON'T BLAME CRAIG

This article originally appeared in the 5.7.09 issue of Metroland

Craigslist has been in the news a lot lately. The mainstream media has taken an apparent delight in chronicling the ways the online classified service is destroying society. That guy who killed a “masseuse” in Boston will forevermore be known as the “Craigslist Killer,” as if Craigslist were little more than a steaming cesspool of degrading sex and an accessory to murder. Politicians are calling for Craigslist’s head, too, and newspapers are all over this like hate on Republicans.

We’ll save the discussion about the morality of erotic services for others.

What’s more interesting is the subtext of all this. Newspapers are dying, and Craigslist is a big reason why. Why? Because Craiglist is destroying newspapers’ classified ad revenue stream. Why? Because Craiglist offers a service that is infinitely better, faster, cheaper, and more efficient than newspaper classified ads.

I’d never used Craigslist until last week. We’ve got a house we’re looking to rent. I tried putting an ad in a big metropolitan newspaper and was directed (after some surfing around the newspaper’s hideous Web site) to an online inputting system. It sucked. I mean, it was absolutely frustrating, and I wasn’t sure when or if I was finished, except there was nothing else to do but log off. The whole thing took me 20 long minutes, and then, because there was no acknowledgement sent to me via e-mail, I decided I’d better call the newspaper on the telephone to make sure my ad got in all right.

For all this aggravation and $250, I got a little three-line small-type advertisement that ran for a couple of days. The promised opportunity to run a concurrent ad on the newspaper’s Web site for free simply didn’t materialize, which was fine with me because the Web site was horrible. The response? Two telephone calls from salespeople at small, local Jewish newspapers trying to sell me more ads.

So I tried a local advertising weekly. Remarkably, the Internet interface was much better than that of the Big Newspaper (although still no e-mail acknowledgement). The price was reasonable, but the response was tepid. Most of the people that called weren’t exactly what you’d call A-list prospective tenants. Most seemed to think I’d take less than the advertised rent. Great. I was starting to think there was no market out there for the house.

Then I tried Craigslist. Duh! Posting an ad was follow-your-nose simple. I could bold a bunch of words. I could post pictures. I could shield my identity with a blind response option. I was encouraged, a couple times, to proof my ad. I got an e-mail acknowledgement (immediately) that asked me to proof it again and then respond to publish the ad. The ad went online immediately.

It took a couple of minutes. It was satisfying. It was fun. It was FREE.

And it was effective. I posted every morning for five days, and every day I got at least four inquiries via e-mail. Surprisingly, most came from a different area than where we’d assumed our target market was, which was a revelation in itself. We’d been barking up the wrong tree, and Craigslist set us straight. Inside of five days, we got a deposit from some folks who appear to be perfect tenants. It was the pictures that got them interested.

I have a writer friend who just posted a passionate plea on Facebook, urging legislators to ban Craiglist in order to save “the newspapers.” C’mon. Is Craigslist killing the newspapers or is their death simply the result of technological evolution? Or, more to the point, are newspapers killing themselves? After my experience, I can’t fathom why anyone would put a classified ad in the newspaper. I just had that dubious pleasure and it bit. And newspapers aren’t where people go anymore to get stuff.

It’s with this gloss that I look askance at the headlines about the “Craigslist Killer” and the brouhaha about “erotic services.” The inferences are wrong and disingenuous, the hysteria shrill, and the journalistic conflict screamingly obvious. Let’s blame Craigslist. Spare us the sanctimonious bullshit, and report some real news. Or don’t. You’re going down either way.

Maybe soon I’ll dismantle the argument that the newpaper’s demise threatens the core of democracy and will leave us rudderless to get our tainted information from unchecked online crackpots and knaves.

For now I’ll just say give me a freakin’ break. I’ve got two words for ya: Judith Miller. We’ll be fine.

4.23.09 DON'T MESS WITH THE WOOD-MAN

This article originally appeared in the 4.23.09 issue of Metroland

Tonight the CRUMBS Night Out at the Linda Norris Auditorium is very special indeedy. First up at 7 is major buzz-band / collective / traveling circus Sgt. Dunbar and the Hobo Banned who may or may not play selections from their new EP Charles Mingus Garbage Pile. With a recent shout-out on NPR, an appearance at SXSW and an upcoming residency at Pete’s Candy Store, you really don’t want to miss this. Then you don’t want to miss the 8 PM music biz panel discussion about what’s up these days with indy labels, featuring the heads of two of the world’s great and most respected indy labels: Steve Reddy of Albany’s alt-rock powerhouse Equal Vision Records and Lincoln Mayorga of Chatham’s audiophile classical / jazz label Town Hall Records.

There’s a special place in hell for attorneys like Stuart Slotnick. Slotnick represents American Apparel, you know, the company that makes “edgy” t-shirts, posts swarmy ads all over the web and everywhere else, and tries to be the fashion voice of the 20-something consumer generation (recent post on the company’s site: “Kim Karadashian: Ghetto Fabulous in American Apparel!”). Gawd.

American Apparel used an image of Woody Allen in a recent ad campaign, with what looks like a screen capture of Woody decked out like an Orthodox Jew from a scene in Annie Hall. This is flat out, hands down, ridiculously illegal. Every state in the union (and most every country in the world) has laws, either statutory or common law, that you can’t use somebody’s image in an advertisement without their permission. You probably already know this, but apparently the morons at American Apparel didn’t, or were so gleeful in their commercial “edgyness” that they decided they are just way too hip for the law. Or something.

Note that this doesn’t only apply to celebrities. Everyone’s image, yours, mine, Woody Allen’s, is protected. It’s really a matter of privacy for most of us, of being left alone. For celebrities, though, it’s something more. The use of an images is more than an intrusion, it’s a taking, a hijaking, of the celebrity’s endorsement and persona, the celebrity’s “right of publicity.”

So naturally, Woody Allen sued American Apparel for this gross and blatant offense. Not surprisingly, the notoriously private Allen doesn’t endorse products in the United States. In fact, Allen has previously successfully stopped the use of Woody Allen look-alikes in clothing commercials appearing in magazines.

Enter Stuart Slotnick, Esq., who blabs to the press that, essentially, American Apparel is going to put Woody Allen on trial. Slotnick’s “theory” is that Allen’s personal life, and in particular his relationship with Soon-Yi Previn (which I’m sure you all also know about) has resulted in Allen’s commercial endorsement value being nil. Therefore, the “theory” goes, Allen’s “damages”, which Slotnick apparently measures as the market value what American Apparel would have paid Allen for the use of his image, is non-existent as well.

Now, we can all argue about the morality and propriety of Woody Allen’s personal life ‘til we’re blue in the face, but I would offer the following: Allen and Previn have been married now for 12 years and have two adopted kids. OK?

There’s a couple issues here. One, American Apparel broke the law in the most crass way possible, and the victim is now getting pummeled? If Allen’s image is really so worthless, why did American Apparel use it in the first place? And if the measure of damages is the market value of the image, what good is the law? Is American Apparel seriously arguing that they can steal someone’s image, and if they get caught, simply pay the “market value” of that use? Really? What protection does that afford someone like, say, Woody Allen, who chooses not to have his image used for any commercial endorsement, period? What protection would that afford you and me? What’s the value of the use of our image in a commercial, particularly if we don’t want our image used? Would Slotnick counter our lawsuits with smear campaigns about our pasts, too? Really?

Slotnick noted, in his extra-curricular conversations with the press, that American Apparel had pulled the ads and apologized. That’s mighty big of them. That can’t be enough, either.

Lawyers are duty-bound to “zealously” advocate on behalf of their clients. But there are boundaries of decency, boundaries of the law, boundaries of common sense, that lawyers should not transgress. Here’s hoping that a judge intervenes and stops Slotnick’s charade. It’s disgusting.

And here’s hoping you remember this idiotic behavior next time you go out to buy clothing.

4.9.09 AMANDA FUCKING PALMER

Photo: Bowery Ballroom 12/31/08 (c) Philine VanLidth DeJeude used by permission believe it or not!
This article was originally published in the 4/9/09 issue of Metroland


I never payed much attention to the Dresden Dolls, thinking the world didn’t need one more gaudy, Weimar-influenced group and all that goes along with it. I think I need to be a little less of a jerk about these things.

The money end of the group, Amanda Palmer, has a solo album (Who Killed Amanda Palmer) that is beyond outrageous, and lately she’s been making waves by declaring war on her record label, Universal imprint Roadrunner Records. Roadrunner is the home of, uh, Nickleback and a whole bunch of commercial metal bands.

Some of the problem is the classic artist/label creative differences stuff: Roadrunner wants mainstream “hits” (whatever that means these days), Palmer wants to follow her muse and build on her already considerable fanbase. She thinks her album is a fine representation of her, and that means complex, intellectual and rowdy. The label wants something it understands, like, oh, say, Nickleback.

Things went totally south when the label’s promo department told her they wanted to photoshop or edit out some shots of her bare midriff in a video promoting the album because they said she looked flabby. She, understandably, went ballistic, and fans have launched a Belly Solidarity Campaign with tribute sites on the web featuring and celebrating photos of bare midriffs of every shape and size. Roadrunner, pathetically, tried to capitalize on this with their own “show us you belly button” campaign with Palmer-related prizes, which didn’t exactly help relations with Palmer or her fans.

Then she reported that, while touring Australia a few weeks ago, Roadrunner’s Australian head of digital marketing had no idea what Twitter was, saying dismissively that Australians are sometimes slow to catch on to things. Incredulous, Palmer sent out a Tweet and a few hours later hosted a party in a nearby park for 150 fans.

It all got so bad that Palmer’s now written a song directed at the label entitled “Please Drop Me,” has been playing it live, and is encouraging fans to record it and post it on YouTube. All this and she’s been hilariously feeding her fans the drama in real time on her blog and on Twitter to a thunderous response. Her fans helped finance her elaborate tour when the label wouldn’t, and she’s now got the kind of intimate, rabid, and lifelong fans most artists can only dream about.

She rocks. She’s my hero. Which Dresden Dolls album do I start with?

Meanwhile, you may have heard that the iTunes store this week began selling tracks with variable prices: current chart-toppers priced at $1.29, selected older catalog stuff at $.69, and everything else at $.99. Amazon jumped in a few days later with a similar pricing scheme.

As we’ve mentioned here before, there’s no reason that all music ought to be the same price. Hits are worth more to people than non-hits, right? But then, this may just be so many deck chairs on the Titanic. People aren’t buying and they’re are getting music for free, one way or the other, more than ever before. That’s why the labels are looking at an alternative that they derided as lunacy for years: the “celestial jukebox”, where all music is available all the time over the Internet and in the air for a modest subscription fee. The labels have hired Internet guru Jim Griffin, the guy who coined the phrase “celestial jukebox” back when the Internet was in its infancy, to set it up. He’s calling this new and as yet un-launched service “Choruss.” Look for Choruss to be rolled out at selected colleges fairly soon, and available though Internet service providers after that.

Will it work? It’s doubtful. Similar things (Ruckus, Napster) have failed on campuses before; kids are now so used to free that any payment seems draconian. And at this point, almost anything associated with the major labels is poison for many people. They just won’t play.

The second problem is tracking use. The money collected will theoretically be spread around to labels and publishers and artists and songwriters pursuant to some sort of mechanism that keeps track of what music is being downloaded, listened to, and shared. And there is no really satisfying way to do this without some measure of snooping into what individuals are listening to.

Maybe that’s not such a big deal. I dunno. Few people care that their ISP and Google keep track of their internet activity, so maybe it’s not a huge leap to accept a reasonably limited intrusion on listening habits. We’ve already surrendered out privacy. So pay up.

4.26.09 ROYALTY

The March 2009 edition of CRUMBS Night Out is happening, well, tonight, if you’re reading this on Thursday March 26, at the Linda Norris Auditorium on Central Avenue. The fun starts at 7 with a set from Albany’s Sea of Trees, riding the release of their debut album Animal Sounds. At 8 the music biz panel of myself, attorney Paul Czech and our old pal Peter Iselin will talk (and answer your questions) about how songwriters make money, at least hypothetically! You’ve seen the names ASCAP, BMI, and SESAC, but do you know what these organizations do? And who’s Harry Fox and what’s he doing with that agency of his? We’ll try our level best to explain it all, and no, Harry Fox is NOT going to be there to explain himself. I have no idea how that got out there. I don’t even know if there is a real Harry Fox, or whether he’s just some kind of weird cultural icon, like the patron saint of troubadours or something.

On a related note, there’s some legislation before Congress you should know about, and if you ask me, you should support as well. The House Judiciary committee recently held hearings on bill HR 848, legislation with the droll name “The Performance Rights Act.” The bill provides for the creation of a “performance right” for sound recordings. And what does that mean, you ask?

Well, I’ll tell you. Until 1972, the federal copyright laws didn’t protect sound recordings. Compositions, the songs, had been protected since the 1800’s, but records, nope. If somebody bootlegged an album, a record company would have to chase the pirates around the state courts and rely on a patchwork quilt of state statutes and common law to get justice. It was awful. Then in 1972, Congress finally got around to dealing with the issue, and was faced with a huge push-back from the broadcasting industry. You see, traditional copyright gives the copyright holder rights not only in making copies of a work but in the performance of the work as well. So by giving copyright status to sound recordings, the record companies would then be able to demand payment for the non-private playing of records, like on the radio.

The broadcast lobby prevailed on Congress to make a bizarre exception to the law, to create federal copyright protection for sound recordings, except with no performance right. The given rationale for this odd little law was that since radio airplay promoted the sale of albums, radio shouldn’t be expected to pay record companies a royalty in addition to providing a nice promotional service. Never mind that for every other type of creative work, the performance right is perfectly OK, whether the performance promotes sales of copies of the work or not. The broadcast lobby convinced Congress that recordings were different.

So ever since we’ve had this weird situation where radio stations pay songwriters royalties for playing music on the air (through ASCAP / BMI /SESAC) but not then record companies / musicians (and, at least hypothetically, musicians). So when you hear “Respect” on the radio, Otis Redding gets paid, but not Aretha. Dumb, huh?

But wait, it gets dumber. In the 1990’s, the internet came along, and the broadcast lobby (now with help from the record companies), were afraid of competition from the internet and satellite radio, so they convinced Congress that digital transmission of recordings were different than terrestrial radio, and created a performance right for digital radio. That’s right. Webcasters and satellite radio now pay royalties to not just songwriters, but record companies and musicians as well, while broadcast radio continues its free ride.

One nice aspect of the digital royalty program is that record companies get 50% of this revenue, while the featured musicians on the recordings get 45%, and back-up musicians get 5%. For many musicians, who either signed bad deals or have otherwise been ripped off by their record companies, this digital performance money is the first time they’re seen since getting paid maybe a measly advance or session fee way back when.

Meantime, every other country in the civilized world has long collected performance royalties on recordings from radio. But none of these countries will pay U.S. record companies or performers any of this money, because we don’t collect these royalties for their artists.

The Performance Rights Act seeks to rectify this, to create a performance right and royalty stream for terrestrial (broadcast) radio performances of sound recordings, to bring us in line with the rest of the world, and to compensate record companies and musicians for the use of their works. The old argument that “radio promotes sales” is looking pretty weak these days, since there ain’t much sales of recorded music going on, radio or no.

The broadcast lobby is, as you’d expect, apoplectic over the bill, appealing to the ignoramuses among us by labeling the performance right royalty a government-imposed “tax” of good all-American business. Nonsense. It levels the playing field with digital radio, it brings us into conformance with the rest of the world, and in so doing it loosens up millions of dollars all over the world that should be flowing to U.S. record companies and musicians. It’s long overdue.

3.12.09 BETCHA GOIN PHISHIN

Depending on what tribe you run with, you may know that the band Phish played their first shows in over five years last weekend down in Hampton, Virginia. Over the past couple years I’ve gotten quite an education about Phish fandom through my working on the development of the book PhanArt: The Art of the Fans of Phish, compiled and just published by my client Albanian Pete Mason. The book collects fan-generated art, most of it stuff that was sold and traded in the parking lots and fields surrounding Phish concerts and festivals in the years prior to the band temporarily calling it quits in 2004.

The book is a 420 (!!!) page dizzying collection of pop, appropriation, and, in some cases, flat-out fine art that speaks to the band’s deep subculture and the peculiar mass obsession that fuels it.

So it was with more than a casual interest that I watched the goings-on in Hampton over the weekend. On Thursday I got a fairly freaked-out message from Pete that the local papers were reporting that lawyers for Phish were in court seeking a seizure order for counterfeit goods being sold at or near the concert venue. Was this the portent of some very un-Phish-like bad vibes?

Well no, it wasn’t. Getting orders like this is standard operating procedure for many big touring outfits like Phish. Even the most groovy of groups protect their trademarks (and their authorized merchandise vendors) from counterfeiters, and one very effective way of doing this is by getting a prospective seizure order from the local federal court that allows the U.S.Marshals to authorize the band to police what is being sold around the venue. Back when I was clerking for Judge Cholakis in federal court in Albany, similar orders were granted for the Grateful Dead (the grand pooh-bahs of grooviness) and other major acts coming to town.

It’s never a perfect system. The folks doing the street policing are typically not schooled on the nuances of trademark law, so along with seizing the obviously counterfeited goods (t-shirts that are blatant rip-offs of official band merch, or that feature registered trademarks of the band) sometimes more innocuous stuff that doesn’t infringe anything, gets seized as well. I remember getting calls in 1991 from a furious independent t-shirt vendor (now a prominent Albany attorney) who had his inventory of totally legal shirts seized by over-zealous Dead trademark cops outside the Knick.

What made the Phish situation different was the public announcement, perhaps made to warn would-be counterfeiters to stay away. As fate would have it, the judge rejected the application, because (a) the public announcement violated the statute that provided that applications for seizure orders were supposed to be made in secret under seal, and because (b) the Phish lawyers failed to serve the local U.S. Marshals with the application, again as provided in the statute. The news reports from Hampton indicated that the judge was pretty angry about this, and that the hearing wasn’t particularly pleasant.

D’oh! My first thought was “there but for the grace of God go I.” Getting reamed by a judge in open court, deserved or not, is no fun. I got slammed once in a packed courtroom for failing to put page numbers on a six-page brief. It was awful, and I’ll never forget it, and I’ll never forget page numbers on a document again. Now, I even put a “1” on the bottom of a one-page document.

What happened in Hampton? I’m guessing that the Phish lawyer was doing business as usual, and ran into a judge that refused to allow any cutting of corners. Like I said, the public announcement, while maybe not consistent with the “under seal” requirement of the law, had a laudatory intent, to avoid ugly street confrontations with would-be counterfeiters in the middle of what was sure to be a crazy scene outside the concert venue. Not serving the U.S. Marshalls may have been an oversight, but the requirement strikes me as ministerial—it’s not like the Marshalls are going to oppose the application.

But anyway, the whole episode didn’t appear to indicate the long (albeit sometimes tenuous) relationship Phish has had with the dozens, maybe hundreds, of street artists that sell band-related (but non-infringing) art and merchandise in the parking lots, fields, and hotels around the concert venues. These artists generally know the rules, and some of their efforts to push the boundaries (like hiding and disguising Phish logos and trademarks in a design or artwork) resultin some of the most clever and interesting fan-generated works. And Pete tells me that new stuff was selling like crazy in the lots at Hampton all weekend long.

And if there’s any lingering questions whether Phish maintains reasonable and fan-friendly intellectual property policies, they posted high-quality recordings of all three of the Hampton shows for free download at livephish.com. ‘Nuf said.

2.26.09 SIT ON MY FACEBOOK

I’m taking a powder for this month’s CRUMBS Night Out but I wish I could be there. My regular co-host attorney Paul Czech is just back for the Midem music conference in Cannes and will be leading a bodacious panel talking about the State of the Music Industry. Joining Paul will be our pal, Philadephia mega-music attorney Bernie Resnick, local music legend (producer, composer, player, chef, bon vivant) Gary Tash and recording studio owner (Schenectady’s The Recording Company) Tim Lynch. What a freakin’ panel! And on top of that there will be a set of music by the flirting-with-the -big-time teenagers Stuck on Stupid. This is at the Linda on Central Thursday the 26th.

And now for something completely different: last summer I met violinist / electronic musician Todd Reynolds (Bang on a Can, Meredith Monk, Yo Yo Ma’s Silk Road) at a party in Pittsfield. He seemed like a cool dude so I invited him to be a guest on my radio program, The Splatto Festival, on WBCR-LP in Great Barrington. He said sure, after the summer. A month or so later I introduced Todd to ace percussionist / sound designer Ed Mann (Zappa, a bunch of solo albums, a lifetime of major session work, etc.); Ed and Todd decided should play together sometime and I suggested doing it on my radio show. They said sure. I figured that adding my pal free-jazz saxophonist Dave Barrett (Splatter Trio, No Sisters) would make for a nice trio so I asked Dave to join the fun. Then master bassist Michael Bisio happened by and I invited him, too. So, last September 19th, these four prodigiously talented and crazy musicians all met for the first time at WBCR-LP studios in Great Barrington, and, after introductions and small talk, improved live on the air for 90 magical minutes. It went so incredibly well and was so much fun that they decided on the spot to form a band, The Splatto Festival Chorus, named after my radio show. The SFC will be at the Sanctuary for Independent Media in Troy this Saturday for a concert and CD/DVD recording session. 8 PM. Bring your good ears and be prepared to be knocked out. You can download the September broadcast at my radio blog splattofestival.blogspot.com. Scroll down.

I’ve received a barrage of inquiries about this whole Facebook terms of use debacle that just happened. I’m usually all over this stuff, and I’m an avid Facebook user, but the fact is I’ve been on vacation with my brain turned off in the middle of Mexico for the past week. From the hysterics I’ve heard it seems like a combination of out-of-it weenie lawyers, corporate stupidity, consumer paranoia, and a social networking paradigm everyone is struggling to get their minds around. And that’s just about right.

From what I’ve read (and remember, I’m on vacation, so I’m reading quick), Facebook was trying to get it’s terms of use to comport with reality, i.e., when someone leaves Facebook and takes down their page, that someone’s footprints will be all over Facebook: there will be posts to friends’ sites, photo’s tagged on friends sites, stuff all over the place. That’s the nature of social networking. Facebook tried to change the terms of service to say that when you leave Facebook, these footprints will remain, and you acknowledge that. Facebook will still have some of your stuff.

Of course, the new terms of use were stated in dense legalese, with over-broad terms that could be interpreted to mean that Facebook was suddenly claiming that it was glomming all your stuff for any purpose forever. I mean, the new terms were ridiculous.

Oops! The outcry was loud, not terribly well-informed, but effective nonetheless. After some statements that sounded like “well maybe that’s what we said but it’s not what we meant” corporate double-speak, the threats of lawsuits, and the formation of a bunch of Facebook groups proclaiming a revolt against all things Facebook, the new terms of use were rescinded and the old ones put back in place. The Facebook powers-that-be are now saying that new terms will be developed in collaboration with the Facebook “community,” last pegged at something like 175 million users. Good luck with that.

Whether this was much doo-doo about nothing or not, it actually proves, once again, the brilliance and vibrancy of social networking structures. Word gets out, gets discussed, and things happen on these sites will incredible speed and power. Sometimes information is exaggerated and imprecise, just like in the real world, but the truth eventually comes out, just like in the real world. Except so much faster, so much bigger, and so much more effectively.

There was in reality little real harm that some corporate entity was going to steal your stuff. If that started happening there would be such an exodus from Facebook that the company would collapse overnight. But some loose language was fixed, some uncertainties clarified, and a company was corrected. Virtually overnight.

2.12.09 On Shepard Fairey

Shepard Fairey’s been in the news a lot lately, which should suit Shepard Fairey just fine. Fairey is the self-styled “street artist” responsible for the ubiquitous “Obama Hope” poster, which has become, in a few short months, one of the great iconic images of our time. A few weeks ago, the Smithsonian acquired the original poster for its National Portrait Gallery.

Fairey’s got a checkered reputation, to be sure, accused of being a shameless self-promoter and serial plagiarist of potent political images for re-use in his often dada-esque (or perhaps empty is a more fitting word) works which promote little more than, well, Shepard Fairey. Check out California artist Mark Vallen’s furious blog post about Fairey at art-for-a-change.com for a taste of some anti-Fairey thought.

But love him or hate him, the Obama image is remarkably powerful and absolutely deserving of its iconic stature; the reductive red, white and blue style has spawned “Obamafy” image generators on the internet. If you’re on Facebook, a good number of your friends probably have Obamafied themselves. You probably Obamafied yourself. C’mon. Admit it.

A question spinning around the internet for months was the source of the Obama image. Fairey, who’s an appropriator and/or plagiarist depending on who you ask (and these aren’t the same things) obviously copped the image from somewhere, but nobody could figure out from where, and Fairey either was playing coy or didn’t know where his source photo of photos came from.

After several false alarms (a couple of weeks ago it was claimed that it was a 2007 Reuters photograph), the consensus seems to be that Fairey used a photo taken for the Associated Press by a photographer named Mannie Garcia. The photo was taken at the National Press Club in 2006 where Obama was holding forth with George Clooney.

So, of course, the Associated Press is going to Fairey with its hand out, notwithstanding the fact that neither it nor its photographer realized that the Hope poster was based on their photograph until it was pointed out to them last week.

The Associated Press, on top of being increasingly a right-wing toady, has a history of being stupid and piggish about its intellectual property rights. In 2000 a couple of guys hysterically mashed up the AP’s famous Elian Gonzales photo (the one with the ATF guy pointing a gun at Elian and the handsome, enigmatic fisherman who were hiding in a closet) with the audio from one of those Budweiser “wassup” ads. After the primitive little movie had been downloaded and forwarded hundreds of thousands of times in a few short hours, the AP slapped the jokesters with a cease and desist order. The guys posted the letter on their website, and enraged citizens buried the AP with angry emails, shutting down the AP’s mail server. The AP backed off.

Last June the AP tried shaking down bloggers and news sites for quoting AP news stories, claiming that it would charge these other outlets for excessive quoting. This went nowhere fast, and the AP wound up look foolish, sad and clueless.

And now this, going after the most recognized visual artists in the world for one of the most timeless images ever, one for which Fairey may have gotten ridiculously famous, but didn’t make any direct money. Has the AP no shame?

Some of you might be yelling “fair use! fair use!” and that’s what a lot of people are saying, too Increasingly, courts have been granting fair use passes to appropriation artists when the second use is “transformative” in presentation and meaning. As one commentator observed “The copyright owner didn’t even recognize his own work in Fairey’s poster! How much more transformative can you get?”

But some other copyright experts aren’t so sure. They point out there’s virtually no transformation in intent or meaning. Licensing photographs for campaign posters is a standard transaction. The photographer presumably took the photo for commercial purposes, and that’s precisely what Fairey used it for, notwithstanding the fact he made no money with it by choice. Maybe this is over the line of fair use.

But there’s another route here. To claim fair use, first you need an infringement and maybe Fairey’s use doesn’t rise to the level of infringement. To infringe, the second use has to copy the “copyrightable elements” of the first. Photographs generally receive fairly thin copyright protection—some protection in the composition, color, shading, whatever can fairly be attributed to the photographer’s original contribution to the photograph. It certainly can be argued that Fairey stripped to photo of most of the protectible elements, so that he took only the unadorned image of Obama’s face—something to which the AP cannot claim copyright ownership.

We’ll see where it goes, but Fairey does have a history of paying off people when caught with his hand in the arty-jar. And he can readily afford it—despite his cultivated “street art” image, he’s done ad campaigns for the likes of Pepsi and Hasbro, and has a clothing line that I can only imagine is exploding.

Over the weekend, while en route to a career retrospective opening at Boston’s Institute for Contemporary Art, Fairey was arrested by Boston police on a couple of pending graffitti charges. Fairey likes telling people he’s been in jail 14 or 15 times. Headlines and more headlines. Life is good. Obey Fame.

1.29.09 MORE RIAA BS

As mentioned a couple columns ago, the Recording Industry of America has dropped (or at least claims to have dropped) it’s five-year-long campaign of suing and shaking down people who may or may not have downloaded music in a manner that may or may not be illegal. One reason I think they’ve backed off, other than the fact that the lawsuits were a really stupid idea that didn’t work, is that things are getting sticky for the RIAA in a couple of court cases.

One of these cases, SONY BMG v. Tenenbaum, is heating up in federal court in Boston. The defendant is represented by attorneys from Harvard’s Berkman Center for Internet and Society, who appear to be a little sloppy (badly botching some basic subpoena procedures) but also wildly creative. They’ve convinced the judge to order some upcoming arguments to be webcast.

This was pretty shocking, because federal court proceedings are rarely, if ever, filmed or broadcast. But this decision is part of a trend to opening up the courts to TV cameras. As you may know, there’s been considerable debate about televising court proceedings for as long as there’s been television, and the opponents’ reasoning has become increasingly thin and their arguments increasingly shrill. As the OJ Simpson trial coverage proved (I think), televising court proceeds can go a long way in demystifying the legal process and educating the public in the finer points of procedure and evidence. And IMHO these positives wildly outweigh any of the negatives.

So this federal judge in Boston orders that the argument can be webcast, stating that the matter was of interest to a lot of people, countering the RIAA’s arguments that defendant’s attorneys would use the webcast to “increase their notoriety” by pointing out that the RIAA’s admitted strategy in these lawsuits is publicity of the “dangers” of downloading. Like, the RIAA wants to use the courts as a vehicle for scary press releases, but wants to shut the door when reality rears its head.

In other words, the RIAA wants you to be afraid of being sued, but it sure doesn’t want you to think about it much beyond raw, primal fear. Like the great and powerful Oz, the RIAA doesn’t want you to look behind the curtains .

The judge also had a particularly memorable long-view observation, one that is going to resonate in courtroom camera arguments for years to come:

In many ways, this case is about the so-called Internet Generation -- the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. . . . It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet. . . .

The RIAA hustled to the federal appeals court to stop the webcast, and the trial judge has postponed the to-be-filmed hearing while the matter is decided upstairs. The RIAA’s reasons for want to keep the arguments off the web aretruly mind-boggling.

For one thing, they appear to be afraid that their expensive lawyers precious arguments will get mashed up and reposted on the web, making them look even more ridiculous than they do in real time. Really. That’s their argument:

Petitioners [the RIAA] are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners' case.

Where does one begin? First, it’s not “unlike a trial transcript”. It’s just like a trial transcript, except with a movie added on!!! Second, statements are taken out of context all the time everywhere. Most of the RIAA’s legal arguments are built upon taking previous court decisions out of context, so it’s a little hypocritical to complain about someone else using the practice. Third, people could, hypothetically, mash-up the Harvard lawyer’s arguments, too. They won’t, though, unless the RIAA pays someone to do it. Why not? Because people don’t hate the Harvard lawyers. People do hate the RIAA, though.

Finally, if the RIAA was worried before about having their lawyers’ performances mashed up and stuck up on YouTube, they should be mortified now. By making this whiny, spurious argument, the RIAA is now in the sights of every good-time video artist in the universe. After they lose their silly motion and the argument is webcast, we’ll be able to sit back and enjoy a deluge of cruel, hysterical, creative commentary. Viva la internet.

1.15.09 RE APPLE

Breaking the Chains

Nice weather we’ve been having! Last month our Sell Your Music Online panel had to bail out on the monthly CRUMBS Night Out at the Linda Norris Auditorium. It was the night of what will forever be known as The Great Ice Storm of 2008—need I say more?

But mourn not, we’re got the old team back together for the January edition of CRUMBS Night Out, so come out to the Linda (339 Central Ave., Albany) next Thursday (Jan. 22) and hear a set from the always-intriguing Scientific Maps (myspace.com/scientificmaps) at 7 PM, followed by the panel—including moi, jazz god Brian Patneaude, and the mandolinear digi-guru Matthew Loiacono—explaining what you need to know about getting your tunage up and out on the Internet. It’s free. My trusty co-host Paul Czech won’t be there because he’s attending the big MIDEM music conference on the French Riviera, which he’ll be reporting about at the February CRUMBS session.

Speaking of Matthew Loiacono, you should know that he’s publishing a weekly e-newsletter, The Weekly Wahhh, full of helpful hints about the world of Internet music. Matthew knows as much about this stuff as anybody anywhere; he knows what happened five minutes ago and has a pretty good idea of what’s gonna happen tomorrow. You can sign up for the newsletter at his Web site, www.heartstack.com.

The big news this week is that Apple’s iTunes store is changing a couple of its more controversial aspects, and all for the better. First, it’s finally ditching the DRM (digital rights management) goo that encumbered all of the music it was selling. Apple’s DRM, which the major labels apparently forced Apple to stick on the music, restricted how many devices you could put your music on. Say you replace your MP3 player, get a new phone, stick your music on a new laptop or storage disk—at some point your iTunes music will just quit on you, and won’t load up on any new devices.

DRM is universally and vociferously hated by folks like me, but it’s not clear it’s ever really bothered normal people much. Over a year ago, Amazon launched their DRM-free MP3 store to a lot of fanfare in the technorati press, but it hasn’t affected iTunes’ market domination at all. Huh. What explains this? I can’t imagine people just don’t care that their music is tethered, I prefer to think that people just don’t know yet that their expensive digital music collections have little time-bombs in them, and not enough time has gone by for the DRM to click in. We’ll see. Maybe.

More immediate important changes to the iTunes store is the goosing of the files, which will now be offered at a higher quality 256kbps, which will take up more room on your iPod but will sound much, much better than your old 128’s or 192’s.

Finally, something that’s gonna change online music selling forever: Apple’s finally ditching the uniform 99-cents-per-track pricing, and introducing a three-tiered price structure. Labels and artists selling on iTunes will be allowed to sell tracks at 69 cents, 99 cents, or $1.29; expect back-catalog tracks to go for the lower price and big hits to go for the higher. Or something like that. I’m guessing we’ll also see an uptick in the number of free tracks and of targeted and limited price reductions (like “get the new M.I.A. track for 69 cents for the next hour”) as well.

I think this last move will open the floodgates to innovative pricing across all of the music-sales platforms on the Web; lots of online musicians have been fooling around with different price-points (including pay-what-you-will “tip jars”) for a couple of years, and that only makes sense. If you wanna get all economic about it there’s no good reason why all tracks should be the same price: you don’t value all music tracks equally, supply and demand is what it is and, the marginal cost of one more track is right around zero.

Anybody see Lawrence Lessig on Colbert last week? He was pretty good parrying-wise, infinitely better than fellow copy-leftist John Perry Barlow’s clueless performance last year. But the appearance highlighted how hard these things are to talk about, and how much Big Media has muddied the waters of rational discourse. Colbert’s ridiculous proclamations, like “copyright is forever” and his anti-remix rants (Colbert, in fact, has been at the forefront of encouraging and posting remixes of his own show) simply aren’t susceptible to witty, cutting repartee. Or maybe Lessig just isn’t equipped to deliver the verbal body-slam that counts as a score on Colbert.

That being said, Colbert did seem, at least to me, especially aggressive and unforgiving. Whether he was intent on putting Lessig through his paces, or talking tough to satisfy his bosses at Viacom, who knows? I’d like to think he’s immune to that sort of thing. Maybe not.

12.31.08 SO SUE ME

This article originally appeared in the 12/31/08 issue of Metroland.

Last week the Recording Industry Association of America announced that it was ending its five-year reign of terror against its own customers. Yes, the RIAA decided that it was going to stop suing people that its “investigators” had “detected” making music files available for others to download over the internet.

Since 2003, the RIAA has jammed up over 35,000 people, college kids, mostly, for using peer-to-peer online services like Limewire and Grokster to acquire music. Letters were sent demanding quick “settlement” payments of three or four thousand dollars or else face a legal hell of scorched-earth litigation from high-priced, far-away law firms, with the downloaders’ potential liability often in the millions. Legally, the RIAA’s claims have always been on shaky grounds, but the combination of an insane imbalance of legal resources, a rational unwillingness of people to be legal guinea pigs, and a few lazy judges has kept the RIAA’s extortionate scheme viable.

So why has the RIAA pulled the plug? Well, maybe it determined that this was a really stupid idea to begin with. Here's an industry with precipitously falling sales, holding on to some romantic notion of relevancy left over from the '60's and 70's, and now finding itself universally reviled for its bullying and arrogant behavior. Plus, the lawsuits were not working anyway, as more song files than ever are being moved around the internet for free, and probably even more are being moved around the so-called “sneakernet.” Like the 40,000 songs on the hard drive a friend just made me borrow a weeks ago. Like the DVD-R with 1500 obscure 60’s tracks another friend mailed me a few months ago. Maybe the RIAA just needs a hug. And a new business plan.

Maybe the RIAA is falling apart. With member companies hemorrhaging money and with stock valuation tanking, perhaps the notion of mass lawsuits against the general citizenry, which reportedly cost a lot more money than they bring in, is seen as an expendable and imprudent business strategy. There have been rumors for months that EMI, the smallest and most vulnerable of the major labels, was angling to leave the RIAA for just this reason.

Maybe the RIAA sees the door closing. After five years of an essentially free legal ride, there are a couple of cases out there where the victims are fighting back, with the help of organizations like Harvard's Berkman Center and the Electronic Frontier Foundation. In these cases, the judges are finally taking hard looks at the legal issues involved, as well as the fundamental fairness of the RIAA’s lawsuits. Interesting, the RIAA has not said that it will seek to discontinue any of it’s ongoing lawsuits, and it should be noted that for any lawsuits in which a defendant has responded with a court filing, the RIAA can’t unilaterally end the case anyway. All it takes it one or two adverse rulings, and the RIAA’s cruel and ridiculous playhouse falls apart. And then the class-action attorneys, representing the 35,000 victims, move in, and suddenly there’s a new sheriff in town.

Of course, we could consider the RIAA’s stated reasons for discontinuing the lawsuits, although this should be the avenue of last resort. This is an organization with an historically tenuous relationship with the truth. In announcing the end of the lawsuits, RIAA spokesman said no new lawsuits had been filed ”in months” when in fact new suits had been filed regularly right up to mid-December. Another RIAA gasbag said the now-abandoned lawsuit strategy were the industry’s “only option,” a typically oblivious observation from a group of companies that failed to develop a digital strategy, engaged in price fixing and payola and copyright abuse and are now staring down a long tunnel of almost-certain and soundly deserved continued decline.

Now, the RIAA claims that it’s “changing direction,” and will somehow work with your internet service companies (ISP’s) who will “help” the RIAA police suspected downloaders. Word is that some kind of deal is being hammered out with the “assistance” of New York AG Andrew Cuomo.

As there’s been no official word from Cuomo or any ISPs on this yet, we can only rely on rumor and speculation, but rumor and speculation come from somewhere, right? The talk is that Cuomo’s leaning on the ISP’s to implement some sort of “3 strikes” policy, where your internet connection will be disconnected if you are “suspected” of downloading too much stuff. Exactly how and who determines this is unknown. Will your activities be monitored? Well, apparently yes, somehow. And then what kind of due process will you have? Who knows? Like Santa Claus, your ISP will know if you’ve been bad or good, so be good for goodness sake or no internet for you!

This is ultimately scarier that 35,000 random lawsuits. This is serious. For all his faults, former AG Eliot Spitzer blew the doors off the major labels’ payola practices, and used the penalty money to create a massive music fund which has significantly enriched our culture ever since with grants, commissions and awards to musicians and music organizations. Why then is Andrew Cuomo coddling the same industry by (allegedly) strong-arming ISP’s to be the music industry’s enforcement cops? Is this what we pay him for? Doesn’t he have better things to do? Like, I dunno, fight crime?

12.3.08 MR. NEVILLE PLEASE

This review originally appeared in the 12/3/08 issue of Metroland.

THE AARON NEVILLE QUINTET FEATURING CHARLES NEVILLE

Mahaiwe Theater

November 28, 2008

Since this was listed as a “Christmas show” I was mighty worried that Aaron would be wearing a red tousled hat and shaking jingle bells while riding a sleigh back and forth with fake snow falling while soulless session musicians and an out-of-tune children’s chorus vamped on “Jingle Bell Rock.”

Not to worry; this was an Aaron-centric Neville Brothers show without Cyril and Art with some Christmas songs thrown in. It was loose, it was funky, and it was a blast. Aaron was wearing his Christmas finest, the tight denim vest over the tight black t-shirt, the tight jeans, the boots; with his cinder-block physique, tats, brim, and laconic demeanor, he is still, at 69, the very embodiment of badass. And then he starts to sing.

This show went right down the middle of the road, starting with a weird thing where the band riffed and Neville sang the first line of various 50’s-60’s songs, not a medley, exactly, but close enough for a little discomfort. The set relied mostly on covers, reliable crowd-pleasing warhourses like “Use Me,” “Ain’t No Sunshine When She’s Gone,” “Crazy Love,” “Bird on a Wire,” “Everybody Plays the Fool.” Safe, sure, but oh so tasty. Christmas songs dropped in and out, clearly unrehearsed, as everybody was glued to their sheet music on this first date of the Christmas tour. For some reason, this wasn’t the least bit offensive; it sounded great, Aaron was singing his ass off, Charles Neville, on sax, was laughing his ass off. And besides first, who exactly is going to tell Aaron Neville he needs to rehearse? Me? Look at me, man! Wrong!!! And besides second, his original holiday tune, the child-like “A Christmas Prayer”, was charming, and his soulful “Oh Holy Night” was devastating.

He even played some country tunes, passionately aping George Jones on “The Grand Tour” while his band, all Neville Brothers sidemen, played with that high-elbowed stiffness soul guys sometimes get when they have to dumb down to country music. Aaron was killin’; the band got through it.

Then the hammer came down, with a torrid jamming-down “Yellow Moon”, Aaron’s 1966 #1 hit “Tell It Like It Is,” and a roof-raising “Amazing Grace.” And just when it seemed like it couldn’t get any heavier, the show ended with a song Aaron recorded for “Stay Awake”, the brilliant 1988 collection of Disney movie songs: “The Mickey Mouse Club March.” It was time to say goodbye.

12.2.08 Lori Drew

This article was originally published in the 12/3/08 issue of Metroland.

The CRUMBS Night Out Concert / Lecture Series at the Linda last month was fabulous, with a good crowd, a killer set of music and a (so I’m told) compelling and interesting panel discussion about music licensing. We’re back again next week, Thursday December 11, with The Ramblin’ Jugstompers and an expert panel discussion about selling music in the digital age. So, if you like your music crusty and your information crisp; if you like your music really, really old and your business strategy modern as tomorrow; if you like your music moribund and your knowledge cutting edge; well, git yer lil’ butt down to the Linda Norris Auditorium next Thursday at 7.

The old adage “hard cases make bad law” refers to situations in which a court struggles to find a just solution but, given some some hole in the law or a quirk in the facts (which make it a “hard case”), the court mangles logic and precedent to come up with a result that might make a little sense for the case before it, but also sets in motion dangerous unintended consequences for future cases (which make it “bad law”).

This has nowhere been more true than in the case of Lori Drew, the Missouri lady who helped her teenage daughter and some friends set up a fake MySpace page for a fake hunky teenage boy, and then perpetuated a fake MySpace romance with a 13-year old neighbor girl they didn’t like. After heating up the ether with puppy love for a couple of weeks, Drew and her crew had their fake dreamboat dump the girl, cruelly, telling her that the “world would be better off without her.” Crushed, the neighbor girl committed suicide.

Could it get worse than this? No! Is Lori Drew reprehensible? Yes! Isn’t there a law that deals with situations like this?

Well, no, apparently there’s not. Criminal prosecutors (and, to be sure, criminal defense lawyers, too) secretly love cases like this, because the pinhead press goes ga-ga: you’ve got teenage romance, an evil Mom, suicide, and that awful, awful internet! Nancy Grace is holding, please pick up! But try as they might, and as much as they would have loved the national media spotlight, Missouri state prosecutors couldn’t find an indictable criminal offense in Lori Drew’s cruel hoax.

Like a sage Colonie cop told me once when I wanted to press charges against somebody who was being a complete idiot to me: “there’s no law against being an idiot.”

But wait, an enterprising young Federal prosecutor in Los Angeles figured if he could twist a federal computer hacking law just enough, maybe he could go for the gold. And he did. He grabbed a federal anti-hacking law, the Computer Fraud and Abuse Act, which makes “intentionally accessing a computer without authority” in order obtain things like national security data or information from a protected computer across state lines a criminal offense, and then somehow convinced a California grand jury that the law applied to Lori Drew.

The theory apparently was that by creating this fake boy and tormenting the poor 13-year old girl, Drew had violated the MySpace terms of service, and therefore Drew’s use of MySpace’s computer servers constituted “intentionally accessing” MySpace’s computers “without authorization” and a criminal offense under the CFAA. And MySpace’s computer servers are sitting in Los Angeles, so that’s why Lori Drew was charged there—it was the “scene of the crime.”

Does this sound right to you? Well, Lori Drew was convicted last week of misdemeanor counts under CFAA, as the jury rejected several more serious felony counts, but she’s still facing some serious jail time and fines. The headlines yesterday were blasting that the poor mom of the 13-year old girl wants Drew to get the max. And typically, there is virtually no critical analysis in the mainstream media of the idiocy, the charade-like nature of the whole proceeding. Why screw up a good blood-lust story with the truth?

Don’t get me wrong. If it was my 13-year old who’d died I’d be screaming for Lori Drew’s head, too, and I wouldn’t give a good goddamn how I got it. And the general idea of Lori Drew going to jail for what she did strikes me as just.

But not this way. This is a monumental abuse of the legal process. As some commentators have pointed out, the same logic used to prosecute Drew, based on her violation of a computer site’s click-through terms of service, would support a criminal conviction if you simply looked at a website that had terms of service that you had to give the website owner a beer, and you didn’t. If the website prohibited people named Ralph, and your name was Ralph. Off to jail for you!

Expect Drew’s conviction to be overturned, correctly. And then expect the mainstream media and Nancy Graces of the world to go berserk about lenient judges. Uh-huh. Whatever.

12.2.02 Here Comes Tomorrow

This article originally appeared in the December 2008 issue of The Artful Mind

With the seismically historic election of Barack Obama, we’re all exhaling and awaiting a return to sanity from our federal government. After being subjected to eight years of arrogant, ignorant and destructive neo-conservative policies, it’s clear that there will be huge top-down corrections in how we approach international relations, human rights, science and the truth.

Gee, that sounds good, doesn’t it? And how will the new administration approach policies relevant to artists and creativity?

Good question.

Generally, one would hope that Obama’s demonstrated thoughtful approach to everything will redound to the arts and the creative economy. He will place qualified people at the National Endowment for the Arts, for example, unlike his predecessor, who just gave the absurdly jingoist country singer Lee Greenwood (“God Bless the Red, White, and Blue”) a seat on the board that determines what artists and art institutions get from the fairly meager funds the federal government doles out every year. I’m surprised Larry the Cable Guy isn’t the Poet Lauriat.

By the same token, Obama can be expected to appoint justices to the Supreme Court who will take more expansive views of civil rights, especially as regards things like expression and other individual rights. The same goes for appointments to the FCC, which increasingly has become a facilitator for Big Media corporate interests and the Christianista right.

A week before the election I was on a panel discussing the presidential candidates’ specific positions on tech and intellectual property issues. There wasn’t a whole lot of information out there to talk about. Position papers on the candidates’ websites were pretty thin, and filled more with meaningless platitudes than concrete proposals. I had to rely on anecdotal information and the educated guesses of media / blogosphere “experts”, who didn’t know much more than me, that is to say, almost nothing. IP stuff has never been on any presidential top-ten list, and especially not this year, what with a couple ground wars, various constitutional crises, and the world economy in collapse. And these issues can’t be reduced to slogans and tag-lines, so the pinhead mainstream media isn’t interested.

Since most of the interesting intellectual property issues today have to do with digital media and the internet, one indicia of where we’re headed is Obama’s relationship with the internet. And that’s encouraging. His campaign and especially his astonishing fundraising effort was all about the web. At the peak of the campaign I was getting several messages a day, and they were generally welcome and informative, and occasionally goaded me into logging in and throwing O’s campaign a few more dollars.

Not surprisingly, Obama’s a crackberry addict, an obsessive texter. He’s also a dad with young kids who presumably are tech-aware, and so he’s confronted with all the issues all parents face with kids and the web. These are all good things. He’s our first President who is of the present and conversant in matters regarding the internet. Consider the alternative-—John McCain reportedly didn’t use email and told a reporter that his wife Cindy helped him with “a Google” once or twice. Yikes...

Obama’s few policy statements about this stuff are even more encouraging. He’s on record as being in favor of net neutrality, that is, regulations that insure that the internet stays non-discriminatory and that internet access and operability are the same for everyone. Major internet providers are apparently itching to provide multi-tiered service, where premium customers get better and faster service and the rest of us get what’s left. The argument against tiered service (and for net neutrality) is that it would give substantial commercial advantage to the big, the entrenched, and the wealthy, and discourage access and innovation by the little guys who’ve driven innovation on the web since day one. The Facebooks and eBays of the world were started with good ideas, a little code, and unlimited access to the web. Net neutrality ensures that the next Facebooks and eBays will continue to have the same unlimited access to the web.

Opponents to net neutrality say that it requires government regulations, and of course regulation in all forms is bad bad bad! Or it least it was was was until Wall Street fell apart. We’re a civil society, not a Darwinian experiment, for crying out loud. Regulations supporting net neutrality are a very good thing.

Similarly, and of critical importance to us here in the Berkshires, Obama’s on record for legislated universal service for “true” broadband internet. He’s in favor of hooking everybody up with cable / fiber based broadband (presumably “true” broadband doesn’t included telephony-based DSL, but I could be wrong here). How’s he gonna do that? The same way we all got electricity and telephone during the last century, by government programs that mandate that everybody who wants broadband gets it. Of course this is being met with insane charges that universal service represents “socialism” and worse from the lunatic right, who presumably would prefer that half of the country not have internet, or phone, or electricity. Their argument, that the “market” will miraculously provide high-speed internet service to all is absurd on its face and is absolutely disproved by our local experience. I’m sure those of you reading this in your dial-up internet Berkshire homes will readily agree.

I wouldn’t be surprised if universal broadband is a central part of Obama’s much-anticipated economic stimulus package. Broadband is a proven economic driver; included in its benefits is that it encourages telecommuting with all the efficiencies and savings that arise from people not having to commute to a central workplace. Pay attention to this one. Write a letter.

How about the meat and potatoes intellectual property stuff? What will Obama do with copyright law? Here there’s really no Obama policy trail, and I have to point out that copyright issues have never followed red state / blue state conservative / liberal lines. We have hideous overly protective copyright laws that bear little relation to the purpose of copyright, which is to encourage creativity. Rather, we have laws that have been stiffened and toughened incrementally for the purpose of protecting the business models of the Big Media companies, at a time when digital media has made these business models largely unsupportable. The disconnect between law and reality is demonstrated nowhere more clear than in the 30,000 or so lawsuits that the music industry has brought against music fans, mostly kids, for downloading and trading music over the internet. That’s disgusting.

We have appropriation art, and what Lawrence Lessig calls “re-mix culture,” hanging in legal limbo, largely at the pleasure of copyright owners and those few brave artists who fight when bullied, and the courts that decide the few random disputes that make it to court, and who are as likely to get it totally wrong as right. The law, as currently constituted and interpreted by the courts, is of little help to what truly is a cultural movement and a sea change on how things get created. It’s scary.

This bad set of circumstances is the fault of Democrats as much as Republicans. Vice President-elect Joe Biden, and most Democrats, has routinely voted in favor of whatever Hollywood and Big Media has wanted. Vermont Senator Pat Leahy has, too, and it may be just coincidence that he’s also had speaking parts in the last couple of Batman films. I mean, who knows?

Congress this year created a cabinet-level “intellectual property czar” at the urging of Big Media. No one else, it seems, thought this post was necessary. In fact, the Bush administration, the Department of Justice, and a mess of screaming-liberal public interest groups all lobbied to kill the position. For the most part, the “czar” was created to provide pro bono legal services to the Big Media companies, who seek the government’s largesse in enforcing their imperial copyrights.

So Obama’s stuck with this IP czar position, like it or not. I think the earliest indication of where he’s headed with real creative economy issues is (1) whether he fills the “intellectual property czar” post; (2) with whom he fills it; and (3) what he allows the “czar” to do.

We’ll know soon enough.

11.20.08 SHUT UP ALREADY

this originally ran in the 11/20/08 issue of METROLAND


Like many of you, I’ve been obsessed for much of past last year or two with the presidential campaign. And of course, this obsession necessarily involved a whole lot of depressing and mind-numbing exposure to the political media. As far as TV goes, I stayed with MSNBC, mainly out of an inertial allegiance to Keith Olberman, who started ringing the bell of opposition in mid-2006 with his at-the-time stunning and courageous “special comments.” But the schtick got increasingly tedious over time, with Olberman’s expert “guests” reduced to trotting out to sycophantically agree with Olberman’s theories de jour. Even the “special comments” lost their luster, their “specialness”, as they devolved into exercises in method anger, hubris, and crankiness.

But I hung in with MSNBC, because there was nowhere else to go. What, I was going to do, go to CNN and watch Lou Dobbs and Glenn Beck? Fox?

Anyway, I glad it’s all over. For the present, I’m keeping the TV quiet; maybe I’ll check in on Rachel Maddow now and then, because she’s flat-out great, but that’s about it. And by the time the 2012 campaign cranks up, should anyone have the temerity to challenge King Barack I, I hope things are a little different.

Specifically, I hope, I demand, that a number of grammatical terms disappear from the lexicon of the pundit class. These folks, some of whom show flashes of humanity and decency from time to time, all lapse into a weird kind of unblinking shorthand of descriptive phrases when describing the events of the day. Unfortunately, it’s a shared weird kind of shorthand; it’s almost like the use of these phrases is a mandatory feature of being in the pundits’ club. And it leads to unimaginative discourse, a swarmy and almost childish sameness to what is supposed to be enlightened, independent insight. Which it never is.

Here are some of the phrases I want to see banished henceforth and forever from our political commentary:

flip-flop – a Karl Rove term concocted to unfairly malign John Kerry 2004, an unnecessary exercise, since there are plenty of things that could be used to fairly malign John Kerry. Like John Kerry. Anyway, this became a ridiculous word that lazy, fabulist journalists seized on whenever a candidate made the unthinkable decision to change his/her position. About any damn thing. It’s a toxic term. We got into the mess we’re in precisely because we’ve had a cretin in power who refuses to reflect, to capitulate, or change course. I’m just waiting for one public figure to say to some journalist, “Look, asshole, I changed my mind. Bite me.” Then, and only then, “flip-flop” will be rightfully relegated to the dumpster of history.


close the deal – This is where the pundits mind-meld with The American People from their perches at the bar at the Hay-Adams, or wherever they go to be seen, and determine from on-high whether or not a candidate has, simply, convinced everybody. Obama was constantly accused by the pundits of not having “closed the deal” with The Amercian People as if public policy advocacy was the equivalent of selling The American People a 2003 Hyundai Sonata with a few nicks but low miles. Huh? As if an appreciable percentage of The American People weren’t white-trash cracker racist rat-bastards with whom Obama couldn’t close a deal on free Girl Scout Thin Mints with ice-cold milk on a hot day. It’s a meaningless term. What if, prior to the election, Obama had, in fact, “closed the deal”? What would we have done then?

thrown under the bus – I guess this is a pretty good phrase, but I heard it used 5-10-15 times a night on pundit panels, especially in reference to infighting within first Hilary’s, and then McCain’s, incompetent campaign staffs. Somebody needs to be blamed for (a) a primary loss; (b) a gaffe; (c) bad polling numbers; (d) false claims of dodging gunfire; (e) an inexplicable wardrobe expense, etc., so, usually through a “leak” from an unattributable campaign source. some poor bastard gets “thrown under the bus”, that is, blamed, that is, royally screwed, humiliated, and fired.

blame game -- a term that has its roots with Bush butt-boy turned neocon traitor Scott McClellan. During a 2005 press conference, then-Bush press secretary McClellan was trying to avoid talking about Bush’s complicity in the murder of the City of New Orleans. He blabbered the term “blame game” like a fat stupid third grader caught stealing candy about 90 times during the course of a 15 minute press conference. This year the term was usually used in conjunction with “thrown under the bus” during descriptions of infighting among white Hilary and McCain people who couldn’t figure out how to stop that black man Obama from becoming our President. It was overused by McClellan in 2005 and it’s been overused by every one who’s used it ever since.

maverick – a word that became a meaningless brand as soon as McCain accepted the nomination and whored out his soul. The term then became even less than meaningless when Bible Spice, the Tool of Wasilla, started using it to describe herself.

comeback kid – this term comes with the nightmare vision of Bubba Clinton and that phony squinty smile saying “yeah, I’m the comeback kid” in 1992. And lazy, stupid pundits have used it every single time some pathetic candidate wins something he or she wasn’t supposed to. John McCain’s up by ½% among rural, uneducated white women over 80! Could he be the comeback kid?

The answer is no, he could not.

11.6.08 LOCAL BANDS

OK, the first CRUMBS Night Out panel discussion, the music critic panel, was a blast. We were still going strong after 75 minutes, answering a ton of questions, and the conversation more philosophical that I was expecting, but that’s where it wanted to go.
Next week, the 13th, the Scientific Maps will perform, followed by a panel talking about licensing music to TV and movies. While we’re blessed with a couple local commercial radio stations and a bunch of college stations that regularly play local music, for the most part radio’s dead and irrelevant in terms of getting music heard. These days more songs break, and more money is made, on television shows and commercials and in movies. Find out how it works from Steve Ellis, the president of the on-line music placement service Pump Audio, musician and music publisher Gary Burke, television composer Rich Tozzolli, music attorney Paul Czech and yours truly. If you’re a recording musician you want to be here.

This being the local music edition of Metroland and all, I’m gonna list some things a local musician ought to be thinking about:

Look beyond Albany. Listen, being the king or queen of Lark Street doesn’t mean squat, unless you primary goal is getting laid. Open your eyes; We’re within three hours from a couple a dozen markets roughly the size of the Capital District and a couple of major markets. Go to them, even if the trips are money losers to start.

Demos. Don’t submit “demo versions” of songs hoping to get some kind of deal. You can circulate demos to fans (in fact, that’s a really powerful way to keep your fans engaged), but when you want to really make a move, take the time and make a recording that’s ready to ship. With decent recording studios on everybody’s laptop, it’s not a money issue anymore.

Record deals. A record deal doesn’t need to be your goal. You can do it all yourself. You really can. There’s plenty of good reasons you might wanna be on a label, but it’s not the only path anymore. And for a lot of you, it’s probably not the best path.

Internet. There’s no such thing as working the internet too hard. A major music consultant recently suggested that any serious band should have one full non-performing member whose job it is to work the internet. These days, the number of MySpace hits matters; the number of fans you can blast matters; you have the ability to have a one on one relationship with your fans. Have it.

Competition. Don’t diss other bands on the scene. That’s small-time crawfish-in-the-bucket stuff. (see Look beyond Albany, above). If your big “competition” on the scene gets signed and goes double platinum, guess where the labels are gonna be sniffing for their next big thing?

Collectivise. One of the really exciting trends I’m seeing is local music collectives, groups of artists that pool resources and expertise and act as DIY labels and event producers. Create your own scene, share expertise in graphics and production, share equipment and music talent, cross-pollinate fans. One of you breaks, everybody’s connected. Who knows? Your cheap-wine apartment-based music collective could be tomorrow’s major indy label.

Free works. Understand that payment for music is more or less voluntary these days, so don’t be stingy about giving your tracks away from time to time. Would you rather have 1000 free copies of your song on peoples’ iPods, or 10 copies people paid you 99 cents for? Which alternative is more valuable to you in the long run?

Work your fans. Involve them, engage them, feed them information, make them part of your world. There’s a theory floating around that if your band has 1000 real fans per band member, you can make a comfortable living. And I’m sure you can squeak by with a lot less than that.

Learn about the biz. These days, being the aloof artiste, man, just doesn’t cut it. You have to understand how the business works, where the money comes from, how royalties work. Read a book like Don Passman’s All You Need to Know About the Music Business. Once you understand how this stuff works, you can pretend to be the aloof artiste, man, with confidence, till the cows come home. Knock yourself out.

11.1.08 WHOA DON'T FERGIT DICKTOM

RICHARD THOMPSON
MAHAIWE THEATER
OCTOBER 25, 2008

About 20 years ago, I got sick of reading about Richard Thompson in the rock press and went out and bought “Shoot Out the Lights”, his 1982 record (with then-wife Linda) that still shows up on most “best album of all-time” lists. I felt terribly behind the curve, as Thompson had already over 20 years worth of stuff out. But I got stung bad.

I don’t remember how many times I’ve seen him since then, 6-7 times? Always brilliant, no more so that in 2004’s “1000 Years of Popular Music”, the last time I saw him.

Until now. Saturday night’s show at Great Barrington’s little Mahaiwe Theater was so manifestly provocative, focused, entertaining, and astonishing that it’s hard to know where to start.

Thompson was solo, which means we didn’t get to see him play electric guitar, but he made up for that in spades— he assumes a fighting stance, legs slightly splayed, leaning slightly forward on the balls of his feet, and precisely batters his guitar with a mesmerizing firebrand thumb and fingerstyle technique. He actually rocks harder, much harder, when he’s alone that when he’s fronting a band.

The show was close to a career retrospective, with a couple things from 2007’s Sweet Warrior, including the anti-war “Dad’s Gonna Kill Us” (“Dad” being Baghdad), big old rockers like “Feel So Good” and “Valerie”, a couple of super-dark-to-the-point-of-hilarity treks into madness like “Hope You Like the New Me” and a devastating “Shoot Out the Lights” complete with heart-stopping guitar work, and delicate tear-jerkers like “From Galway to Graceland” and “Beeswing.” There’s always gonna be some absurdo-comic material (who can forget “Dear Janet Jackson” and “I Agree With Pat Methany”) and we got a new Brit dance-hall ode to brainy women “Hots for the Smarts”, which was chock full of money lines. My fave: “She likes to be goosed while reciting from Proust”. We even got a super-obscure Left Banke cover. And he happily took requests.

All of this was served up with dizzying guitar technique, good cheer, pathos, and more than a little machismo. Maybe it was the stage backdrop of ever-changing cool colors that made Thompson look like some kind of Celtic bohemian super-hero. Maybe it was the exquisite sound, comfortably loud, dense, and all-enveloping. The only rational response to this barrage of brilliance was to grin like a monkey and shake one’s head back and forth. And just maybe, to further the analogy Seth Rogovoy made in his blog about Thompson’s music being like a good complex scotch, maybe the guy is simply getting better and better with age. I think that’s it.

10.23.08 WHAT THEY BELIEVE

The folks at WAMC’s Linda Norris Auditorium, WEXT and local music portal CRUMBS.net are revamping the monthly “CRUMBS Night Out at the Linda” event. Starting next week, this local music networking event will feature not only a free performance by a local musical act but a roundtable discussion about things of interest to working musicians and music fans. They’ve dragged me in to curate the roundtable part of it, and I’ve pulled in fellow local show-biz attorney and pal Paul Czech, and we’re busily putting together some programs for the coming months, some of which might just take your hand and, slowly, blow your little mind. Stay tuned.

Next week, Thursday the 30th, CRUMBS Night Out will feature a performance by the lovely and talented Bryan Thomas, who’s been leaking his spectacular new album 1369 Lights off his site BryanThomas.com for a couple of weeks, and yes, you must go there now and get some. His last album, 2002’s Ones and Zeroes was Metroland’s album of the year, and based on what I’ve heard so far...well, you tell me. Our inaugural roundtable will feature a discussion among local music critics, including the Times Union’s Mike Eck and David Malachowski, Metroland’s John Brodeur and Josh Potter and the Berkshire Eagle’s Jeremy Goodwin. Find out what they want, what they think they’re doing, why they think Nickleback sucks, and what your band should be doing to get their attention. I’ll, uh, moderate. Whatever the hell that means with this freakin’ panel. See you there.

With the election coming up in under two weeks, you might be wondering what the candidates think about the things that are covered in this column, intellectual property, privacy, tech stuff and the like. As would be expected, in a campaign that’s about military wars, internal culture wars, financial collapse, a sickening vice presidential nominee and what Joe Klein last week called John McCain’s “mud tornado” strategy, these important but nuanced issues have gotten short shrift.

Which is perplexing, because as I’ve said before, these issues defy red / blue categorization. The liberal Democratic aristocracy has had its head up Hollywood and Big Media’s ass for so long that it really is the true enemy to a rational intellectual property policy. And the Republicans? For the most part they don’t understand IP, or the tubes that make up those internets, or people that want to give them a Google. They know “regulation bad, ugg ugg” but beyond that they are basically clueless. So they just vote with who pays them the most: Hollywood and Big Media.

It appears that Obama is in favor of net neutrality, favoring equal free access to the ‘net, and McCain’s sort of against it, because net neutrality requires government regulation. But since definitions and details are sketchy, it’s hard to tell what they mean, exactly.

I just looked, and Bam-Bam’s got a 9 page PDF on his site entitled Barack Obama: Connecting and Empowering All Americans Through Technology and Innovation. This document, as the title suggests, is a whole lot of nothing, really, just a series of nice-sounding platitudes devoid of detail or substance.

And goofy old Walnuts, what’s he got? From JohnMcCain.com: “John McCain has a broad and cohesive vision for the future of American innovation. His policies will provide broad pools of capitazzzzzzzzzzzzzzzz.........” Oh, sorry, I’m back. More whole lot o’ nuttin’!

If it wasn’t all so predictable, I’d be depressed. So I guess what we are left with is this feeling that maybe Obama and his folks have demonstrated, by the conduct of their compaign, an understanding of the power of the internet. It’s clear that the members of Team Obama have highly-wired existences like most of us living here in the 21st Century, so that they’ll at least have the aptitude to address issues regarding information and privacy from a position of familiarity.

Which isn’t terribly reassuring, but it’s more than we’ve got from McCain, who appears to be entirely off-line, to whom the internet is this new-fangled mystery he refuses to grasp or try to understand. His aides’ assurances to reporters the candidate actually uses email are about as convincing as Charlie Christ’s fiancé. And his party is responsible for the greatest disintegration in personal privacy protections that we’ve seen in generations.

We’re left with vague impressions that reflect the overriding theme this presidential race: that Obama represents a generation transition, one that should have happened 8 years ago except that the unholy Christianista / corporate alliance stole the transition and installed a moron-puppet who’s nearly ruined the nation.

So I guess we just have to go on faith. And dare I say it: hope.

10.9.08 WHOLE NEW BALLGAME?

Almost exactly a year ago, Jamie Thomas, a single mom from the little town of Brainerd, Minnesota, was found guilty of infringing the copyrights of the big record companies. She was found with 24 song files on the share file of the Kazaa program that was on her computer. A jury decided the penalty for this horrendous behavior should be $9250 per song, so she was banged for a total of $222,000.

There was a lot wrong with this trial, and from my perch it looked as though neither Thomas’ lawyer nor the judge were on top of their games. But then, both were dealing with the RIAA’s onslaught of shiny, pricy lawyers and their platinum coated arguments and A-list experts. Slack should be extended, I guess.

What made this so distressing was that this was the first file-sharing case to go to trial. Some 30,000 citizens have been jammed up by the RIAA’s disgusting reign of terror on the American public, and most have paid the $3000 early-settlement fee rather that take on the combined forces of some of the biggest entertainment corporations the world has ever seen, despite the existence of some very good legal arguments that could tear the RIAA’s playhouse down. The Thomas trial and verdict simply blew through some of these good arguments and served up Jamie Thomas’s head on a platter to the RIAA. It took the fight out of a lot of people. Who’s gonna fight the power when the downside is so devastating?

Anyway, upon reflection and a pile of briefs from public interest groups and copyright scholars, the judge last week declared a mistrial, essentially admitting that he’d been hoodwinked by the RIAA the first time around. The main bone of contention was the “making available” issue. The only evidence that RIAA’s team of cyber-snoops gets in these cases is a snapshot of the victim’s “share-file”, that is, what songs the victim’s P2P program has in the publicly-visible file that can automatically participate in file sharing online. The cyber-snoops don’t see any real trading doing on, no uploading, no downloading, except what the cyber-snoops themselves initiate.

The judge had initially instructed the jury, at the urging of the RIAA, that “making files available” was an infringement of the copyright holders’ exclusive right of distribution. In other words, having a song just sitting there for others to maybe take equals “distribution” of the song.

Over twenty pages of the forty-four page decision, Judge Michael J. Davis knocked down the multiple arguments the RIAA made about “making available” distribution, each argument sillier and more far fetched than the one before. The decision is a clear eyed, unassailable virtuoso performance.

But Judge Davis saved the best part for last, when he addressed the inappropriateness of fining someone $9250 for “stealing” a song that one could download for 99 cents. For once, a judge had the presence of mind to step back and look at what these cases are really about. Dig this:

...The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market...

...While the Court does not discount Plaintiffs’ claim that, cumulatively,
illegal downloading has far reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs, the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs....

...Thomas not only gained no profits from her alleged illegal activities, she sought no profits....In the case of individuals who infringe by using peer -to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence...

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.


Amen.

You can read the whole decision at recordingindustryvspeople.blogspot.com.

9.25.08 WATCHING THE DETECTIVES

There’s a couple of things swirling about that point to some serious erosions of personal privacy, well, more serious erosions of personal privacy.

EFF and Public Knowledge recently sued the federal government to get access to the inexplicable secret international negotiations that are going on for something called the Anti-Counterfeiting Trade Agreement, of ACTA. Trade representatives from most of the industrialized world (typically little more than shills for Big Media and other titans of information) have been working secretly on a treaty that is supposed to create a new paradigm of international enforcement of intellectual property rights.

One document has leaked out from this secretive body, and it indicates that what’s on the table includes stiffer measures to police “internet distribution and information technology”. Among the measures recommended are having all signatory countries pass laws requiring internet service companies (“ISPs) to “filter” end-users’ online habits and also to require heightened border searches.

Forcing ISPs to “filter” your online habits is code for monitoring, inspecting, and generally snooping into what you’re doing online, to make sure you’re not, like, infringing or something, all on behalf of the Big Media industries like the record and movie companies. Basically it’s asking your internet company to carry the copyright owner’s water for them, all at the expense of your privacy.

Heightened border searches could well include customs agents take a look at the hard drive of your laptop. Not just scanning the machine to make sure it’s not a pimped-up bomb, and but actually looking at the information you’ve got on your machine. More on this in a minute.

Congress will have the final say in this, but Congress often rolls over when presented with a fully negotiated international contract. This happened in the ‘90’s with the ridiculous Digital Millennium Copyright Act, which included provisions Bill Clinton initially couldn’t get through Congress. So he sent his trade reps to negotiate a big international treaty with the rejected provisions included, and then came back to Congress, basically saying “The rest of world is doing it! We can’t be left behind!”

And Congress folded like a two-dollar suitcase. And it will do it again, because most members of Congress don’t care about this stuff. Privacy’s not a big vote-getter. Look at the FISA debacle. I mean, if you don’t have anything to hide, why should you be worried about your privacy? Right? Right?

So it’s important that the ACTA negotiations become transparent sooner rather than later, before it’s a done deal being presented to Congress, and before Time Warner and Comcast become our intellectual babysitters.

The border-search thing is even more troubling. A west-coast federal appeals court recently ruled that the customs service does not need “reasonable suspicion” to seize and review the contents of someone’s laptop or electronic device. “Reasonable suspicion” is a fairly low threshold to begin with, something more than a hunch, but this court has decided that even that isn’t required for a customs officer to look at your hard drive.

The court said, remarkably, that looking at the contents of one’s computer is not comparable, in terms of invasiveness, as searching someone’s home. Why? Because, said the court, “one cannot live in a laptop.”

Wow. I’ve seen a number of instances, involving “national security” (like this court case) or intellectual property infringement (like the RIAA lawsuits against college kids, and possibly, this ACTA treaty), where law enforcement and the courts treat hard drive inspection like it’s no big deal.

No big deal? Like many of you, I spend most days on my computer. I’m on it right now. I search, I write, I edit, I post, I work, I goof around, I correspond, I think on this damn thing. I do things I’d prefer other people not know about. Tell me you don’t. And all of it is sitting, somewhere, on my hard drive.

In a very, very real sense, the hard drive on my computer is an extension of my brain, more so, certainly than the stuff in my house. If I had to choose, I’d rather have a cop sitting in my living room that tracking everything I did online.

So this appellate panel (which I suspect was made up of freedom-hating neocons and 70 year-old Luddites) got it absolutely wrong. One can live in a laptop. I do. So do many of you. So allowing government agents to simply grab your hard drive, for no reason, and do whatever they want with it is an invasive and unreasonable search to the extreme, in stark violation of the Fourth Amendment.

The court case may be reargued to taken up the Supreme Court. It must be reversed, either judicially or legislatively, because it’s absurd and dangerous. And it kicks the door open for the ACTA provision of increased border searches. You wanna be held up at the border because some of the music in your computer may be less than legit? Does this sound like America to you?

9.18.08 YOU MISSED THE SHOW OF THE YEAR

Tony Clifton and the Katrina Kiss-My-Ass Orchestra
Revolution Hall
September 12, 2008

“There’ll be about 50 people there,” I told my co-pilot, “and I’ll know 45 of them.” I wasn’t far from wrong. It’s been 24 years since Andy Kaufman died, and longer than that since his lounge-cretin creation Tony Clifton made a lot of smelly noise. The idea of a Tony Clifton tour in 2008 was so ludicrous, in fact, that I just had to go see what it was all about. That and the possibility of even a little dose of Kaufman-esqe humor, thrown at us from beyond the grave, would be so much better than the tepid, cowardly crap that passes for comedy today.

It’s hard to know where to begin. Show of the year? Absolutely. Of the decade? Maybe. Seriously. This was a 3 ½ hour performance art piece, a steamroller of deconstructed pop culture in the form of broads, killer funk, disgusting jokes, booze, smokes, more broads, brilliantly absurd choreography (performed by one or more broads), suspended uncomfortable moments (fueled by booze and broads), and transcendental musical moments (yanked out of inconsequential 70’s pop songs) all swirling around a fat, sweaty, greasy-haired chain-smoking loud-mouthed drunk. You just can’t beat that.

It was theater, with the various broads (that’s what they’re called and there’s really no better word) changing costumes constantly, never letting up with their show-girl smiles, and dancing around Tony to “punctuate” the songs; the sparkly cowgirls sliding hobby-horses between their legs during the repeated reprieves of “Rhinestone Cowboy,” for example, was particularly memorable. Or the high-kicking statues of liberty in pasties during the rousing “God Bless America.”

There’ve been reports of chaos at other shows, with Tony melting down and furiously attacking the audience or his ensemble, events that were unscripted and quite real. We only got a taste of that half-way through the second show, when Tony cruelly berated “Trixie,” his onstage assistant / cocktail waitress in garters, whom he claimed to have picked up hitch-hiking outside of Biloxi and was about to adopt. She’d been flicking empty shot glasses to the “crowd” while Tony was “singing”, and Tony got highly agitato. The band got quiet, Trixie left (not to return), Tony mumbled for a few minutes, poured himself another drink, then led the band through a torrid “I Will Survive.” It was perfectly, astonishingly weird. There wasn’t a false move on anybody’s part the whole night; for all of its artifice, and the show was ostensibly entirely artifice, it was the most real show I’ve seen in a long, long time.

This would all have been meaningless stupidity if the band didn’t kick. As this was a fundraising tour for New Orleans musicians, Clifton had a young, aggressive band of them, and they turned the most trifling of pop fluff into withering, funky masterpieces. The five piece horn section was all over the place, more than once assembling in a circle on the dance floor blasting to a crushing vamp, while Clifton sat on a bar stool, beaming, with a bourbon in one hand and a smoke in the other. All was right in this perverse, totally wrong, totally refreshing parallel universe late on a Friday night in Troy, New York.

9.11.08 HARRY POTTER AND THE ORDER OF THE JUDGE

This article original ran in the 9.11.08 issue of Metroland.

A federal judge in Manhattan ruled on Monday that a 450-page A-Z encyclopedia of Harry Potter minutiae infringed on J.K. Rowling’s and Warner Brothers’ copyrights in the Harry Potter books and films. It’s a difficult decision that cuts against the recent trend of expanding the concept of fair use of copyrighted works. Hopefully, the decision will be appealed so the appellate court can take another look and reverse what is basically a victory for the uber-ownership of information.

Basically, Steven Vander Ark, “a former library media specialist at a middle school
in Michigan” had been compiling for years a lexicon of Harry Potter facts online; the website was popular among Harry Potter fans; J.K. Rowling herself said that she referred to the site when she need to get the facts straight on her characters. About a year ago Vander Ark got a book deal. Suddenly Rowling wasn’t such a big fan anymore, and in came the lawyers.

The court held an evidentiary hearing during the Spring. Rowling wept on the witness stand, saying that the mere existence of Vander Ark’s book had destroyed her ability to write, raising the possibility of a second career acting in bad afternoon soap operas. Vander Ark similarly broke down on the stand, saying the lawsuit had caused him to fall into disrepute with the Harry Potter community, suggesting that the rough-and-tumble world of a middle school media specialist had left him, as it has so many others, an emotional wreck.

Fair use cases have increasingly turned on whether the new work, here Vander Ark’s book, is transformational of the first work. Here the judge ruled that the encyclopedia was indeed transformational, just not transformational enough. The 62 page decision contains endless examples of “similarities” between Vander Ark’s book and the Harry Potter series, a painful thing to read, and when you think about it, kind of silly. It’s an encyclopedia, for crying out loud; it shouldn’t be a huge surprise to discover that it contains similarities to the thing that it’s, well, encyclopedia-ing. But the judge was bothered by Vander Ark’s verbatim copying, which he seemed to think was excessive, leading to the bothersome conclusion that had Vander Ark jumped through a bunch of needless hoops and had simply done more paraphrasing, he would have been alright.

The judge also put, in my view, way too much emphasis on the obvious facts that the Harry Potter books were fiction and that Vander Ark’s work was a profit-making endeavor in finding that there was no fair use of Rowling’s works. I think the judge also put too much stock in a couple aged decisions denying fair use in similar situations, one involving a Seinfeld trivia book and another involving a Twin Peaks fan book, both of which I think would be decided differently today given some more recent cases that have opened up the concept of fair use to be more consistent with today’s exploding remix culture.

In short, the judge missed the forest for the trees, over-thinking and over-analyzing a simple matter that Vander Ark’s encyclopedia was a transformative work that did the Harry Potter series of books no harm at all; in fact the existence of the encyclopedia enhances the popularity of the iconic series.

It’s cases like this that contribute to the paralyzing uncertainty artists face when they have an opportunity to create something new out of fragments of our culture, out of already-copyrighted works. It’s certainly not surprising that Warner Brothers added its muscle to Rowling’s case, like she can’t afford platinum-coated counsel on her own. Warners, like all the other Big Media players, want to stomp out fair use in all its forms, so it can continue to charge us what economists call “monopoly rents” for every single use we might make of culture for whatever purpose. I mean, this is the company that still makes $2 million a year on its questionable copyright in the song “Happy Birthday.” And they say they’re “protecting the creator.” Pul-eeze.

And you can also smell the Big Media hubris in its reporting of the case: the headlines are proclaiming “Rowling Rules !” and “Lexicon Crushed!” like this was some kind of slam dunk that just got laughed out of court. Nothing could be further from the truth. It wouldn’t take 62 pages to decide an easy case. And the judge could have awarded Rowling damages of up to $150,000 per infringed work. She got the minimum, $750 per, for a total of $6750.

This case simply must be appealed; hopefully the appellate court will be able to take a step back, look at the big picture, pull some legal wizardry, and turn this thing around.

8.28.08 BOOGIE TILL YOU PUKE

This article originally appeared in the 8/28/08 issue of Metroland

Initially, it was with casual interest that I read last week that a couple hundred college presidents are calling on the states to roll the drinking age back down to 18. Apparently, the big idea is that drinking in a controlled and legal environment will be safer than today’s clandestine, look-over-your-shoulder binge-for-alls. There’s supposedly an epidemic of kids getting so faced that they hurl themselves off of balconies, drive their cars fast into oncoming traffic, or simply croak from alcohol poisoning. Lowering the drinking age, the reasoning goes, will save lives.

I’ve always considered the “saves lives” argument incredibly disingenuous. And I even made the argument myself to legislators during a mercifully-short stint as a lobbyist for the liquor industry (Don’t laugh. Well, OK, go ahead) in the mid ‘90’s. I felt like a whore. But people bought into it, because it was politically efficacious. Who’s gonna be against saving lives?

But really, c’mon. Raising the drinking age to 30 would save lives. Prohibition would save lives. Outlawing cars, sports, making people stay in their houses all day, not allowing people to get out of bed, hey now, we’re talkin’ saving lives!

In any event, I thought, eh, it’s probably a good idea to lower the drinking age. I have some concern that, due perhaps to media overload, overbearing boomer / yuppie parents, and school curricula dictated by mind-numbing political correctness, today’s 18 year old is generally the emotional equivalent of a 1980’s 14 year old. But given that most 1980’s 14 year olds drank a ton of booze and most are none the worse for wear, I’ll say so what?

I’ll lean on the old standby argument, which is unassailable: if you’re old enough to go into the military, to get assigned to Gitmo and to spend your time torturing fellow human beings in violation of international law and all tenets of basic human decency, well, Sport, I say you’re old enough to sit back and enjoy a frosty Cosmo with your boyfriend at some dump on North Pearl Street. Am I right or am I right?

Then a thought struck, and I realized that these college presidents are unwittingly pushing for the single greatest boon to working musicians, since, oh, I dunno, penicillin?

OK, let’s get almost-serious for a minute. For a couple of years the mantra among the technorati has been that musicians have to give their music away, because free music is an inevitable consequence of the internet. Musicians can make up the slack by courting fans, gigging, selling merch, etc. Not a bad plan, really, but then gas hit $4. Oops. Touring, which for most bands is an iffy proposition at best, just got a whole lot harder. Things have gotten pretty bleak pretty fast.

If the drinking age goes to 18, you’ll see hundreds of new bars and clubs opening overnight. And many of these clubs, in the mad rush to get bodies inside drinking, will take the revolutionary step of offering live music to their patrons. Suddenly, there will be places to play again, all over the place, and some of these places might even pay the musicians decently. Imagine what it’ll be like in big college towns.

I’m painfully aware of the significance of this, because my band was a victim when the pendulum swung the other way twenty-five years ago. From 1980 to 1983, we toured non-stop, and there were always gigs, good paying gigs, gigs on weekdays, gigs in some pretty nice clubs and at a lot of colleges. Things ebbed and flowed depending on how current our releases were and where in the country we were, but it was generally pretty consistently fertile out there. The drinking age was 18, and to be sure, kids under 20 made up a good percentage of the lunatic partiers who would come out on a Monday night to see us play a show that started at 11 PM.

Then, in 1984 Congress passed a law that required all states to raise the drinking age to 21 or else forfeit millions of dollars in federal highway funds. State legislatures across the country fell over each other to raise the drinking age to 21. And the bottom fell out of our ability to tour. Clubs closed in droves, and those that stayed open did The Tighten-up. Gig guarantees shrunk or disappeared. Clubs had fewer nights with live music, and were more selective about who got booked on the shrinking schedule. Like a lot of bands and a lot of clubs, we struggled along for a few months, then just gave up.

These days, bands criss-cross the country on a wing and a prayer, playing on five-act bills in crappy clubs for a share of a tiny gate, hoping to sell a few t-shirts and CDs to pay for gas to get to the next town, sleeping on floors, eating noodles and fast food, etc. When you’re young, it’s exciting maybe for the first tour, but it gets tired real fast. It’s not making a living; in fact, it’s barely living at all. All this could change dramatically.

There’s a lot of talk about high-tech “solutions” for working musicians, many of which are untested, theoretical, or have more to do with marketing than making music. Here, we’re talking about gigs. Music gigs. It doesn’t get more fundamental than that.

Lower the drinking age to 18. Now.

8.14.08 IT'S MY PATRY

IMHO, Bill Patry is the dean of American copyright lawyers. His 5500-page treatise “Patry on Copyright” is my bible, I refer to it three or four times a week. Even better, his personal blog contained up-to-the-minute reporting and deep analysis of current copyright issues internationally, in the courts, and in Congress. The blog was indispensable; I referred to it for a lot of my columns here, and if I knew that a client had an issue that had recently been dealt with almost anywhere, I could count on Patry’s blog to give me the skinny. And amazingly, the few times that I had comments or questions, I’d email him and he’d get back to me within a day. Like his gig as Senior Counsel for Google didn’t keep him busy enough.

I’m referring to his blog in the past tense because he shut it down last week. He first took the whole thing off-line, and then restored the archives after he heard from tons of people who, like me, considered his blog a primary research resource.

You’d think maybe he was too busy to keep it going, or that something happened in his life to make continuing the blog, that had almost-daily posts, some of which were several thousand words long, untenable.

Nope, he shut it down because the state of copyright law has become too depressing. Here’s part of what he posted:

I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings, much like television news shows that experiment with "happy features." I have blogged about great articles others have written, or highlighted scholars who have not gotten the attention they deserve; I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer.


Wow is right. What he’s talking about is the hijacking of copyright law by Big Media, who perversely twist and augment the law will facially silly provisions designed not to encourage creativity, but to protect their multi-billion dollar business from the simple fact that the internet has rendered their modes of business unsupportable otherwise. Free copying does stop new music from being made, but it does put a hurtin’ on Edgar Bronfman, Jr.’s stock options.

He’s also talking about how these ridiculous laws, that not only stifle creativity and innovation, but threaten the public’s privacy, are rammed down our throats. The President (and I’m not complaining about just Bush, Clinton did it, too) sends a trade envoy who negotiates intellectual property treaties that obligate the US to adopt these hideous provisions into our copyright law. Then the President goes to Congress and leans on them to pass the new laws, so we can be in conformance with the treaty. And the members of Congress, who for the most part don’t understand the laws, don’t care, or are in Big Media’s pocket, happily comply.

Vermont Senator Patrick Leahy’s one of Big Media’s great proponents. And he’s got a speaking part in the new Batman movie. Just sayin’.

I mourn the passing of Patry’s blog. It’s gonna be harder for me to appear smarter than I am without his guidance. But I’ll keep going here, because unlike Patry, I enjoy bitching about stuff.

7.31.08 BANG US IF YOU CAN

BANG ON A CAN MARATHON

MassMOCA July 27, 2008

I’d seen Bang on a Can at MassMOCA a few years ago, a twin bill of Indonesian wayang theater and Eno’s Music for Airports. I reacted as one normally would to a group that first played second fiddle to shadow puppets and then played some pretentious fake muzak. As a result, I haven’t been moved ‘till now to go to one of their legendary marathon concerts. Legendary minimalist composer and musician Terry Riley was going to be there, and they were going to play some Zappa compositions. Well, OK, let’s go.

The 6 hour show was comprised of 14 pieces, performed by 14 different configurations of BOAC veterans and a mess o’ talented students who’d been working with BOAC over the prior three weeks. It was a casual vibe; the audience was encouraged to circulate in and out of the Hunter Theater; there was a cook-out in the court yard, and food and drink were welcomed back in the theater. I learned that, contrary to popular belief, beer and ice cream do go together, if the conditions are right.

The program was already in full swing when we arrive; after a few quiet-to-the-point-of-being-ponderous selections, we were assaulted, in a good way, by a killer piece N’Shima by Iannis Xenakis, performed by two female vocalists, two muted trombones and two muted French Horns. It was tribal without the tribes, it was the sound of nature unhinged, with the horns sputtering and quacking while the vocalists blasted deep gutteral noise-syllables in perfect synchronization. It was shocking, it was in-your-face, and it was beautiful.

Next up was Terry Riley’s 1964 piece Olson III, in which a 13-piece ensemble played mesmerizing, shifting and contrasting quarter-note patterns in 3/4 time, demonstrating, almost comically, Riley’s overarching influence on Philip Glass, and again featuring the female vocalists, now numbering three, who sang aggressively and remarkably in one voice, even when they were harmonizing, like a post-modern version of The Lennon Sisters.

A little later came what was easily the highlight of the marathon: a performance of Shelter, a 7 movement piece written by BOAC principles Michael Gordon, Julia Wolfe, and David Long, performed by a large ensemble, including three percussionists and a not-shy electric guitarist, with surreal and impressionistic film projected on the big-screen backdrop. The whole thing was just stunning. The first movement, especially, was riveting, with the women singers, who at this point were my heroes, now singing with flat voices in close dissonant harmonies, in the style of the Bulgarian State Radio & Television Female Vocal Choir.

Then came the two performances that drew me to the show, which were both disappointing. Terry Riley’s improvisation piece clocked in at a short seven minutes, and consisted of Riley noodling at the piano while throat singing, with four BOAC members, trying, and failing, to figure how they were supposed in improvise with that. Then the Zappa pieces were attempted by a large ensemble of the BOAC students, who simply weren’t up to the task of playing Zappa’s complex, demanding music. It was just a big mess.

No matter. If the program had consisted of the performance of Shelter, followed by 5 hours of ducks farting into a funnel, it would have been worth it. Can’t wait ‘till next year.

7.31.08 BEST HEADLINE EVER

THERE ARE SOME THINGS YOU CAN’T COVER UP WITH FISH STICKS AND CHOWDER

All eyes are on GirlTalk, a Pittsburgh DJ named Gregg Gillis, who just released his fourth album, titled Feed the Animals. It’s available on a “pay-what-you-will” basis at illegalart.net. Go get it right now, I’ll wait. And do be a sport and throw the guy a couple bucks. Don’t be a freetard. And it’s worth it.

OK, be prepared to be amazed. Put it on and turn it up. See?

GirlTalk’s thing is sprawling dance tracks composed entirely of snippits, generally several at once, of recognizable hit songs. Lots of people have been doing this, and you can find thousands of mash-ups on the internet. Most mash-ups involve just a couple of songs, often the vocals from one song superimposed on the instrumental tracks of another. Hey, who knew “You Light Up My Life” and “Enter Sandman” fit together so well! The archytype of this was Dangermouse’s 2004 masterpiece “The Grey Album” which combined vocal tracks from Jay-Z’s “Black Album” dropped atop looped instrumental tracks nicked off the Beatles’ “White Album.” And of course the grandmasters of this are the guys in Negativland, who’ve made an entire career of constructing elaborate pieces entirely out of found sounds and appropriated samples.

Feed the Animals may set the gold standard for appropriated musical works. The tracks are not the simple mash-ups built on one or two ideas, but elaborate constructions, using dozens of samples in a single track. They’re incredible, cohesive works that stand on their own. What makes GirlTalk different from the rest is Gillis’s taste and his wonderfully broad reach of source material (a typical track, “Still Here”, includes recognizable samples from Procol Harum, Kanye West, The Band, Yung Joc, Ace of Base, Salt ‘N Pepa, Kenny Loggins, and about a dozen others) and his wickedly goofy sense of humor. Gillis isn’t making a point or delivering a punch line; like a good club DJ, he just wants to keep the party going, and have fun doing it. Feed the Animals is a kalidiscope of endless surprises, one of the happiest albums I’ve ever heard. And if I knew anything about hip-hop, which provides the lion’s share of the vocalizing, I’d probably like it twice as much. If that’s possible.

GirlTalk hasn’t gotten permission for any of the samples of other people’s recordings on Feed the Animals. The law, the way record companies want it to work, would render Feed the Animals an impossibility. There’s hundreds of samples on the album, and each would require two licenses: one from the record company and another from the publishing company. Each company would likely demand to hear the context in which the sample is used. Many would then simply deny permission, or not respond at all; the rest would charge thousands of dollars for the usage. FTA would be DOA.

So, the big question is: will Gillis get sued into oblivion? On one hand, he’s been doing this without interference since 2002, Feed the Animals has been out for two weeks. On the other hand, he’s getting a ton of attention; Rolling Stone, Pitchfork, and pretty much the entire music media is raving about Feed the Animals. He’s got to be moving hundreds of thousands of tracks.

Feed the Animals is the work that sits squarely in the middle of a collision of murky legal principles and conflicting court decisions. A very bad decision out of a Tennessee federal court a couple years ago said that any sampling of a sound recording was infringement, no matter how small, and even when the use was unrecognizable. As this decision has not been adopted in any other federal court circuits, I’m guessing think that if GirlTalk’s gonna get sued, it’ll be in Tennessee. On the other hand, there’s been an increasing recognition by courts, particularly in cases involving the visual arts, that appropriating existing copyright material for a new work is OK if the new work is transformative. And Feed the Animals is nothing if not wildly transformative of the works it borrows. I mean right now I’m hearing Ahmad rapping “Back in the Day” over a groove from Rod Stewart’s “Young Turks” and in a few seconds it’ll move seemlessly on to something else. If that’s not transformative then I’m Rick Astley.

If the “music industry”, hobbling and decrepit as it is, comes out of its spider hole and goes after GirlTalk, watch out. After high profile gigs at major festivals and increasing large venues around the world, Gillis has got millions of die-hard fans, most of whom I’d guess understand, to some degree, the legalities involved here. The push-back from this legion of happy lunatics if GirlTalk is sued will be immediate and probably devastating. And Gillis doesn’t need to worry about representation, either. If he gets served with a complaint, dozens, even hundreds of legal organizations and free range attorneys, including me, will be lining up to help defend him for free.

It would be that important.

What Day it This? Daryl Hall

Daryl Hall
The Mahaiwe Theater
July 6, 2008

Oh my my. I think everybody wanted this to be a great show. One of the first big shows in the Mahaiwe’s foray into popular music, a big ol’ star, and a neighbor (Hall lives 30 minutes away in Millerton, New York). Which makes the disappointment all the more acute. And it was all so avoidadable.

First, the sound. There was a massive monitor system on the stage, significantly bigger, in fact, than the front-of-house rig (the Mahaiwe’s a tiny, 700 seat hall). And that’s pretty much all we heard: muffled, indirect vocals coming from speakers pointed away from us, with no presence or definition. Hall’s singing has a ton of nuance, and he works the microphone like a musical instrument, but whenever be moved off-mic even a little, his voice disappeared in the house. I imagine it sounded great on-stage.

And it wasn’t an equipment problem—the opening act, a sweet-voiced folksinger with nothing to say, sounded superb through the same system.

Second, Hall seemed to be trying to recreate his excellent “Live from Daryl’s House” webcast concerts, which feature casual, acoustic sessions. He tried, and he failed. There was a massive, hideous, and unnecessary stage set that looked like the inside of a post-and-beam barn; one expected Miss Kitty to pop her head through one of the second story windows and waive to the crowd, which would be pretty weird for a neo-soul concert. But critically, Hall and his trusty side-kick, the terrific T-Bone Wolk, played acoustic guitars throughout the set, mostly while sitting on stools. Which would have been fine, but nobody told the ham-fisted rhythm section to lay back, and they played like they were in an arena, and they were stiff. The result was a muddled, bottom-heavy din; T-Bone appeared to be taking some big-statement solos from time to time, but they were inaudible. The overall sound was monolithic and annoying, a long way from the palpable intimacy of the web concerts.

Which was all a damn shame, because Hall seemed lit up (at one point I think he said “Hey, I shop at Guidos, too!”), in good voice (from the little we could hear), and ready to play all night. Wolk is always on, and set-list was schweet indeed, with minor ear-candy hits dominating: “Everytime You Go Away,” “When the Morning Comes,” and an evening closing “You’re Living in Dreamtime.”

Too bad we couldn’t hear it.

7.3.08 MASSIVE INFRINGEMENT

Metroland infringed a bunch of copyrights last week!

Last Thursday an artist / friend / client left a message on my voice mail: “Take a look at Metroland and then call me.” I could tell by the tone of his voice that something was definitely up. So I grabbed a copy and immediately saw what it was—it was the summer fashion layout.

Every shot involved a piece of public art. Models in summer duds were splayed around sculptures by local artists like Leigh Wen, mi Chelle Vara, Jim Lewis and Peter Barton, all part of the Downtown Albany BID’s “Sculpture in the Streets” exhibit. And every shot infringed the artists’ copyrights in their sculptures.

So you’re probably thinking “Hey! Wait a minute! Those things are out on the street! You mean we can’t take pictures of them? This is silly!”

I agree it’s silly, and that’s part of why Metroland won’t get in trouble, but here’s the deal: each sculptor has a copyright in his or her work, and that means each has a bundle of exclusive rights, including the right to display the work, the right to make derivative works, and the right to make and distribute copies. By submitting the sculptures to Downtown Albany BID, the artist impliedly gave BID permission to display the work. But that’s about it. The artists didn’t give Metroland, or anybody else, the right to create or reproduce two-dimensional versions of their three-dimensional works. In other words, they didn’t give you permission to take pictures of the sculptures, or use them in fashion spreads.

In public art contracts that I’ve dealt with, there is usually an explicit grant from the artist to the sponsoring entity for the entity’s use of photographs of the work for promotional or fundraising purposes. But I’ve never seen a grant like that to the general public.

This certainly didn’t occur to Metroland before running the spread, and that’s not surprising. Metroland even credited all of the sculptors on page 23 of last week’s issue, which doesn’t excuse the infringement, but it shows at least an intent to try to do the right thing. I wonder how many of the sculptors even batted an eye at this use of their work, given that the purpose of public art is to engage the public. It’s not like my phone was ringing off the hook, and had there been a big controversy, I’d have heard about it from the artists, or from Metroland, or both. The artist who called me mentioned being perplexed as to whether this was even an issue, and just wanted to discuss it with me.

I suppose if the sculptures had been used in advertising or something tasteless, the offense would be a little more obvious. But folks tend to assume that art that’s out in public belongs to the public, and that’s not an irrational thing to think. I mean, how many local bands, looking for a change to the usual urban street / old brick wall promo photo, have come down to the Empire State Plaza and done photo shoots around the sculptures there? Like, maybe, every one? And the “Sculpture in the Streets” exhibit makes for a nice backdrop for a fashion shoot. But it’s still infringement, if the artist wants to get porky about it.

What makes this even weirder is that the law allows the non-advertising publication of photos of people shot in public places without permission. This means, yes, the sculptures have greater rights than people! Strange but true! The law says folks don’t have an “expectation of privacy” when they’re out in public, so it’s OK to photograph them and publish the photos. The sculptures are protected by copyright, and one can’t copyright one’s own image, not that people haven’t tried.

What would happen if one of these artists got all lathered and lawyered-up and decided to make a federal case out of this? Other than the artist looking pretty dweeby, not much. First, the sculpture would have to have a registered copyright before this thing could go to court, and the registration would have to have preceded the infringement for there to be any possibility of a significant damage award. Then, unique sculptures like these aren’t the sort of thing artists rush to get copyright registrations for, it’s just not necessary. Second, it’s hard to see any court being terribly moved by the gross injustice of having a work used in a fashion shoot without permission, so the likelihood of a big damage award is pretty slim.

So, if you’re one the sculptors and you’re all PO’d about this, don’t call me. Besides, I’m a little conflicted out. Ya think?

7.3.08 SPAC Jazz Fest

I really felt bad about bailing on this; any criticisms thrown my way are likely deserved. Guilty! But then if I'd stayed, I wouldn't have written this:

KIND OF BLEW

SPAC Friehoffer’s Jazz Festival

Saturday June 28, 2008

The reunion of Return to Forever at the SPAC Jazz Fest was the only must-see show for me so far this year. In 1974 my college mates and I poured ourselves into the SUNY Ballroom after the usual 1974 pre-concert ablutions and RTF came out, grabbed us collectively by the throat, and didn’t let go for an hour and a half of the most bodacious display of ensemble virtuosity, in any musical genre, the world has ever seen. I’m still not right from that experience. And I’ve always wanted more.

Because the weather all week had been so uniformly skeevy, I checked the NOAA Albany radar reflectivity composite loop (highly recommended, btw) online that showed a skinny band of bad weather maybe a half-hour away from SPAC, with nothing behind it. As I live an hour and a half away, I figured “perfect.”

I figured wrong. Driving up the Northway we got hit around Clifton Park with the kind of serious rain that makes everybody slow down to 30, put on the 4-ways, and wish they were home. This continued all the way to SPAC, and we sat in the VIP parking lot (I had the coveted Metroland parking pass, but there was no one out in the downpour to check it) for 20 minutes ‘till the storm passed. Despite the storm passing, the air was heavy, fetid.

We got inside, and the usual Jazz-Fest happy-vibe was seriously on, and even though folks were soaking wet, they were joyous and chillin’. Nothing was happening in the theater so we worked our way back to the Gazebo, where The Maurice Brown Effect had taken over. Maurice is a happy, dread-locked New Orleans trumpeter, leading a young, killer quintet, playing aggro-post-bop with a splash of Miles and N’Awlins strut. They were special. A song and a half in, raindrops started falling on our heads so we headed to the theater, where the “sax summit” was getting started.

As we didn’t put in for seats ‘till Friday, we were WAY in the back corner of the theater, under the overhang, where the sound is notoriously dead. Our fault, not SPAC’s, but the sound was still dead. I was watching Joe Lovano, Dave Liebmann, and Ravi Coltrane “doing battle” in some kind of tribute to Michael Brecker and John Coltrane. It wasn’t happening. They took turns bleating, then they’d all bleat together. Then they’d take turns again. The rhythm section (Cecil McBee and Billy Hart) noodled in a decidedly non-grooving non-groove. No one seemed to be looking at each other, and sure as shit nobody was smiling. It sounded, more than anything else, like a duck gang-bang in a freight-yard. I snuck down to where another writer/friend was sitting, way up close. I listened for a few minutes and said to him “They sound less like they’re jacking off into their hats than they did back there. But they still basically sound like they’re jacking off into their hats.”

As a good pal and serious jazzbo recently told me, these guys and their self-absorbed ilk are going to be responsible for the death of jazz. And that’s a crime. I mean, just listen to Maurice Brown! Or Brain Patneaude!

Despondent and uncomfortable, we wandered back towards the Gazebo. The rain ramped up a notch, then another. In a food tent near the Gazebo we got some decent overpriced Mexican food, which tasted perfectly fine eaten standing up, with one of those styrofoam boxes and a plastic fork, in a very crowded tent, while the rain outside built and built and the air simply pressed down. It was hot. It was really no different than standing in stinky hot water. We were sweating into our shoes while standing still eating decent overpriced Mexican food.

Nearby, Jenny Scheinman (who I also really wanted to see) and her band were gathered on the Gazebo stage, looking around. A few folks with umbrellas sat on the benches in front of the stage, looking back. The rain bumped up some more, and one by one Scheinman and her band trudged off, instrument cases in hand, for places unknown.

The mood was turning sour. Over a $5 bottle of lemonade, under a different crowded tent, we weighed our options. The only sane alternative was heavy survival drinking, a solution to which many around us had clearly already turned. But we hadn’t brought our own hootch, and “premium beers” were $9, god knows what an honest drink would cost, and besides, it’s a long road back to Housatonic. We were soaking wet, hot, and after less than two hours, miserable. This was no freakin’ fun and there was absolutely no conceivable set of circumstances that was gonna make it fun. I thought about the long drive we made to get here; my journalistic responsibility to Metroland; my need to see Return to Forever one more time; mostly, I though of you, dear readers, who no doubt have been fervently wondering what I might think about the performances at this festival, so much so that you’ve had trouble sleeping, eating, and playing with others.

I looked at my wife and said “let’s get the fuck out of here.”

In any relationship, there are moments of perfect tumescence, where one says or does the perfect thing, moments that live forever in the scrapbook of one’s mind. This was one of those.

As we hit the Northway, the rain again went bat-shit, we slowed to 20 and put the flashers on, and thought, while listening to Garrison Keillor live at Tanglewood on AMC: (a) those poor bastards back at SPAC are getting whooped again; and (b) why didn’t I put in for Garrison Keillor at Tanglewood?

Right now it’s 8:15 Saturday night, I’m sitting comfortably in front of a fan, an honest drink next to me (that cost me, like, nothing), and I’m missing Return to Forever. I’ll bet they’re fabulous.

6.19.08 BAD METALHEADS

I’ve never been too keen on Metallica. I’m not sure I can describe why, but they’ve always struck me more as wannabe rock stars than the real thing. And not particularly bright. The Joe Berliner and Bruce Sinofsky documentary film Some Kind of Monster only reinforced these feelings, which were grounded more in pity than dislike. These guys weren’t even close to intellectually capable of handling what had been handed to them, and their music was neither original or compelling.

The band made a big stink in 2000 over Napster, suing the company and a bunch of colleges after Metallica’s music was discovered available for free online. Heavens! The group’s blowhard drummer, Lars Ulrich, held a bunch of press conferences and testified before Congress about his “art” and the evils of free music. More than anything else, Ulrich’s appearances were narcissistic and embarrassing. Dude really likes the sound of his own voice, for reasons that aren’t apparent to the rest of us.

Eight years later, Metallica’s still taking hits for the Napster mess it made, and last week it stepped in something again. The band invited a bunch of music writers and bloggers to a pre-release listening party for the band’s new album. When the writers and bloggers did what one would expect them to do, write about what they’d heard, Metallica representatives demanded that all the reviews be removed from the Internet.

Huh? I guess the biggest surprise was that all the reviews were actually taken down, despite the fact that there was absolutely no legal basis for Metallica’s demand. One online magazine said that the review was removed to “protect the writer’s professional standing.” As what? A wuss?

Hit with a fury of bad press (TechDirt ran with the headline “Metallica Still Doesn’t Get It”), the band first said that the writers had heard rough mixes of tracks, so that what they were writing about wasn’t what was going to be released. Uh, right. That makes a whole lot of sense. When that excuse didn’t placate anybody, the band issued a statement on its Web site saying that this was a management-company screw-up, and that as soon as the band members found out about this brou-ha-ha they demanded that the reviews be allowed online and even put up links to the reviews on the Metallica Web site.

Whatever, guys. Whatever.

Elsewhere, the Associated Press has started chasing down bloggers who post links to AP stories. In every reported case, the bloggers have posted nothing more than the headline and a sentence or two from the news article. Every copyright law professor in the country is going to tell you that this sort of thing is fair use, but apparently the Associated Press has other ideas. In a couple of public statements, AP spokesmen have blathered about respecting both the importance of bloggers and of “creators”, have made absurd and flatly wrong statements about the law of fair use of copyrighted materials, and wrapped up with hints that bloggers could buy licenses in order to use AP materials.

The absurdity of all this is that the bloggers drive Internet traffic to places where the AP and its licensees have the full articles posted, along with advertisements which presumably help pay for the content. It’s hard to understand what the AP is trying to accomplish, other than the kind of shooting-itself-in-the-foot power play Big Media content owners like to indulge in all too often. Remember, this is the same company that jumped ugly in 2000 when some jokesters posted a mash-up of the AP’s Pulitzer Prize winning Elian Gonzales photo and a Budweiser “Wassup?” advertisement. After the AP successfully had the funny little movie taken down from the Web, enraged ’Netizens flooded the AP with so many e-mails that the company’s mail server shut down. Shortly thereafter, AP came clean, and sheepishly admitted that the Elian/Wassup movie was a fair use of its photograph.

You’d think that AP would learn, but apparently not. If AP thinks that the dust-up in 2000 was debilitating, wait until the entire weight of the 2008 blogosphere lands on it. If you’re gonna be a bully, you’d better be sure that you’re bigger than whoever you’re picking on. Otherwise you get squished. And—earth to Associated Press—no one, especially you, owns the news.

Finally, there’ve been some on-going closed-door negotiations among a bunch of industrialized countries, including the United States, trying to create something called the Anti-Counterfeiting Trade Agreement, that the countries want to implement by the end of the year. Some leaked documents out of the negotiations indicate that they are seriously considering outlawing all peer-to-peer services, as well as mandating border searches of laptops for any infringing stuff. The U.S. trade representative has always been an industry lapdog on matters like this, and is likely the staunchest advocate of the worst aspects of this treaty. EFF.org has got as much info on this as is available. I’m guessing this will be just another stupid thing Obama will have to undo when he moves in this coming January.

6.5.08 CONTROVERSY

Ten years ago I was involved in some litigation involving Prince, whom I believe at the time was still answering to “The Artist Formerly Known as Prince” or that silly little symbol that looked like a drawing of a can opener. Prince sued a couple of Swedish fans who run the webzine Uptown.se (they’re still there!), accusing them of all sorts of things, including the unauthorized use of the little can opener (which was referred to in the litigation papers as “the unpronounceable symbol”).

Prince had registered the symbol as a trademark and also had a registered copyright in it as a two-dimensional drawing. Prince’s complaint stated that by using the symbol in their webzine, the Uptown guys were infringing his trademark and copyright. Before or since I’ve never seen such a ridiculous, abusive claim in a lawsuit. Prince was using intellectual property laws to stop people from talking about him. And never mind that his “people” had previously supplied the Uptown guys with a computer disk containing the symbol, and advised them to use when referring to the name-challenged little purple one.

We were able to get rid of the case by convincing the court to order Prince to show up for a videotaped deposition (Bill Clinton had just also had a videotaped deposition, the infamous “sexual relations with that woman” deposition, so it was kind of hard for Prince to argue that he shouldn’t be videotaped as well). Prince dropped the lawsuit shortly thereafter.

Fast forward to today, and Prince is still misusing intellectual property laws to try to control his image. Last year he threatened to sue eBay and YouTube for “allowing” the transmission and sale of what he felt was infringing material, and ramped up hassling fansites for posting “unauthorized” photographs. The Electronic Freedom Foundation has sued Prince’s music company for demanding that YouTube remove a 29 second home video of a 13 month old boy dancing around his house while Prince’s “Let’s Go Crazy” played in the background. Imagine the harm that video must have done the Prince’s bottom line.

Then last week things got even more bizarre. A month or so ago, Prince played the Coachella festival, a big indy / alternative music festival held every year in the desert outside Los Angeles. Perhaps as an acknowledgement that he was a bit out of place on the Coachella stage, or maybe an admission of a personal trait, he played a version of Radiohead’s “Creep” towards the end of a set that was universally hailed as brilliant.

As would be expected these days, various camcorder / cellphone videos of the performance of “Creep” popped up on YouTube and elsewhere. True to form, Prince demanded that these videos be removed as they infringed Prince’s copyrights.


Except he doesn’t have any copyrights in these videos. Radiohead owns the copyrights to the song. Whoever held the camera or cellphone and posted the videos online owns the copyrights to the video footage. Thom Yorke of Radiohead, upon hearing that Prince had blocked the videos, responded, “Well, tell him to unblock it. It's our ... song.” D’oh!

So, the videos are back up on YouTube, and they’ve spread all over the web, and are now notorious because Prince decided to be such a.......creep.

There was a significant ruling in a Seattle court last week. For years, software companies have taken the position that when you buy their software, what you really are doing is buying a license to use the software, and not a copy of the software itself. This is an important distinction, and one of the foundations of the software industry. This is why, for instance, if you want to put Microsoft’s Word on your computer, you’re supposed to go buy a new copy, rather that borrow a disk with the program from a friend.
(The music industry has been floating the idea that the same considerations should apply to digital music files, although nobody’s buying it.)

And if it is a license, the “first sale doctrine” of copyright law wouldn’t apply. The doctrine says that once you buy a copy of a copyrighted work, you can do whatever you want with the copy, sell it, lend it, give it away. Think about it. You buy a book at Borders. Are there any restrictions governing what you can do with your book? Of course not.

A guy was selling a copy of AutoCad that he’d bought at a garage sale on eBay, and Autodesk (the copyright holder of AutoCad) demanded that eBay block the auction. With help from the advocacy group Public Citizen, the guy convinced the court that the private resale of software was protected by the first sale doctrine, and not some violation of the ephemeral “license” the software company tried to impose on the software.

This decision may have profound effects on the software industry, by taking away the end-run the industry has been using to avoid the common-sense dictates of copyright law for years. And it’ll change things for the better.

5.22.08 WICKED WEB

After previous attempts were bounced by courts for twelve years, a law “protecting” us from child porn has been blessed by the Supreme Court. After laws that tried to force internet filters on us and another that outlawed computer generated fake porn were declared unconstitutional, the Supreme Court this week OK’d a law that makes it a crime for one that “knowingly advertises, promotes, presents, distributes, or solicits” material that is presented as involving a minor engaged in sexually-explicit conduct.

Commentators, even some free speech advocates, have noted that the Court’s opinion instructed that the statute should be interpreted sufficiently narrowly, and that it doesn’t threaten free expression a great deal. While it could have been worse, there are issues. Even given the Supreme Court’s “narrow view,” the law will give overzealous prosecutors ammunition to go after parents who take bathtub snapshots of their kids or artists who use kids in their work. And you just know that’s gonna happen. Could somebody go after Annie Liebovitz and Vanity Fair for those Miley Cyrus pictures? Were those “sexually explicit” enough that a prosecutor, looking for votes and a few more notches on the belt might make a play for the cheap seats with an indictment and a press conference? How about the art student who decides to riff on the Renaissance erotica of Botticelli or Correggio and decides to throw a few kids in the mix like the old masters did?

Another problem highlighted in the dissenting opinion is that the law criminalizes the mere offering of child porn, even if there is no actual child porn. Someone would be guilty of this law for putting up a scam site offering to sell stuff that didn’t exist, or maybe by misrepresenting a bunch of pictures that were completely innocuous. This person would already be guilty of fraud (and perhaps performing a public service by ripping off the scumbags who really want to own child porn), so does it make sense to knock them over the head with a federal felony?

In other sort of related news, a federal appeals court dismissed another lawsuit against MySpace brought by the parents of a teenage girl who allegedly hooked up with an older boy on the site and got sexually abused. Simply put, MySpace is protected by the law because it’s a neutral portal. Despite the anti-web hysteria the media likes to perpetuate every time some hideous crime is committed with the help of the internet, MySpace shouldn’t, and so far hasn’t been, held accountable for what happens to people using the site. If this girl had met the boy at her school, would we consider, even for a minute, holding the school responsible? To put it in perspective, here’s a quote from the trial transcript of this most recent case:
THE COURT: I want to get this straight. You have a 13-year-old girl who lies, disobeys all of the instructions, later on disobeys the warning not to give personal information, obviously, [and] does not communicate with the parent. More important, the parent does not exercise the parental control over the minor. The minor gets sexually abused, and you want somebody else to pay for it? This is the lawsuit that you filed?

MR. ITKIN [Counsel for the Plaintiff]: Yes, your Honor.

The world can be a mean, vicious, and unforgiving place. And the internet is part of the world.

Finally, I’ve mentioned before about the ubiquity of surveillance cameras, and how it’s gotten to the point where if you are outside in the city there’s every reason to believe that your movements are being tracked by somebody. This is nowhere more true than in England, where there are millions of cameras that have been put up in public spaces by public authorities. British band Get Out Clause, combining the sensibilities of OK Go! and The Yesmen, decided to put the system to work for them: they set up and performed in front of some 80 surveillance cameras around London, in the middle of streets, on buses, on sidewalks. Then, using the UK equivalent of the Freedom of Information Act, they got the footage of their performances for free from the government, and spliced everything together to make an incredibly entertaining, even compelling, music video that’s burning up the internet as we speak. Google “Get Out Clause” and it’s everywhere.

5.8.08 IN TRENT WE TRUST

A couple of months ago Trent Reznor of Nine Inch Nails confounded the music industry by dropping the thirty-six track work Ghosts on the world. Nine tracks could be downloaded for free, all of the tracks could be downloaded for $5, and there was a menu of other offerings, including CDs and raw tracks for remixing, that could be had for a variety of prices.

While the major labels are busy suing college kids and watching their businesses go into the tank, Reznor, now completely independent of any labels, provided a tutorial on how the new web economy can work, how free and scarcity can work together. He even made money, reportedly netting $1.5 million in the first couple of days of the music’s release.

There was a little grumbling that what he released wasn’t a real NIN record, it was atmospheric instrumental music; I think it’s great, but people do like to complain about stuff...

Well, two months later he’s at it again, this time releasing a full album of “real” NIN music, entitled The Slip, and this time totally for free. You can download The Slip at NIN.com in a variety of formats, including in better-than-CD quality 24-bit 96k format, and raw tracks are available for remixing under a Creative Commons license. For free. And every download is accompanied by a PDF file containing full graphics and lyric sheets.

How does Reznor make money on this one, you ask? Good question, the answer to which is yet to be seen. CD and vinyl versions of The Slip will reportedly be available this summer. These freebies will no doubt attract new NIN listeners (like me, for example, and maybe you, too) many of whom will now go buy some of the back catalog and whatever Reznor releases in the future.

And maybe we’ll go see NIN live, which brings me to Reznor’s other brilliant coup, which was also announced on Monday but got buried by the news of the free download. Registered users of the NIN website can order the best seats on this summer’s tour online, from Reznor directly. The tickets will arrive with the buyer’s name printed on them, and the buyer will have to show a photo ID to get into the show. Adios, scalpers! With an eminently simple internet solution, Reznor eliminates the madness that surrounds big shows (can you say Miley Cyrus? Sure you can...) and rewards his fans with the best seats to his shows.

This is how you build a fan base. This is how you build loyalty. This is how you build a career in the music business today.

In other news, I read that the House Judiciary Committee is pushing the creation of a cabinet-level intellectual property “czar” to police “piracy” in the information industries. What this appears to represent is a massive subsidy to the entertainment industry in the form of providing federal cops to enforce what the industry currently does itself. In other words, now the Feds will be suing college kids for downloading Brittney Spears songs and Chucky movies.

It’s all so ridiculous. Congress, propped up with millions in campaign contributions and phony statistics about the losses to US companies due to IP theft (i.e. one “illegal” download does not equate to one lost sale; I’m mean, think about it for half a second....the MPAA even admitted a few months ago that its propaganda numbers were wrong) is all too happy to oblige Big Media...with it’s very own czar! Even the federal Department of Justice is unhappy about it, although not for any reasons related to the public well-being. No, it’s more of a turf war, as DoJ has been trying to build up its own IP enforcement efforts under the guise of –get this – homeland security! That’s right. It only appears that little Julie is up in her room innocently downloading that new Gnarls Barkley track off of Limewire; but in reality she’s...she’s....she’s helping Al Qaeda! So, it’s DoJ’s position that we don’t need no stinking Czar.

Piracy can be a problem, and that’s what copyright laws are for. If it’s bad enough it can become a criminal matter and law enforcement is needed to put the bad guys away. But piracy’s not terrorism, it’s stealing. And downloading a song off the web isn’t piracy, it’s doing what technology suggests and allows. And we don’t need an intellectual property czar. Not unless it’s Trent Reznor.

THE JESUS OF HEP

Nick Lowe
Eli Paperboy Reid

Linda Norris Auditorium

April 30, 2008

Talk about aging gracefully. Nick Lowe, alone with an acoustic guitar, put on a simply beautiful and uncommonly dignified show to a packed house of devotees at the Linda, his first Albany appearance in (I think) 23 years, when he played the second JB Scotts with his rock-a-billy band The Cowboy Outfit.

Dressed in grey slacks and a white shirt, Lowe touched on all facets of his rough-and-tumble career, from the pure pop of “Heart” and “When I Write the Book” to the more pensive Americana-styled songs from his recent albums. He avoided the wackier tunes that so endeared him to late-70’s rock nerds—we didn’t hear anything about breaking glass, castrating Castro, or winners who became doggies’ dinners—but got a load of his incredible staring-into-the-void masterpieces, like “The Beast in Me” and “I’ve Let Things Slide,” songs that translate powerfully when sung solo in an intimate atmosphere. The clever word-play and the improbable rhyme schemes have always been there in spades, but Lowe has replaced the more manic imagery of his songs with a sturdy gravitas and cock-sure delivery. Not for nothing they call him The Jesus of Cool.

But this wasn’t a mope-fest, either; a brand new song, the super-quiet “I Read A Lot,” got an hysterical intro, and after, as the applause was peaking, Lowe yells “and the cavalcade of hits keeps coming!” and charges into pop-nugget “Cruel to Be Kind.” And he played, as a rejoinder to a couple of songs that could (wrongly) be interpreted as misogynistic, the absurdist “All Men Are Liars,” with its out-of-nowhere takedown of ‘80’s pop curiosity Rick Astley.

The biggest revelation of the night was the quality of Lowe’s voice, and how he wrapped it around the brilliantly-wrought songs. This was never more apparent than with the set closing “What’s So Funny About Peace, Love and Understanding,” delivered down-tempo with Lowe squeezing meaning and warmth out of every single word, reclaiming and rebranding his best known song, for so long an angry Elvis Costello vehicle, as one of hope, and, yes, peace, love, and understanding.

Young Boston soul-shouter Eli “Paperboy” Reid should probably not venture out with out his band. Reid, who looks like a cross between Tony Dow and Ron Zeigler, sure has his bad-ass schtick down cold, right down to the pinky rings on each hand, but his retro-soul thing doesn’t fly while he’s struggling to keep up with himself on electric guitar. That being said, his new record sizzles, the cat can flat-out sing and I’m dying to see the full Paperboy treatment. Somebody bring ‘em all over here for a gig. Quick.

4.24.08 MORE ORPHAN THAN NOT

Don’t forget the Future of Music Coalition’s working musician seminar next Wednesday at the Clarion Hotel over on Everett. I’m told registration is through the roof so if you haven’t signed up do it now: futureofmusic.org.

Two weeks ago, when I raved about the brilliance of the panelists at the seminar, I didn’t have any idea that I’d be invited to be a panelist, too. Oops! Really, when I indulge in shameless self-promotion (and I do every chance I get) I at least try to be upfront about it. See you there.

I’ve been deluged over the last week with emails from worried clients and artist friends about this horrible “Orphan Works” copyright legislation before Congress that’s gonna wipe out everybody’s copyright. And bears, oh my! The culprit is an hysterical webpost by some guy named Mark Simon on the Animation World Network that has somehow gained viral traction and that people are apparently believing.

It’s all nonsense. Mr. Simon is, IMHO, an idiot. Blogger Meredith Patterson puts him rightfully in his place, and describes what is really going on, at maradydd.livejournal.com. If anyone sends you Simon’s post, please send them Meredith’s. If there’s one thing I hate, it’s lies and ignorance in public discourse.

Here’s the deal: since 1978, everything that’s been created, and much of everything that hadn’t been published prior to 1978 or already fallen into the public domain, suddenly were bestowed with automatic copyright ownership. A creator doesn’t need to do anything but create to have federally-protected copyrights.

The problem being that much of what’s out there is stuff that no one is interested in protecting. Only a small fraction of what’s been created has a copyright owner thinking that he or she is going to ever be paid for it, or even with an awareness that any such payment is even a remote possibility. Even for the vast majority of stuff someone may have once cared about, there’s no current interest. Back when copyrights had to be registered and renewed after the initial 28-year term, less than 15% of the registered copyrights were renewed. Nobody cared.

This has caused a real problem with the public: what creative works can be used, reused, revived, incorporated, and messed around with, when under the current law, virtually everything is technically subject to copyright ownership by somebody, even though for the vast majority of stuff out there, there is no somebody, or at least no somebody who cares about their copyright?

It’s a massive disconnect, and I’ve seen it play out again and again in ways that inhibit the dissemination of information, of knowledge, of beauty, because folks were paranoid of publishing pre-existing works out of fear that somebody would pop up out of nowhere and say “that’s mine!”

In her blog, Patterson uses the example of your parent’s wedding pictures from 1955. You want to publish them? Guess what? The copyrights are probably owned by the photographer! Who was who? And is now where? You don’t know? Uh-oh. I get asked all the time by archivists and historians about what they can and can’t do with a box of old photos, or paintings, or manuscripts, or books, that were found in an attic of an old house, and that contain wonderful glimpses of history, and which a creator or current copyright owner cannot be determined. I explain that publishing this stuff will involve a bit of risk that a copyright holder might appear and spoil the party. Archivists and historians generally don’t want to know from risk. So all this great stuff stays in boxes.

The Orphan Works legislation that Mr. Simon is so wigged out about, and doesn’t remotely understand, hasn’t even been introduced yet, but word is that it will be soon. The legislation will probably seek to rectify the problem of lingering, abandoned copyrights, to loosen this stranglehold of ghosts on our culture, by allowing the reuse of pre-existing materials in situations where after a reasonably diligent effort, no copyright owner has been located. If, after the work is re-published, a copyright owner shows up and says “that’s mine”, the copyright owner will be entitled to a reasonable licensing fee for the use, but won’t be able to stop the use.

Space doesn’t allow me to go into the details and potential problems of the Orphan Works law, and they are significant. But suffice it to say that there’s no boogeyman, there’s no abject stealing, the sky is not falling, artists will not starve while freezing in the dark. Nothing in the realm of copyright law is ever even close to being perfect, and this law certainly won’t be. Stuff can be gamed, faked, and copyright owners may have to be a little more vigilant. But the world won’t be that much different than it is already: the world of copyright is already a world of gaming and faking, and copyright owners are supposed to be vigilant about their works.

The net from the Orphan Works laws, if they’re done right, will be a huge positive.

04-10-08 DIY ROCKS

The internet has democratized the music business in ways that were unimaginable 15 years ago. Time was when, to be even marginally successful, a band had to press up CDs (or vinyl or cassettes) and then somehow get them into stores and get the music on the radio. These were horrible bottlenecks, largely controlled by major labels and Big Media. The internet has effectively removed these bottlenecks, music can be sold directly to consumers over the internet, and corporate radio is fast becoming irrelevant to breaking music.

But there’s a fundamental problem that remains: getting noticed in the first place. It’s easy now to make your music accessible, but how do you get people to listen to it and buy it? This is where the real innovation is happening right now.

Eight years ago I worked with Count The Stars, a Delmar band just out of high school with a CD and more desire to make it than I’ve ever seen. In the pre-MySpace / Facebook days, the members of the band tirelessly worked what was available on the web, including finding and joining online chat groups dedicated to other bands they liked, introducing themselves and inviting the other participants to visit the Count The Stars website. By the time the band got in their van and hit the road, there was a small but nationwide fan base waiting for them. These guys were pioneers and got rewarded for their efforts with a deal with powerhouse indy label Victory Records.

Just last week, Collar City Records honcho / Kamikaze Hearts action man Matthew Loiacono unveiled another amazing marketing strategy for his new album, entitled Kentucky. Matthew’s having a contest he’s calling “Why Kentucky?”—first you go to his website heartstack.org/Kentucky and download the album for free. Then you try to figure out why the heck he named the album Kentucky. There’s a prize for the first correct answer (apparently there’s a real reason for the name) and another for the “most awesome, yet incorrect” answer.

The idea, obviously, is to get people to listen to the music, whether they actually buy it or not, with the idea of attracting fans and the hope that people are going to like the free download enough to want to buy the sonically superior CD that will be available in a couple of weeks. Is it gonna work? Time will tell. But at least Matthew, like Radiohead and Trent Reznor before him, is recognizing the reality that the internet has transformed how people consider music, and forever changed the paradigm of “I buy I own” with regard to music.

In other news, MySpace last week announced some big deal with three of the four major record companies, apparently some kind of effort to unseat iTunes as the Big Kahuna of music sales. The press release says this:

The product vision for MySpace Music is to build on the existing traffic, credibility, and popularity of the MySpace Music platform by creating a fully integrated 360 degree global music solution. MySpace Music will feature the network's first integrated e-commerce solution and evolve the user's ability to discover, share, and socialize by adding commerce and music management tools. The new offering will seamlessly transform the MySpace Music experience into a groundbreaking mix of community, commerce, and discovery.

Sweet Jesus I love the music business! I had my heart set on a 180 degree global music solution, and lookie here, they’re going whole hog!!! Oh, well. I think what our corporate friends here are trying to tell us is that they want to sell us stuff! Lots of stuff!

As nice as MySpace has been for everybody, let’s not lose sight of the fact that it’s owned by News Corp., so something like this shouldn’t be much of a surprise. Commentators have already chimed in complaining that the MySpace Music “plan,” whatever it is, isn’t going to be good for indy labels and bands, but that’s really yet to be seen. It’s either going to be a big deal, or yet another example of the kind of Web 2.0 madness we’ve seen all too often that’s hype, smoke and mirrors today, and a whole bunch of nuttin’ tomorrow. I’m not holding my breath.

Meantime, in lawsuits brought by the RIAA against kids and their computers, two courts recently ruled on the pivotal question of whether simply making music available for download the share file of a P2P program is infringement under the Copyright Act. One court said yes, it’s infringement, the other said well, no, it’s not. Oops. What this means is that the RIAA can continue its reign of terror—these suits thrive on uncertainty—at least until some appeals courts start weighing in on the issue.

And I’m not holding my breath on this one, either.

4.3.08 Gary, Flo, and Herm

Gary Puckett, The Turtles, Hermans Hermits
3.30.08
Proctors Theater, Schenectady

Yeah, I know, I know. But I’m a sucker for these shows. Why? Partly flat out nostalgia—this was the music in my ear when I was a little kid. Another part of it is kind of like why we watch American Idol—to see who gets out with their dignity intact and who’s a train wreck. Then there’s the fact that the audience at these shows makes me feel young, a rarity of late.

My expectations weren’t real high for 2/3 of this show. 20 years ago I went to a couple nostalgia shows at SPAC and was mighty impressed with Gary Puckett, who sang circles around his laughable, melodramatic repertoire. He projected swarminess and trouble back then, maybe because he was trapped by his hits, maybe just haunted with show-biz demons. It was a different guy at Proctors Saturday, healthy, confident, looking WAY too much like Johnny Rabb, and still in great voice, although he’s developed this warbly vibrato in his lower register. Puckett’s still trapped by those goofy old hits, and the show (he was backed by an uber-loungey three piece band) had the distinct whiff of cheese throughout. The difference now is that he seems to have come to terms with it all, and good for him. One can only wonder, though, what could have been if he’d had better management, made better choices, etc. Dude’s got voice.

You know that Flo and Eddie wouldn’t disappoint, and they didn’t. Screamingly funny, direct, loose, honest, and profane, The Turtles show was a howl at the specter of aging, interspersed with their poppy hits. I last saw them 20 years ago (at the old baseball park by the airport) when the show was a howl at the specter of child-raising, and was every bit as hysterical and inspirational. The band, of course, was deadly, with long-time drummer Joe Stefko driving the band through Zappa-esque changes and color supplied by The Cars’ Greg Hawkes on keyboards. There were a couple times where the gonzo nature of the show seemed to sail over the heads of the predominantly working- class crowd, but the wildest antics were at least tolerated with a smile and a shrug. And of course “Happy Together” got everybody, at least everybody who could stand in the jam-packed house, on their feet.

For me the wild card of the night was going to be Peter Noone, whom I last saw 30 freaking years ago with his band The Tremblers at the Hullaballo (!!!) with Real Danger opening! Beat that! I was expecting...well, I dunno what I was expecting, not much, really. But the guy, who still looks about 35, was just brilliant, with a bizarre and deadly sense of comedic timing, and a Will Ferrell-like willingness to do anything for a laugh. And much of what he did was off-the-cuff improv, riffing endlessly on the word “Schenectady,” absurdly impersonating Tom Jones, Michael Jackson, and Johnny Rotten, and taking countless shots at The Turtles (he consoled a young girl in the audience by telling her that his mum had forced him to go to a Turtles concert when he as a young boy, too). Much of the crowd, myself included, were in tears for much of the show. And Noone sang all the hits great, backed by a real rock band led by hyper-kinetic guitarist Vance Brescia, whom Noone would walk over and kick in the ass from time to time for no apparent reason. Improbably and delightfully, the musical highlight of the evening was when Noone and Brescia sat down at the end of the long (3 ½ hour) show and did a quiet, small version of “Mrs. Brown You’ve Got a Lovely Daughter”. Amid all the chaos, it was jarringly perfect.

3.26.08 COOLER THAN SCHOOL

Listen up now. If you’re a musician, if you work with musicians, or if you fantasize about maybe one day considering the possibility of becoming a musician, get out your calendar and mark off April 30. If you’re supposed to work or be in school that day, call in sick. Call in drunk. Call in personal. On April 30 the Future of Music Coalition is coming to town for an all-day series of presentations about making a living in the 2000’s as a musician, and it could be the most important day of your musical career since the first time you picked up your axe.

There have been a bunch of these “how to make a living in the music business” seminars in the area recently; I’ve been involved with some of them, and some of them were quite good and some I’ve heard weren’t so good. This one will be brilliant. I have attended the last two annual Future of Music Coalition Policy Summits and can vouch for the organization and its goals without the slightest reservation.

Titled The Future for Musicians, the seminar is part of a four-stop tour across upstate New York and is co-sponsored by the American Federation of Musicians and funded by the New York State Music Fund—that big pile of money that Eliot Spitzer cranked out of the music industry after he caught the major labels and Big Radio with their pants down a few years ago. The Fund has been responsible for a lot of very cool things over the past couple of years, and, yes, we have Eliot Spitzer to thank. Seriously.

The seminars will feature real live international serious experts and will cover such topics as the use of new technologies for distributing and promoting music, navigating ASCAP, BMI, and SoundExchange, online music marketing, podcasting/webcasting, state and federal policies affecting musicians, governmental funding opportunities, and health insurance options for working musicians.

And it’s free! Go to www.futureofmusic.org to find out more and reserve your spot. And tell every musician you care about about this. See you there.

Moving on. The anti-trust unit U.S. Department of Justice this week approved the merger of the Sirius and XM satellite radio networks, saying that the merger would not be anti-competitive. How could this be, you say, since these are the only two satellite radio networks, they competed against each other, and if they merge there will be no competition? Like, huh?

Well, DoJ, following a trend in what’s left of anti-trust jurisprudence in this neo-con “the market will provide” age we live in, takes a broad view of “competition.” In DoJ’s view, XM and Sirius aren’t just competing with each other, they are also competing with terrestrial radio, with internet radio, with IPods, and apparently, with singing in the shower, daydreaming, meditating in absolute silence, and doing cartwheels naked down State Street whilst screaming “Lindy’s landed!” This being the case, the merger sailed through, with the added benefit that it will be good for the shareholders of the two huge, and heretofore money-losing, corporations.

Of course, this theoretical view ignores what some of us here on earth call reality. XM and Sirius competed mightily with each other, and this competition yielded the following benefits: reasonable prices for both the receiving equipment and the monthly subscriptions; aggressive innovations in technology; an amazing array of diverse programming, as the two competitors beat the bushes to attract mass-market and niche listeners alike. For every 24 hour Howard Stern channel, there are a dozen interesting and specialized programs. Just a few months ago I wandered into the Monterey General Store to see the wonderful Pete and Maura Kennedy perform; between sets Pete was telling me about their weekly Sirius radio show. David Johannson’s got a satellite show, too. So does Vin Scelsa, Christine Lavin, Martha Quinn, Lisa Lisa, Bob Dylan, etc. etc. etc.

Now, imagine that Sirius and XM aren’t competing anymore, and there’s only one satellite network. No longer are there two entities clawing and scratching for your attention and your money. There’s just one. What do you think is going to happen to the prices? What do you think is going to happen to the cutting-edge technology? And maybe most importantly, what’s going to happen to the fringe music, the special live performances, all the extravagant things these networks have been doing to get you to sign up?

Uh-huh, stagnation, cost cutting, no more risky innovation, and a bee-line to the lowest common denominator. If you’re a satellite radio fan, you’re captive.

Until it gets so bad that you decide that maybe your IPod is a worthy alternative, just like the DoJ says it is. Except that the DoJ’s anti-competitive ruling caused your migration, limited your choices, and killed off a true haven of diversity.

A-O, way to go.

3.13.08 HERE COMES TOMORROW

This article originally appeared in the 3.13.08 issue of Metroland

I was going to survey all of the good lovin’ I’ve gotten in my life, and discuss which times may have been worth $5500, and why I think so, based on both objective and subjective criteria, if indeed I had to pay for it.

But I decided to talk about Trent Reznor instead.

A few months ago, Radiohead shook the music biz to its core by putting its new album, In Rainbows, up on the Web for download. For a band of Radiohead’s stature, this was revolutionary for a number of reasons. For one, the band was going it alone, without the benefit of label backing. Even more remarkable, the band put the album up for download with a voluntary payment.

The band still hasn’t released figures for what happened, although as of now, the band’s download page is disabled and the album is available for sale as a CD and as DRM-free downloads from all the usual online stores. The band has admitted that the voluntary-payment scheme, which offered only middling-sounding 160bps files, was really a promotional device to sell music the traditional way.

It would be fascinating to know what happened; there have been unsubstantiated estimates that over one million albums were downloaded, and roughly two-thirds of the people grabbed the music for free, but that the band nonetheless made more money that they would have had they been selling through a standard record-company deal. One interesting phenomenon was the fact that even though In Rainbows was readily available for free on the band’s Web site, “pirated” versions were was also tearing up the P2P and BitTorrent sites. Go figure.

While Radiohead’s experience may have been a tentative toe in the water, Trent Reznor of Nine Inch Nails went all-in on the NIN Web site last week with a comprehensive roll-out of a sprawling new instrumental work titled Ghosts I-IV. The offering is a brilliant example of post-label consumer-oriented music delivery. The first nine tracks are offered for free, as high-quality 320bps MP3s, along with a stunning 40 page pdf program with liner notes. For $5, you can download the entire work—all 36 tracks—with the program and a pile of digital “extras” like wallpaper and other images. These downloads are available in an array of high-quality format choices, including CD-quality lossless formats. For $10, you get all the digital stuff, plus a two-CD set with all of the tracks. For $75, you get all this in deluxe packaging, along with all of the session tracks on a DVD in multi-track format, for the buyer to use in remixing the tracks, along with a Blu-Ray disk with the tracks in super HD stereo along with a HD slideshow. Finally, there’s a limited- edition $350 set, which includes everything already mentioned, plus the tracks on four high-quality vinyl disks and a set of Giclee prints of some of the program photographs.

The tracks are released under a Creative Commons license, which means it’s OK with Reznor if the tracks are traded, distributed, or remixed in non-commercial settings. To underscore the point, Reznor seeded the major BitTorrent networks with the tracks at the same time they were offered for sale on the NIN Web site. So anyone who wants to can go get the whole shebang for free from any of the so-called “pirate sites” on the Web.

Now, traditional thinking, major-label thinking, would be that Reznor is nuts. He’s giving it all away at the same time he’s trying to sell it. But consider this—the 2500 editions of the $350 set sold out the first night. So, we know Reznor pulled in $875,000 from the top-shelf offering alone. Traffic was so intense that night that it slowed to a crawl, and for a while the NIN site was sending people to the Torrent sites as an alternative place to grab the tracks. There haven’t been any other figures released about sales and downloads (although I’d expect Reznor to release them eventually) so I can only relate my own experience.

I’m not a Nine Inch Nails fan; I wouldn’t know a NIN song if it bit me on the heinie. But after reading the media hoopla of this release, and being aware of Reznor’s anti-label advocacy over the years, I figured I’d check it out. The NIN site is beautiful, and getting the initial nine free tracks was seamless and satisfying, sort of like the Apple consumer experience—it’s fun, sophisticated, and doesn’t insult my intelligence.

The tracks surprised me; mostly darkly ambient instrumental tracks, featuring airy piano, guitar treatments (from Adrian Belew), and hypnotic, non-face-melting percussion. After listening to the free tracks three times, I decided I had to have the rest, and I went back and bought them for the grand sum of $5. I could have gone to a Torrent site and gotten them, entirely legally, for free. But I didn’t want to bother with that, and more importantly, I wanted Trent Reznor to have my $5 for making my world a little bit better with his music. Call me crazy, but I think this is the way it’s supposed to work.

02.28.08 ENOUGH

This article originally appeared in the 2.28.o8 issue of Metroland.

Up until about a month ago, I was happily ambivalent about the Democratic presidential race. Either Hillary or Obama would be fine presidents, wonderfully historic, and a vast improvement to the embarrassment we now have. That’s over now.

As Obama’s meteoric rise took hold, Hillary Clinton has demonstrated that she represents simply the worst of American politics. The pits. There had been a couple things early, odd whisper campaigns coming from Clinton “advisors” about Obama being Muslim, his drug use in his youth (which he’s written about in his books), even statements he made in kindergarten, and a couple of Clinton aides got fired for some of these, which of course caused the silly innuendos to make the news.

But then nonsense became the front and center of her campaign. The dissembling, the lies, the parsing, the spinning. As Hillary lost the support of blacks, the college educated and those under 50, she and her minions set out on a series of disgusting ploys to reel in the uninformed, the ignorant, the bigoted, and her shrinking base of “identity voters,” older white women whose vote is less for Hillary than it is for themselves.

Fortunately, this kind of Rovian strategy, which worked so well with evangelicals for George W., just hasn’t flown with Democrats, and Hillary’s campaign has sunk like a stone, and along with it, whatever’s left of the Clinton legacy, which had seen considerable rehabilitation over the past few years.

Her clownish advisors like Harold Ickes and Howard Wolfson have been dropping hints about going after Obama’s pledged delegates and are trying to certify the de-certified Florida and Michigan delegates, which Hillary cheated to get. These folks have been burning up the phone lines trying to strong-arm the superdelegates. Nobody’s buying it.

There have been the day-before-the-debate bombs. Last week it was the phony plagiarism accusation. The Hillary advisors who dropped this one knew that this was a lie, but hey, it made the news cycle, and Obama had to respond. This week it was the digging up and sending of the picture of Obama in traditional African garb to Matt Drudge, followed quickly by insidious claims by Clinton toady Maggie Williams that Obama’s protests about the pictures showed he was ashamed of his heritage. This isn’t politics, it’s swift-boating.

In the past week, Hillary has careened oddly out of control, bouncing from one absurd pose to the next, recalling nothing so much as the recent Britney Spears lunacy. Except people seem to still care about Britney Spears, and Hillary fatigue, for whatever reason, sprouts early. After her bizarre sweetness and light routine at last week’s Texas debate, Hillary turned attack dog on Saturday, with a foaming-at-the-mouth hysterical and shrill complaint about some Obama mailings. (And yes, if she were a man, I’d be using the words “hysterical” and “shrill.” Don’t even think about playing the gender card this time.) She even went so far as to compare Obama to Karl Rove, and ended the tirade with a silly, Gary Cooper-like “meet me in Ohio” dare. It was all a charade, and it was all scripted, and it was all fake. The mailings she claimed “had just been handed to me” had in fact been in circulation for weeks. They were very old news. Hillary and her people certainly knew about them the day they were first mailed. Her invoking the name Karl Rove was utterly disingenuous, considering her subterranean attempts at character assassination over the previous couple of weeks.

It’s all been terribly sad, and it verifies many of the things Hillary’s detractors have been saying for years, digs that once seemed cruel and now look prescient. The Clinton campaign has been tilting at windmills for weeks now, and has been playing increasingly dirty with each passing day. And the shameful thing is that it undermines Obama’s upcoming campaign, the campaigns of every Democrat running for office this November who are relying on Obama’s coattails, and it threatens to dismantle the waking-up of an entire generation of Americans to the importance of who is running the country. Every pathetic lie and distortion Hillary pushes out there lessens the likelihood we’ll have a bullet-proof majority in both houses of Congress, and a Supreme Court that is at least balanced.

I caught a Clinton speech in South Texas last week, and she was reminiscing about helping with a voter registration drive there in 1972, when she and Bill were young Democratic activists and working for George McGovern. It struck me that if Hillary and Bill Clinton were young idealists working the political fields today, they sure as hell wouldn’t be working for Hillary Clinton. They’d be much to smart to buy in to her transparent and divisive crap.

Hopefully she’ll pack it in soon and stop making a fool of herself. Hopefully the voters of New York will remember her shameful behavior when her number comes around in the Senate in four years. We deserve so much better than this.

1.31.08 ROT

This article originally appeared in the 1.31.08 issue of Metroland

Way, way back in the day, like 15 years ago, the emergence of email was thrilling to me. I loved that I could have a rolling conversation with someone, even a group of people, stretched over hours, days, even weeks, along with the ability to choose my words, edit and re-edit my thoughts, look over the arc of the conversation, and chew on responses in my in-box.

Email also lifted the burden of telephone conversation, the need for there to be the often awkward, uncomfortable, time-consuming and unnecessary introductory small talk. I generally don’t care how someone’s “doing”, even my friends, and chances are they aren’t going to tell me anyway, but still there is this societal prerogative to start every damned telephone conversation with a How’re you doing? And too often this innocuous question elicits a response, irrelevant to the planned topic of the conversation, derailing thought, subject, and emphasis. I’m as guilty of this as anybody; if something really good or bad has happened to me, I’ll answer the How’re you doing question by narcissistically blabbing away to the no doubt totally uninterested person on the other end of the line. Then there is the equally difficult denouement, the winding down and wrapping up of the conversation. Again, societal prerogative demands that a phone conversation have a sufficient duration lest one appear abrupt if not outright rude, and this results in a stilted, strained, and totally useless jumble of words designed to allow one to just get the hell off the phone already.

Email allowed one to forego all of this, and to make a point or ask a question, hit it and quit it, press send, fade to black, it’s a wrap, bebe. A five minute phone call is now a ten second dance on the keyboard, and so much more effective.

But even more than the convenience of it, email ushered in what I thought was going to be a new golden era of the written word. As long-distance telephone charges tanked in the ‘80’s and ‘90’s, most people stopped writing letters to each other. Those of us who are word people (you know who you are) seized on email as a way to reclaim the written word as a primary communication tool. Even in shortened email form, it’s a glorious thing for us; we can tinker with sentence structure and even use those big words we never figured out how to pronounce correctly. We can craft with words again.

And it struck me that this would spill over to everyone. I’d see my kids, just learning to write, stretching their little brains putting together coherent sentences and getting their spelling right in order to talk to their friends via email. I was thinking, this is just brilliant.

Then along comes instant and text messaging, and my grand hopes and dreams for the written word gets all shot to hell! Now, instead of nuanced wordplay, we get truncated, vowelless shorthand, a denuded language that strives to communicate tiny thoughts in the simplest, starkest way. I dnt lk t. T sks. I mn t. Sks!

And the extent to which kids have embraced texting, to the utter derogation of straight-up emailing, is dramatic and depressing. Recent studies have shown that kids consider email to be profoundly uncool, a geezer thing, about as useful to them as sending smoke signals on a windy day. I’ll forward an email to my kid, and then have to remind her in a face-to-face conversation to check her email for my message. Somehow, in a few short years, email has become irrelevant, and worse than that, a dinosaur, to our kids.

Perhaps even more weirdly, kids seem to have a proprietary interest in IM and text messaging. They seem to think it’s theirs alone, a devolved linguistic sanctuary into which adults should not wander. An adult breaking into their little communications orb is every bit as horrifying to a kid as say, having a parent with a band with a MySpace page (thanks for that one, Roz Chast!). Believe me, I know.

So the little thumbs frantically punch in incomprehensible streams of acronyms and gibberish, shot out over multi-billion dollar wireless networks, bouncing off satellites, and rocketing through fiber. We could have worse problems; they could be just not communicating at all.

But I do wish it could be different. Words are important. Call me old-fashioned.

1.17.08 PIGGIES

This article originally appeared in the 1.17.08 issue of Metroland.

The newswires were buzzing last week about the “sudden” appearance of Beatles’ riffs in some new hip-hop songs by the Wu-Tang Clan and Ja Rule. This was touted as some kind of seismic shift in the attitude of the publishing company that owns the songs, Sony/ATV, in the loosening of the reins on the fabled catalog.

It wasn’t such a big deal. Jay-Z was granted riff-rights in 2003 for a track on his Black Album, and Sony/ATV has been licensing songs for the occasional advertisement and movie for years.

What it does point out, though, is the ridiculous, draconian, and anti-creative nature of music licensing, especially as it pertains to sampling existing recordings.

Where to start? Hip-hop was built on sampling. Two turntables and a microphone on a Bronx basketball court block party in 1978; what was on the turntables? Other people’s hit records, that’s what. In the intervening years, though, publishers and record companies have become increasingly restrictive, some would say greedy, with their “properties”, cutting the access to these pre-existing works to all but the most wealthy.

Pay attention now. When a bit of a recording is nicked for a new tune, there are two copyrights that are being used: one is related to the songwriting, the composition, and the other is related to the performance, the recording. Typically, the rights to the composition are controlled by a publishing company (which pays royalties to the songwriter) and the rights to the recording are owned by a record company (which pays royalties to the recording artist).

The law provides that anybody can do their own recording of an song, so long as they pay a compulsory license fee (also known as a “mechanical license”) to the publisher of the song. (That royalty is currently about nine cents per distributed copy.) But this compulsory license only applies to cover versions of an entire song, with the melody and lyrics more or less intact; it doesn’t apply to using just a part of a song as a building block for a new song. And it also doesn’t apply to the use of a sample of a recording, of using somebody else’s performance in a new song.

Which means if you want to cut and paste a chunk of an existing recording into your new song, you’ve got to go get permission (and a license) from both the publisher and from the record company. And since there’s no compulsory license, these entities can charge whatever they want for these licenses. Or they can just say no altogether.

And that’s a problem.

A few years ago I had a client come in with a truly breathtaking recording, constructed partially out of samples from three 30-40 year-old recordings, along with a bunch of added instruments and vocals. The client was looking for a record deal, and wanted to release to track to radio and on the internet to get some buzz going. And the client wanted everything to be totally legal. It was my job to try to get the licenses for the three samples. For each sample, I had to determine the current publisher and the controlling record company, which took some sleuthing. Then I had to try to get the licenses. One publishing company would only grant me a license based on 100,000 unit sales, demanding a $5,000 cash payment. One record company never responded to my calls, emails and letters. One publisher simply denied my request (after a six week wait and countess phone calls), without telling me why.

Interestingly, not one of the six entities I tried to deal with asked to hear the track that my client had created. And it was, in my opinion, a potential hit, a track of real beauty and creativity. And it died on the vine.

What we have is a system where new, creative works that incorporate sampled sounds from existing records can only be made, if at all, by major artists, or artists backed by the kind big money that only major labels can afford. If this had been the situation thirty years ago, the genre of hip-hop might have never been born; it would have been crushed by the weight of the misdirected use of copyright law, a law that is supposed to encourage and foster creativity, not kill it.

The obvious answer here is the creation of a compulsory license regime that the law already provides for cover versions of entire songs to be applied to samples of both compositions and recordings, a system by which publishers and record companies can’t block an artist from sampling a track, but will get paid a reasonable license fee for any and all commercial uses of a recording. It’s extremely doable, but it would need a revision of copyright law, an act of Congress, and the creation of a royalty collecting agency, along the lines of Harry Fox or Soundexchange.

Record companies and publishers would rake in millions in royalties without lifting a finger. All sorts of new music would be made, as sampling without fear would become mainstream. It wouldn’t be perfect. But nothing associated with copyright law ever is. And it would be infinitely better than what we have now.

12.20.07 End of Year I

This article first appeared in the 12/20/07 issue of Metroland. I think. Been pretty disconnected from the real world lately.


It’s been a tumultuous year in the world of information; the world is changing so fast and so intractably that it’s hard to keep up. Here’s what I think are the biggest changes and phenomena:

1) The iPhone: The internet, your stereo, your TV, and (oh yeah) your phone in your pocket. Everybody’s been saying this was coming, and once again it took Steve Jobs to bring it home. Like Apple’s done before with portable music and the iPod, the iPhone revolutionizes personal communications in a package that’s sleek, breath-taking, and lovable. No, I don’t have one. Yet. But friends that do say it’s changed their lives, and like the ad says, they don’t know how they got along without it all these years.

2) Voluntary payment for music: I was at the Future of Music conference this Fall, and one of the speakers said “let’s face it, payment for music these days is entirely voluntary.” And she was pretty much right. 30,000 lawsuits by the music industry against its core customers notwithstanding, you can find whatever you want for free on the internet, or just cop a file from a friend, or, if you’re in a real pinch, you can buy the damn song. Music wants to be free, and music gets what it wants. And no amount of huffing, puffing, or litigating or legislating is going to change that. The era of Big Music is just about over. And you know what? More music is being made now than ever before in the history of the human race. And, like always, some of it is real good.

3) Social networking rules: It’s exploded and it’s here to stay, one way or the other. Facebook, Bebo, MySpace, LinkedIn, Twitter, and all the rest have revolutionized how we communicate with each other. If you’re my age you might not get it. If you’re half my age you’re going, like “duh!” At NYU this year they had special orientation classes for incoming freshmen, teaching them the ins and outs of face-to-face communication. Everybody already “knew” each other through Facebook, but nobody was quite sure how to actually talk to one another.

4) You have no privacy: Unless you live in the boonies, most of your time outside is on camera. If you have a cell-phone in your pocket, you can be tracked. Unless you’re a geek that knows something about encryption, most of your on-line activities are being stored somewhere by someone you don’t know. And the government thinks it’s perfectly OK to listen in on your telephone calls without a warrant, or at least to sweep your conversations for bad words. And the telephone companies seem to think its OK to help the government to do it. Even though it’s clearly illegal to do so; nobody seems to care! And Congress looks like it’s gonna grant the phone companies that broke the laws a get out of jail free card in the name of, what, national security or something? And of course, nobody seems to want to bother with the government’s illegal acts, why, it would be distracting attention away from other more pressing matters, like not reforming health care, or not passing real environmental legislation. And if you think these privacy issues are going to get fixed when the Democrats take control in a year, don’t hold your breath. The Democrats don’t care about your privacy because privacy issues don’t show up in the polls, and even if they did, it wouldn’t matter because we now have a young, entrenched neo-con Supreme Court that doesn’t give a rat’s ass about you.

5) Activism works: Maybe. A whole lot of activist work went into getting the FCC to loosen up its LPFM (low-power FM) radio station rules, against the cries of the huge companies that didn’t want home-grown competition. Now it looks like tons of communities will have opportunities to start local radio stations. If all the frequencies don’t get gobbled up by Jesused-up whack-job organizations, maybe you (yes you!) could have your own radio show. Get involved in this, if you believe in the power of community and fun. It’s worth it on about six different levels. I am witness to it. Go start a radio station. And it looks like the same sorts of activists are putting the breaks on FCC Commissioner Martin’s attempts to commandeer the ownership rules for mainstream TV and radio frequencies. The public owns the damn airwaves, and the Clear Channels of the world are supposed to be the stewards of the public trust. Do they sound that way to you?

Have a terrific holiday season, and don’t forget to boogie.

11.8.07 STRIKE!

This article first ran in the 11.8.07 issue of Metroland.

First, go here:

http://www.myspace.com/singaporesixties

OK, on to the article

The Writers Guild of America, a labor union that represents over 10,000 television and screen writers, went on strike on Sunday. Like all labor disputes, it’s ugly and getting uglier.

The main bone of contention appears to be (surprise!) the internet. Writers typically get a big payment up front, and then residual payments when works are re-used, like when shows are re-run, or go into syndication, or are distributed on DVD. Or are put on the internet.

The problem with the internet is that no one is quite sure what the revenue model is going to be for online television content, how big the pie is going to be, or if there’s going to be a pie at all. The studios have been rushing to get their shows online in their own online environments, largely in reaction to the YouTubes of the world, where fans of the shows were independently posting episodes, and we were all watching them. The studios rushed to co-opt this organic activity for purposes of control and on the off-chance there might be some money in it. Comedy Central, for example, never would have put all the Daily Show skits online if it weren’t for YouTube users leading the way. So all of the old Daily Shows are now online, and you can watch them, at least for now, for free. Right now on the Daily Show site there’s a single ad for cough suppressant. I doubt that’s gonna pay the freight.

From reports I’ve read, the studios have told the writers they’ll share in internet revenue when there is something to share. Like, you know, “trust us.” The writers, for very good and historical reasons, aren’t particularly inclined to trust The Suits, and want some hard numbers right now. And they’re not getting them.

Complicating matters is the writers’ demands to renegotiate royalties on DVD sales, where the writers agreed some years ago to a royalty level that’s turned out to be a little low. Who knew that people were going to buy DVDs of entire seasons of mediocre sit-coms in huge numbers? As H.L. Mencken said, “No one ever went broke underestimating the intelligence of the American public.” So the writers want a bigger chunck and are vowing not to make the same mistake again buy selling low.

This isn’t, of course, an isolated problem. The conundrum of to the monetization of the internet is playing out with every type of creative work that’s capable of being digitized. And, because information wants to be free, and because the more desirable the information is, the more it wants to be free, we are in this strange vacuum right now where everything is going online in a big fat hurry, and nobody is quite sure how it’s going to get paid for.

While the writers walk the picket lines (YouTube, not surprisingly, is a pretty good place for entertaining user-created coverage of the writers’ strike) what’s available on your TV set is changing pretty fast. Talk shows and soaps were the first to go to re-runs. Sit-coms and dramas will go to re-runs within the month, as they use up new scripts (reality and game shows, which don’t need union writers, will proliferate). If the strike continues, and many are predicting it will go on for months, feature film production will grind to a halt sometime in the first quarter of 2008.

A bunch of other things are probably going to happen. For one, as studios shut down production of new shows, production and technical staffs are being laid off, and a ton of people are going to start missing mortgage and rent and car payments. This is already starting to happen, and the Writers Guild is accusing the studios of being too quick on the trigger, and creating the lay-offs unnecessarily in order to foster anti-writer sentiments among the more blue-collar segments of the production world.

Another thing is that people are going to accelerate their migration away from TV. One consequence of the last extended writers’ strike, some twenty years ago, was that television lost about 10% of its viewership, and never got it back. And this was in the dark ages, before the internet, when the leading alternatives to TV were reading, interacting with other people, and knitting. Now there is a whole world on entertainment online, networks of shows, some corporate and some entirely amateur in nature, that anyone with a broadband connection can get for free.

And people will find this stuff online, and I suspect a whole lot of them will like what they find, get hooked, and realize that hanging with, say, Ze Frank, is a whole lot more fun that watching CSI Miami.

Meantime, I really miss Stewart and Colbert. I’m Jonesin’.

10.25.07 THIS WEEK IN RAPP

A) So Madonna has signed a big-dough deal with the concert promoter Live Nation, that supposedly encompasses all of her show-biz biz. Some newspaper in Chicago reported this under the headline “New Madonna Deal About More than Music.” Which raises the question: when has any Madonna deal ever been about music? When has Madonna herself ever been about music, even when whatever it was she was having other people make for her in recording studios was treated, occasionally, as music?

B) The media’s treatment of the disaster in San Diego has been predictably dismal. Monday night, CNN’s Anderson Cooper came the closest to actually covering the disaster, although he spent as much time shilling his global warming special as he did describing the accelerating, out of control, matrix of fires. (“Many believe these fires are the result of global climate changes. Starting tomorrow we’ll be looking at that......”) CNN’s Nancy Grace spent her hour raving about some infant skeleton found in a shoebox in somebody’s attic. Also on CNN, neocon doofus Glenn Beck was trying to explain what he meant when he said that a lot of people who hate America were losing their homes from the fires. CNN still believes that it should compete with Fox by having this utter moron on the air. Disgusting. Meantime, while the Santa Ana winds were wiping out entire neighborhoods just North of San Diego, MSNBC was showing yet another installment of it’s Predator series, you know, where they entrap perverts to show up in a suburban house with an online promise of a tryst with a teenager? This show has long stopped being a cautionary tale for parents of teenagers. It’s a lascivious game show with no winners.

As my brother lives in the line of the fires just north of San Diego, I was particularly keen to know what was going on. I found the local NPR outlet, KPBS, doing a fabulous job, staying live and reporting 24/7 over a stream on the web. Incredibly, KPBS’s transmitter was burned up, knocking it off the air, until a classic rock station lent KPBS its frequency. Not only was the broadcasting incredibly thorough, but the station posted an interactive google map that was packed with up-to-date information about fire lines, closed roads, and evacuation centers. Also, the station had an up-to-the-second mini-blog, courtesy of the blogging site Twitter, where announcements were posted. It worked great. Occasionally, amid the growing disaster, a glimmer of hilarity would come through, like the reporter who was complaining that a lot of the downtown Starbucks were closed (there was some question as to whether the stores had temporarily relocated to serve free coffee at the evacuation centers), and the dude who called up asking the anchors for a surf report. He was told to wear a face mask while surfing, as the dense smoke was blowing straight out to sea.

C) Three out of four major labels announced their latest gambit to beat up Apple, and, oh yeah, and to combat piracy, too. It’s not final yet, not even close, but it’s gonna be called TotalMusic. The deal is you’ll be able to buy a special digital music player (most definitely not the iPod, but one of the pretenders) that will allow you to download an unlimited number of songs. Forever. The mark-up on the music player will be about $90, based on a $5 per month subscription over an estimated average device life of 18 months. The labels will likely partner with a telephone company for the download logistics.

This too will fail, if it ever, in fact, gets off the ground (anybody remember the Strategic Digital Music Initiative?). First, the labels will restrict the music with so much DRM that no sane person will be interested in owning it. I doubt that be they music will be downloadable off the device, so forget about backing up, burning disks, or any multi-platform use of your music. In other words, it won’t really be your music. Second, it’ll be marketed badly, and will never grab the iPod’s cache, even if it’s a bargain. Apple not only sells the cool devices, it does so in a cool way, like by making Feist’s “1234” a bona-fide hit by using it in an advertisement. The TotalMusic thing, if it comes to pass, will be forced on us with bad commercials and phony “grass-roots” viral internet campaigns. And all those media literacy classes our kids have taken will pay off, with interest. We’ll all just walk away.

10.11.07 THE TRUTH ABOUT DULUTH

This article originally appeared in the 10.11.07 issue of Metroland.

Well. The first music file-sharing case has come and gone. A 30-year old single Mom in Duluth was found guilty of copyright infringement for having 25 songs on her hard drive and was assessed damages of $220,000. The woman claims steadfastly that she didn’t do it. And the case is interesting in all sorts of ways.

For example, if she had taken, say, 25 double cheeseburgers from McDonalds (which carry the same $.99 price tag), do you think she’d be holding the bag for over 200 grand? The jury that hung the lady included five people who owned MP3 players and several who didn’t own computers and had never been on the internet.

The RIAA trotted in a number of experts and recording industry executives to make their case. Sony counsel and witness Jennifer Pariser testified that she had personally “seen” thousands of Sony employees lose their jobs because of piracy. Imagine! I wonder how many Sony employees she has seen lose their jobs because Sony put spyware in its CDs, or because Sony price-fixed the prices of its CDs with other labels, or because Sony was deeply involved in a radio payola scandal, or because people avoid buying Sony products because Sony has this pernicious habit of suing its own customers, or because Sony, like the rest of the major labels, has pretty much stopped developing artists and instead drops an endless supply of dreck on us, for example, don’tmakemesayhernameOKIwill, Britney Spears??? Just askin’! Pariser also played for the jury an “authentic recording” of Journey’s “Don’t Stop Believin” along with an illegally downloaded version of the same song, while swaying back and forth to the groovy Journey beat!

The judge denied the RIAA’s bid to put its chief counsel Cary Sherman on the stand, saying he wouldn’t contribute any relevant information. Must have been a long, lonely plane ride home from Duluth. To counter the RIAA’s inference that the defendant had ditched her hard drive to rid herself of incriminating evidence, the defense put on the stand a card-carrying member of Best Buy’s Geek Squad, in uniform, to testify that he’d replaced the hard drive a couple of years ago because it was really broken. And finally, the morning of closing arguments, the judge changed his charge to the jury, and told them that simply making music available for others to download was copyright infringement, even if no actual distribution of any music had in fact taken place. This is a fine point, but a crucial one, because the RIAA doesn’t catch people in the act of downloading or uploading. It only catches computers at IP addresses with music available for download. And the issue of whether that is infringement is far from settled.

In the end, the absurdity of the verdict resulted in more bad PR for the labels, more talk about the labels’ methods and the absurdity of the current copyright law, and a bunch of sympathy for a lady in Duluth, who is viewed very much as a victim. And she’s appealing.

Meantime, Radiohead announced early last week that it was releasing its new album In Rainbows itself, on its website, on October 10th. And you can pay what you want for it. That’s right. If you want to download it for free, you can do that. But watch what’s going to happen. Radiohead’s gonna make a fortune. Betcha a nickel.

Payment by tip-jar has been suggested by anti-copyright activists for years, and derided by the industry as pie-in-the-sky idealistic hooey. But for certain artists, it’ll work fine. Better than fine. Jane Siberry, the wonderful Canadian singer so acceptably eccentric that she changed her name to Issa and no one thought it strange, has had her music up for download with tip jar payment for a couple of years. At the moment, she’s averaging $1.18 per download in voluntary payments. $.19 more per song than people would pay at iTunes.

And if Radiohead were still on a major label (their deal ran out a couple years ago), a download would probably fetch them around $.15 a song, once the label and online vendor took their cuts from the $.99 price. So, doing the math, they will be coming out better by selling directly if they get paid anything over $1.50 or so for the complete album. And they will get a lot more than that.

What’s it mean? It means that the bigger an artist is, and especially the more that an artist has a loyal following, a following that feels a personal connection, the more irrelevant a record label becomes. It won’t work for everybody, but if Radiohead does well, and they will, expect their model to be followed by lots of others, as soon as they can shake the shackles of their big-label deals.

Leaving the labels with nothing to do but peddle tripe to teenagers and sue single moms.

SEPTEMBER 2007--MESS MOCA

This article was originally published in the September 2007 edition of The Artful Mind.








You may have heard about the recent troubles up at Mass MOCA. The museum and Swiss installation artist Christoph Buchel are in court, and the whole art world is watching. It is a profoundly disturbing controversy, which has already tarnished both Mass MOCA’s and Buchel’s reputations. That is to say, there is nothing good about this, and I doubt anything good will come out of it.

Buchel specializes in the very type of large-scale extravaganza that has been Mass MOCA’s bread and butter. His proposed piece was entitled “Training Ground in Democracy”, a massive, multi-level environment to be installed in the football-sized Building 5 at Mass MOCA. According to Buchel’s court papers, an entire village was to be constructed, “based on existing mock-up villages and virtual reality software” used by the military to train soldiers. Plans included a two-story house, a movie theater, numerous shipping containers, a mobile home, concrete walls, and a burnt fuselage of a jet airliner to be installed, around which viewers could wander, climb and explore. Buchel’s court papers say that visitors “would be given the opportunity to ‘virtually’ change their own various identities in relation to the collective project called ‘democracy’”. “Training Ground in Democracy” was to be Buchel’s first significant show in the U.S. and was supposed to open last December.

Reviewing some of the court filings and various press reports, it appears that Buchel was to design the installation, and Mass MOCA was to gather the materials and construct the piece with oversight from Buchel and his staff. It also appears, critically, that there was no comprehensive written contract outlining the scope and cost of the project, or the responsibilities of the various actors.

Now, it has not been unusual in the past that for shows like this, there aren’t tidy contracts. The nature of the beast is such that parameters, materials, and indeed the “vision” of the work can, and often does, change as the piece is being constructed, and with these changes, the costs can vary as well. I suspect the Buchel matter will put an end to that practice. Everybody lawyer-up!

What has happened, as best I can glean from court papers and press accounts, is this: In 2006 Mass MOCA spent considerable resources gathering and assembling the raw materials for the exhibit. A massive overhead door was installed to accommodate the haul, estimated at 150 tons of stuff. A house in North Adams was purchased, dismantled, and rebuilt in the gallery space. 10,000 books were acquired, cinderblock walls were put up, nine shipping containers were brought in, a cinema and an amusement park was constructed, and much, much more. Pretty quickly, the $150,000 budget, that apparently had been informally set in the early stages of the project, was shot. Buchel and his crew were around for a number of weeks towards the end of 2006, and apparently things didn’t go well. The project had become significantly behind schedule, and the December opening was postponed.

And then the wheels fell off completely. In a remarkable exchange of communications that are now public by virtue of their being filed as exhibits in court, Buchel repeatedly accuses Mass MOCA of being incompetent, inefficient, stupid, cheap, and even of willfully “sabotaging” his work. In his replies, Joe Thompson, the director of Mass MOCA, tends to ignore the barrage of insults, and is constantly upbeat, optimistic, even complimentary toward Buchel, and is always trying to find some way to get Buchel back to North Adams to complete the show. Buchel, in turn, remains petulant, boorish, uncompromising, and essentially the archetypical belligerent artist, like someone out of central casting. If his letters are any gauge, there’s a word for Buchel that I won’t say here, but it rhymes with “Picasso.”

Buchel won’t accept budgetary constraints. Buchel won’t have his galleries absorb some of the cost overages. Buchel won’t negotiate the scope of the project, and won’t eliminate a single thing. Buchel won’t consider handicap accessibility. Everything, according to Buchel, is Mass MOCA’s fault because Mass MOCA is inept and doesn’t understand his art.

After several months of this bickering, Mass MOCA, stuck with an estimated $300,000 outlay (out of an $800,000 total annual budget), an obstinate artist (who had begun feeding Boston Globe writers with his side of the story last March), and its legendary monstro-gallery full of a partial incomplete exhibit, announced that it wanted to show what was there to the public. (According to Mass MOCA, the work is 80% completed; Buchel vehemently disagrees)

What’s at issue in court is not who’s right and who’s wrong. What’s at issue is whether Mass MOCA’s allowing a public viewing of the incomplete work violates Buchel’s rights under the Visual Artists Rights Act (“VARA”), a federal law intended to protect the integrity of certain works of art and the reputation of artists. Mass MOCA has asked the federal court in Springfield to declare prospectively that showing the work to the public doesn’t violate VARA. Buchel says it will violate VARA, and additionally that Mass MOCA, which now allows the public to “see” the exhibit now, covered in tarps and without any mention of Buchel, is already in violation of the law.

The court has agreed to expedite the case, and announced that it will visit Mass MOCA in mid-September (an extraordinary thing for a court to do) and render a decision soon thereafter.

Having litigated VARA several times myself, I don’t see this case as a slam-dunk either way. A central issue will be whether the mere display of an incomplete work constitutes an intentional “modification, distortion, or mutilation” of Buchel’s work by Mass MOCA. I’m not sure that it does. The completed work exists, if at all, in Buchel’s head. The uncompleted work is what it is. If anything has been intentionally modified, distorted or mutilated, it is merely an idea, a vision, and not a “work”. And ideas aren’t protected by VARA. The other issue is whether leaving Buchel’s name off of the exhibit provides a legal out for Mass MOCA. Under VARA, an artist can demand that his or her name be disassociated with a work that is exhibited in an altered or mutilated state. Buchel argues that his name is so inexorably tied to the exhibit, that whether or not there’s a placard by the exhibit with his name on it, his reputation would be soiled by showing the work. Again I think that Buchel is wrong—the law provides for an artist to have actual attribution removed from the display of an offending work. By arguing that everybody is going to be thinking about him anyway, so the work should not be displayed at all, Buchel is asking, in my view, for a lot more protection that the law provides.

Meantime, no one is coming out of this smelling very good. Mass MOCA took a big, and I think horribly unfair, hit from a Boston Globe arts critic for putting up a small and rather self-serving exhibit casting itself as a champion of edgy art and big installations, with the obvious inference, under the circumstances, that Buchel is a jerk. In my view, Buchel swung first, and Mass MOCA is more than entitled to swing back. Blogs are full of chatter, including outrage from artists that Buchel is throwing a high-level tanty after having $300,000 of OPM spent on his work, and some speculation that the whole affair is an elaborately staged stunt meant to get Buchel some PR. Ouch.

It’s a sad, tragic state of affairs. In every controversy I can remember, I almost always side with the artist, even when the artist isn’t particularly right. Not this time. I’m rooting for the home team.

9.13.07 SOMETHING IN THE AIR

This article was originally published in the 9.12.07 issue of Metroland.








Last week’s Apple announcement was pretty stunning in a lot of ways, even if it didn’t include any announcement of the digital release of the Beatles catalog, which we still hear is coming.

For one thing, the new big iPod “Classic” has a 160 GB hard drive, big enough to hold, according to Steve Jobs, 40,000 songs. OK, 40,000 anemic sounding MP3s that will give you a headache, but, still, let’s think about this for a second. You’ve already laid out a fairly painful $300-400 for the iPod. Now, let’s assume you follow the rules and feel that the only moral choice for populating your new iPod is to buy songs through legitimate retail channels. Like, say , the iTunes store! OK, big assumption, but follow me here. Songs cost, at least for now, $.99 each, which seems like a fine price for a song. But to fill up your iPod, you’ll be running up a $39,600 tab on your Visa card.

Have you ever walked around with $40,000 in your pocket? Me neither. Do you think you would be comfortable walking around with $40,000 in your pocket? How many parents out there have heard this: “Mommy, I lost my iPod,” or “Daddy, I dropped my iPod in the toilet”? Oy.

Of course, these super-capacity iPods aren’t really about music. They’re about movies and TV, and the idea that people really will want to watch stuff on a dinky screen. The jury’s still out on that, and so’s the market. NBC television just pulled all of its content off the iTunes store over a pricing squabble, and downloadable movies are still an open question. Me, I prefer watching on the 50” plasma screen on my living room wall, but in reflective moments I’ll concede that the dusty old 25” Trinitron was really just fine.

Probably the most significant thing about last week’s Apple announcement was the introduction of the new WiFi enabled touch-screen iPod, which has all the bells and whistles of the instantly-iconic iPhone, except the phone. Watch out for this.

There was a lot of noise made about the announcement that these things were going to be tied in with the WiFi systems at Starbucks—if you take your iPod to a Starbucks, a new button will appear on your screen, and if you like the song that’s playing over the Starbuck’s sound system, you can push that button and buy that song right there and then.

Which is pretty sexy and cool. And ultimately stupid, until you realize that it’s the tip of the iceburg. Consider the following. A week ago, there was a lengthy feature in the New York Times Magazine with Rick Rubin, the Buddah-like producer of everybody from the Chili Peppers to Johnny Cash, who was recently named president of Columbia Records. Rubin predicted that the future of the music business wouldn’t involve selling music—that people weren’t going to be buying disks or files or anything. Rather, Rubin described a world where everybody’s music came literally out of the air, through wireless subscription services—what digital maven Jim Griffin years ago christened “The Celestial Jukebox.” All the music ever made will be available everywhere to you for a subscription fee, maybe a modest surcharge on your phone or cable bill, with the music delivered via wireless broadband networks. A president of a major record company says we’re headed this way.

Now consider this: earlier this week it was announced that Apple is sniffing around the FCC’s wireless spectrum auction, looking maybe to grab a piece of the sky, and the first and biggest stop towards the ability to host a wireless phone company. Or a wireless music delivery system that’s always on and always accessible to that little wireless Apple receiver in your pocket. It’s not like Apple doesn’t already have the music library, coded up and ready to go. And it’s not like subscription services for music streaming are far-fetched—Rhapsody and the “new” Napster have been offering them for a couple of years now. But not with the panache, not with the hardware, not with the marketing muscle and brand loyalty that Apple has.

Until now I figured these subscription deals were doomed to failure, that people wanted to “own” music, not just have access to it. But I’m from a generation that coveted the drive to the record store, the big cardboard record jacket loaded with images and information, the smell of the vinyl, and the sound of the needle slipping into the groove. These things all seem so quaint and distant and antique now. Almost ridiculous. The future, I think, is in the air.

8.30.07 ACTUNG!!!

This article originally appeared on the 8.30.07 issue of Metroland.



So it’s a nice quiet Friday night, and you’ve got a couple of DVDs from Netflix. The popcorn’s made, the lights are low, you snuggle up on the couch, and hit play on the remote. All’s well and right in the world.

Then the first thing that pops up on the screen is a LOUD yellow and red and black WARNING that seems to be from the freakin’ FBI that if you COPY any PART of the MOVIE YOU WILL GO TO JAIL and PAY $250,000 in FINES. You hear a siren outside in the distance and wonder if g-men are going to come crashing through your window right now, like the DeNiro pirate plumber in Brazil. Honey, is the front door locked?

Then, of course, is the ubiquitous announcement at the end of every football game. I think the test of a true football fan from a dilletante is that the real fan can recite this from memory:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL consent is prohibited.

Recently a trade group of information companies (including Google, Microsoft and Yahoo) filed a complaint with the Federal Trade Commission seeking to get rid of these and similar warnings. And it’s about time. These warnings misstate the law and do a huge disservice to society. The warnings, in short, are lies. They are intimidating, scary and just plain wrong. Sure, we can laugh at them, but how about our kids, getting a heavy dose of totalitarian bullying as a prelude to Shrek or My Secret Garden?

What these warnings do is blow off the First Amendment of the Constitution and the doctrine of fair use of copyrighted works. No one owns absolute ownership to any film, book, or TV show, period. Copyright ownership is tempered by the public’s right to reuse those works for things like commentary and criticism, news reporting, and research. You can use parts of an existing work for a new work if the new work is transformative, if it stands alone as a work of expression, and doesn’t steal the market position of the original.

Yeah it’s sticky, and yeah, there’s a gray area you could drive a truck through. But that’s what the law really is. The NFL, along with Major League Baseball, the major movie studios, and book publishers who all so stridently tell you that you can’t, under any circumstances, copy their works, are simply blowing smoke.

The Library Copyright Alliance sent the FTC a letter in support of the complaint, stating that copyright warnings contained in books were likewise misleading, and in stark contrast to the notices that libraries are required, by law, to post near photocopy machines. The Alliance told the FTC “[p]atrons are confused by the clear contradiction between this copyright warning, which states that certain copying is permitted, and the warnings contained in some books, which state that no copying is permitted without the copyright owner’s express permission.” After a discussion of various types of educational fair uses of copyrighted materials, the Alliances concludes “[t]he fair use analysis is complex enough without the obfuscation caused by intimidating, inaccurate copyright warnings.”

I’ve said it before but it bears repeating: don’t mess with librarians.

California law professor Wendy Seltzer had some fun recently by posting the NFL’s warning from the broadcast of the SuperBowl on YouTube. Not any of the game, mind you, just the warning. Predictably, the NFL sent YouTube a “take-down” notice that Seltzer’s post was infringing, and the warning was removed. After some wailing and knashing of teeth, it was put up, and remains there today.

The complaint seeks an injunction that will bar these onerous warnings in the future, for the FTC to investigate how these warnings came to be in the first place, new remedial warnings that explain the law is it really is, for Big Media to fund an educational campaign that accurately describes the law, and even a ban on those click-through “terms of use” licenses we often encounter on media sites on the internet where we inadvertently sign away our free speech and fair use rights.

The FTC has yet to act on the complaint. You can bet the sports leagues, studios, publishers, and networks will fight this with everything they’ve got, as part of their well-funded agenda to lock up the rights to their stuff far in excess of what copyright law, or common sense, or your freedom, would allow.

It’s gonna be a fun one, that’s for sure.

8.16.07 BACK IN BLANK

This article originally ran in the 8.16.07 issue of Metroland....

Back in the day, we all listened to the same music. Maybe we didn’t all like the same music, but there was a commonality, a culture. Everybody knew the No. 1 hit of the day, because it was ubiquitous. And this was so even at a time when media wasn’t bashing your brains in with always-on messaging. Music was on the radio, and radio was in the kitchen and in the car and under your pillow. And music was on Ed Sullivan, and we all watched together.

Of course this was a function of a profound lack of choices, and the fact that so much very good music made it to our collective consciousness was more because of the lack of consolidation of the music industry and dumb luck than anything else. And it’s hard to argue that the increased choices brought on by the technological innovations of the last thirty years, and particularly the last ten, are a bad thing.

Still, the fragmentation and individualization of music listening and acquisition has all but destroyed the collective listening experience. I look at the music charts in the newspaper and am often dumbfounded by what’s there. Groups and singers are going multiplatinum that I’ve never heard, or heard of. Not that top 40 is completely dead, mind you; I just got back from a vacation where I got a heavy dose of some kind of “hit radio” thanks to a rental car with Sirius and a 13 year-old dominating the knobs. It wasn’t all bad. Some was blatantly phony and manufactured, but then, we had the Monkees, right?

But through all the divisions, at least the music was accessible if you wanted to go get to it. Music superstores like Tower Records could be counted on to stock everything. The internet, at first, broadened this vista, and virtually every obscure import death-metal or electronica CD could be found at Amazon or GEMM, just a point and click away.

But the move away from CDs is changing this dramatically. The move to downloadable music has now made the simple act of acquiring music a sometimes complex, maddening, and ridiculous pursuit.

Two things recently highlighted the absurdity of all this. Two weeks ago it was announced the venerable Australian group AC/DC’s albums would be available for download for the first time ever. The catch? The albums would be available exclusively on Verizon’s V-Cast store. Which means that you must have a “V CAST Music enabled phone, Verizon Wireless Calling Plan, and to be within the V CAST coverage area.” The catch-within-the-catch? Since AC/DC is only allowing complete album downloads, and not single songs, the downloads are too big to go wireless into your phone, so you have to download them to your home computer, and then jack them into your phone. Somehow.

Now, I like AC/DC as much as the next person, but all this makes me feel like I’m on some highway to hell. V-Cast coverage area? Full albums? And, oh, the V-Cast system doesn’t work on Macs, so if you are one of those self-respecting individuals smart enough to buy an iBook or the like, then you are about to be SoL, and I salute you. Unless, of course, you go buy the damn AC/DC CD and rip it. Or just go to Limewire and steal it, which, as it turns out, is by far the easiest thing to do.

And then this week Universal, the biggest of the major labels, followed EMI and announced that it would start selling a big chunk of its catalog without any DRM, that is, without built-in restrictions on how many copies you can make, or where you can play the music. The catch? DRM-free music would be available pretty much everywhere but at the iTunes store!

I guess this is Universal’s way of punishing Steve Jobs, or something. Job’s has had a tempestuous relationship with all of the labels over things like DRM and the iTunes store’s straight-up 99-cent pricing. So Universal licenses DRM-free music (which Jobs wants) for 99-cent downloads (the industry standard that Jobs created) to everybody but Jobs.

Who really gets hurt here? You do, of course, and the artists as well. You’re not going to be bothered with multiple retail stores, some weird damn cell phone plan, and the use of music to herd customers from one place to another. You’ll listen to something else. Or if you really want the music, like I said, it’s infinitely easier just to steal the song or get it from a friend than to jump through the hoops that are part of some insane “strategic partnership” between distant media giants jockeying for position in “the new digital space.” Indeed, stealing is a dirty deed. But you must admit that, if you are careful, it can be done dirt cheap.

7.19.07 RADIO'S THE NEW SALVATION

This article originally ran on the 7/19/07 issue of Metroland.

You may have seen a lot of headlines over the weekend screaming about the death of internet radio that was supposed to happen on Sunday. It didn’t happen. Here’s what happened:

New royalty rates set by a federal board were supposed to go into effect on Sunday. These rates were proposed by the major record companies (who would be collecting the lions share of the revenues) and rubber-stamped last Spring by the federal board. Compared to the rates previously in effect, the new rates were insanely high, and, unbelievably, retroactive. So, if these rates went into effect, many internet stations, which are fledgling and don’t exactly have great revenue streams, would be not only out of business, but bankrupt as well. The bill for the retroactive royalty payments would simply transform the stations into hopeless debtors.

The effective date of the new rates was set for last Sunday, and in the meantime web advocates went to court and to Congress to get the new rates repealed. They struck out in court late last week, and meantime Congress has been taking a hard look at the issue, and telling the parties to try to resolve all of this with a compromise agreement. SoundExchange, the record company-backed organization that’s in charge of collecting and disbursing these royalties, has made some significant offers of reduced royalty obligations, especially for the smallest webcasters, the folks webcasting out of their basements, the real fringe folks. And negotiations are continuing.

So right now it looks like this: the new rates are technically “in effect”, but they’re not being enforced while Congress huffs and puffs and the various players are coming closer and closer to reaching some sort of agreement. The big issue right now seems to be how long a rate détente will last—larger webcasters want a long term agreement, so they can have some certainty going forward that they can continue to invest in their ventures and not have this royalty nightmare repeat in a couple of years. The record companies want a short-term agreement, because if web radio blossoms and becomes a big money deal, they want to share in the action through a greater royalty flow.

Meantime, web radio looks generally safe, at least for now. The tiny community radio station I’m involved with, for instance, won’t see a dramatic increase in royalty payments for its web stream, which maxes out at 20 listeners. Neither will the lunatics who play Hawaiian death metal 24-7 for a handful of fellow lunatics around the world. The folks who’ll get dinged the worst will be the big webcasters, like AOL and Yahoo, who can readily pay the royalties, even if the money isn’t coming directly out of their web-radio operations.

In other news, the renegade Russian download site, AllofMP3, is back. The site, which sold songs for a fraction of what iTunes charges, claimed that its operations were perfectly legal under Russian law, and even had a Russian court decision to back it up. Record companies everywhere claimed they weren’t getting paid, and tons of diplomatic and economic pressure was brought to bear on AllofMP3, including a pullout of service support by Visa, Mastercard and Amex. For a while the only major credit card that would work was Diner’s Club! The site disappeared a couple of months ago, but was resurrected this week with the new name MP3Sparks.com. The site looks and feels the same as AllofMP3, and for now it’s claiming to accept all major credit cards.

Who knows whether the site will still be there by the time you read this, but it took the powers that be a couple years to kill AllofMP3, so maybe it’ll hang in for a while. You can bet that there are a bunch of lawyers, diplomats, and trade officials going through conniptions right now.

Finally, a British economist just published a study about the optimal term of copyright. Using a dizzying array of assumptions, theories, formulae, calculations, and big words, this guy came to the conclusion that the societally optimal term of copyright is about 14 years. The term of copyright has been repeatedly increased since the laws were first created in the late 1700’s. 14 years is a lot shorter than the present term of the life of the author plus 70 years, which is tantamount to forever. It’s also pretty remarkable (or not) that 14 years is the original term of copyright provided for in the Copyright Act of 1790. You can read the study at www.rufuspollock.org.

7.5.07 DISAPPEAR CHANNEL

This article originally appeared in the 7.5.07 issue of Metroland.

It’s remarkable to see scum get even scummier. Sometimes we paint certain players as evil, and that’s often grossly unfair. Sometimes “I’m just doing my job” is a cop out, but sometimes it’s true. Things are almost never as black and white as we in the bitch-sheet business make them out to be.

But sometimes they are. Case in point. You might remember that in 2005 then-Attorney General Eliot Spitzer nailed a bunch of radio stations and record companies for indulging in payola, the illegal practice of exchanging money and gifts in return for guaranteed airplay of the record companies’ “product.”

Millions of dollars of fines have been paid, and there was one addition piece of fall out: an airplay agreement between Big Radio and a trade association of independent record labels. The indy labels don’t have the scratch to buy airplay, but somehow had enough juice to get a seat at the table while the likes of CBS and Clear Channel were getting spanked. Much of this indy label / Big Radio agreement strikes me as unenforceable, feel-good hooey, a list of “rules of engagement” for how the corporate radio world will behave in the future. But one provision had some teeth: a promise by Big Radio to devote airtime to artists on independent labels.

This part of the agreement looked a little sketchy, referring to 8500 half-hour “blocks” of indy music played on corporate radio stations, but it was better than nothing. The agreement says the blocks can run anytime between 6 AM and midnight. And you know that that means. Seems to me that having an indy music show segregated and dumped onto a Sunday morning is tokenism at best. One would think these stations’ genius “music directors” might find a way to stick something by Wilco or The Velmas in the middle of a typical set by Steve Miller, Freakin’ Zeppelin, Freakin’ Skynyrd (man), and Steve Miller, and make it work. The rest of us could do it, and we’re not even “professionals.” But, whatever.

And then Clear Channel tried to fastball one by. Last week Clear Channel stations began their “initiative” to hold up their end of this bargain, by asking indy bands and labels to submit music to individual stations for consideration. Again, the genius “music directors” can be bothered to seek out indy music to play. Let’s have bands submit! Like a big contest! It’ll be fun!!!

And the kicker: by submitting, bands have to click-through a “license agreement” in which they agree to waive all of their rights to the royalty payments. Here’s the relevant part:

1. License. You grant to Clear Channel the royalty-free non-exclusive right and license, in perpetuity (unless terminated earlier by You or Clear Channel as set forth below), to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display and distribute any sound recordings, compositions, pictures, videos, song lyrics, still images, Your name, picture, portrait, photograph, band information data, graphics, trademarks, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS and links and/or other content (collectively, the “Content”) submitted by You to us on this website (the “Site”), including portions, composites, likenesses or distortions or alterations of same, in whole and in part, and to prepare derivative works of, or incorporate into other works, the Content, in connection with the preparation transmission, operation, production and advertising of and for (all media and methods checked by you above (check all that are applicable).


Whoa. So, for the “privilege” of getting played at 7 AM on a Sunday on your local Clear Channel station, you agree that you won’t get the same royalty payments as, oh, Steve Miller, etc. In fact, you agree that you won’t get any royalty payments at all!

And what happens if hell freezes over, and your indy recording becomes a hit, and the genius musical directors at these mind-numbing cabals of banality stick you in rotation with “Cocaine,” “Sweet Home Alabama,” and “Hot Blooded”? Oops! Adios, simoleans!!!

The strange thing here is that all of these cash-cow stations already pay blanket licenses to the various performing rights organizations that disburse royalties to artists and songwriters, or have sleazed themselves exemptions out of paying them, like in the sleight-of-hand exemption Big Radio got from Congress on HD streaming royalties. So it’s really hard to see what Clear Channel gains here by treating indy artists so profoundly different from the handful of major label artists played repeatedly, day after day. Except, perhaps, for the sublime pleasure in screwing somebody, anybody.

And what’s truly disgusting is that this is all in the midst of Clear Channel’s fulfilling obligations that arose from having been caught breaking the law. To paraphrase the fine folk at the Future Of Music Coalition, does this sound like an act of contrition to you?

6.21.2007 I KNOW WHAT YOU DID LAST SUMMER...AND FALL...AND WINTER

This article orginally appeared in the 6.21.07 edition of Metroland.


Like most people, I like Google. My browser opens to Google’s news page, I do dozens of Google searches every day. I trust Google, I like the company’s goal of accumulating all the world’s knowledge for easy access by anybody, and if Google’s making any money off of me, it sure isn’t coming directly out of my pocket. I’m in favor of Google’s library project, where it’s digitizing the world’s great libraries; I love its recently acquired trouble-maker, YouTube.

At the same time, there’s a lot about Google that’s starting to scare the bejesus out of me. The company’s mission statement says things like “You can make money without doing evil,” and that’s all well and good. I suppose you can. But there’s an inherent conflict between that statement and any corporation’s fundamental, overarching goal of maximizing its shareholders’ wealth. Mission statements are nice, but corporations have no souls, no consciences. They’re money-making machines, and only as altruistic as their boards, acting for the sole benefit of shareholders, allow.

And even if the corporate mission stays pure, the goal of accumulated information is starting to run smack into our traditional ideas of personal privacy. If Google can know everything and post it on the web, it can know and post everything about you.

For instance, Google holds on to your search information. Ostensably, this information is used to refine its search engines, to help direct targeted advertising (which is one reason it looks free to the rest of us), and to prevent fraud and abuse; it’s also held in response to increasing governmental pressure for search engines to hold such information for purposes of “data-mining” or at the very least, something to look at pursuant to a search warrant, i.e., the Feds’ snooping on you, on the off chance you’re thinking about blowing up a bridge or something.

If you use Gmail (I don’t, and won’t), then Google has all your emails. If you use all the new on-line apps, where you can do all your word processing, spreadsheets, and everything else using Google servers instead of your own computer, Google has everything you generate. And now Google is acquiring a company called DoubleClick, the cookie generator that for years has been tracking your online activities and selling that info to advertisers. So Google will have a mass of information about not only what you’re done with Google, but with everybody else, too.

If this sounds scary, it’s because it is scary. Think about what a profile of your internet browsing history says about you. Now think about what might happen if that information winds up in the hands of strangers. Now do the same with your emails, IMs, and most anything else you do on your computer. Gather all this up in one place, and you have not only a lot of your stuff, but a remarkably accurate roadmap of your brain.

And all this stuff is one bullet-proof subpoena or one killer hack or hostile corporate take-over away from seeing the light of day. Yikes is right.

Various theorists observe blithely that traditional notions of privacy are going to have to give way to technological advances, and people are just going to have to get accustomed to it. But it seems to me that people ought to know what they’re giving away before it’s gone, and of course that’s just not happening. It’s possible that you’re reading this and thinking “holy moley,” or perhaps something a little more colorful, because you’re hearing about this for the first time in plain English. And the reason for that is because Paris Hilton and Hillary’s new campaign song are more important than your privacy, at least as far as the media’s concerned.

Privacy has always been a difficult subject with people. The combination of “I haven’t got anything to hide” and the notion that privacy is a shield for illegal or at least unseemly behavior always rattles the gates of your right to be you, without surveillance or interference. And, obviously, every time the Department of Homeland Security announces that it has heroically snared some hapless losers who think they’re gonna pose as pizza-boys and shoot up an Army base, everybody thanks their lucky stars we’re all being monitored.

Throw into the mix, Bush, Gonzalez, and especially Roberts, Alito, and Scalia, and it’s enough to scare you off the internet entirely. But that’s not gonna happen, because the internet has become as important to our basic ability to function as breathing.

Maybe it’s time to reread Huxley and Orwell, to pay attention, and start watching the watchers. If only we weren’t all so busy.

And you really wanna freak? Go to Google Maps, zoom in on a big city, and click on a street. Go ahead. Maybe you’ll see somebody you know.

6.7.07 LET'S TALK DIRTY IN HAWAIIAN

This article originally appeared in the 6.7.07 issue of Metroland.

Apple started selling DRM-free tracks from major label EMI last week with enhanced fidelity, and for a premium of $1.29, up from the regular download price of $.99. Early reports were that getting the tracks was a pain, with slow downloads and connections timing out; these problems might just have been because the iTunes store got jammed with demand—it’s really un-Apple-like to not deliver impeccable service. Then a little bomb dropped—somebody discovered that when you downloaded one of these tracks, your identifying information (your full name and email address) was embedded in it. So no matter where this particular track ends up, it will always have your name on it.

This got a number of people highly agitato, and raises a number of privacy and lawsuit related issues. Say you download a track from iTunes. Since it doesn’t have any DRM restricting what you do with it, maybe you give a copy to your dorky brother, who then proceeds to stick it up on Limewire. Then your brother gets sued by the RIAA, which finds your track available for free download. D’oh! Is your head on the chopping block, too?

Remember, just because you’re certifiably paranoid does not mean that the RIAA is not going to sue you for something idiotic!!!

The federal Second Circuit Court of Appeals took Bush’s FCC apart this week with a sweeping decision nullifying the agency’s recent habit of nailing anybody hard who says anything the least bit naughty on broadcast TV. In a biting 39-page opinion (that you can find at www.ca2.uscourts.cov), Judge Rosemary Pooler (who ran the NYS Consumer Protection Board here in the 1980’s) lambasted the FCC for making a major policy change without explaining why (apparently “we’re phony-Christian bozos looking to preserve our fine Christian nation and appease our ignorant Republican base” doesn’t cut it).

In the 1970’s, faced with a California radio station playing the George Carlin “seven dirty words” monologue, the FCC announced that the routine was over the line, and the rule that emerged was reasonably clear that Carlin’s routine was over the line, not only because it had dirty words, but because, like any good comedy routine, it was pretty relentless about it. A “fleeting” use of one of these words, in an unscripted, spontaneous and especially a news-related context, wasn’t such a big problem.

And the FCC kept the rule like this for 30 years. Then, in 2003, Bono let the f-word fly during a Golden Globes award ceremony, saying that something or other was “fucking brilliant.” The FCC panel, now stacked with neocon hacks and under constant pressure from Bush weekly Jesus advisor James Dobson’s insidious “Focus on the Family” media empire, decided that the Carlin standards were no longer good enough and announced that any use of “fuck” on the air was going to be punishable, period. While a reconsideration of this Bono flip-flop was pending, the FCC busted Fox for Cher saying “fuck ‘em” on the 2002 Billboard Awards and for Nicole Ritchie saying “cowshit” and “fucking” on the 2003 Billboard Awards. (The Ritchie outburst caused the FCC to decide that any use of “shit” on the air was now also presumptively bad.)

Pooler’s decision simply says that if an agency is going to reverse itself, to pull a 180 on a 30 year policy, it had better enunciate a plausible reason for doing so. And the Court found that the FCC didn’t do that. The FCC just announced that the rules were suddenly different. Pooler also pointed out, deliciously, that the FCC’s insistence that “fuck” and “shit” were always evil, evil words was perhaps belied by our President’s documented statement to Tony Blair that the UN had to “get Syria to get Hezbollah to stop doing this shit” and Dick Cheney famously telling Pat Leahy to “go fuck himself” on the Senate floor.

FCC Chairman Kevin Martin, who was general counsel for Bush 2000, worked on the Florida recount for the RNC, and was groomed to be Bush’s “decency czar” at the FCC, complained bitterly about “this New York court” not caring about protecting children. Those out of step New Yorkers! They care about things like process and the rule of law! If Martin had followed the rules, if he had done his job with any competence, if he wasn’t bloated with the transparent hubris that’s finally bringing his boss’s little kingdom down, he wouldn’t have to throw cheap-seat divisive insults at a court that did its homework.

This isn’t over. Remember the clowns upstairs. The Supremes. Be afraid.

5.24.07 M Malkin's Hump Day Unusual Moment

This article originally appeared in the May 24, 2007 edition of Metroland.

If you’re a creator and are thinking you ought to start registering your copyrights, read on.

Normally, I would tell you to just do it, and to do it now. If you’ve got stuff that that’s going out into the world, that can be easily copied, that’s going to be posted on the web, it’s always a good idea to spend the money and get it registered with the Copyright Office. Registration gives you a bunch of protections you wouldn’t get otherwise, like the ability to go to court if somebody rips you off. And yes, it’s infinitely better than mailing yourself your work, which is tantamount to peeing in your hat. Really. Don’t bother. “Poor Man’s Copyright” is a myth that just won’t seem to go away.

Anyway, if you’re thinking about registering your stuff, don’t do it yet! Wait a little while. Sometime this summer, the Copyright Office is going to start accepting electronic filings over the internet. Not only will it be simple and maybe even fun, the price of registering online will be $35, a $10 savings from the paper filing fee of $45. Digitized versions of your work will be accepted with the filing. The Copyright Office doesn’t come out and say it, but electronic filing will almost definitely speed up the registration process, which has in the past taken months and months, which can be really frustrating if somebody’s infringing your work and you need the registration right now.

And don’t forget, collections of works in the same media can be registered on one application if all of the works are unpublished. That’s a bargain. For more info, go look at copyright.gov.

Moving on. One interesting thing about intellectual property law in these extremely polarized times is how it seems to have battlegrounds in a dimension that’s totally disconnected from the whole Red State / Blue State / Phony Christian / Two-faced Liberal paradigm that seems to dominate everything else in the world.

Like this here: last week blow-hard conservative weenie columnist Michelle Malkin posted a video blog on her site and on YouTube in which she blasted Senegalese rapper Akon. She included some Akon video clips, including one of Akon dry-humping and dragging a girl, reported to be a 14 year old minister’s daughter, around a stage in a nightclub in Trinidad. Malkin’s outrage was entirely justified, although I’ve seen the clips, and if that girl’s really 14, then, well, I’m really Karl Rove. No matter; it would be disgusting if she were 41. And I’m not exactly a prude.

Those nice folks at Universal Music Group, Akon’s label, demanded that YouTube take Malkin’s podcast down, claiming the clips included some of Akon’s precious music, for which Universal owns the copyrights. YouTube, which is getting sued left and right for copyright violations, quickly complied.

There’s a little problem here that involves free speech and fair use. The Electronic Frontier Foundation, an organization often painted as “anti-creator” and “copy-leftist”, came to Malkin’s aid, explaining to both Universal and YouTube that Malkin’s use of the Akon clips was protected by the First Amendment and the fair use doctrine, which allow the use of otherwise copyrighted material in conjunction with commentary and criticism. This is basic, obvious, and fundamental. Universal was using copyright law to stop Malkin from talking about one of its “artists.” And that’s just not how it works.

In any event, it’s a fascinating alliance, as evidenced by the semi-coherent ramblings of Malkin’s pathetic neocon fans in the comments to her blog. The EFF is blasting away at Bush administration darlings like the federal ID program, data mining, illegal NSA surveillance, airport security paranoia, and bogus electronic voting machines, and the EFF’s championing of Malkin’s free speech rights is leaving the ditto-heads a trifle dazed and confused.

It’s called consistency, fools. Shut up, look, and think for a change, and maybe you’ll learn something.

Speaking of fair use, a video popped up on the web this week that’s absolutely breath-taking. A ten minute remix masterpiece that came out of Stanford University’s Fair Use Project uses Disney animated characters to explain copyright law and the fair use doctrine, one word or short phrase at a time. What makes this particularly dazzling is the fact that Disney has long been the evil empire of information abuse, consistently over-protecting its “properties” to the detriment of free speech, even going so far as buying Congressional approval of an extension of the statutory term of copyright ten years ago so that Mickey Mouse wouldn’t fall into the public domain. As I just told a client 20 minutes ago, there’s copyright law, and then there’s the law of Disney.

I’m sure Disney’s shiny young lawyers are wringing their hands over this one, and they have to know that if they lift a finger to squelch this instant classic on the internet or anywhere else, they’ll be buried alive. Google “fair use Disney” and you’ll find it all over the web. Enjoy!

5.10.07 C&D BFD

This article was originally published in the 5.10.07 edition of Metroland.

Geekdom was all a-twitter last week with cries of anarchy and rebellion. It was great. I’ll try to explain, and excuse me it I don’t get it exactly right. I think I’m close, though.

It all had to do, at least ostensibly, with some computer code that “protects” the new high-definition DVDs. These are the DVDs that you don’t buy, because you don’t have a hi-def player or a high-def TV. You might never buy them, in fact, because regular DVDs are just fine. But I digress.

Back in January, somebody hacked this protection code, and posted a 32-character “key” that allows the protection to be bypassed on a blog somewhere. This is, of course, a time honored tradition. The hack was done for sport, for bragging rights. The mighty media companies are always putting these protections on their “products”, and they pretty much all get hacked within days of release. No matter how smart the Einsteins of the corporate world are, there’s always a kid in a dorm room somewhere who’s smarter.

It’s a lot to ado about very little. This posted “key” requires more software and fiddling before it actually does anything. I doubt many people have done anything with it, because it’s cumbersome and complicated, and especially because it unlocks the protection on hi-def disks that hardly anybody owns.

Anyway, last week, the “key” wound up in an article that got posted on Digg.com, which is a site where anybody can post an article, and then people vote on their favorite articles, and the most popular articles get posted first. Or something like that. It’s a popular site of “netizens”, a less rigorous subset of not-quite geeks, and you know who you are.

Then the legal department of some big media consortium sent Digg a cease and desist letter telling them that the posting of the “key” violated the consortium’s rights under the Digital Millenium Copyright Act, which forbids the dissemination of things that defeat copyright protection measures. 32 random-looking letters and numbers, a legal hot potato!

For background, keep in mind that similar C&D letters have been sent to kids who figured out that earlier copy-protection schemes could be defeated by holding down the CTRL key while a disk was loading, or by running a black Sharpie around the edge of a disk. One letter went to a college professor who answered an industry challenge to hack a “hack-proof” disk, and was going to present his findings at an academic conference.

C&D letters are part of an attorney’s stock-in-trade. I send them out once in a while. I have several different templates, of varying temperatures, ranging from “pardon me, you really shouldn’t oughta be doing that” to “stop the crap or your ass is grass, scumbag.” They cost next to nothing to get out the door besides the cost of the stamp.

Big Media copyright owners tend to shoot first and ask questions later with C&D letters, figuring that the vast majority will scare the bejesus out of the recipient. You’ve got the impressive legal letterhead, listing offices in New York, LA, London and Tokyo, the stilted antiseptic legal prose, the demands for an accounting of profits, the recitation of the maximum damage penalties available under copyright law of $150,000 per act of infringement. Most folks, acting rationally, figure the party’s over, turn off their computers, draw the shades, and sit shivering in the corner until it all blows over.

Back during the first internet boom, some net activists I worked with had a nice counter-measure when they got C&D letters. They posted them on the web. The bullies got exposed as bullies, they looked silly and they usually backed off, because most of them they were just blowing smoke to begin with. Once, an activist got a second C&D letter from a law firm, claiming copyright protection protection for the first C&D letter, and demanding that the first letter be taken down! That one got posted, too. As I’ve said before, there’s a special place in hell for lawyers like that.

Anyway, at first Digg didn’t fight back. Digg removed all postings of the “key”. And that’s when it hit the fan. Digg users, outraged at this spinelessness, started posting hundreds of articles containing the “key” on Digg.com and then voted for them. They went up faster than the Digg people could remove them. At one point, the first five Digg pages were nothing but posts of articles containing the “key”. Meantime, somebody filmed himself singing a song with the “key” as the lyrics, and stuck it on YouTube. People are selling artworks and t-shirts containing the 32 characters. At last count, there were something like 700,000 postings of the “key” all over the internet.

So the Digg people changed course, saying the Digg community had spoken, and that the lawyers would just have to deal with it, and left everything up on the site.

The lawyers, the corporate lawyers, are, of course, idiots. This reaction was as predictable as the sun coming up. At this point, it should be over, at least for this round. The DVD consortium has rewritten the copy protection code. By the time you read this, it probably will have gotten hacked, too.

4.26.2007 Unknown Unknowns

[This article was originally published in the 4.26.2007 version of Metroland.]

Unlike most weeks, this week I’m gonna talk about what everybody else has been talking about: Imus and Seung Heo Cho.

Imus first. There was a time when I loved Don Imus. Rob Bartlett’s song parodies. Charles’ furtive straight man routine, always trying to calm Imus down. Bernard’s constantly going over the line, only to be pulled back and dismissed by Imus. Mike Breen’s or Patrick McEnroe’s sports reporting. Breen, reporting on a world cup soccer match once, announced blithely “Italy defeated France yesterday by a score of 2 to 1, in a contest that was much closer than the score would indicate.”

Then there was the skewering of public figures, usually grandly deserved. And some skewered themselves. During the O.J. trial, then-NY Senator Alphonse D’Amato tried to be funny while a guest on the show, and affected a phony Asian accent while criticizing trial judge Lance Ito. Good night Alphonse. Imus’s interviews with public and media figures, silly, cajoling, ribald and irreverent, were often the most revealing in all of journalism. There was no posturing, no sloganeering, no talking points allowed. To try to be anything but real at the alter of Imus was to risk being labeled, forevermore, as a “lying weasel” or a “two faced phony” or even a “two-faced phony lying weasel.”

The show was smart and aware and an anecdote to the pee-pee-doo-doo banality of Howard Stern.

I stopped listening when I stopped commuting a couple of years ago. Even then, the show seemed to have lost something; maybe it was the dip that all humor took in the post-9/11 period; maybe it was Imus’ inexplicable coddling of Bush during the same period; maybe it was the too frequent visits of the execrable Bo Dietl, the celebrity private investigator / buffoon, who was never funny, and often just plain embarassing.

Then, a couple of weeks ago, Imus screwed up. What was supposed to happen, what normally happened, was that Bernard would make some shockingly rude remark (take your pick of sexist, racist, ageist, whatever) and Imus would break in and say dismissively, like a schoolmarm, “Bernard, that’s fine.” An overly polite way of saying shut up. Bernard would then continue with another remark, usually even more disgusting, and Imus would explode, this time telling Bernard for real to shut up, and branding him a “bald-headed stooge.” It was a time-tested ritualistic routine, and they had it down, and it worked.

But this didn’t happen this time. Instead of shutting him down, Imus merely parroted Bernard, actually enhanced the disgusting comment, endorsing it. Who knows why he did it? Maybe his mind was a couple steps in front of his mouth, maybe he was tired, maybe he’s getting old. It really doesn’t matter; he said it. When you walk on a speech tightrope like Imus, you’ve got to accept getting hurt when you fall off. There’s no net for that brand of speech.

I suspect Imus’ firing by CBS and MSNBC had much less to do with his bosses’ revulsion over what he said than the fact that advertisers were bolting in droves. The show was no longer going to be profitable, so he got the boot. I hope, after the requisite quiet period, Imus returns to broadcast radio, and doesn’t follow Stern to satellite. Stern went to satellite because he couldn’t do what he wanted on broadcast radio; this isn’t the case with Imus. Imus does what he wants on broadcast. And he screwed up.

As to the Seung Heo Chung tragedy, there’s so much to ponder, from his troubling lack of meaningful mental health care, to his easy access to guns, to the broadcast by NBC (and subsequently every other media outlet) of the strange videos and photos he mailed to NBC in the middle of his murderous spree. I’d hate to be a parent of a college kid right now.

What will happen, to be sure, is that eccentrics, especially those who gravitate toward the morose, are going to have a harder time than they already have now. I guess this is normal reaction from individuals, but I fear it will get institutionalized. Colleges, mortified over what happened in Virginia, will encourage students’ reporting on aberrant behavior by classmates, and follow up these reports with a hyper-active “counseling” program. Erring will be on the side of caution, and not on the side of leaving people alone.

The college years are a time to experiment, to be weird (often to one’s future embarrassment), to be rebellious, to figure out which boundaries work and which don’t. It would be a shame if one legacy of this awful, awful thing turns out to be the turning of students into rats in the pursuit of safety through enforced conformity.

And no, I don’t have any answers either.

4.12.07 WALLS TUMBLING DOWN

[This article originally appeared in the 4.12.07 issue of Metroland]

A really, really big shoe dropped a week ago when EMI (the smallest of the four major record companies) and Apple announced that most of the EMI catalog would be sold at the iTunes store free of any DRM restrictions.

About ten years ago, music MP3s made their initial appearance on the internet. Compact files that sounded OK could be transmitted over the web and played on a computer. Kids loved them. Soon portable MP3 players appeared, de-linking the music from the computer, and then programs and networks like Napster started popping up, making it easy to find and download MP3s. In a few short years tens of millions of consumers were bathing in a literal free-for-all of unrestrained music.

The problem being that nobody was getting paid. The stewards of the music industry, instead of figuring out a way to tap into this sea change of activity, brought lawsuits trying to kill the technology. Device manufacturers, software companies, and ultimately downloading consumers were dragged into court, while the industry lamely offered nothing online, only CDs at demonstrably inflated prices.

The industry’s biggest bugaboo was that MP3s were uncontrollable, and perfect copies could be endlessly reproduced. Never mind that recorded music has always been copyable by consumers (albeit imperfectly); never mind that the precious CDs the industry was selling could easily be copied onto blanks, or ripped into MP3s; never mind that it was already happening anyway. The industry refused to sell MP3s or anything else on the web, and finally, faced with crumbling sales and Congressional sniffing about anti-trust and copyright abuse issues, the industry allowed for there to be digital sales of its music. But only on the condition that the digital files be laden with DRM, which restrict how many times a digital file could be copied or played, which dictate what sort of devices would play the music, and which sometimes made a file disappear if a buyer failed to make a monthly payment.

Meantime, a generation of music listeners has grown up regarding CDs as irrelevant, the record companies as the enemy, and focused on singles rather than albums. This generation can’t quite figure out why it should pay some big company for gooed-up digital files when it can get the same track without the goo elsewhere for free.

For years the music industry has been told, loudly, what consumers want, and the industry’s reaction has been to sue them and offer them something else. One doesn’t need an MBA to see that this isn’t a winning strategy. And now it’s judgment day.

EMI’s announcement may well be too little too late, but at least it’s a step. While details are still a little sketchy, it appears that the door will be open to enhanced quality downloads with sliding scale pricing, meaning that you’ll be able to download tracks that rival the quality of CD tracks, rather than the often thin and compromised compressed tracks typically offered previously.

The other three record companies reactions so far have amounted to a lot of unfocused harrumphing. Apparently, Apple paid EMI a pile of upfront dough for the right to sell the DRM-free tracks, so presumably the other labels will be closely watching EMI’s sales levels and back-channelling demands that Apple pay them some big bucks, too.

Meantime, there is a lot of uncharted territory, and a lot of unanswered questions. For example, by selling unlocked music at iTunes, music from the store will be playable for the first time on devices other than the iPod. What is this going to mean for all those iPod pretenders out there? And to the iPod itself, which just hit the 100 million sales mark?

EMI’s premium DRM-free tracks are still competing with free. Clandestine downloads still outnumber legitimate sales by at least 50 to 1, according to recent studies. Last weekend a 22 year old explained to me that he gets all his music from visiting on-line music forums that link him to albums posted on sites like Rapid-Share. “Kicks Limewire’s ass,” he said. For him the issue is the best way to get free music. Paying is simply not a consideration.

Then there is the whole European Union thing. The EU has been putting the heat on Apple, both for its DRM restrictions and for the fact that iTunes’ pricing varies significantly in Europe from country to country. The recent EMI announcement was no doubt a reaction to this, and more changes have to be the works. Some of what happens over there will involve straightening out the patch-work quilt of antiquated European intellectual property laws and arcane music industry practices; this will have little effect over here. But a lot of what happens, like issues of DRM and interoperability, will have stunning effects all over the world.

Interestingly, the EMI announcement did not include its prized Beatles catalog, which is still not legitimately available digitally anywhere, despite enticing hints and a lot of make-nice noise by historic arch-enemies Apple Corps and Apple Computer. I’m betting on a Beatles / iPhone tie-in this summer. Bet you a nickel.

BONG HITS FOR JESUS

[This article originally appeared in the 3.20.07 issue of Metroland, which I have been informed is not a "magazine", but rather a "newspaper." I've been writing for Metroland for what, 15 years now, and I always thought it was a magazine. It's like not finding out that you've been adopted until you're an adult. Actually, it's nothing like that.]

BONG HITS FOR JESUS

No, I’m not gonna talk about the Supreme Court’s recent free-speech case. I just like saying “bong hits for Jesus.”

Hey Bullwinkle! Here’s something we all might enjoy! The Intellectual Property Society of Albany Law School is hosting a panel discussion on fair use in copyright law on Tuesday, April 10 at 5 PM in the Dean Alexander Moot Court Room. The panelists will be entertainment lawyer Owen Warshavsky from the NYC firm Troutman Sanders, Jennifer Pariser, the VP of Business and Legal Affairs at Sony/BMG, Sheldon Halpern, the Honorable Harold R. Tyler Jr. Chair in Law and Technology at Albany Law School, and yours truly, the proprietor of the biggest law firm in Housatonic, MA. If you don’t already know, “fair use” is the fuzzy legal doctrine that allows limited copying of other’s works for various purposes, and is a crucial factor for such things as appropriation art, parody, music sampling, education, and especially that whole internet / remix culture thing that all the kids are talking about. I doubt that any of us four panelists are going to agree on much of anything, and the discussion is going to be lively and fun, to say the least. And if that’s not enough to get you out on a Tuesday, there will be a reception following the discussion. That’s polite-talk for free beer. See you there.

I tend to not think about tax issues much, other than paying my own taxes when I’m supposed to, but there’s some tax legislation in Congress right now that deserves your support. Grassroots arts organizations often depend heavily on artist donations for their survival—how many times have you gone to a fundraiser that features one of those silent auctions of donated artwork? Half of the stuff on my walls I got that way, usually for a ridiculous price so low that it’s embarrassing or an insult to the artist or both. It’s often a rather sad situation where struggling artists donate their works to help support a shoe-string organization doing God’s work; it shouldn’t be that way, but there you go.

And to make it all the more ridiculous, the artist can’t write off the value of the work as a charitable donation. Under current IRS rules, the artist can only write off the value of the raw materials in the work. The cost of the paint, canvas, clay, dried elephant dung, whatever, that’s the artist’s tax write-off. And to go from the ridiculous to the sublime, if some collector first buys the painting instead and then donates it to the organization, the collector can write off the full fair market value of the work.

In my experience with a number of not-for-profit organizations, collectors rarely donate their acquired works. Artists always donate. And they get screwed in the process.

Maybe not for long. There are bills before both the U.S. House and Senate that would provide artists with a tax deduction for the fair market value of their works when they donate them to educational and collecting not-for-profit groups. The bills have bi-partisan sponsors and could use a push to keep from getting lost in the legislative shuffle. They’re bills H.R. 1524 (House) and S. 548 (Senate). Write a letter.

John Perry Barlow was sure disappointing on Colbert the other night. It was like he needed a nap while Colbert was loaded for bear, as usual. Barlow was there to talk about the EFF’s lawsuit against Viacom for demanding and getting the removal of obvious parodies of Viacom’s shows from YouTube, in particular a mash-up of Colbert that MoveOn.org had posted (Viacom owns Comedy Central, which owns the Colbert Report). The lawsuit is a nice push-back to Viacom’s ridiculous $1 billion suit against YouTube for “allowing” Viacom’s properties to be posted on the YouTube site. There were all sorts of points to be made, mud to be hurled, and Barlow barely threw a punch. I’ve seen Barlow speak a couple times and he’s brilliant and funny and engaging, but some concepts just can’t be made in a punch line, or as is always required on Colbert, a counter-punch line. The two guys were clearly operating on different speeds, and faster always wins.

My thoughts about the Viacom-YouTube suit are posted on my blog, and suffice it to say that Viacom’s suit strikes me as largely a sham, and the fact that Viacom is on the short end of a second lawsuit for being a bully bears that out. And the MoveOn takedown isn’t an isolated occurrence—I’ve got a nephew whose skillful South Park parody was knocked off YouTube by Viacom as well. Viacom’s tactics amount to throwing out the baby with the bathwater, and no doubt thousands of perfectly legal works, works of parody and comment, have gotten the boot because of Viacom’s overaggressive nonsense.

And what this is all about is the doctrine of fair use, and you’re thinking “where have I heard of that before?” Go back to the first paragraph. That’s where.

GooTube

[This article ran in the April 2007 issue of The Artful Mind]

The headlines have been singing recently about Viacom’s big $1 billion lawsuit against YouTube for copyright infringement. Oh my! YouTube’s in trouble! YouTube’s been bad!

What’s it all about, Alfie? From my perch, the lawsuit is less about copyright infringement that it is about competitive advantage, opportunism, and fear.

Where to start? YouTube is a two year old website where anybody can upload video clips, and where everybody else can watch and comment on them. YouTube was famously bought up by Google last year for $1.65 billion dollars, a pretty good sum for a site that generates next to no revenue. What makes YouTube (which gained the nickname “GooTube” after the Google purchase) so valuable is the fact that it’s became, in a very short time, one of the most popular destinations on the web. Thousands of video clips of every description are posted there every day, and millions of people go there to be entertained every day. Time Magazine’s designation last year of “you” as its Person of the Year was really all about YouTube, perhaps the most visible example of the remarkable emergence of “user-generated content”. YouTube is the epicenter of the fascinating trend of creative works being made and distributed, often by individuals and hobbyists, outside of the traditional entertainment industry machinery, a trend made possible by cheap new digital technologies, the internet, and the irrepressible human need to self-express.

Viacom is, of course, the huge media conglomerate that owns or is tied to such companies as CBS, Paramount, Dreamworks, Simon & Schuster, MTV, Comedy Central and BET.

Along with a slew of homemade clips (like the infamous Mentos and Coke geyser movies) a lot of what gets posted on YouTube, not surprisingly, are clips from television shows.. If you miss, say, Jon Stewart, or South Park, chances are somebody’s posted it on YouTube. Technically, such a posting is an infringement of the copyright of whoever created the thing. I go there often to see if Keith Olberman has recently brought the hammer down on the Goombah-in-Chief. On the surface, that’s what the lawsuit is about, Viacom is claiming that YouTube, by providing an open-ended invitation for anybody to post anything, is liable for copyright infringement for having Viacom “properties” up on the YouTube site.


There’s a little problem with Viacom’s claim. As a copyright owner, it’s Viacom’s responsibility to police it’s own copyrights. That’s always been the way it is. In the lawsuit, Viacom is trying to impose a duty on YouTube to police Viacom’s copyrights, which is ridiculous. Under the law, YouTube’s obligation is to investigate possible infringements when it’s told about them and to take down clips it determines are likely to be infringing. That’s it. And it’s the way it should be.

The reason that the burden should be on Viacom and not YouTube to discover infringing material is that copyright enforcement it an elective decision by the copyright owner—and not everybody who has material posted on YouTube without permission is upset about it. All three of my band Blotto’s early ‘80’s MTV videos have been posted on YouTube by somebody-- one is under the heading Worst ‘80’s Rock Video Ever!—and we’re cool with that. It keeps the band alive, and we can look at the comments and see what people think about us. At some point, maybe when YouTube puts in place its proposed system to share what little advertising it gets with copyright owners, we’ll decide to ask them to take down the rogue Blotto posts and put up our own, but in the meantime, we’re happy the way things are. We’re glad to be on YouTube.

My favorite posts on YouTube, things that get forwarded to me and that I giddily send on to my like-minded friends, are old TV clips of rock and soul artists. It’s really archival stuff, time capsules of a bygone, wildly influential era. Each of these clips no doubt has a copyright that’s owned by somebody, but most of them probably are owned by companies that don’t mind that people are watching. Or companies that aren’t around anymore.

No, YouTube shouldn’t be somebody else’s copyright policeman. If it was, there will be default deletions every time it appeared that a post was taken from some TV show somewhere, whether or not the actual copyright owner is bothered by the post, and a whole big chunk of interesting and culturally significant stuff will get wiped out, for no good reason.

And YouTube has been reasonably diligent in holding up its responsibilities under the law. When notified of infringing material on the site, it removes the offending clips. It may actually be a little over-aggressive. My nephew posted a skillfully constructed South Park parody. With the sound off you’d think it was an installment of South Park, but if you listen to what’s going on, you realize that Chef and the boys are singing the praises of advanced calculus. Acting on a complaint from Viacom, YouTube took my nephew’s post down, and now he has to jump through hoops to try to establish to YouTube that his masterpiece was a parody of South Park, and therefore a fair use of Viacom’s precious little copyright in South Park.

Viacom’s lawsuit is a sham, and of course Viacom knows this. The lawsuit isn’t about the law. It’s about the fact that Viacom and YouTube couldn’t agree to licensing terms for Viacom content on YouTube, like the deals YouTube has negotiated with a host of other big copyright owners, where the owners agree share in revenue from posted clips. Viacom wanted more, apparently, than the others. It’s about the fact that Google, which is drowning in cash, is now the owner of YouTube, and maybe Viacom’s shiny young lawyers can convince a court to adopt a twisted, constricted interpretation of the law, and force Google to cough up some dough. Its about the fact that Viacom’s television and movie studio properties are running scared because of what’s happening on the internet; they’re losing market share by the bucketful to the internet, and they’re struggling to develop their own “internet strategies”. They want to sequester everything they own onto their own closed web environments, where they can slather users with advertisements and cross-promotions and impulse buys, and can collect precious marketing data from users. The studios are also terrified that, increasingly, the homemade stuff that gets posted on YouTube is infinitely more real and entertaining than the uninspired dreck the studios spend millions to produce. And if Viacom can’t beat YouTube with better programming, maybe it can beat it with lawyers.

Finally, the lawsuit is about Viacom’s new website, starting up this summer, called Joost. Joost is some sort of TV-on-the-internet site, where you can go and watch “professionally produced” video content, complete with commercials. Wow. This concept, as mundane as it is, probably wouldn’t have occurred to Viacom (or any of the other television outlets rushing to get programming available on the web) absent YouTube’s resounding popularity. But hey, the kids seem to love this internet thing, so let’s create a pale imitation of YouTube and then try to kill the original.

As an old friend used to say, “That’s showbiz, babe!”

Mr. Fishman

[This review originally appeared in the 3.22.07 issue of Metroland Magazine]

Mystery Solved

Howard Fishman
Club Helsinki
March 18, 2007

The ads billed him as a “hip Brooklyn-based jazz singer.” Well, he wasn’t that. I’ve read stuff that says he’s this heavily New Orleans-influenced dude. I guess a little maybe, but not really.

I don’t know what Howard Fishman is all about and I’m not sure he does either, and I’d guess we’re both OK with that. His two generous sets Sunday night were a blast, full of surprises, passion and fun. Fishman’s been toying with other people’s stuff recently, having just released a disk of songs culled from Dylan’s Basement Tapes sessions, and is currently working on a set of Hoagy Carmichael songs to be released later this year. His first set drew heavily from these projects, and the tunes were not covers so much as re-imaginings that fit the unusual band configuration of guitar, trumpet, violin and tuba.

There’s a danger in loading up on material from two of the best songwriters to walk the planet, the danger being that original stuff will pale by comparison. That sure didn’t happen here, in fact, the high points of the show were easily Fishman’s own rollicking songs. Fishman’s “Mary Ann” and “The Best is Yet To Come” are to-be classics, period, and they were dished out with all the grand style that a band with a tuba could muster.

The band killed, from Kevin Lewis’ cool blue trumpet, to Ron Caswell’s surprisingly facile tuba, to the gorgeous Stephan Grappelli influenced playing of violinist Mazz Swift[pictured above]. Her playing dazzled not so much from technique (which she had plenty of) but from hooks, taste and high style. Swift took over vocal duties on a couple songs and floored the room each time, her deep gospelly singing made a nice counterpoint to Fishman’s husky tenor.

There was nothing mysterious about Fishman and the band. Music doesn’t get more accessible and disarmingly honest than this, which is where the “hip Brooklyn” thing doesn’t ring true. And yeah, there’s a little loosy-goosey N’Awlins stuff going on, but it’s a small component of something else: simple, wonderful, and timeless songs, played well and with a twinkle in the eye.

DO TOUCH THAT DIAL

[This article was originally published in the 3/15/07 edition of Metroland Magazine.]

OK, here’s a good deal. Go to www.SXSW.com and click on “toolkit”. On the upper right of the page there is a torrent file that will get you 749 MP3 song files of bands that are playing at the South by Southwest Festival this week in Austin. It’s free and totally legal. These are bands that want you to hear them. So, go get the download and listen! I’m still discovering new bands from last year’s batch of songs. You’ll be introduced to great bands with names like I Can Lick Every Sonofabitch in the House, Deaf in the Family, and my favorite: Get Cape. Wear Cape. Fly.

A few years ago when I started doing radio again (you can hear my show The Splatto Festival most Fridays at 3 PM streaming at Berkshireradio.org) I started digging around for the music of my youth. My grade school best friend’s older brother had a band in Batavia, New York that released a 45 RPM single in 1967, a prize from winning a battle of the bands contest. I got a copy of the single when it came out, but it’s long gone. I’m sure only 500 copies or so were made. Now, 40 years later, I doubted that I’d be able to locate a copy anywhere. But I really wanted to find it and play it on the radio.

So I did a Google search, and voila, there it was, listed on playlists of two tiny internet radio stations. I contacted both, and both graciously offered to email me an MP3 of the single for a small donation. I’ve played the A-side, a terrific Byrds-y version of John D. Loudermilk’s Tobacco Road on the radio a bunch of times. A 40 year old obscurity, some upstate New York teenagers pouring their hearts onto vinyl, has new life. I’ve emailed copies to my old best friend and a few other folks who were around Batavia in 1967, and they’re thrilled to have it again. And I couldn’t have done it without the help of obsessive music freaks who collect stuff like this, digitize it, and maintain internet radio stations where they broadcast, to the whole world, their little slices of heaven, rescued from the remains of our collective culture. As far as I’m concerned, these people are doing God’s work.

And this may all soon come to a crashing halt, if the federal Copyright Office, spoon-fed policy from the recording industry, has its way.

Radio stations traditionally have been allowed to play recordings for free. Songwriters got paid through ASCAP and BMI fees paid by broadcasters, but not record companies. Radio play has always been considered promotional, and the broadcast industry lobbyists apparently paid off Congress better than the recording industry’s. And it makes sense: given that the record industry is constantly getting caught illegally paying off radio for airplay, the idea of radio paying record companies to play music is stupid. Not the way of the world.

Then along comes the internet, where anybody can put up a radio station. Where the number of stations and the diversity of selections are unlimited. And where, increasingly, people are going to listen, because broadcast radio generally sucks. Broadcast radio and the music industry, both threatened by this new egalitarian and uncontrollable phenomenon, convinced Congress (well, OK, paid Congress) to pass a bill that made a distinction between broadcast (open air) music and digitally transmitted (internet) music. Broadcast music would still be free, but digital transmissions of music now required a performance royalty. And the level of that royalty would be set by the Copyright Office.

So the playing field between broadcast radio and internet radio was tilted to favor broadcast radio, dominated by corporate behemoths like Clear Channel, and to the detriment of internet programmers. A few years ago the Copyright Office recommended a level of royalties that would have killed internet radio for all but the biggest players, and those recommendations were beaten back to a manageable level. Now a new set of royalties have been proposed, and they’re worse. The new proposed royalties, which apparently mirror a proposal made to the Copyright Office from the RIAA, would wipe out smaller niche programmers, folks who are putting up the music you won’t hear anywhere else, the archivists, the geeks, the people who are putting music on the internet not for money, but for love. Folks who champion artists who will never get played on commercial radio, and who program from the heart, not from a focus group study. Who reside on the fringes, and aren’t rushing to the lower common denominator, or making shareholders happy.

The proposed royalty rates can be appealed, and the issue may wind up in court or back in Congress. But right now is a shaky period for internet radio, which hasn’t yet learned to crawl, much less walk. And it’s disheartening to see that the Copyright Office is so deeply in the pocket of the industry, and hasn’t got the slightest clue about what is vital for the sustenance of our culture and cultural heritage. Sickening, really.

A MESSAGE TO YOU, RUDY

This article originally appeared in the 3.1.07 issue of Metroland Magazine.

The dismal specter of the 2008 presidential race is in full bloom, with corporate media distorting every detail. Obama’s name is “mistakenly” spelled “Osama” repeatedly; his middle name “Hussein” is a big deal, and a bald-faced lie that he attended an Islamic fundamentalist madrassa school as a kid, a fabrication planted by some neo-con media shill, is repeated over and over again by the mainstream media. Hillary’s “likeability” is equated with her gender, and the ghost of Monica Lewinsky is brought up in the subtext of every word she says.

Over on the Republican side, John McCain is still boosted as some kind of “maverick,” while he falls all over himself trying to appease the fascist ultra right wing “Republican base.” The fact that he’s reversing his positions on virtually every “values” issue is glossed over: He’s a rebel and he’ll never ever do what he should! End of story. Remember how the media attached the word “flip-flop” to John Kerry last time around, and how it stuck? The term applies in spades to McCain, but you won’t hear about it, because he’s a maverick!

Then there’s Rudy. He’s been crowned “America’s Mayor” by swooning sycophants like Chris Matthews and Wolf Blitzer. And the media would have you think that Rudy’s biggest problem is that he’s too moderate for the fascist Republican base. Messy divorce, pro-choice, gay rights! How can he possibly sell it in the Bible Belt? Sumbitch probly don’t even own a gun!

You get the impression that maybe he’s the right guy; that after the media creates an implosion of all of the viable Democratic candidates, Rudy will be there, standing heroically on the smoky wreckage, telling America through a bullhorn that he’ll lead it out of the darkness. No, wait, that was Bush’s 9-11 photo-op, wasn’t it? Aw, who cares? He’s “America’s Mayor” because, well, he was there when the buildings fell.

The thing that nobody’s talking about is the reign of terror that Rudy imposed on the freedom of speech during his time as mayor of New York. Repeatedly, Rudy abused his power and treated the First Amendment like a punching bag, all to get press, to pander to intolerant religious leaders, and to forward his agenda to “clean up” New York.

Probably the most notorious example involved the Brooklyn Museum, which brought in the internationally renowned Sensation touring exhibit in 1999. The Mayor’s office, with a permanent seat on the Museum’s board, had months of notice that the exhibit was coming, and actually encouraged the Museum to bring Sensation to Brooklyn. Then, a week or so before the opening, Rudy goes on a rampage over a couple of pieces in the show, particularly Chris Ofili’s The Holy Virgin Mary, a collage piece that included dried elephant dung on its surface. Never mind that Ofili uses elephant dung, which has ritual significance in various African cultures, on a lot of his work. Rudy goes on national TV and complains about repulsive artists slinging dung at the Madonna, and even throws in the ultimate dumb-ass assessment of modern art: “If I can do it, it’s not art.”

Then he cuts off funding for the Museum and brings a pathetic eviction action in federal court, seeking to throw the Museum out on the street based on trumped-up “violations” of the Museum’s lease with the City. Rudy’s lawsuit got laughed out of court, and on the Saturday the show opened, the two subway stations closest to the museum just happened to shut down for repairs. Thousands of folks, drawn to art and phony controversies, had to walk blocks to get to see Sensation.

In 1997, New York Magazine put ads on buses proclaiming it was “possibly the only good thing in New York City Rudy hasn’t taken credit for.” Rudy ordered the ads removed from his busses, claiming that it infringed some right he thought he had. He got his butt kicked in court for that, too.

In fact, Rudy’s track record in court on speech issues is the stuff of legend. In a 2000 decision involving Rudy’s attempt to stop acclaimed photographer Spencer Tunick from using the streets of New York to stage one of his works (which involve large numbers of nude people), the Second Circuit Court of Appeals made an extraordinary criticism of Rudy’s methods: “We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years.” Then the Court listed, over an entire page, 17 court cases from the prior 5 years involving The City and speech: artists’ speech, city employees’ speech, the general public’s speech. And the City lost every one. And most of them weren’t even close.

This from the guy running the global center of the art world, of publishing, of expression. A lawyer, for crying out loud. And somebody who’s now running for President. Who wants to have the power to appoint Supreme Court judges, dictate policy about citizen surveillance, and decide what to do with the FBI when anybody criticizes him. Or says anything at all.

America’s Mayor. Right.

HERE COMES THE SUN

[This article originally ran in the 2.15.07 issue of Metroland Magazine]


Did you know that Daylight Savings Time starts early this year? Yup, second Sunday in March instead of the first Sunday in April. Congress decided on this a couple of years ago as an energy saving measure, figuring more hours of our waking life in daylight saves energy, which makes a certain amount of sense. And I suppose it also allows Congress to say “we did our job” with regard to energy policy, by corralling the populace like the compliant sheep we are, while leaving the energy industries alone to feed the beast and run the world. And it gives Dick Cheney an extra hour to shoot his friends in the face.

In any event, you may want to check your computer, which may not have heard the news about the time change. If your operating system isn’t properly updated, you may find your online world is an hour off come March 11.

Speaking of daylight, it looks like all this digital music static about DRM is coming to a head sooner rather than later. The fun began when Apple’s Steve Jobs posted a call for the end of DRM, and for all record companies to allow digital music to be sold without any DRM, i.e. the copy protections, tracking devices, and number-of-play restrictions that currently encumber almost every major label digital music release that’s legally available.

Lots of people have been scratching their heads over this one. While, to be sure, the only way Apple’s been able sell major label music on its ITunes store has been to promise the labels an effective DRM system, Apple has also profited massively by creating its own proprietary DRM system (called “Fairplay”) that links its IPod devices, ITunes software program and ITunes store, to the exclusion of everybody else. The whole Apple music empire was built on a combination of cool, great products, and most importantly, DRM. And Jobs is willing to walk away from that? WTF?

Well who knows, but it set off a firestorm of comments and activity. The RIAA, which rivals the Republican National Committee in the abuse of logic and honesty in the pursuit of power and money, immediately issued a statement that challenged Apple to license its FairPlay DRM system to all of the other competing online music services. In other words, the RIAA admits that Jobs built the better mousetrap and wants him to give it to everybody else. The RIAA’s problem, of course, is that there is no mouse problem in the first place. Try as it might, the RIAA has totally failed to establish a link between piracy, DRM, MP3s, etc. What is abundantly clear is that the continuing DRM schemes and the total lack of interoperability among musical systems (along with a wealth of other factors, like the promotion of crap music and the terrorizing of kids through vindictive lawsuits) has turned a generation of music listeners away from the major labels and the legitimate purchasing of music.

Industry blowhard and Warner’s music owner Edgar Bronfman called Jobs’ position illogical, and pledged allegiance to continued use of DRM, in the course of his quarterly earnings discussion in which has was trying to explain away a 74% earnings decline for the company that he runs. Moron.

Meantime, major label EMI, which has dabbled with one-off DRM-free releases with tremendous success, is rumored to be getting ready to allow sales of at least big parts of its vast catalog without any DRM. EMI’s earnings have been hurting, too, and opening up the floodgates of restriction-free music is seen as an attempt to regain some measure of profitability for the company.

So you’ve got some major labels saying DRM is the only way to protect their precious “property” and at least one label apparently saying that dumping it is the only way to survive. Meantime, music vendors like Yahoo are predicting their entire catalogs of major label music will be DRM-free by the end of the year. And the head of eMusic.com, a wonderful and wildly successful site that sells independent music without any DRM predicts that if the majors dump DRM, their profits will skyrocket, just like his.

And what happens when DRM disappears? Hoo-boy, watch out. I suspect the legitimate online music market will indeed explode, with more choice in music format, selection, and price. Pirate P2P and torrent sites will always be around, but will shrink. The IPod will only retain its domination on the gizmo market only if it is indeed the best player, and new and innovative players will proliferate. Integration of cell phones with music players will accelerate, as will the migration of consumers from buying CDs to digital files, as the transition to digital becomes dramatically less confusing and intimidating.

People will be listening to more music, and that means people will be happier. The world will be a better place. Thanks, Steve-O.

UNDOING THE DAMAGE

[This article originally ran in the 1.18.07 issue of Metroland Magazine]

With all the giddy hoopla about the Democratic Congress’ “first hundred hours”, with all the posturing and grandstanding about undoing the parade of horrors foisted upon us since 2000, there’s been something conspicuous by its absence. There doesn’t seem to be any great rush to restore the various civil rights that were laid to waste over the past several years.

Sure, marquee issues like the minimum wage and stem cell research are all well and good, but a number of truly startling things have happened to our most basic freedoms, and a few Democrats squawked while these things were going down. The fact may well be that the Dems don’t really care that much. Maybe they’re still afraid that Karl Rove’ll make ‘em look “soft on terror” if they stand up for basic, fundamental freedoms; maybe they think we’re too stupid to notice what we’ve lost (or maybe they realize that the lackey mainstream press hasn’t bothered to tell us what we’re lost); maybe, just maybe, in their little black politician hearts, they like things just the way they are now.

Where to start? How about federal ID cards? Heard about them? It’s kind of sneaky. In 2005, Congress passed a law that requires all states to conform their drivers’ licenses to strict uniform standards. Fair enough, but wait, there’s more! The law then says that in 2008 non-conforming drivers licenses will no longer be accepted for federal “official purposes.” And what’s an “official purpose”? Anything the Department of Homeland Security wants it to be. Transactions at federally insured banks? IDs at federally regulated airports? Yup! So, you see, it’s not mandatory that you have one of these stealth national ID cards. It’s only mandatory of you want to live like a normal modern human being.

And what’s gonna be on your card? Your basic info, plus digitized versions of your photograph and signature, and there could easily be more things like your fingerprints or retinal scans if that’s what Homeland Security wants. And all this information has to be stored by the states in readily transferable and searchable databases for at least ten years, that the states will have to share all your info with other governmental entities, no questions asked. And maybe your license will be loaded with a tiny chip, that can be read remotely by anybody with the right equipment, without you even knowing it.

So, as they say in the old movies set in Nazi-controlled Europe: Zor paypahs? You haff zor paypahs? And the really alarming thing is that you don’t have to even show them your papers. They’ll already have them.

Since the bill authorizing this was tacked onto a 2005 emergency military spending authorization bill, it sailed through the Senate 100-0 and the House 368-58. Just like that. And I don’t see anybody rushing to undo it.

And how ‘bout that habeas corpus? Latin for “you have the body”, habeas corpus represents the right to challenge imprisonment by the government. It’s one of the oldest tenets of Western law, and traditionally, countries that didn’t have it were considered barbaric and profound enemies of basic human rights. China and any of those old dictatorships in South America come to mind. You know, places were people disappear.

The United States joined the club last year when Congress passed the Military Commission Act, which allows the government to detain anyone “engaged in hostilities or who has purposefully and materially supported hostilities against the United States” as determined by “tribunals” appointed by the President. Basically, the President can decide you’re a bad guy, and you can be picked up and held without charge. Indefinitely. Add to that the current regime’s enthusiastic support for torture, whether done here, at Guantanamo, or outsourced to shady governments in Eastern Europe, and you’ve got a policy paradigm that just pisses all over the United States flag.

12 Democratic Senators and 32 House members voted for this. And despite a lot of wailing and knashing of teeth when the bill originally got passed last year, I haven’t seen any effort yet to reverse this shameful and dangerous law.

The Military Commission Act is, by any rational measure, unconstitutional three or four different ways, most notably through Article 1, Section 9’s provision that “[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” You seen any invasions or rebellions around here lately? Anybody?

So the law should be vulnerable to a constitutional challenge, except now we’re got a Supreme Court packed with Federalist Society neo-con clones. The Court today is a worse and even more disingenuous court that the one that “elected” our President in 2000 (remember that one, where the five conservatives forgot their long obsession with “states’ rights”?), so the likelihood of a reasoned and just decision on something like habeas corpus coming out of the Supreme Court would appear to be somewhere between slim and none. I do not entrust my freedom to the likes of Antonin Scalia.

So write your Representatives. Tell them you’d like our country back, please.

EOY RAPP UP

Year End Rapp Up

[This article originally ran in the 1.04.07 issue of Metroland Magazine]

2006 saw the tech world party like it was 1999. After a number of dark years, suddenly the news services were ablaze with new products, services, “strategic partnerships”, and many of these things appeared to have at least a fighting chance of surviving, unlike the madness that prevailed during the first dot-com boom-bust. I still have an old bumpersticker that reads idon’twanttobuytoothpasteonline.com.

With power-house computers, massive storage, and broadband connections within the reach of almost everybody, the world seems to be pouring itself into the internet, and there’s plenty of winners and losers in this strange new world where everything is at stake and uncertain, where fortunes are made and lost by invisible movements of micro-digicash and pure speculation about the value of eyeballs, and where people are more inclined to repeatedly watch Mentos-Coca-Cola geysers on YouTube than actually sit down and read a book.

Sony is sure not looking good right about now. First the company got caught putting viruses on its music CDs that gummed up its customers’ computers, and then it had to replace millions of laptop batteries because its old ones had a disturbing habit of catching on fire. Toward the end of the year I was reading some analysts saying that Sony’s future was riding on the success or failure of its new Playstation gaming console, which struck me as remarkable. For one thing, if the entire universe of video games simply vaporized right now, my life wouldn’t change one iota. I wouldn’t even notice. On top of that, I think the world would be a much better place if video games didn’t exist, once the hordes of pimply faced suburban boys figure out something productive to do on sunny afternoons and with their parents’ money. In any event, the fact that anyone would even think that a massive corporation like Sony will rise and fall on the basis of inanities like Grand Theft Auto or Final Fantasy shows just how frail and decrepit the company has become.

And it looks like Sony’s losing the gaming fight big-time. Coming off the holiday season, the clear winner appears to be Nintendo’s Wii system, followed by Microsoft’s Xbox, and with Sony’s new PS3 platform a fairly distant third. And it turns out Sony had created a fake blog written by a fake hip-hop teenager who wanted to help convince his fake friend’s fake parents to buy him a new $600 Playstation! And the fake blogger could help you persuade your parents, too!!! This idiotic exercise in fraud was uncovered pretty quickly, resulting in Sony looking like not just a loser, but a big, lying, deceitful loser.

Microsoft also seems to have trouble getting out of its own way. With its ridiculous Zune MP3 player logging in this week as something like the 19th most popular MP3 player on the market, Microsoft decided to try to hip itself up in the blogosphere and to hype it’s new Vista operating system. Microsoft quietly sent 90 tech bloggers free hot-rodded Ferrari-branded $2500.00 laptops with Vista installed. Well, it was quiet till the machines showed up. Many of the recipients, not particularly big Microsoft fans to begin with, started screaming bloody murder that their views and opinions weren’t for sale, at least not for a $2500 laptop. Non-recipient bloggers, feeling neglected and rejected, wailed inconsolably that (a) they didn’t get a free laptop, which sucks, and (b) even if they had, their views wouldn’t have been for sale either. (The whole episode raised interesting questions about bloggers, journalism, and ethics that we’ll let slide for right now.) Microsoft sheepishly first said that it was providing “evaluation” machines that it wanted returned, then reversed course and said no, they were “gifts” for which Microsoft, like any good K Street lobbyist, didn’t want or expect anything in return. Um-hmm....

And Apple’s had a rough couple of weeks, too. First an investigation showed that some Apple executives had been playing cute with post-dated stock options. Steve Jobs, the only Apple exec that matters, hasn’t gotten any stink on himself, though. Yet. Meantime, a federal judge has refused to dismiss a private anti-trust lawsuit against Apple, claiming that Apple’s tying of its iPods to the proprietary iTunes music format is an illegal restraint of trade. And given that Apple controls something north of 80% of the market, for gizmos and digital music respectively, there may well be something there.

And then there’s DRM, the gooey code the labels and digital music stores stick on digital music so you can’t copy it. People are getting sick of DRM, and little by little, labels are allowing music to be sold without it, and are finding out that the world does not end as a result. Yahoo’s music store has been allowed to sell a number of unencumbered MP3s, and word has it that Amazon is hammering the labels to allow it to sell DRM-free, iPod compatible music, and is staying out of the market until this happens. Which would bust the music market, finally, wide open.

Best-of Time

Here's my best-of shows for 2006:

1) Haale, Club Helsinki, February 3, October 14, Mass MOCA June 24

Three shows, three different configurations of musicians, three spectacular musical experiences of psychedelic Persian magic. Haale’s at least three steps to the left of almost everything else you’ve ever heard, but she’s so dead-on it you probably won’t notice. I suspect 2007 will be Haale’s year.

2) Tallis Scholars, Tanglewood, August 17

I’d been waiting 15 years to see this early-music a cappella group, and every second of the wait was worth it. Mesmerizing, majestic, ethereal, and utterly moving. The ten voices filled every inch of the Ozawa Theater with joy and wonder.

3) Robbie Fulks, Club Helsinki, July 2

Hyper-smart and insidiously funny, Fulks and his killer band played country music the way it oughta be played, the way it used to be played before the country scene got Wal-Marted into mediocrity. And the guy flat-picks like a demon. The only problem was that it was damn hard to dance when you’re laughing your ass off.

4) Tin Hat, Club Helsinki, March 4

Carla Kihlstedt and company performed an evening of intergalactic chamber music that was beyond bold, beyond creative, beyond tasteful. Horns, reeds, strings, a tiny pump organ. Crumpling paper as a percussion instrument. Watching these guys was like taking a three week vacation to a different and delightfully better place.

5) DuWayne Burnside and the Mississippi Mafia, Club Helsinki, September 16

Move over, Rover, and let DuWayne take over. You want the funk? You’ll have to ask DuWayne ‘cause he’s got it. All of it. Cold. Deep, too! Stanky, stanky, stanky-ass stanky............

6) Matisyahu, Washington Avenue Armory, October 17

Everyone’s favorite Hasidic reggae singer showed why he’s da bomb, thoroughly debunking the racist bullshit thrown at him this year by the solipsistic twits at the New York Times. (I got yer authenticity right here, jack-offs.) His arena show was every bit as intimate, powerful, and inspiring as the staggering set he did two years ago on the tiny stage at Savannah’s. Matisyahu’s got his mazel tov mojo woikin’ overtime, bwah.