Thursday, August 30, 2007

8.30.07 ACTUNG!!!

This article originally appeared on the 8.30.07 issue of Metroland.

So it’s a nice quiet Friday night, and you’ve got a couple of DVDs from Netflix. The popcorn’s made, the lights are low, you snuggle up on the couch, and hit play on the remote. All’s well and right in the world.

Then the first thing that pops up on the screen is a LOUD yellow and red and black WARNING that seems to be from the freakin’ FBI that if you COPY any PART of the MOVIE YOU WILL GO TO JAIL and PAY $250,000 in FINES. You hear a siren outside in the distance and wonder if g-men are going to come crashing through your window right now, like the DeNiro pirate plumber in Brazil. Honey, is the front door locked?

Then, of course, is the ubiquitous announcement at the end of every football game. I think the test of a true football fan from a dilletante is that the real fan can recite this from memory:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL consent is prohibited.

Recently a trade group of information companies (including Google, Microsoft and Yahoo) filed a complaint with the Federal Trade Commission seeking to get rid of these and similar warnings. And it’s about time. These warnings misstate the law and do a huge disservice to society. The warnings, in short, are lies. They are intimidating, scary and just plain wrong. Sure, we can laugh at them, but how about our kids, getting a heavy dose of totalitarian bullying as a prelude to Shrek or My Secret Garden?

What these warnings do is blow off the First Amendment of the Constitution and the doctrine of fair use of copyrighted works. No one owns absolute ownership to any film, book, or TV show, period. Copyright ownership is tempered by the public’s right to reuse those works for things like commentary and criticism, news reporting, and research. You can use parts of an existing work for a new work if the new work is transformative, if it stands alone as a work of expression, and doesn’t steal the market position of the original.

Yeah it’s sticky, and yeah, there’s a gray area you could drive a truck through. But that’s what the law really is. The NFL, along with Major League Baseball, the major movie studios, and book publishers who all so stridently tell you that you can’t, under any circumstances, copy their works, are simply blowing smoke.

The Library Copyright Alliance sent the FTC a letter in support of the complaint, stating that copyright warnings contained in books were likewise misleading, and in stark contrast to the notices that libraries are required, by law, to post near photocopy machines. The Alliance told the FTC “[p]atrons are confused by the clear contradiction between this copyright warning, which states that certain copying is permitted, and the warnings contained in some books, which state that no copying is permitted without the copyright owner’s express permission.” After a discussion of various types of educational fair uses of copyrighted materials, the Alliances concludes “[t]he fair use analysis is complex enough without the obfuscation caused by intimidating, inaccurate copyright warnings.”

I’ve said it before but it bears repeating: don’t mess with librarians.

California law professor Wendy Seltzer had some fun recently by posting the NFL’s warning from the broadcast of the SuperBowl on YouTube. Not any of the game, mind you, just the warning. Predictably, the NFL sent YouTube a “take-down” notice that Seltzer’s post was infringing, and the warning was removed. After some wailing and knashing of teeth, it was put up, and remains there today.

The complaint seeks an injunction that will bar these onerous warnings in the future, for the FTC to investigate how these warnings came to be in the first place, new remedial warnings that explain the law is it really is, for Big Media to fund an educational campaign that accurately describes the law, and even a ban on those click-through “terms of use” licenses we often encounter on media sites on the internet where we inadvertently sign away our free speech and fair use rights.

The FTC has yet to act on the complaint. You can bet the sports leagues, studios, publishers, and networks will fight this with everything they’ve got, as part of their well-funded agenda to lock up the rights to their stuff far in excess of what copyright law, or common sense, or your freedom, would allow.

It’s gonna be a fun one, that’s for sure.

Friday, August 17, 2007


This article originally ran in the 8.16.07 issue of Metroland....

Back in the day, we all listened to the same music. Maybe we didn’t all like the same music, but there was a commonality, a culture. Everybody knew the No. 1 hit of the day, because it was ubiquitous. And this was so even at a time when media wasn’t bashing your brains in with always-on messaging. Music was on the radio, and radio was in the kitchen and in the car and under your pillow. And music was on Ed Sullivan, and we all watched together.

Of course this was a function of a profound lack of choices, and the fact that so much very good music made it to our collective consciousness was more because of the lack of consolidation of the music industry and dumb luck than anything else. And it’s hard to argue that the increased choices brought on by the technological innovations of the last thirty years, and particularly the last ten, are a bad thing.

Still, the fragmentation and individualization of music listening and acquisition has all but destroyed the collective listening experience. I look at the music charts in the newspaper and am often dumbfounded by what’s there. Groups and singers are going multiplatinum that I’ve never heard, or heard of. Not that top 40 is completely dead, mind you; I just got back from a vacation where I got a heavy dose of some kind of “hit radio” thanks to a rental car with Sirius and a 13 year-old dominating the knobs. It wasn’t all bad. Some was blatantly phony and manufactured, but then, we had the Monkees, right?

But through all the divisions, at least the music was accessible if you wanted to go get to it. Music superstores like Tower Records could be counted on to stock everything. The internet, at first, broadened this vista, and virtually every obscure import death-metal or electronica CD could be found at Amazon or GEMM, just a point and click away.

But the move away from CDs is changing this dramatically. The move to downloadable music has now made the simple act of acquiring music a sometimes complex, maddening, and ridiculous pursuit.

Two things recently highlighted the absurdity of all this. Two weeks ago it was announced the venerable Australian group AC/DC’s albums would be available for download for the first time ever. The catch? The albums would be available exclusively on Verizon’s V-Cast store. Which means that you must have a “V CAST Music enabled phone, Verizon Wireless Calling Plan, and to be within the V CAST coverage area.” The catch-within-the-catch? Since AC/DC is only allowing complete album downloads, and not single songs, the downloads are too big to go wireless into your phone, so you have to download them to your home computer, and then jack them into your phone. Somehow.

Now, I like AC/DC as much as the next person, but all this makes me feel like I’m on some highway to hell. V-Cast coverage area? Full albums? And, oh, the V-Cast system doesn’t work on Macs, so if you are one of those self-respecting individuals smart enough to buy an iBook or the like, then you are about to be SoL, and I salute you. Unless, of course, you go buy the damn AC/DC CD and rip it. Or just go to Limewire and steal it, which, as it turns out, is by far the easiest thing to do.

And then this week Universal, the biggest of the major labels, followed EMI and announced that it would start selling a big chunk of its catalog without any DRM, that is, without built-in restrictions on how many copies you can make, or where you can play the music. The catch? DRM-free music would be available pretty much everywhere but at the iTunes store!

I guess this is Universal’s way of punishing Steve Jobs, or something. Job’s has had a tempestuous relationship with all of the labels over things like DRM and the iTunes store’s straight-up 99-cent pricing. So Universal licenses DRM-free music (which Jobs wants) for 99-cent downloads (the industry standard that Jobs created) to everybody but Jobs.

Who really gets hurt here? You do, of course, and the artists as well. You’re not going to be bothered with multiple retail stores, some weird damn cell phone plan, and the use of music to herd customers from one place to another. You’ll listen to something else. Or if you really want the music, like I said, it’s infinitely easier just to steal the song or get it from a friend than to jump through the hoops that are part of some insane “strategic partnership” between distant media giants jockeying for position in “the new digital space.” Indeed, stealing is a dirty deed. But you must admit that, if you are careful, it can be done dirt cheap.