6.13.13 NOBODY'S WATCHING YOU

This article originally appeared in the 6.13.13 issue of Metroland.

‘Spose I have to write about this NSA spying mess, right?  I shudder at the thought.  I’ve only been following it casually, and just the conflicting headlines make my brain hurt.  It’s a huge story, but it’s not a new story, and the mainstream press, to the extent it’s covering this at all, is once again doing us a huge disservice with a total lack of critical insight as to what’s happening.

            First of all, no, there are no government brown-shirts pouring over your flirty texts to your boyfriend, your prescription refill call to Rite Aid, or your latest Facebook post about some poor pooch who’s gonna be gassed in the morning at a dog pound in Texas unless somebody does something.  That’s not happening.  No, Obama hasn’t jack-booted the reigns of power or black-helicoptered your inner-most thoughts.  You wouldn’t know that, though, if all you see are the headlines.

            It doesn’t even appear that the administration has broken the law.  And that’s not to say things are OK.  But things aren’t as bad as the media is portraying them.  Keep in mind, this is a thread that includes the phony IRS scandal that the media loved, followed quickly by the Department of Justice leak investigations of a couple of reporters that caused the media to rise up in righteous indignation, maybe even more so than when the media wasn’t allowed to follow Obama around the golf course a few months ago.  Sigh.

           What appears to be happening is that the government is getting enforceable orders from a secret court to seize huge datasets from telephone, internet, and social media companies, datasets that contain tracking info, metadata, of foreign communications that it deems to be suspicious.  These huge datasets also contain lots of tracking info of domestic calls, because that’s apparently how the data is constructed.  The government claims it is only interested in the foreign traffic, and disregards the domestic stuff.  The government doesn’t get any of the actual content of the communications, just info regarding source, recipient, duration, etc.   And all of this is dutifully reported to Congress on a periodic basis.  And it’s all totally within the law and it’s been going on for years.

            Oh, and the various communications companies don’t appear to be letting government spooks run willy-nilly through your stuff either.  Rather, when served with a secret order from the secret court, the companies (some of which may have challenged the orders, and lost) secretly gather up the required info and more or less secretly dropbox it to the government. 

            Now, the proceeding paragraphs could very well be big loads of crap, but it’s the most logical explanation I can concoct from distilling the best sources I could find out there. 

            So it’s the law that allows this that’s the problem. Or is it?  In the days following 9-11, we allowed a lot of our privacy to get pissed away with Congress’ passage of the Patriot Act because we were all a-skeered of them crazy Ay-rabs flying more jets into our skyscrapers.   And the laws have been reauthorized, broadened, deepened and strengthened by Congress over and over again.  What you’re reading about now isn’t new.  A handful of Senators and lots of scholars and commentators have been bemoaning the death of privacy for a long time.  We’ve been doing it right here for as long as we’ve been right here.

            So while you probably haven’t been violated as badly as you’ve been led to believe, yeah, you’ve probably been violated.  Do you care?  I mean, most of us don’t care that our online browsing habits are closely monitored by marketing companies, so when we spend 20 minutes online looking at, say, spatulas, for the next several weeks we’re targeted with ads for spatulas.  It’s not magic!   We accept it.  It’s actually kind of cool, right?  So we really don’t mind that kind of surveillance, but now we’re furiously beating our chests because the broad contours of our communications may end up in a digital stew that the government uses to keep crazy people from blowing us up?

            Yes that was a rhetorical question.  Of course I don’t trust the government, either.  But the data is out there, and the question isn’t so much whether it should be used but how, and under what conditions?   Secret laws, secret courts, and secret orders subject only to secret “congressional oversight” is not acceptable.  This is tantamount to sending rodeo clowns in to do heart surgery.  Notions of privacy are changing at an almost incomprehensible pace, but we haven’t yet and need not devolve into an Orwellian or Kafkaesque state.  I hope.

Paul Rapp is an attorney in the Berkshires who not only wears a tin foil hat 24-7, he makes his dogs wear them, too.

            

5.30.13 BEER WARS

This article originally appeared in the 5.30.13 issue of Metroland.

The internet blowed up real good last week over a dispute between Vermont’s Magic Hat brewery and West Sixth Brewing Company, a small brewery in Lexington, Kentucky.  Seems that about a year ago West Sixth started bottling brewskis that it called “6”.  The label for 6 featured the number 6 in a very stylized font along with a little cartoon star.  Magic Hat has for years been selling its “#9” beer, with the vaguely psychedelic labels we’ve all seen... using virtually the same stylized font and an extremely similar cartoon star.

            A bunch of you forwarded to me a West Sixth webpage entitled “No More Magic Hat” where the Kentucky brewery is squealing like a stuck pig about being “bullied” by Magic Hat over the 6 logo.  This went seriously viral, with a Facebook page, a petition, Magic Hat getting bombed with emails, and various blogs and other commentators (including many I respect and admire) uniformly condemning Magic Hat for being some kind of corporate monster.

            I smelled a rat.  I’ve spent a good bit of my career dealing with corporate IP bullies on behalf of real victims, real little guys, real Davids taking on real Goliaths.  And something didn’t feel right about all of this.

            In a parlance that could be described as “forced breezy”, West Sixth claims on its website that an “enemy” is trying to “force us out of business by the filing of a silly and frivolous lawsuit.” Magic Hat is painted as an arm of some “international conglomerate” while West Sixth is portrayed as a teeny-tiny little neighborhood start-up.  And this big bad Magic Hat only has a registered trademark for the number nine and now they’re saying it’s the same as a six!  And Magic Hat has got “fancy New York lawyers.” And how can you help this poor, beleaguered company?  Buy their beer!  Sign a petition!  C’mon people, let’s get faced and fight the power!

            It all made me a little queasy.  A little too slick.  The passive aggressiveness was palpable.  And, as it turns out, it was deceptive as hell.

            Let’s start with the West Sixth webpage.  The brewery refers to itself as a “socially conscious craft brewery.”  Does that strike you as a little self-congratulatory?  I mean, if you have to say that you’re “socially conscious” at the top of your corporate statement (West Sixth strangely doesn’t include the “LLC” that’s part of its real name anywhere on its website), I’m thinking you may be trying a little too hard to be groovy.

            Magic Hat is, in fact, still a Vermont-based LLC and its brewery is still in Vermont, but it’s apparently now owned by a much larger corporation.   And yes, Magic Hat has registered only the simple trademark “#9”, but its labels are extremely distinctive and are protected at common law.  So West Sixth’s main argument, jumping up and down and yelling that a 6 is different than a 9, is totally bullshit.  I’d like West Sixth to answer these questions: Why the same font?  Why the same star?  Why the same colors on the labels? These are coincidences?  Really? 

            All of West Sixth’s anti-corporate nonsense obscured the fact that it’s not an innocent here.  It also played loose with the facts of how we all got here.  To quote Tom Verlaine: "I knew it must been some big set-up."

            Lawyers for Magic Hat contacted West Sixth last September complaining about the logo.  And they weren’t “fancy New York lawyers.”  It was Harter, Secrest and Emery, from Rochester, NY.  They also have an office in Albany.  Maybe one of their lawyers wrote your will or incorporated your business.   They’re a fine, completely unfancy upstate law firm.  West Sixth, in turn, responded through the law firm of Stites & Harbison, one of the oldest law firms in the country, with 260 lawyers working in eight offices around the South.  For a couple of months the lawyers went back and forth, and seemed very close to settling the case. West Sixth agreed to change its logo so it was less confusing.   Then West Sixth reneged on some of its concessions and told Magic Hat that it would create a public relations nightmare if a lawsuit started.  So Magic Hat sued.  Using attorneys from Nashville, Tennessee.

            I don’t know if Magic Hat has got a great case, but I think they’ve got a good one.  There’s allegations that West Sixth was well aware their logo looked a lot like Magic Hat’s from the git-go, and the fact is if they didn’t, they’re as stupid then as they are disingenuous now.

            Magic Hat has now amended their complaint and asked the court to enjoin West Sixth from continuing its publicity campaign to ruin Magic Hat’s reputation, which is worrisome because it gets into free speech, robust criticism, all that stuff.    I think Magic Hat has been smeared, but I really don’t want a federal court issuing orders stopping anyone from saying something before they say it.

            It’s a mess, but it’s not what everybody seems to think it is.

Paul Rapp is an IP attorney and avid consumer of liquids who is going to buy a sixer of Magic Hat #9 this weekend and drink it like the fancy lawyer he is.

           

           

           

           

                        

5.2.13 RICHARD PRINCE

This article originally appeared in the 5.2.13 issue of Metroland.

            The New York federal appeals court issued its decision in the Cariou v. Prince case last week, and it’s a gooder.  The case involves famed (or perhaps infamed) appropriation artist Richard Prince’s series of manipulated images using Philip Cariou's photographs of Rastafarians, all done without Cariou’s permission. 

            A district court last year ruled that Prince had infringed on Cariou’s works, finding both Prince and his gallery liable for infringement, ordering the infringing works to be impounded, and scheduling a hearing to determine damages and an award of attorneys’ fees.  The court ruled on these things as a matter of law, that is, that the issues were so clear there was no need to send any questions to trial. This ruling sent considerable fear and loathing through the art world. If allowed to stand, this broad and brutal decision would render appropriation art, arguably the most significant art movement of the last 100 years, an endangered species.

            In a stunning rebuke, the appeals court reversed the ruling, and held that all but five of the thirty Prince works were, as a matter of law, protected from any claims of infringement by the fair use doctrine, and instructed to trial court to determine (using the right standards this time) whether the other five works were infringing.  The appellate court cleared up a number of things that have made navigating fair use so treacherous for so long.

            The court reminded the world that copyright law exists not to protect creators, but for the betterment of society, that too strong copyright protection can work against that goal, and that fair use protects our right to express ourselves by referencing the works of others.  Then the court lowered the boom.

            Citing some old and largely discredited caselaw, the lower court had ruled that Prince’s works could not be fair use because they did not make any comment or criticism about the appropriated Cariou photographs. The appellate court announced bluntly that no such requirement exists, and that fair use can be found if a new work simply provides a “new expression, meaning, or message,” regardless of whether it comments upon or parodies the original work.

            Then the court tackled the thorny issue that Prince, ever the provocateur, had testified in depositions that he “doesn’t really have a message” and that he “wasn’t trying to create anything with a new meaning or a new message.”  (Prince’s deposition transcript is available online, and throughout it appears that he’s enjoying being deposed more than any litigant in the history of litigation, and succeeds, over hundreds of pages, in saying almost nothing.)  The court noted that most artists in his position would fall over themselves trying to explain the transformative nature of his or her work, but Prince didn't, and the fact that Prince refused to do so didn’t matter.  What mattered was whether new meaning could be reasonably perceived. The court announced that it perceived it and held that 25 of the works were of a completely different character and employed different esthetics than Cariou’s photographs.  Fair use, bitches! Boom!

            The court then admonished the lower court for making way too big of a deal over the fact that Prince aimed to make money from his work, noting that for almost twenty years the commercial nature of a work was usually not a very important fair use factor.  Everybody tries to make money with their work.  That's how they eat.

           

            Then, noting that the lower court had held that Prince took more of Cariou’s work that was “necessary”, the appellate court said “[w]e are not clear as to how the district court could arrive at such a conclusion. In any event, the law does not require that the secondary artist may take no more than is necessary.”   Wow! Down goes Frazier!

            Finally, the court focused on the five works it was sending back to the district court.  These are the works you may have seen in the press, Cariou’s photos with blue blotches (referred to in the decision, oddly, as “lozenges”) over the Rasta faces and some crude cutting and pasting, like putting a Stratocaster in a Rasta’s hands.

            The court ruminated on the similarities and differences between Prince’s works and the Cariou photographs, and decided,  rather strangely, that the district court (which had created such an incredible mess in the first place) was somehow “better situated” to decide whether these were fair uses or not.   I think the legal term for this is "punt".  This probably means a trial, if this thing doesn’t settle.  That’ll be some fun.

           This is a really important decision that opens the fair use door wider than it’s ever been and provides collagists and appropriation artists of all types greater confidence to follow their muses without fear of getting sued by some jerk with Lotto fever.  Hopefully, these big general fair use ideas will finally carry over to musical works, where a couple bad decisions and a whole lot of record industry money has, for over 20 years, stifled the free use of sampling in new recordings.  I think that’s about to change.

Paul Rapp is an entertainment attorney in Western MA who’s going to the drive-in tonight and plans to fog up the windows for the “coming-soons”.

4.18.13 SOMETIMES I FEEL LIKE A MOTHERLESS CHILD

This article originally appeared in the 4.18.13 issue of Metroland.

Urgh.  The events in Boston are gonna further wreck your freedom.  Just watch.  Last night I was listening to a special program from WBUR about the bombings, featuring listener call-ins.  The first call was from a guy from Georgia indignantly demanding to know how something like this could happen after the billions of dollars we’re spent since 9-11 on homeland security.   Sure, it’s an utterly moronic question, but you know it’s being echoed everywhere.  Why can’t somebody do something?

            And, of course, being a moronic question, it is destined to be asked in the Halls of Congress.  In times of crisis, even an unpreventable crisis like this appears to be, Congress has to do something under the fiction that we can insure that nothing like this ever, ever happens again.  If Congress doesn’t do something, Congress appears impotent.  If Congress doesn’t do something, anything, the terrorists, whoever the hell they are this time, will have won!

            And, unfortunately, there is a something Congress can do that’s already before it--- CISPA (Cyber Intelligence Sharing and Protection Act),  a hideous little law being pushed by House Republicans, those buffoons who are against government, except when it comes to controlling the little guy.  The proposed law would allow any company that collects online data from people, essentially every company you use to get online and every company that you visit online, to be immune from any lawsuits arising from the company’s sharing all of that data with the government.  In other words, those privacy policies you see on every website you visit, that you think protect you?  They’re meaningless!  If your ISP channels all your emails to, say, the FBI, there’s nothing you can do.

            CISPA is ridiculous and overbroad, and it trumps every other law on the books that’s supposed to be protecting your privacy.  As I write this, it’s sailing through the House and in its way to the Senate.  The White House has said it will veto the law unless it contains privacy protections, like limiting the immune shared information to stuff that doesn’t contain individuals’ identities.  But that’s not what the Republicans want.  They want their foot on your neck.  You just know that some pantload Senator is going to get on the floor and declare that he knows for a moral certainty that had CISPA already been the law that the Boston Marathon tragedy would have been averted.  And the Fox News will amplify it.  And then how is Obama gonna veto the very thing that would have saved those precious lives?

            Privacy schmivacy.   You know, if you ain’t doin’ nothin’ wrong you got nothin’ to worry about.  Right?  Time to get your VPN jammin’.

            Moving on.  A couple months ago a young libertarian-leaning House staffer issued a report that said, essentially, that the entire Copyright Act was a piece of crap that was being used to block innovation and creativity and that it should just be thrown out.  The dude got fired a couple days later.  But just a few weeks ago the Register of Copyrights, Maria Pallante, marched up to Capitol Hill and pretty much said the same thing.  She told Congress that it was time for the “next great copyright act,” noting that the current laws, created largely in the 20 years leading up to the 1976 Copyright Act, simply don’t address the digital age.

            While I’ve never much trusted the Copyright Office and the Obama Administration regarding IP issues, Pallante’s remarks were really quite revolutionary and on the mark.  Here’s a money quote that alludes to the corporate hijacking of the Copyright Act with pages of impenetrable technocratic nonsense:

Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it....  my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

            Well hello!  She went on to emphasize that the public good is what copyright law is supposed to be about, and that the discussion for the new law had to include not just businesses, but parties representing the public, the ultimate end-users of IP.  She listed some of the things that she felt needed to be done, including dealing with orphan works, reforming the music marketplace, creating fairness in licensing, reevaluating what rights a copyright holder should have or not have, making sense of fair use, and restoring a robust public domain by shortening the automatic term of copyright.

            It’s a nice start.  Given that the last go-round took over 20 years at a time when copyright law was an arcane subject that directly affected very few, it’s gonna be interesting, to say the least, to see how this plays out.

Paul C. Rapp is a local IP lawyer and volunteer firefighter who, like Kenny Loggins, Lou Reed, Paula Cole, Human League, Matisyahu, and Barbara Streisand, believes in love.