Thursday, October 29, 2015


This article originally appeared in the 10.29.15 issue of Metroland.

You may have heard that the New York federal appeals court granted Google a big win in the long-running lawsuit brought against it by the Authors Guild over the Google Books project.  To briefly review, many years ago, Google announced that is was embarking on the mind-blowing task of scanning the entire contents of several of the worlds’ largest libraries to create a database of, well, pretty much all of the worlds’ knowledge.  Public domain works could be downloaded in their entirety, users could get multi-page previews for in-print books for which permission has been granted, and everything else would be subject to keyword and key-phrase searches, where the search results would be short snippets where the word or phrase could be found.

            Of course the book publishers went ballistic, screaming about “piracy” and “theft,” and the boneheads at the Authors Guild, a trade association claiming to represent the interests of writers, jumped in with a big ol’ lawsuit.  In act of attempted appeasement, Google allowed copyright owners to opt-out of the searches.  That didn’t appease anybody. 

            At the time the lawsuits started, like around 10 years ago, a whole bunch of us out here in rational-thought-land wondered why the Authors Guild was taking a position that was obviously against the interests of its members—Google Books would drive sales, would revive old, forgotten books, and would be an ace plagiarism detector.  But no!  Google was making copies, well, one copy, and copies are evil.

            So the litigation continued apace, and about 5 years ago the parties announced that they’d reached some sort of settlement.  It involved a pretty big cave on Google’s part, a lot of money being paid to the publishers, and a less robust search environment.  And it totally ignored what had been Google’s best argument, that the scanning and database were a fair use of the authors’ and publishers’ copyrights.

            But the judge rejected the settlement, saying that as it would apply to all authors and all authors weren’t represented by the Authors Guild, well, it wasn’t a fair settlement to the unrepresented authors.  Shortly after that, an appeals court told the judge to take a good look at the fair use issue.  The judge did, decided what Google was doing was fair use, and dismissed the case.  The Authors Guild (again) appealed.

            The latest (and probably last) decision wasn’t a surprise; it struck me as the judicial equivalent of shooting fish in a barrel.   There was a decision from the same court a year ago in another case involving some libraries’ uses of Google Books which more or less settled everything, and this appeal was really a matter of the Authors’ Guild foolishly spending its members’ money to stage a passion play for the cheap seats.   That being said, it was nice to read Justice Pierre Leval, a great writer who has been central in crafting the modern (and intelligent) view of fair use, take his victory lap, eloquently restating very settled law, once more with feeling.

            Reading the Authors Guild’s idiotic arguments made me laugh out loud a couple of times.  I’m weird that way.  But really. 

            The copying by Google wasn’t a transformative use of the books.  Oh really?  The books were written for whatever purposes the authors had in mind.  Google scanned them to create a knowledge database, to make it easier for us to find books with things in them we want to read about.  How is that anything but transformative?

            Even though Google is providing the public with searches for free, its ultimate goal is profits.  So?  You say it like it’s a bad thing.  The Supreme Court ruled a long time ago that whether a work was made for profit or not wasn’t a controlling issue, just one among many.  And here it’s merely arguable that what Google was doing was “for profit.”  Next.

            Google is depriving authors and publishers from revenue from entities that might pay them to have their books in search engines.  Uh-huh.  And where’s the line of entities creating for-profit search engines?  Google has scanned millions and millions of books.  And provided searches for free.  If there was no Google Books at all, do you really think some venture capitalists are going to fund the scanning of entire libraries to be eventually paid for by paid searches?

            Google has made it easier for hackers to steal books.  OK, how’s this?  I can go to the library, take out a book, then go home and scan it myself.  STFU.

            The Authors Guild says (of course) that they’ll take the case to the Supreme Court.  Their case is so awful that the Supremes will decline to hear it.  Wake up, Authors Guild.  It’s 2015, for crying out loud.

Paul C. Rapp is a local lawyer and freedom fighter who thinks librarians are just about the coolest people in the world.

Wednesday, October 14, 2015

10.15.15 MUSLIMS & TPP

This article originally appeared in the 10.15.15 issue of Metroland

Buried under all the hoo-hah about the debates and Lamar Odom was a significant court ruling regarding basic freedom that came out of a federal appeals court Tuesday in Philadelphia. The decision in the case Hassan v. City of New York over-ruled the dismissal of a lawsuit against the New York City Police Department over its surveillance program targeting Muslims.

            The allegations made by the plaintiffs are absolutely chilling: the systematic gathering and cataloging of information about Muslims, Muslim organizations and mosques; the undercover infiltration of civic organizations, schools businesses, and religious groups; and video surveillance of mosques and businesses.  All of this information was compiled in massive databases and analyzed and countless secret reports were generated.  And this program didn’t target dangerous or suspect individuals or groups.  It just targeted Muslims.

            I’ve read press reports that no arrests ever resulted from all this skulking around.  None.

            The trial court judge, a hack politico appointed by W in 2002, ruled, rather remarkably, that (a) the plaintiffs (all people and groups that had been spied on) couldn’t show any “cognizable injury-in-fact” and (b) the claim of religious discrimination failed because “[t]he more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.”   Oh really?

            The appeals court made mincemeat of both the trial judge’s and the City’s absurd arguments.   In an incredible, epic, and scholarly almost 60-page decision (that will probably be included in law school courses on Consitutional Law), the Court ruled that the allegations, if proven, make out clear violations of the plaintiffs’ rights under the Equal Protection Clause as well as the First Amendment. The decision closed with:

     What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “loyalty is a matter of the heart and mind, not race, creed, or color.”


            Moving on.  You might recall earlier columns about the Trans-Pacific Partnership, a multinational trade deal, years in the making, that’s been negotiated in secret by government officials in “industry representatives.”  How Congress gave Obama “fast track authority”, which means Congress can only give the entire treaty a thumbs-up or thumbs-down, with no ability to reject individual parts.  Well, apparently, the negotiation is over and the treaty is done.  But we still haven’t seen it, because… well, just because.  We’re supposed to be allowed to see it soon, but meantime, the good folk at Wikileaks have released something that is supposed to be the intellectual property part of the deal.  And it’s awful.

            The TTP requires all countries to adopt the absurdly long copyright term of life of the author plus 70 years.  That at a time when most scholars and many in government are contemplating shorter terms, because 100+ years for a copyright really can’t be justified with any rational argument, and it has frozen the public domain in place for the at least the last 40 years, and will continue to freeze it for the foreseeable future.  And speaking of the public domain, that’s relegated to the plaudit section of the treaty, something governments should “consider,” but no mandatory measures.  The same goes for fair use.  Instead, the treaty calls for more copyright enforcement, stricter digital rights management (technological ways to keep people from accessing or copying things), and higher penalties for infringement.  Even worse, the treaty mandates that Internet Service Providers, like your cable company, have the obligation to enforce copyright laws, that is, to bust their own customers for infringing activity.

            It’s pretty sickening, and it’s only a small part of the much larger treaty, that reportedly includes huge gimmies to Big Pharma, including things like special new patent protections for “biologics” and forcing third world countries to fully enforce pharmacological patents.  In other words, to keep medical drugs so expensive that people in many countries won’t be able to afford them.  And so they die.

            Just last week, Hillary, feeling the Bern, came out against TPP, which means the two Democratic front-runners both oppose the treaty.  The Republicans are either too busy with Jeebus or fake freedoms to pay much attention, and besides, they’ve all been bought off by the treaties proponents.  I’m thinking it will take a SOPA-like public uprising to kill this bastard thing.  Let’s do it.

Paul C. Rapp is a local IP attorney who hates long walks on the beach and candlelit dinners and pina coladas.  He prefers bourbon and Kinky Friedman.

Wednesday, September 30, 2015


This article originally appeared in the 10.1.15 issue of Metroland.

Well, it’s silly season on Facebook again, where the more gullible amongst us get their knickers in a twist over some fake nonsense about Facebook’s inherent evility.   Both of the things that popped up this week, or versions of them, have been around before, and they were debated, debunked, and banished.  But they’re back, demonstrating, again, how oddly paranoid and delusional many of us are.

            First of all, don’t you worry, Mark Zuckerman isn’t going to charge you to keep your information “private” or to let you continue to use FB.  The twist with this ruse this time is that the claim was supposedly backed up by an article somewhere on Huffington Post.  I spent a few minutes of my life looking for such an article and couldn’t, but it doesn’t matter.  It’s not gonna happen, the very idea that it could happen is ridiculous, and if you believed it, even for a second, you’re ridiculous.

            And then there’s that bold “declaration” of privacy rights, where the poster stridently proclaims to be master of his or her FB domain under some European UCC code and all that’s holy, and that the reposting, use, pondering, smelling, or licking of the poster’s content is punishable by slow death.  Or something.  C’mon.  Do you really think that your posting of some fake-legal gobbledy-gook is going to trump the terms of service you agreed to when you signed up for FB?  Really?  And where were you two years ago when this crap went around the first time?

            But then, we live in a country so dumbed-down by the media that a good number of us believe we walked among the dinosaurs 10,000 years ago, that the earth really was created in a week, that the Kardashians are role models and that Donald Trump is a serious choice for President.  We are a stupid idiot nation.  It’s just disheartening to be reminded.

            Moving on.  You may have heard that a judge ruled that music publishing giant Warner Chappell’s copyright in the song “Happy Birthday” was invalid.  For years, Warner Chappell has been shaking down filmmakers, television producers, and anyone else who wants to use the ubiquitous ditty for hefty licensing fees, and has also been getting big fat checks from ASCAP for things like when the waiters at a Chinese restaurant gather around your table and sing “happy birthday, dear customer….”  It’s been reported that WC has been raking in over $2M simoleons annually from this.  And pretty much everybody agrees that it’s stupid.  Livestream-broadcasted conferences have gotten interrupted when the audience decides to sing “Happy Birthday”; Stephen Colbert introduced an alternative, hilarious, royalty-free song people could use instead. But, until recently nobody’s challenged Warner Chappell’s claimed monopoly on this silly little song we’ve all sung at birthday parties hundreds of times.

            In 2008 some academics published a paper that showed that the melody of “Happy Birthday” was definitely in the public domain and that the lyrics almost definitely were.  Then in 2013 Warner Chappell finally got sued.  Just this past June, the plaintiffs uncovered an old songbook containing the lyrics that was published in 1922, which would indicate that the lyrics were also in the public domain.  And last week the judge ruled that Warner Chappell’s copyright was indeed a crock.

            Interestingly (or not), the judge didn’t rule that the lyrics to Happy Birthday were in the public domain, as has been widely reported.  Nope.  Not yet anyway.

            The decision is frustrating and complex, but in the final analysis, kind of hard to argue with.  It grapples with things that may or may not have happened almost 100 years ago, based on shreds of evidence that are at best ambiguous.  A pair of sisters claimed to have written the lyrics, but didn’t register the copyrights themselves.  It’s not clear that they ever authorized anybody else to register the copyrights either.  That songbook in 1922?  There’s no good evidence that the sisters licensed the lyrics to it. Or didn’t! So what was Warner Chappell hanging its hat on?  A copyright registration from 1935 naming one Preston Ware Orem as the author of a “Republished Musical Composition with New Copyright Matter.”  And the “new copyright matter” was described as “piano arrangement, with text.”  The court ruled that since Preston Ware Orem was not one of the sisters, and since everybody pretty much agreed that the sisters wrote the lyrics, that the “with text” part couldn’t be referring to the lyrics, and if it did, it was invalid.  Warner Chappell, say buh-bye to your cash cow!

            So, whether there is still some kind of copyright for “Happy Birthday” is unclear.  But given all the water over the dam, it’s highly doubtful.  So, pending the almost certain appeal of the decision by Warner Chappell, I say go ahead and use the damn thing.  Happy Birthday to you!

Paul C. Rapp is an intellectual property attorney and a crudely erudite student of the oddities of popular culture.  Like this here.

Wednesday, September 16, 2015


This article originally appeared in the 9.17.15 issue of Metroland.

As the clown car of evil, stupid, absurd, and pandering Republican candidates struggles to be taken seriously, the all-to-familiar spectacle of these right-wing assholes trying to co-opt rock and roll is back on center stage.  Why is it that Republicans believe they can appear “with it” and “hep” by using the works of artists that despise them?

            Let’s review a couple recent examples.  Union busting Koch stooge wanker Scott Walker used his favorite Dropkick Murphys song at campaign stops; the band got on Twitter and said “Please stop using our music in any way...we literally hate you!!! Love, Dropkick Murphys.” The band compared Walker to a "white supremacist coming out to gangsta rap."  The Donald used Neil Young’s “Rockin’ In The Free World”, and Neil issued a statement that he was a Bernie Sanders supporter and didn’t want his music used in any political campaigns.  Trump’s campaign said that because it had an ASCAP license that the use was OK, then Trump tweeted that Young was a “total hypocrite” because Young had asked him recently to invest in Young’s ill-fated Pono music venture. Why this is hypocritical is anybody’s guess, but then Trump announced he’d stop using the song, tweeting @Neilyoung’s song, “Rockin’ In The Free World” was just one of 10 songs used as background music. Didn’t love it anyway.”  Ha!

            Mike Huckabee muscled Ted Cruz off the podium to stand in solidarity with Kentucky Jeebus nutjob county clerk and serial adulterer Kim Davis after she got sprung from the hoosegow, all to the tune of Survivor’s “Eye Of The Tiger”.  The Survivor guys went ballistic, and it was reported that the band was suing Davis and Huckabee for $1.2 million dollars.  That report was apparently a hoax, but meantime Huckabee, despicable little worm that he is, is running around saying the song wasn’t his choice.

            I think the best one was when Ted Cruz and Donald Trump used REM’s “It’s The End Of The World As We Know It” at an anti-Iran deal rally.  REM’s Michael Stipe responded thusly: "Go fuck yourselves, the lot of you -- you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign."  Boom!  Down goes Frazier!

            The public embarrassment to these idiot politicians—to be told, flat-out, that no, you’re not one of the cool kids—is rich, one of the better side-shows to the sad circus that is the Republican presidential race.  But it might surprise you that the legality of using popular recordings in a political campaign is not as clear as you’d think.  It’s not a matter of copyright, that’s for sure.  The public performance of recordings is not protected by copyright law, due to an odd glitch in the law that has its roots in the once-powerful lobbying muscle of the radio industry.  The public performance of the songs, the compositions, is covered by ASCAP/BMI licenses, which are typically owned by the venues where the songs are played or by the campaigns themselves.  When Trump’s people said their use of “Rockin’ In The Free World” was OK because they had an ASCAP license they were correct as a matter of copyright law.  It was OK.

            But that’s not the end of the story.  What’s also implicated here, maybe, is the performers’ and the songwriters’ rights of publicity, the right to control the use of one’s image, name, voice, and persona for something that looks like a commercial endorsement.  And it’s a sticky wicket.  As we’ve discussed here a couple of times, there is no national standard for the right of publicity, it’s purely a matter of state law, and among the states, it’s a beguiling mish-mash of differing statutes, in states that don’t have statutes it’s a matter of common law, and courts in all fifty states are constantly making rulings about the right of publicity that go every which-a-way.  So, like we like to say about our relationships on social media, it’s complicated.

            Let’s take New York.  New York has a law that bars the use of someone’s persona for “commercial purposes,” which has been narrowly interpreted to mean advertising.  Is blasting “Eye Of The Tiger,” ostensibly to invoke Sylvester Stallone’s Rocky character being triumphant against incalculable odds, used when some Christianista loser gets out of jail and an opportunistic politician jumps on stage with her… is that “advertising”?  Did anybody really think “Gee, is Survivor against gay marriage?”  Did anybody think of Survivor at all? Did anybody seriously wonder if REM really supports Ted Cruz or if Neil Young was a big Trump guy?   

            Both ASCAP and our pals at the Future of Music Coalition have excellent online legal fact-sheet-guides to using popular songs in political campaigns.  But legalities aside, justice is usually done: the flag-wavers for the Party of Stupid get humiliated, the songs stop being used, and all is right with the world again.

Paul C. Rapp is a local entertainment attorney, lifeguard, and woodsman who comes from a long line of Republicans who would not be Republicans today because us Rapps are smarter than that.