Wednesday, August 19, 2015

8.20.15 STFU: THE NEW (AND SCARY) POLITICAL CORRECTNESS


This article originally appeared in the 8.20.15 issue of Metroland.


            It seems like all of a sudden free speech is under serious attack.  Two epic Atlantic articles lay it out.  In “The Coddling Of The American Mind” writers Greg Lukianoff and Jonathan Haidt dissect and analyze the growing movement on college campus to restrict speech that might make someone uncomfortable.  This odd variant on political correctness seems to be originating not from pointy-headed academics (who spurred the first political correctness scare in the 1990’s) but from the students themselves.  And it’s horrifying.

            The buzzwords of the day are microaggressions, in which seemingly innocuous statements become vehicles of offensiveness, and trigger alerts, in which teachers are often required to issue warnings when the content of a class might possibly cause someone a PTSD-like recurrence of a past trauma.  Many colleges have speech codes in which microaggressions are punishable offenses, like asking an Asian student where he or she was born (which apparently carries the implication that the student isn’t a “real American”) or carrying around a book about the Ku Klux Klan (and extremely anti-Klan) that features a picture of a Klan rally on its cover.  The cover is a microaggression because it might make black kids uncomfortable.  Trigger warnings could include allowing law students to skip the parts of a criminal law class that deal with rape, or to skip over the suicide-y stuff in “Romeo and Juliet.”  Really.

            In the companion Atlantic piece “That’s Not Funny”, Caitlin Flanagan explores the recent trend of stand-up comics avoiding college gigs because the students have created such a repressive atmosphere that most stand-up fodder is unwelcome.   Prominent comics like Chris Rock and Jerry Seinfeld have recently talked about this, and the article explores how comics at all levels of the fame spectrum have had to sanitize their routines in order to score the lucrative but increasingly undesirable college gigs.  Edgy humor is not allowed.

            What the hell?  How did we get here?  Lukianoff and Haidt try to connect the dots from helicopter parents and the incredibly protective nature of today’s kids’ upbringings.  There are no more “free range” kids, there is a massive and growing phobia about bullying (and an increasing sphere of what “bullying” consists of), and kids are led to believe that life is something that avoids disappointment, defeat, hurt, insult, fear, or even discomfort.  You know, the shit of everyday life that we all deal with.  And once they get to college, the cash-strapped institutions (which is most of them) will do anything to keep the little bastards (and their tuitions) happily on campus.  So the retards are running the asylum.  Can I even say that?  Probably not.  Eat me.

            I got a taste of this “catering to the inmates” deal a few years ago when I was teaching at a local institution of higher education.  I gave a hard test, designed that way, designed so that some students wouldn’t finish it.  A couple of weenie students complained to the Dean that my test “wasn’t fair” because they couldn’t finish it.  Never mind that all the students took the same goddamn test.  Instead of telling the little creeps to bite it, I got the shaft.  I’ll bet almost every college professor you know can tell you something similar.

            And then along comes an article in The New Yorker from Kalefa Sanneh, “The Hell You Say.”  Sanneh, rather incredibly, talks about free speech being a relative thing, using European law as an example.  He trots out a couple of crappy lesser-light books about how "liberals" are ruining free speech and argues how the books' logic are wrong.  He compares “speech nuts” to “gun nuts.”  And then he fawningly describes a couple of academics who agree with him.

            It’s really a disgraceful bunch of writing from somebody who should know better.  The best place to look for a retort is at the website of the Foundation for Individual Rights in Education, thefire.org, which lays out 10 points on which Sanneh is either factually of logically wrong.  It’s pretty devastating, and it’s good.

            I strongly suggest you take the time to look at these articles.  Right under our nose, a world is being created that I don’t think we want to live in, like Brave New World without the Soma.  And let’s not let the right wing claim to be on the right side of this, because it would be the one issue they’re absolutely correct about.  It’s not liberals who are destroying free speech, its kids.  But at this point, the liberals are letting them get away with it.


Paul C. Rapp was recently described in a local newspaper as a “lawyer, musician, and lifeguard”, and that’s about right.

Thursday, August 06, 2015

7.6.15 IN PRAISE OF DAVID BYRNE


This article originally appeared in the 7.6.15 issue of Metroland.

I’ve criticized the always-fascinating David Byrne in the past for some of his public proclamations about the music business.  In 2006-2007 he was wondering aloud whether record companies were necessary in the digital age, which is a good thing to wonder about.  He spoke intelligently about various alternative business models, and was an early innovator in using the internet to connect directly with his fans.  As with his music, he wasn’t afraid to try new and different things.  Some things work, some don’t.  That’s how art and business move along.

            In 2012 he complained about record companies sticking DRM (digital rights management, digital goo that keep consumers from transferring files around their devices and to their friends) on his music, claiming he shelved an album for over a year until his record company agreed to release it DRM-free (These days most every digital file you buy is DRM-free; the record companies after a decade of clownish and despicable behavior, have quietly given up, for now).

            Then, in 2013, he got weird, not in that charming David Byrne weird way, but in a post-modern “got offa my lawn” weird way.  He pulled much of his catalog off of Spotify, which at the time had been available in the US for barely a year.  In a bizarre op-ed in The Guardian he announced that “the internet will suck all the creative content out of the world.”  What?

            Last week the New York Times ran another Byrne op-ed, and I thought uh-oh.  Turns out he nails it, it’s worth reading, and it focuses on the Big Problem in the music biz today.  And that’s the total lack of transparency in how money gets to artists with streaming services.  In order for Spotify, the new Apple Music (which appears to be failing), Jay-Z’s Tidal (which is failing) and the rest of the streaming services to get major label catalogs, they’ve had to shell out hefty advances and give away large chucks of their companies, or at least large chucks of their profits, to the major labels.  How big, how much?  We don’t know, because the agreements are confidential.

            Byrne, to his credit, doesn’t blame the streaming services for this, like so many other artists have done.  He actually says nice things about Spotify.  Instead, he blames the labels, who have a history of being greedy and corrupt, and who haven’t changed their stripes in the digital age.  The services needed to leverage their companies and profits to get the major label’s back catalogs, otherwise it would be game over.  But did these huge advances get shared with artists, and if they did, how? Spotify famously claims that 70% of its revenue goes to rights holders as royalties, but in most cases the rights holders are record companies.  How much of that gets to the artists?  Despite numerous lawsuits that have found that some artists should get 50% of the record companies’ share, it appears many artists are getting the 15% or so they got under traditional record contracts.  Which made sense when the record companies manufactured disks, printed sleeves, stored them in warehouses, and trucked them to stores.  It makes absolutely no sense today, when all the record company has to do is transmit a digital file to Spotify, Apple, etc. and then sit back and wait for the checks to arrive.

            And how about the money the companies get from their equity stakes in the streaming services?  How much of Spotify’s 30% goes back to the record companies?  Isn’t this, in a very real sense, double dipping?  For me, Byrne’s penultimate question was this: Why was it up to Taylor Swift, and not the record companies, to demand that Apple pay royalties for the three-month free streaming period?  What was the labels’ stake allowing their artists’ music to be given away?

            And there’s YouTube, which you might be interested to know is by far the biggest portal of streaming music in the world.  How much of their ad revenue goes to rights holders, and where does that money go?  We don’t know.

            And then there is the significant inference that the major labels, with all their bargaining power, are undoubtedly getting a better deal than independent labels and individual artists trying to slog through the digital new world.

            Byrne lists his efforts to find out, and this would be comical if it weren’t so sad.  Doors slammed in his face, calls unanswered.  Turns out much of what we know is from leaks, including the big Sony leak from last year.

            I get royalty statements for my band.  Five years ago it was pretty clear what they meant—we sold x number of downloads and got y dollars for it.  Now I get statements showing pennies here and there from this service and that service, some I’ve never heard of.  I just got a check in the mail for 3 cents.  Dunno what the hell that’s about.

            And of course the labels are to blame.  Meet the new boss… same as it ever was.

Paul Rapp is an entertainment lawyer and musician who lives in the woods and needs a damn good reason to come out.


Wednesday, July 22, 2015

7.23.15 MORE ORPHAN THAN NOT



This article originally ran in the 7.23.15 issue of Metroland.

It’s starting again.  I’m getting messages from frantic clients whose professional trade organizations are telling them that Congress is about to take their copyrights away. “How can they DO THIS?” “How can we stop them?”

            We’ve been here before.  No one is going to take your copyrights away.  Relax. 
What we’re talking about is a new round of orphan works legislation has been proposed by the Copyright Office and is heading to Congress.  And that’s a good thing.

            An orphan work is a creative work that might be copyright-protected, but might not be.  Sometimes there is no authorship information accompanying a copy of the work. Sometimes there is but the named author is untraceable.  Sometimes you don’t know if there’s even any kind of copyright protection.  For works created prior to 1964, you don’t know whether a work was registered with the Copyright Office or whether that registration was renewed after 28 years (back then copyright only arose upon registration and copyrights had a renewal term).  Since the Copyright Office online records only go back to the mid-1970’s, tracing registration for older works requires going to the Copyright Office and plowing through its card catalog, which is tantamount to searching for a needle in a haystack.  And for works created after 1977, well, everything is potentially copyright-protected because under current law, copyright arises upon a work’s creation.

            What this has created is a barrier to creativity—the inability to use existing works creatively for fear that someone is going to pop up yelling “infringement!” and suddenly you’re behind the 8-ball, facing liability that could be catastrophic.

            It’s a real and significant problem; I get calls all the time from people who want to use a photograph, a piece of artwork, some film footage, and often there’s really no way of knowing whether there’s an owner or who it might be.  I’ve gone on wild goose chases myself, and despite all the info on the internet, usually come up empty.  I’ll advise the client “well it might be infringement, but go ahead and use it anyway” which isn't exactly sound legal advice, but then I’d rather see new things created than not.  I had a client want to republish her father’s pulp fiction that was originally published in the ‘40’s and ‘50’s by a bunch of tiny publishers that don’t exist anymore but maybe were bought up and absorbed by bigger companies. I mean, I deal with these issues all the time, as does I’m sure every other copyright attorney out there.  It’s frustrating and stupid.  Copyright law stands in the way of its own purpose.

            In June the Copyright Office issued a 105-page white paper addressing orphan works, calling the problem “ perhaps the greatest single impediment to creating new works.”  The paper notes that some 30% of the books in the world’s major libraries are orphan works, and acknowledges that while fair use would protect many creative re-uses of works, fair use is too unpredictable for most folks to rely on, so they elect not to use orphan works at all. “By foregoing use of these works, a significant part of the world’s cultural heritage embodied in copyright-protected works may not be exploited and may therefor fall into a so-called ‘20th Century digital black hole.’”

            What to do?  After examining the experiences of other countries in dealing with orphan works (and there are some seriously wacky “solutions” out there), the Copyright Office proposes that the law be amended to limit the liability of users of orphan works who can show they made a real effort to find a copyright owner and couldn’t.  The Copyright Office would issue guidelines on what constitutes a “real effort.”  Users would then file a “Notice of Use” with the Copyright Office.  If an owner of the re-used work shows up, the owner’s remedy would be limited to a market-based license fee.

            So what’s wrong with this?  Well, trade groups, most notably those representing photographers and illustrators, are jumping up and down yelling that the legislation will effectively wipe out their copyrights, that users will do a shallow search and then rip artists and photographers off, and that they’ll lose all control over how their works are used.  Nonsense.  The required search for an owner won’t be perfect but it will be rigorous.  And the internet makes most searches effective.  Have you noticed that Google Images (which is decried as a big bad infringement machine) has a little camera icon in its input box?  Yes, you can search for specific photographs and images using Google Images, which makes finding copyright owners (and online infringers) much easier.  That will be a required part of a search, to be sure.  For crying out loud, photographers and illustrators are already getting ripped off right and left and the proposed orphan works law will provide them with a quick and easy way to get paid for someone’s good-faith use of their works.  The sky isn’t falling. In fact, the clouds are parting.


Paul C. Rapp is a local entertainment attorney and musician who is happy to say that after 35 years of wanting to be one, he is now in fact a lifeguard.

Wednesday, July 08, 2015

7.9.15 Hodgery Podgery

This article originally appeared in the 7.9.15 issue of Metroland.

A while back I wrote about these hideous lawsuits brought by porn producers against people whose internet accounts where identified as being used to download porn torrents.  It was the ultimate shake-down: they demanded thousands of dollars or else the internet account holder would be named in a federal lawsuit, even though there was no proof that the account holder was actually the person who downloaded the porn.

            Most of these suits have been thrown out by judges smart enough to see through the scam.  And now there’s word that the FBI is investigating Prenda Law, a law firm that represented many of the porn producers.  Apparently there’s some suspicion that Prenda Law or someone acting on its behalf initially put the porn films up for download; Prenda waited for nature to take its course, and then started busting people.  Urgh.  Prenda Law’s been sanctioned by several courts for other types of unethical conduct, and now it looks like there might be some jail time coming, too.  Good.

            In other silly news, Lionsgate Studios is in litigation with Ameritrade.  Why?  Because Ameritrade ran a commercial that featured a cartoon guy holding a cartoon piggy bank in the air while an announcer says “Nobody puts your 401(K) in a corner.”  Lionsgate (which has a history of absurdly overaggressive legal behavior) has decided that this infringes its copyrights (or trademarks, or something) in the 1987 film “Dirty Dancing” and wants Ameritrade to pay up.  Like seven figures’ worth. Really?  Lionsgate could really use some adults on its legal team.

            A few weeks ago I mentioned that my little town was going to be part of a cooperative effort to bring universal broadband service to rural Western Massachusetts.  This sort of thing will be a growing trend, not just in rural areas but also in cities where the populace gets tired of being terrorized and ripped off by the likes of Comcast and Time Warner.  But not if some Republican state attorneys general have their way.  The AGs of North Carolina and Tennessee have just sued the FCC seeking to overturn the FCC’s recent rulemaking that outlaws state statutes that forbid local publicly-owned broadband companies.  On what theory?  Well, states’ rights, dummy!  The same theory that justified slavery!   Let’s see a real justification for this, other than fascist greed. 

            Dateline Finland!  Finland just passed a law that requires concert promoters refund ticket money if a concert sucks.  The law has its genesis in a 2013 concert by, of all people, Chuck Berry, where he was reportedly fatigued.  Chuck Berry, who just happened to pretty much invent rock and roll, was at the time 86 years old.  The threshold for refunds is when a show is determined to be “well below reasonably expected standards.”  By whom?  By a “generally agreed standard.”  What could possibly go wrong here?  Watch out, Kanye!

            Speaking of wacky Europeans, the European Union is considering doing away with a legal right I didn’t even know was a thing: the right of panorama.  Essentially the EU is considering a measure that will make it an infringement to post photographs that include public sculptures or buildings or anything that has copyright protection.   The sponsor of the bill is angry that big American corporations like Facebook are making money by allowing people to post snapshots of famous images.  Well, this is going to work out just dandy.

            This confederate flag deal is just breath-taking isn’t it?  Rarely in our lifetimes have we witnessed anything move so fast.  Removing the flag from government institutions is a no-brainer, but the corporate reaction is stunning.  There’s a lot of talk of “bans,” the First Amendment, and political correctness, but private companies are free to do what they want, and the collective and immediate actions of Amazon, E-Bay, Apple, Wal-Mart, etc. in dropping the racist symbol were remarkable.  NASCAR has banned official use of the flag and asked race patrons to not display the flagged, with predictable results.  The cable network TV Land dropped its twice daily airing of “Dukes of Hazzard,” which caused a massive internet shitfit.  As if there’s anything more sad than watching the “Dukes of Hazzard” in the middle of the afternoon.

            The thing that made me sit up and say howdy was when a friend posted the announcement that Lynyrd Skynyrd was dropping the confederate flag from its staging and merchandise.  I had the unfortunate experience of seeing Skynyrd about 20 years ago and it did look and feel a little bit like a Klan rally.  Then I came to find out that the announcement was 3 years old!  Skynyrd member Gary Rossington explained in 2012 that the imagery of the flag had been “kidnapped by racists and skinheads” so that it was no longer the symbol of pride and heritage it once was.  Which isn’t exactly true, but no matter; Skynyrd did the right thing long before corporate America did and good for them.

Paul Rapp is an IP attorney and proud Northerner who is going to see the Rolling Stones next week.