Wednesday, March 28, 2007


[This article originally appeared in the 3.20.07 issue of Metroland, which I have been informed is not a "magazine", but rather a "newspaper." I've been writing for Metroland for what, 15 years now, and I always thought it was a magazine. It's like not finding out that you've been adopted until you're an adult. Actually, it's nothing like that.]


No, I’m not gonna talk about the Supreme Court’s recent free-speech case. I just like saying “bong hits for Jesus.”

Hey Bullwinkle! Here’s something we all might enjoy! The Intellectual Property Society of Albany Law School is hosting a panel discussion on fair use in copyright law on Tuesday, April 10 at 5 PM in the Dean Alexander Moot Court Room. The panelists will be entertainment lawyer Owen Warshavsky from the NYC firm Troutman Sanders, Jennifer Pariser, the VP of Business and Legal Affairs at Sony/BMG, Sheldon Halpern, the Honorable Harold R. Tyler Jr. Chair in Law and Technology at Albany Law School, and yours truly, the proprietor of the biggest law firm in Housatonic, MA. If you don’t already know, “fair use” is the fuzzy legal doctrine that allows limited copying of other’s works for various purposes, and is a crucial factor for such things as appropriation art, parody, music sampling, education, and especially that whole internet / remix culture thing that all the kids are talking about. I doubt that any of us four panelists are going to agree on much of anything, and the discussion is going to be lively and fun, to say the least. And if that’s not enough to get you out on a Tuesday, there will be a reception following the discussion. That’s polite-talk for free beer. See you there.

I tend to not think about tax issues much, other than paying my own taxes when I’m supposed to, but there’s some tax legislation in Congress right now that deserves your support. Grassroots arts organizations often depend heavily on artist donations for their survival—how many times have you gone to a fundraiser that features one of those silent auctions of donated artwork? Half of the stuff on my walls I got that way, usually for a ridiculous price so low that it’s embarrassing or an insult to the artist or both. It’s often a rather sad situation where struggling artists donate their works to help support a shoe-string organization doing God’s work; it shouldn’t be that way, but there you go.

And to make it all the more ridiculous, the artist can’t write off the value of the work as a charitable donation. Under current IRS rules, the artist can only write off the value of the raw materials in the work. The cost of the paint, canvas, clay, dried elephant dung, whatever, that’s the artist’s tax write-off. And to go from the ridiculous to the sublime, if some collector first buys the painting instead and then donates it to the organization, the collector can write off the full fair market value of the work.

In my experience with a number of not-for-profit organizations, collectors rarely donate their acquired works. Artists always donate. And they get screwed in the process.

Maybe not for long. There are bills before both the U.S. House and Senate that would provide artists with a tax deduction for the fair market value of their works when they donate them to educational and collecting not-for-profit groups. The bills have bi-partisan sponsors and could use a push to keep from getting lost in the legislative shuffle. They’re bills H.R. 1524 (House) and S. 548 (Senate). Write a letter.

John Perry Barlow was sure disappointing on Colbert the other night. It was like he needed a nap while Colbert was loaded for bear, as usual. Barlow was there to talk about the EFF’s lawsuit against Viacom for demanding and getting the removal of obvious parodies of Viacom’s shows from YouTube, in particular a mash-up of Colbert that had posted (Viacom owns Comedy Central, which owns the Colbert Report). The lawsuit is a nice push-back to Viacom’s ridiculous $1 billion suit against YouTube for “allowing” Viacom’s properties to be posted on the YouTube site. There were all sorts of points to be made, mud to be hurled, and Barlow barely threw a punch. I’ve seen Barlow speak a couple times and he’s brilliant and funny and engaging, but some concepts just can’t be made in a punch line, or as is always required on Colbert, a counter-punch line. The two guys were clearly operating on different speeds, and faster always wins.

My thoughts about the Viacom-YouTube suit are posted on my blog, and suffice it to say that Viacom’s suit strikes me as largely a sham, and the fact that Viacom is on the short end of a second lawsuit for being a bully bears that out. And the MoveOn takedown isn’t an isolated occurrence—I’ve got a nephew whose skillful South Park parody was knocked off YouTube by Viacom as well. Viacom’s tactics amount to throwing out the baby with the bathwater, and no doubt thousands of perfectly legal works, works of parody and comment, have gotten the boot because of Viacom’s overaggressive nonsense.

And what this is all about is the doctrine of fair use, and you’re thinking “where have I heard of that before?” Go back to the first paragraph. That’s where.

Tuesday, March 27, 2007


[This article ran in the April 2007 issue of The Artful Mind]

The headlines have been singing recently about Viacom’s big $1 billion lawsuit against YouTube for copyright infringement. Oh my! YouTube’s in trouble! YouTube’s been bad!

What’s it all about, Alfie? From my perch, the lawsuit is less about copyright infringement that it is about competitive advantage, opportunism, and fear.

Where to start? YouTube is a two year old website where anybody can upload video clips, and where everybody else can watch and comment on them. YouTube was famously bought up by Google last year for $1.65 billion dollars, a pretty good sum for a site that generates next to no revenue. What makes YouTube (which gained the nickname “GooTube” after the Google purchase) so valuable is the fact that it’s became, in a very short time, one of the most popular destinations on the web. Thousands of video clips of every description are posted there every day, and millions of people go there to be entertained every day. Time Magazine’s designation last year of “you” as its Person of the Year was really all about YouTube, perhaps the most visible example of the remarkable emergence of “user-generated content”. YouTube is the epicenter of the fascinating trend of creative works being made and distributed, often by individuals and hobbyists, outside of the traditional entertainment industry machinery, a trend made possible by cheap new digital technologies, the internet, and the irrepressible human need to self-express.

Viacom is, of course, the huge media conglomerate that owns or is tied to such companies as CBS, Paramount, Dreamworks, Simon & Schuster, MTV, Comedy Central and BET.

Along with a slew of homemade clips (like the infamous Mentos and Coke geyser movies) a lot of what gets posted on YouTube, not surprisingly, are clips from television shows.. If you miss, say, Jon Stewart, or South Park, chances are somebody’s posted it on YouTube. Technically, such a posting is an infringement of the copyright of whoever created the thing. I go there often to see if Keith Olberman has recently brought the hammer down on the Goombah-in-Chief. On the surface, that’s what the lawsuit is about, Viacom is claiming that YouTube, by providing an open-ended invitation for anybody to post anything, is liable for copyright infringement for having Viacom “properties” up on the YouTube site.

There’s a little problem with Viacom’s claim. As a copyright owner, it’s Viacom’s responsibility to police it’s own copyrights. That’s always been the way it is. In the lawsuit, Viacom is trying to impose a duty on YouTube to police Viacom’s copyrights, which is ridiculous. Under the law, YouTube’s obligation is to investigate possible infringements when it’s told about them and to take down clips it determines are likely to be infringing. That’s it. And it’s the way it should be.

The reason that the burden should be on Viacom and not YouTube to discover infringing material is that copyright enforcement it an elective decision by the copyright owner—and not everybody who has material posted on YouTube without permission is upset about it. All three of my band Blotto’s early ‘80’s MTV videos have been posted on YouTube by somebody-- one is under the heading Worst ‘80’s Rock Video Ever!—and we’re cool with that. It keeps the band alive, and we can look at the comments and see what people think about us. At some point, maybe when YouTube puts in place its proposed system to share what little advertising it gets with copyright owners, we’ll decide to ask them to take down the rogue Blotto posts and put up our own, but in the meantime, we’re happy the way things are. We’re glad to be on YouTube.

My favorite posts on YouTube, things that get forwarded to me and that I giddily send on to my like-minded friends, are old TV clips of rock and soul artists. It’s really archival stuff, time capsules of a bygone, wildly influential era. Each of these clips no doubt has a copyright that’s owned by somebody, but most of them probably are owned by companies that don’t mind that people are watching. Or companies that aren’t around anymore.

No, YouTube shouldn’t be somebody else’s copyright policeman. If it was, there will be default deletions every time it appeared that a post was taken from some TV show somewhere, whether or not the actual copyright owner is bothered by the post, and a whole big chunk of interesting and culturally significant stuff will get wiped out, for no good reason.

And YouTube has been reasonably diligent in holding up its responsibilities under the law. When notified of infringing material on the site, it removes the offending clips. It may actually be a little over-aggressive. My nephew posted a skillfully constructed South Park parody. With the sound off you’d think it was an installment of South Park, but if you listen to what’s going on, you realize that Chef and the boys are singing the praises of advanced calculus. Acting on a complaint from Viacom, YouTube took my nephew’s post down, and now he has to jump through hoops to try to establish to YouTube that his masterpiece was a parody of South Park, and therefore a fair use of Viacom’s precious little copyright in South Park.

Viacom’s lawsuit is a sham, and of course Viacom knows this. The lawsuit isn’t about the law. It’s about the fact that Viacom and YouTube couldn’t agree to licensing terms for Viacom content on YouTube, like the deals YouTube has negotiated with a host of other big copyright owners, where the owners agree share in revenue from posted clips. Viacom wanted more, apparently, than the others. It’s about the fact that Google, which is drowning in cash, is now the owner of YouTube, and maybe Viacom’s shiny young lawyers can convince a court to adopt a twisted, constricted interpretation of the law, and force Google to cough up some dough. Its about the fact that Viacom’s television and movie studio properties are running scared because of what’s happening on the internet; they’re losing market share by the bucketful to the internet, and they’re struggling to develop their own “internet strategies”. They want to sequester everything they own onto their own closed web environments, where they can slather users with advertisements and cross-promotions and impulse buys, and can collect precious marketing data from users. The studios are also terrified that, increasingly, the homemade stuff that gets posted on YouTube is infinitely more real and entertaining than the uninspired dreck the studios spend millions to produce. And if Viacom can’t beat YouTube with better programming, maybe it can beat it with lawyers.

Finally, the lawsuit is about Viacom’s new website, starting up this summer, called Joost. Joost is some sort of TV-on-the-internet site, where you can go and watch “professionally produced” video content, complete with commercials. Wow. This concept, as mundane as it is, probably wouldn’t have occurred to Viacom (or any of the other television outlets rushing to get programming available on the web) absent YouTube’s resounding popularity. But hey, the kids seem to love this internet thing, so let’s create a pale imitation of YouTube and then try to kill the original.

As an old friend used to say, “That’s showbiz, babe!”

Saturday, March 24, 2007

Mr. Fishman

[This review originally appeared in the 3.22.07 issue of Metroland Magazine]

Mystery Solved

Howard Fishman
Club Helsinki
March 18, 2007

The ads billed him as a “hip Brooklyn-based jazz singer.” Well, he wasn’t that. I’ve read stuff that says he’s this heavily New Orleans-influenced dude. I guess a little maybe, but not really.

I don’t know what Howard Fishman is all about and I’m not sure he does either, and I’d guess we’re both OK with that. His two generous sets Sunday night were a blast, full of surprises, passion and fun. Fishman’s been toying with other people’s stuff recently, having just released a disk of songs culled from Dylan’s Basement Tapes sessions, and is currently working on a set of Hoagy Carmichael songs to be released later this year. His first set drew heavily from these projects, and the tunes were not covers so much as re-imaginings that fit the unusual band configuration of guitar, trumpet, violin and tuba.

There’s a danger in loading up on material from two of the best songwriters to walk the planet, the danger being that original stuff will pale by comparison. That sure didn’t happen here, in fact, the high points of the show were easily Fishman’s own rollicking songs. Fishman’s “Mary Ann” and “The Best is Yet To Come” are to-be classics, period, and they were dished out with all the grand style that a band with a tuba could muster.

The band killed, from Kevin Lewis’ cool blue trumpet, to Ron Caswell’s surprisingly facile tuba, to the gorgeous Stephan Grappelli influenced playing of violinist Mazz Swift[pictured above]. Her playing dazzled not so much from technique (which she had plenty of) but from hooks, taste and high style. Swift took over vocal duties on a couple songs and floored the room each time, her deep gospelly singing made a nice counterpoint to Fishman’s husky tenor.

There was nothing mysterious about Fishman and the band. Music doesn’t get more accessible and disarmingly honest than this, which is where the “hip Brooklyn” thing doesn’t ring true. And yeah, there’s a little loosy-goosey N’Awlins stuff going on, but it’s a small component of something else: simple, wonderful, and timeless songs, played well and with a twinkle in the eye.

Friday, March 16, 2007


[This article was originally published in the 3/15/07 edition of Metroland Magazine.]

OK, here’s a good deal. Go to and click on “toolkit”. On the upper right of the page there is a torrent file that will get you 749 MP3 song files of bands that are playing at the South by Southwest Festival this week in Austin. It’s free and totally legal. These are bands that want you to hear them. So, go get the download and listen! I’m still discovering new bands from last year’s batch of songs. You’ll be introduced to great bands with names like I Can Lick Every Sonofabitch in the House, Deaf in the Family, and my favorite: Get Cape. Wear Cape. Fly.

A few years ago when I started doing radio again (you can hear my show The Splatto Festival most Fridays at 3 PM streaming at I started digging around for the music of my youth. My grade school best friend’s older brother had a band in Batavia, New York that released a 45 RPM single in 1967, a prize from winning a battle of the bands contest. I got a copy of the single when it came out, but it’s long gone. I’m sure only 500 copies or so were made. Now, 40 years later, I doubted that I’d be able to locate a copy anywhere. But I really wanted to find it and play it on the radio.

So I did a Google search, and voila, there it was, listed on playlists of two tiny internet radio stations. I contacted both, and both graciously offered to email me an MP3 of the single for a small donation. I’ve played the A-side, a terrific Byrds-y version of John D. Loudermilk’s Tobacco Road on the radio a bunch of times. A 40 year old obscurity, some upstate New York teenagers pouring their hearts onto vinyl, has new life. I’ve emailed copies to my old best friend and a few other folks who were around Batavia in 1967, and they’re thrilled to have it again. And I couldn’t have done it without the help of obsessive music freaks who collect stuff like this, digitize it, and maintain internet radio stations where they broadcast, to the whole world, their little slices of heaven, rescued from the remains of our collective culture. As far as I’m concerned, these people are doing God’s work.

And this may all soon come to a crashing halt, if the federal Copyright Office, spoon-fed policy from the recording industry, has its way.

Radio stations traditionally have been allowed to play recordings for free. Songwriters got paid through ASCAP and BMI fees paid by broadcasters, but not record companies. Radio play has always been considered promotional, and the broadcast industry lobbyists apparently paid off Congress better than the recording industry’s. And it makes sense: given that the record industry is constantly getting caught illegally paying off radio for airplay, the idea of radio paying record companies to play music is stupid. Not the way of the world.

Then along comes the internet, where anybody can put up a radio station. Where the number of stations and the diversity of selections are unlimited. And where, increasingly, people are going to listen, because broadcast radio generally sucks. Broadcast radio and the music industry, both threatened by this new egalitarian and uncontrollable phenomenon, convinced Congress (well, OK, paid Congress) to pass a bill that made a distinction between broadcast (open air) music and digitally transmitted (internet) music. Broadcast music would still be free, but digital transmissions of music now required a performance royalty. And the level of that royalty would be set by the Copyright Office.

So the playing field between broadcast radio and internet radio was tilted to favor broadcast radio, dominated by corporate behemoths like Clear Channel, and to the detriment of internet programmers. A few years ago the Copyright Office recommended a level of royalties that would have killed internet radio for all but the biggest players, and those recommendations were beaten back to a manageable level. Now a new set of royalties have been proposed, and they’re worse. The new proposed royalties, which apparently mirror a proposal made to the Copyright Office from the RIAA, would wipe out smaller niche programmers, folks who are putting up the music you won’t hear anywhere else, the archivists, the geeks, the people who are putting music on the internet not for money, but for love. Folks who champion artists who will never get played on commercial radio, and who program from the heart, not from a focus group study. Who reside on the fringes, and aren’t rushing to the lower common denominator, or making shareholders happy.

The proposed royalty rates can be appealed, and the issue may wind up in court or back in Congress. But right now is a shaky period for internet radio, which hasn’t yet learned to crawl, much less walk. And it’s disheartening to see that the Copyright Office is so deeply in the pocket of the industry, and hasn’t got the slightest clue about what is vital for the sustenance of our culture and cultural heritage. Sickening, really.