Monday, November 20, 2006


[This article originally ran in the 11.22.06 issue of Metroland Magazine]

A couple of things have happened in the information world in the past week that are much less important that most of the media would have you believe.

The first is the over-hyped release of Zune, Microsoft’s attempt to unseat Apple in the digital music world. The media catch-phrase for Zune has been “The I-Pod Killer”, and on the day of its release the headlines screamed things like “Microsoft takes a bite out of I-Pod!!!”

Rubbish. Let me start by saying that I don’t own an I-Pod. Years of playing rock and roll without ear protection has severely compromised my hearing, and the last thing I need is tinny, compressed music being mainlined into by inner ear. So what I am about to relate is based on a survey of the literature, not personal experience.

It appears that Zune is DOA. Bigger and heavier than the biggest I-Pod, it apparently doesn’t offer much in the way of improvement over the sleek, iconic front runner. I guess the video screen is a little bigger, which might be a boon for those who think that viewing movies on a calling-card sized screen is a fun thing to do. The user interface is reportedly OK but not as seamless and intuitive as the I-Pods’. The Zune is available in white, black, and.....brown? Brown? To paraphrase a great man, brown Zunes don’t make it.

The biggest “innovation” the Zune boasts is the “sharing” function. If you’ve got your Zune nearby somebody else with a Zune, you can send and receive songs from the other person. Freakin’ awesome, dude! And you know the really cool thing about Zune’s sharing function? When somebody sends you a song, you can listen to it three whole times or keep it in your Zune for three whole days! Then the song disappears!

My two year old MacBook has a wireless music sharing function in it. And when I get somebody else’s music, it’s mine forever.

Then there’s the Zune store, which is called the “Zune Marketplace,” which you can try to find by going to (apparently Microsoft didn’t have enough money to wrangle from somebody currently using the site to provide the world with this message: Listado de directorio denegado Este directorio virtual no permite listar contenidos.)

The text descriptions of what goes on at the Zune Marketplace are classic and sickening examples of mind-addled ad agency cretins trying to sound snappy and hep. And you know how at some public events, they have this annoying system where you can’t just go buy a beer, but you have to stand in line and buy tickets, and then you have to stand in line again to buy your beer with the tickets? Same thing here. To buy music, you first have to buy “Microsoft Points” and then buy your music with your “points”. But your “points” are wicked cool because “Microsoft Points.... [sic] is a system that works across borders, including Xbox Live® Marketplace and other Microsoft properties.” Good Lord. I’m trembling with excitement. Can you say Limewire? Sure you can.

Finally, all of this nonsense will never overcome the I-Pod’s cache, Apple’s coolness factor, that whole John Hodgeman versus the skinny-dude-who-looks-like-Jimmy-Fallon thing. Apple rocks. Microsoft doesn’t. As if this isn’t self-evident, Microsoft already has issued updates for the software that you have to download into your Zune to get it to work right, which raises the specters of corrupted file messages, SP/2, frozen programs, and blue screens of death.

Preliminary reports show that the Zune is moving slowly. Duh!

In other news, Universal Music Group sued MySpace for copyright infringement, claiming MySpace is responsible for its users’ posting of Universal-owned video and music on individual MySpace pages. Twenty-five years ago, Universal honcho Doug Morris turned down a certain rock band that I know something about, and then refused to give the band its demo tape back because the band was Morris’s kids’ favorite band. He hasn’t gotten any brighter in the intervening years. It’s an idiotic lawsuit, as MySpace is generally protected under the copyright laws if it removes offending material on demand, which it does. What’s more, kids decorating their MySpace pages with images and music of their favorite bands is something Morris should be happy about. But then, here’s a guy who recently said IPod owners were all thieves and thinks that suing his own customers makes business sense.

These days, you don’t have to fight the power. The power is eating itself. And it’s great to watch it all fall apart.

Wednesday, November 08, 2006

Use It

[This article originally ran in the 11.09.06 issue of Metroland Magazine]

Albany Law School held a conference on the future of copyright in NYC recently, and one academic panelist bemoaned the fact that we now have a generation of people, weaned on the internet and digital media, who think they can just grab anything that’s out there and create anything they want. He was followed by another panelist who thought that not only was this attitude not a problem, but it represented the biggest advance in creativity since the invention of the printing press.

That’s a pretty big spread.

Using somebody else’s work in your new work, the whole “remix culture” thing, falls under the general category of “appropriation art.” There has been appropriation art around since the second caveman copped the first caveman’s cave drawings. It’s a fancy way of saying “collage.” And with deep roots in the Cubist, Dada, and Pop Art movements, appropriation art may be the predominant “serious” art movement in the world right now. I’ve given a couple lectures at the School of the Museum of Fine Arts in Boston recently, and the vast majority of the work coming out of there is, one way or the other, appropriation art.

There’s a little problem with all this, and it’s called copyright law. Every creator owns the copyright in his / her original work upon the work’s creation. Appropriation art, then, also looks like a fancy way of saying “infringement.” Which means we’ve got the major art movement in the world in a high-speed head-on crash with the law. A good thing for lawyers, I guess, but not for anybody else.

A recent court decision from the 2nd Circuit federal appeals court may have advanced a solution to this train wreck. Superstar appropriation artist Jeff Koons appropriated a photo of a woman’s legs from a fashion magazine photo spread, and stuck them, along with images of other women’s legs, on a huge painting that included hot fudge sundaes, donuts and Niagara Falls (don’t ask). Koons got a $2 million commission for his work. The fashion photographer had been paid $750 by the fashion magazine. Figuring there was some good money in it, the photographer sued.

Koons relied on the doctrine of fair use, an exception to the general rule that infringement is bad. Sometimes, using somebody else’s work for something new is in society’s interest; sometimes using somebody else’s work advances the purpose of copyright law: the advancement of the arts. The concept of fair use has been around for as long as copyright law has been around, and it’s always been a big smelly problem. Courts come up with rules and guidelines and principles about fair use, and then a new situation comes along that proves all of them to be absurd. Trying to decide something as grand as “what’s in society’s interest” in terms of artwork can be a subtle and nuanced exercise, and the courts are not a good place for subtlety, and judges are rarely good with nuance.

So courts have been screwing up fair use for years, but lately they seem to be zeroing in on some interesting novel and broad principles, and the Koons decision is the latest bright light in this process.

About a dozen years ago, the Supreme Court ruled that 2 Live Crew’s hideous version of “Oh, Pretty Woman” was a fair use of Roy Orbison’s song because it was, to some extent, a parody of the original. Parodies are essentially commentaries, and the Court ruled that a commentary about an existing work that uses parts of that existing work was a classic type of fair use. The Court also talked a lot about the need for a work to be “transformative” to qualify for a fair use “get out of jail free” card. No fine point was put on this concept of “transformative works,” but the decision was clearly an invitation for lower courts to flesh out the concept.

Which is what the Koons court did. The court defined a “transformative work” as one that doesn’t supercede the original, but rather adds something new to it, with a different purpose and meaning. The court then ruled that Koon’s painting had an entirely different purpose than the photograph, and that Koon’s use of the actual photograph was essential to that purpose. Then the court looked at a couple of other factors and decided Koon’s appropriation was a fair use. Wow.

Does this give the appropriation artist a license to steal? Is music sampling suddenly OK? Is “remix culture” legal?

The short answer, as with most questions regarding copyright law, is “it depends.” Fair use still complicated, it’s still cloudy and unpredictable, and it probably always will be that way. But the 2nd Circuit has opened a door by providing a legal rationale for bona-fide appropriation art that makes a lot of sense. The decision is good for art and good for society.

It’s such a pleasure to be able to write about something positive, and not just bitch about stuff like I usually do. Yipee!