Thursday, June 19, 2008


I’ve never been too keen on Metallica. I’m not sure I can describe why, but they’ve always struck me more as wannabe rock stars than the real thing. And not particularly bright. The Joe Berliner and Bruce Sinofsky documentary film Some Kind of Monster only reinforced these feelings, which were grounded more in pity than dislike. These guys weren’t even close to intellectually capable of handling what had been handed to them, and their music was neither original or compelling.

The band made a big stink in 2000 over Napster, suing the company and a bunch of colleges after Metallica’s music was discovered available for free online. Heavens! The group’s blowhard drummer, Lars Ulrich, held a bunch of press conferences and testified before Congress about his “art” and the evils of free music. More than anything else, Ulrich’s appearances were narcissistic and embarrassing. Dude really likes the sound of his own voice, for reasons that aren’t apparent to the rest of us.

Eight years later, Metallica’s still taking hits for the Napster mess it made, and last week it stepped in something again. The band invited a bunch of music writers and bloggers to a pre-release listening party for the band’s new album. When the writers and bloggers did what one would expect them to do, write about what they’d heard, Metallica representatives demanded that all the reviews be removed from the Internet.

Huh? I guess the biggest surprise was that all the reviews were actually taken down, despite the fact that there was absolutely no legal basis for Metallica’s demand. One online magazine said that the review was removed to “protect the writer’s professional standing.” As what? A wuss?

Hit with a fury of bad press (TechDirt ran with the headline “Metallica Still Doesn’t Get It”), the band first said that the writers had heard rough mixes of tracks, so that what they were writing about wasn’t what was going to be released. Uh, right. That makes a whole lot of sense. When that excuse didn’t placate anybody, the band issued a statement on its Web site saying that this was a management-company screw-up, and that as soon as the band members found out about this brou-ha-ha they demanded that the reviews be allowed online and even put up links to the reviews on the Metallica Web site.

Whatever, guys. Whatever.

Elsewhere, the Associated Press has started chasing down bloggers who post links to AP stories. In every reported case, the bloggers have posted nothing more than the headline and a sentence or two from the news article. Every copyright law professor in the country is going to tell you that this sort of thing is fair use, but apparently the Associated Press has other ideas. In a couple of public statements, AP spokesmen have blathered about respecting both the importance of bloggers and of “creators”, have made absurd and flatly wrong statements about the law of fair use of copyrighted materials, and wrapped up with hints that bloggers could buy licenses in order to use AP materials.

The absurdity of all this is that the bloggers drive Internet traffic to places where the AP and its licensees have the full articles posted, along with advertisements which presumably help pay for the content. It’s hard to understand what the AP is trying to accomplish, other than the kind of shooting-itself-in-the-foot power play Big Media content owners like to indulge in all too often. Remember, this is the same company that jumped ugly in 2000 when some jokesters posted a mash-up of the AP’s Pulitzer Prize winning Elian Gonzales photo and a Budweiser “Wassup?” advertisement. After the AP successfully had the funny little movie taken down from the Web, enraged ’Netizens flooded the AP with so many e-mails that the company’s mail server shut down. Shortly thereafter, AP came clean, and sheepishly admitted that the Elian/Wassup movie was a fair use of its photograph.

You’d think that AP would learn, but apparently not. If AP thinks that the dust-up in 2000 was debilitating, wait until the entire weight of the 2008 blogosphere lands on it. If you’re gonna be a bully, you’d better be sure that you’re bigger than whoever you’re picking on. Otherwise you get squished. And—earth to Associated Press—no one, especially you, owns the news.

Finally, there’ve been some on-going closed-door negotiations among a bunch of industrialized countries, including the United States, trying to create something called the Anti-Counterfeiting Trade Agreement, that the countries want to implement by the end of the year. Some leaked documents out of the negotiations indicate that they are seriously considering outlawing all peer-to-peer services, as well as mandating border searches of laptops for any infringing stuff. The U.S. trade representative has always been an industry lapdog on matters like this, and is likely the staunchest advocate of the worst aspects of this treaty. has got as much info on this as is available. I’m guessing this will be just another stupid thing Obama will have to undo when he moves in this coming January.

Friday, June 06, 2008


Ten years ago I was involved in some litigation involving Prince, whom I believe at the time was still answering to “The Artist Formerly Known as Prince” or that silly little symbol that looked like a drawing of a can opener. Prince sued a couple of Swedish fans who run the webzine (they’re still there!), accusing them of all sorts of things, including the unauthorized use of the little can opener (which was referred to in the litigation papers as “the unpronounceable symbol”).

Prince had registered the symbol as a trademark and also had a registered copyright in it as a two-dimensional drawing. Prince’s complaint stated that by using the symbol in their webzine, the Uptown guys were infringing his trademark and copyright. Before or since I’ve never seen such a ridiculous, abusive claim in a lawsuit. Prince was using intellectual property laws to stop people from talking about him. And never mind that his “people” had previously supplied the Uptown guys with a computer disk containing the symbol, and advised them to use when referring to the name-challenged little purple one.

We were able to get rid of the case by convincing the court to order Prince to show up for a videotaped deposition (Bill Clinton had just also had a videotaped deposition, the infamous “sexual relations with that woman” deposition, so it was kind of hard for Prince to argue that he shouldn’t be videotaped as well). Prince dropped the lawsuit shortly thereafter.

Fast forward to today, and Prince is still misusing intellectual property laws to try to control his image. Last year he threatened to sue eBay and YouTube for “allowing” the transmission and sale of what he felt was infringing material, and ramped up hassling fansites for posting “unauthorized” photographs. The Electronic Freedom Foundation has sued Prince’s music company for demanding that YouTube remove a 29 second home video of a 13 month old boy dancing around his house while Prince’s “Let’s Go Crazy” played in the background. Imagine the harm that video must have done the Prince’s bottom line.

Then last week things got even more bizarre. A month or so ago, Prince played the Coachella festival, a big indy / alternative music festival held every year in the desert outside Los Angeles. Perhaps as an acknowledgement that he was a bit out of place on the Coachella stage, or maybe an admission of a personal trait, he played a version of Radiohead’s “Creep” towards the end of a set that was universally hailed as brilliant.

As would be expected these days, various camcorder / cellphone videos of the performance of “Creep” popped up on YouTube and elsewhere. True to form, Prince demanded that these videos be removed as they infringed Prince’s copyrights.

Except he doesn’t have any copyrights in these videos. Radiohead owns the copyrights to the song. Whoever held the camera or cellphone and posted the videos online owns the copyrights to the video footage. Thom Yorke of Radiohead, upon hearing that Prince had blocked the videos, responded, “Well, tell him to unblock it. It's our ... song.” D’oh!

So, the videos are back up on YouTube, and they’ve spread all over the web, and are now notorious because Prince decided to be such a.......creep.

There was a significant ruling in a Seattle court last week. For years, software companies have taken the position that when you buy their software, what you really are doing is buying a license to use the software, and not a copy of the software itself. This is an important distinction, and one of the foundations of the software industry. This is why, for instance, if you want to put Microsoft’s Word on your computer, you’re supposed to go buy a new copy, rather that borrow a disk with the program from a friend.
(The music industry has been floating the idea that the same considerations should apply to digital music files, although nobody’s buying it.)

And if it is a license, the “first sale doctrine” of copyright law wouldn’t apply. The doctrine says that once you buy a copy of a copyrighted work, you can do whatever you want with the copy, sell it, lend it, give it away. Think about it. You buy a book at Borders. Are there any restrictions governing what you can do with your book? Of course not.

A guy was selling a copy of AutoCad that he’d bought at a garage sale on eBay, and Autodesk (the copyright holder of AutoCad) demanded that eBay block the auction. With help from the advocacy group Public Citizen, the guy convinced the court that the private resale of software was protected by the first sale doctrine, and not some violation of the ephemeral “license” the software company tried to impose on the software.

This decision may have profound effects on the software industry, by taking away the end-run the industry has been using to avoid the common-sense dictates of copyright law for years. And it’ll change things for the better.