Wednesday, April 16, 2014


This article originally appeared in the 4.17.14 issue of Metroland.

            Neil Young has long railed against digital music, particularly MP3s. He once observed that listening to an MP3 was like looking through a screen that only allowed one color through each hole.  And of course he’s right.  MP3s are approximations of what you get on a CD, which itself is an often lifeless version of what happens in the studio, or for older recordings, what you’d get on a vinyl record.

            Being the kind of guy who doesn’t tear down without building up, Young announced last year that he was partnering with some techies to create a device that plays super high quality digital music files.  It’s called Pono.   Seed money for the company was raised on Kickstarer;  the initial $800,000 goal was doubled on the first day and the total blew past $6 million this week.  Which is great I guess, although I do wonder about using Kickstarter for what’s clearly a corporate endeavor.

            So what is Pono?  It’s a small device with three sides (Dave Grohl said it looks like a Toblerone, and it does) that stores and plays digital music tracks.  It’s tricked out to play super-high quality music files, files with more information, higher resolution, and better sound than CDs.   As the Pono promo machine boasts, you’ll be listening to exactly what comes out of the recording studio.  The cost for this thing is $400.

            What’s not to like?  Well, nothing I guess, but this isn’t the revolutionary advance it’s being touted as.  It’s likely to be a small niche audiophile product that could well collapse under its own weight.

            It’s an inevitable product; there’s already plenty of devices out there that are comparable, and if there weren’t there would be soon.  It’s also trying to be a train that actually left the station a long, long time ago.

            The Pono model is based on downloaded song files.  It’s going to have an iTunes-like store where you can download these superfiles; Pono claims that all the major labels are on board with providing music and that it’s working with indies “to bring a diverse selection of music” to Pono customers.  I dunno, sounds to me like the library’s gonna be limited, particularly at first.   Over the last ten years we’ve gotten used to virtually unlimited music, millions of different tracks, from hits to profound obscurities.   I’m not sure how many of us wanna go back.

            Pono says albums will be available for $15-25.  While it appears that customers will also be able to buy single tracks, the emphasis on albums really underscores how backwards-looking this thing is.  Albums?  Really?  We’ve been living in a singles world at least since Napster liberated the music so people could consume it how they wanted.  We don’t listen to albums nearly as much as we listen to playlists, or music suggestion services like Pandora.  It appears that Pono is aimed primarily at middle-aged white-guy music geeks, the kind of folks who still get baked and listen to Dark Side Of The Moon or 2012 alone in the dark.  Which is fine, but it ain’t gonna change the world.

            And then there’s the whole download thing.  Earth to Pomo: downloading is going the way of the buffalo, the cassette, and the compact disk.  We’ve got Spotify.  We’ve got Beats Music.  The only thing standing in the way of ubiquitous streaming of music in the US is its pathetic broadband infrastructure (which I gotta believe is gonna get fixed in the next 5-10 years) and public awareness.  Ownership of music is going to be marginalized in favor of convenience and unlimited instantaneous selection, and soon the only folks who will care about “owning” digital files will be the aforementioned geeks, fetishists really, who’ll feel all warm and wet knowing that they own a super-file of Tubular Bells.

            Then there’s the technical side.  Pono will have 128GB of storage, which translates to about 800 superfiles.  Which ain’t a whole lot.  It accommodates memory cards and remote storage, but so what?  Who wants to deal with that?  And a lot of commentators are saying that most of Pono’s incremental audio quality is undetectable to the human ear.  So, while it probably will sound better than CDs to the discerning ear, it’s your dog that’s really gonna party on with Pono.

            Add to this the fact that the target demo, the middle-aged white guys reliving their 1978 dorm-room glories, have long blown out their ear drums going to shows, falling asleep with the headphones on, grudgingly settling for ear-killing ear buds.   In fact, I could be the poster child for the target demo.  Excuse me, what?

            Godspeed, Neil Young; I think you’re going uphill backwards.  But damn, I want one anyways.

Paul Rapp is an area intellectual property lawyer and musician who wrote this whilst listening to “Thick As A Brick 2” on 40 year-old audio gear.


Wednesday, March 19, 2014


This article originally appeared in the 3.20.14 issue of Metroland.

            Well, lookie here.  The other day I was loathing having to write this column this week.  A combo of late-winter malaise, persistent sickness, and catastrophic car trouble had reduced my spirits to a level even bourbon couldn’t fix.  I could write about spying (again), crappy trade agreements (again), or maybe the lame irrelevance of the SXSW festival (depressing).  Sigh.  Then, while surveying the world in lieu of much-needed sleep last night at 2 AM, I discovered that three of the biggest and most significant pending copyright lawsuits -- all matters that we’ve talked about at length here -- all settled on Tuesday.  Boink!

            Settling a lawsuit is generally good for the litigants; it ends an expensive and unpleasant chapter, not to mention deep-sixing business uncertainty and all that negative juju.  There’s an old legal canard that a good settlement is one that leaves all parties equally unhappy.  But for cases like these that involve big important legal questions, settlement usually means those questions won’t get answered.   Which is a drag for us lawyers.  Plus, in copyright law, where so many vital issues are fraught with uncertainty (a copyright lawyer friend once said that the correct answer to any copyright question is “it depends”), settlement just adds to that uncertainty.  And uncertainty in the law always favors the side with the most money, the side that can sustain a long, punishing lawsuit dancing on the head of uncertainty.  Uncertainty often makes the less-monied party fold like a two-dollar suitcase, no matter what the merits or righteousness of that party’s case, because the risks of going forward are too great.

            But these settlements weren’t all bad news.  First, the big kahuna, Viacom v. Google, where Big Media giant Viacom tried to extract mountains of Google moolah because lots of Viacom’s oh-so-precious intellectual property wound up being stuck up on YouTube (which is owned by Google) by people like you and me.  This case has been lurching around the courts for seven long years and Viacom has mostly been getting its corporate ass kicked every step of the way.  The lawsuit was a classic example of Big Media trying to slough off its responsibility to police its copyrights to somebody else, as well as another Quixotic attempt to kill, or at least maim, a disruptive technology that challenges its outdated business model.  Reports are that no money changed hands in the settlement, which means that Viacom finally realized that the millions it was paying lawyers to keep this lawsuit going wasn’t generating any shareholder value.  And shareholder value is all that matters to “people” (my friend) like Viacom.

            Then there’s Richard Prince and his Rasta photo “appropriation” case.  After a hideous trial court ruling finding Prince liable for willful copyright infringement, he largely won his appeal that  putting blue splotches on a professional photographer’s work was transformative fair use.  This decision that was probably correct in result but was widely criticized for lacking much in the way of meaningful analysis or guidance about what a proper standard for fair use might be.  The appeals court ruled that most of Prince’s 30+ pieces were protected by fair use and sent the case back to the trial court to rule on the remaining handful of works.  There’s no word on what the terms of the settlement were, but I’m guessing the photographer realized that even if he was to “win” on his remaining infringement claims, the amount of his damage award would be less that what it would cost to get him there.  Plus, he might be at the wrong end of an attorneys’ fee award, since Prince already won the war. 

            Then, finally, there’s the Beastie Boys verses Goldiebox case, where the girls’ science toy company used the Beastie’s song “Girls” (with changed lyrics) in a YouTube ad without permission.  I sided hard with the toy company; the use of the song was definitely fair use, and the song wasn’t much of a song to begin with.  A lot of people sided with the Beasties, arguing that the toy company’s campaign was nothing but a cynical attempt to bait the Beasties and generate loads of free publicity (which it did).  Which is an argument that has nothing to do with fair use – it’s really a popularity contest masquerading as a legal argument.  In any event, the settlement involved a public apology by Goldiebox (which is on the Goldiebox webpage) and an agreement that it will donate a percentage of its revenue to a charity of the Beastie’s choosing, one that supports science and engineering education for young girls.

            This Goldiebox settlement is a shame legally speaking, because the fair use argument was crisp and the likely ruling in Goldiebox’s favor would have been healthy for a painfully murky area of law.  But the settlement allows everybody to save face, it’s a feel-good settlement, and it puts some money in some good places, and not just in somebody’s pocket. 

            So it’s all good.  For now.

Paul Rapp is a Berkshires-based IP attorney who knows what he likes and likes what he knows.

Wednesday, March 05, 2014


This article was originally published in the 3.6.14 issue of Metroland

 Last week Saratoga Springs blogger John Tighe (“Saratoga in Decline”) was arrested on child porn charges.  His computers had been seized by the New York State Police 5 months ago, as part of an investigation about whether Tighe had hacked into the IT systems of NXIVM, the shady cult-like “self-improvement” organization based in Latham.  NXIVM is notoriously litigious, swimming in dough, and has had questionable cozy relationships with law enforcement in the past.  On his blog, Tighe had been doggedly critical of NXIVM and its lawyers.  Look, I’m no fan of child porn enthusiasts, and to be sure Tighe was no angel.  He was a classic example of the unhinged blogger, and a lot of what he did and said on his blog was irresponsible and over the top.  But isn’t there  something profoundly disturbing about cops seizing your computers based on some suspicion of a cyber break-in, and then rifling through your computers for months until they find something illegal in there?  Something totally unrelated to the initial seizure?   Oh, and Tighe’s blog, with all of its criticisms of NXIVM, disappeared last October when his computers got seized.  Something doesn’t smell right around here.

            Moving on.  Last week the 9th Circuit Court of Appeals, the federal appeals court that covers the entire west coast, issued a take-down order against Google that blew a lot of minds.  The Electronic Frontier Foundation jumped on it, saying it was a classic example of “bad facts making bad law”; Tech Dirt went particularly ballistic, calling the decision “horrific.”    I’ve only got room to scratch the surface, but here goes.

            The facts are as weird as can be.  An actress named Cindy Lee Garcia was paid $500 to act in what she was told was to be an action film entitled “Desert Warrior.”  Her scenes wound up in “Innocence of Muslims”, the anti-Islamist film that may or may not have caused the embassy attack in Benghazi.  At one point an over-dub had her saying “Is your Mohammed a child molester?” Garcia became the focus of a fatwa, and she's received numerous death threats.

            The film was all over YouTube and Garcia demanded it be taken down, claiming a copyright interest in the film.  YouTube refused, Garcia sued, the lower court ruled that she had no copyright interest, and then the 9th Circuit reversed and ordered Google to remove all versions from YouTube.  The court also placed a gag-order on all involved not to talk about the ruling for a week.

            I’m not terribly shocked by the finding that Garcia had some copyright interest in the film.  The EFF and Techdirt and the dissenting opinion went nuts, saying that actors’ performances aren’t copyrightable.  Nonsense!  It takes very little creativity to garner copyright protection, and to say that a dramatic performance doesn’t get you there is absurd.  (You’re welcome, actor friends!)

            Then they got upset because the court said Garcia wasn’t an employee of the film-maker (if she’d been an employee, the film-maker would have owned the copyright to her performance).  Really? Someone who acted for a couple of days for a barely-professional movie production is anything but an independent contractor?  Get out.

            So the court ruled that Garcia had a legal interest in her performance. In the normal course of things the law would presume that she’d granted the film-makers an “implied license” to use her performance in their film.  I mean, why else was she acting in front of the cameras, right?  But Garcia’s implied license was for a relatively benign film called “Desert Warriors”, not for an inflammatory piece of trash condemning one of the world’s major religions.   So “Innocence of Muslims” infringed Garcia’s copyright in her performance.

            The decision’s critics say that if this ruling stands, any actor in any film can sue if they don’t like how the movie comes out.   Again, nonsense.  There’s a huge and fairly identifiable difference between esthetic disputes and utter deception that puts an actor’s life in danger.

            So here’s a rare instance where I disagree with folks who are usually my heroes.  I think this part of the court’s decision was sound; I also think that the facts are so extremely odd that there will be little or no negative ramifications from this decision on the film industry. 

            And I think that Techdirt’s and the EFF’s arguments to the contrary undermine their better arguments against the remedy the court fashioned: the take-down of the film and the gag order.   This is where the court went over the cliff, big time.  Ordering a film banished because of a minor copyright violation is wrong.  Garcia’s role in the film was small; she had something to protect, but it wasn’t very much.  The court’s order was tantamount to censoring the film, and where you’ve got tension between free speech and copyright law, it’s copyright law that should bend.  Plus the film has been online for several years already—taking it down from one platform now makes no sense.

            And then there’s the gag order.  Huh? What country are we in?  This case will undoubtedly get reargued before the full panel of 9th Circuit judges, and soon.  They’ll be a ton of amicus parties and it’s gonna be fun to see the EFF lawyers arguing on the same side as the MPAA lawyers.  And ultimately, cooler heads will prevail.

Paul Rapp is a local entertainment attorney who just learned, to his extreme displeasure, that a failed turbocharger can totally destroy a car motor.

Wednesday, February 19, 2014


This article originally appeared in the 2.20.14 issue of Metroland.

You probably saw something about this fly by over the weekend.  You thought “huh?” and moved on to more productive things.  Yes, I’m talking about the “Dumb Starbucks” store that opened briefly in L.A..  A number of people sent me links to stories about it, asking “can they do this?” and I’m thinkin’ “well, whoever they are just did it, didn’t they?”  The more troubling question is why.

            For the blissfully unaware, last weekend a facsimile Starbucks store opened in a strip mall in Los Feliz, California.  It looked very much like a regular Starbucks, from the wall-menus to the cups to the aprons, except that everywhere the word “Starbucks” or other branding terms appeared, the word “Dumb” also appeared.  Very soon there were long lines outside the place, which was giving away coffee.

          What was it?  The stunt didn’t have any immediately obvious meaning.  There was a FAQ sheet posted in the store that said that “Dumb Starbucks” was legal because of “parody law.” It was just kind of, um... dumb.  And everybody was all like, “what’s the real Starbucks gonna do?”

            Turns out this was the “work” of this sad sack of shit named Nathan, an insufferable doe-eyed host of a Comedy Central show none of us have heard of called Nathan For You.   I’ve watched several clips of past shows, in which Nathan dourly sets up various absurdist situations involving business, brands, and the like.  None of it is particularly funny or even interesting.  Most of it doesn’t even seem real.

            Like this.  The upshot here is that Dumb Starbucks got shut down on Monday.  Not by Starbucks, which had issued a short statement that it was looking into the situation, but by the LA Health Department, for serving food without a permit.  Comedy Central soon posted a short clip of Nathan saying that Dumb Starbucks’ “name meets the minimum requirements to be considered a parody under the law.”

            Does it?  To answer this, it’s key to understand that we’re not talking about copyrights here, but trademarks, so different rules apply.  Copyright protects creative works, trademark law protects commercial names and symbols.  In order for there to be trademark infringement, there has to be shown a likelihood of confusion, that people will think that the alleged infringer is actually related somehow to the trademark owner.  And nobody, other than the proverbial “moron in a hurry” could possibly think that Dumb Starbucks is associated at all with the real Starbucks.  People might be confused about every single other aspect of Dumb Starbucks, but not that.  Why else would they say “what is Starbucks gonna do?”  Right?

            The other legal concept that might be applicable here is that of brand dilution or tarnishment.  This is a hideous, ugly, and thankfully little-used law that makes it illegal to use another’s mark in a way that lessens that mark’s “distinctiveness” or harms the mark’s “reputation.”  Dilution and tarnishment only apply to famous marks, and Starbucks is nothing if not famous.  But does the law apply?

            I don’t think so.  Dumb Starbucks doesn’t dilute the Starbucks famous mark; rather, it celebrates it.  Maybe “celebrates” isn’t the right word here, but you get the idea.  And tarnishment?  Nope.  It’s hard to see how this is even a comment on Starbucks.  As the guys over at Freakonomics brilliantly pointed out, Dumb Starbucks isn’t so much a parody of Starbucks as it is a parody of parody.  A parody of a freakin’ parody.  When I first read that every rubber band in my brain snapped at the same time.

            That’s almost enough to make me reconsider Nathan.  But not quite.  We love our conceptual art over here, when it’s done right.  All too often, though, conceptual art, performance art, is the smug offering of someone desperate to prove that they’re smarter than you, but they lack the mental acuity, depth, and technical skills to pull it off.  They’re not smarter than you.  They’re little more than attention whores.  And sad ones at that.  Dada’s been done and Dada is dead. 

            Which is how this strikes me.  Pointless.  Like the Karadashians of humor and art.  If you don’t pay attention to it it will just go away, shorn of what little power it might have had.  So let’s leave Dumb Starbucks right here, and never speak of it again.

 Paul Rapp is a local art & entertainment lawyer who wants to know how long this horrible cold is going to last.