Thursday, September 25, 2008


There’s a couple of things swirling about that point to some serious erosions of personal privacy, well, more serious erosions of personal privacy.

EFF and Public Knowledge recently sued the federal government to get access to the inexplicable secret international negotiations that are going on for something called the Anti-Counterfeiting Trade Agreement, of ACTA. Trade representatives from most of the industrialized world (typically little more than shills for Big Media and other titans of information) have been working secretly on a treaty that is supposed to create a new paradigm of international enforcement of intellectual property rights.

One document has leaked out from this secretive body, and it indicates that what’s on the table includes stiffer measures to police “internet distribution and information technology”. Among the measures recommended are having all signatory countries pass laws requiring internet service companies (“ISPs) to “filter” end-users’ online habits and also to require heightened border searches.

Forcing ISPs to “filter” your online habits is code for monitoring, inspecting, and generally snooping into what you’re doing online, to make sure you’re not, like, infringing or something, all on behalf of the Big Media industries like the record and movie companies. Basically it’s asking your internet company to carry the copyright owner’s water for them, all at the expense of your privacy.

Heightened border searches could well include customs agents take a look at the hard drive of your laptop. Not just scanning the machine to make sure it’s not a pimped-up bomb, and but actually looking at the information you’ve got on your machine. More on this in a minute.

Congress will have the final say in this, but Congress often rolls over when presented with a fully negotiated international contract. This happened in the ‘90’s with the ridiculous Digital Millennium Copyright Act, which included provisions Bill Clinton initially couldn’t get through Congress. So he sent his trade reps to negotiate a big international treaty with the rejected provisions included, and then came back to Congress, basically saying “The rest of world is doing it! We can’t be left behind!”

And Congress folded like a two-dollar suitcase. And it will do it again, because most members of Congress don’t care about this stuff. Privacy’s not a big vote-getter. Look at the FISA debacle. I mean, if you don’t have anything to hide, why should you be worried about your privacy? Right? Right?

So it’s important that the ACTA negotiations become transparent sooner rather than later, before it’s a done deal being presented to Congress, and before Time Warner and Comcast become our intellectual babysitters.

The border-search thing is even more troubling. A west-coast federal appeals court recently ruled that the customs service does not need “reasonable suspicion” to seize and review the contents of someone’s laptop or electronic device. “Reasonable suspicion” is a fairly low threshold to begin with, something more than a hunch, but this court has decided that even that isn’t required for a customs officer to look at your hard drive.

The court said, remarkably, that looking at the contents of one’s computer is not comparable, in terms of invasiveness, as searching someone’s home. Why? Because, said the court, “one cannot live in a laptop.”

Wow. I’ve seen a number of instances, involving “national security” (like this court case) or intellectual property infringement (like the RIAA lawsuits against college kids, and possibly, this ACTA treaty), where law enforcement and the courts treat hard drive inspection like it’s no big deal.

No big deal? Like many of you, I spend most days on my computer. I’m on it right now. I search, I write, I edit, I post, I work, I goof around, I correspond, I think on this damn thing. I do things I’d prefer other people not know about. Tell me you don’t. And all of it is sitting, somewhere, on my hard drive.

In a very, very real sense, the hard drive on my computer is an extension of my brain, more so, certainly than the stuff in my house. If I had to choose, I’d rather have a cop sitting in my living room that tracking everything I did online.

So this appellate panel (which I suspect was made up of freedom-hating neocons and 70 year-old Luddites) got it absolutely wrong. One can live in a laptop. I do. So do many of you. So allowing government agents to simply grab your hard drive, for no reason, and do whatever they want with it is an invasive and unreasonable search to the extreme, in stark violation of the Fourth Amendment.

The court case may be reargued to taken up the Supreme Court. It must be reversed, either judicially or legislatively, because it’s absurd and dangerous. And it kicks the door open for the ACTA provision of increased border searches. You wanna be held up at the border because some of the music in your computer may be less than legit? Does this sound like America to you?

Wednesday, September 17, 2008


Tony Clifton and the Katrina Kiss-My-Ass Orchestra
Revolution Hall
September 12, 2008

“There’ll be about 50 people there,” I told my co-pilot, “and I’ll know 45 of them.” I wasn’t far from wrong. It’s been 24 years since Andy Kaufman died, and longer than that since his lounge-cretin creation Tony Clifton made a lot of smelly noise. The idea of a Tony Clifton tour in 2008 was so ludicrous, in fact, that I just had to go see what it was all about. That and the possibility of even a little dose of Kaufman-esqe humor, thrown at us from beyond the grave, would be so much better than the tepid, cowardly crap that passes for comedy today.

It’s hard to know where to begin. Show of the year? Absolutely. Of the decade? Maybe. Seriously. This was a 3 ½ hour performance art piece, a steamroller of deconstructed pop culture in the form of broads, killer funk, disgusting jokes, booze, smokes, more broads, brilliantly absurd choreography (performed by one or more broads), suspended uncomfortable moments (fueled by booze and broads), and transcendental musical moments (yanked out of inconsequential 70’s pop songs) all swirling around a fat, sweaty, greasy-haired chain-smoking loud-mouthed drunk. You just can’t beat that.

It was theater, with the various broads (that’s what they’re called and there’s really no better word) changing costumes constantly, never letting up with their show-girl smiles, and dancing around Tony to “punctuate” the songs; the sparkly cowgirls sliding hobby-horses between their legs during the repeated reprieves of “Rhinestone Cowboy,” for example, was particularly memorable. Or the high-kicking statues of liberty in pasties during the rousing “God Bless America.”

There’ve been reports of chaos at other shows, with Tony melting down and furiously attacking the audience or his ensemble, events that were unscripted and quite real. We only got a taste of that half-way through the second show, when Tony cruelly berated “Trixie,” his onstage assistant / cocktail waitress in garters, whom he claimed to have picked up hitch-hiking outside of Biloxi and was about to adopt. She’d been flicking empty shot glasses to the “crowd” while Tony was “singing”, and Tony got highly agitato. The band got quiet, Trixie left (not to return), Tony mumbled for a few minutes, poured himself another drink, then led the band through a torrid “I Will Survive.” It was perfectly, astonishingly weird. There wasn’t a false move on anybody’s part the whole night; for all of its artifice, and the show was ostensibly entirely artifice, it was the most real show I’ve seen in a long, long time.

This would all have been meaningless stupidity if the band didn’t kick. As this was a fundraising tour for New Orleans musicians, Clifton had a young, aggressive band of them, and they turned the most trifling of pop fluff into withering, funky masterpieces. The five piece horn section was all over the place, more than once assembling in a circle on the dance floor blasting to a crushing vamp, while Clifton sat on a bar stool, beaming, with a bourbon in one hand and a smoke in the other. All was right in this perverse, totally wrong, totally refreshing parallel universe late on a Friday night in Troy, New York.

Thursday, September 11, 2008


This article original ran in the 9.11.08 issue of Metroland.

A federal judge in Manhattan ruled on Monday that a 450-page A-Z encyclopedia of Harry Potter minutiae infringed on J.K. Rowling’s and Warner Brothers’ copyrights in the Harry Potter books and films. It’s a difficult decision that cuts against the recent trend of expanding the concept of fair use of copyrighted works. Hopefully, the decision will be appealed so the appellate court can take another look and reverse what is basically a victory for the uber-ownership of information.

Basically, Steven Vander Ark, “a former library media specialist at a middle school
in Michigan” had been compiling for years a lexicon of Harry Potter facts online; the website was popular among Harry Potter fans; J.K. Rowling herself said that she referred to the site when she need to get the facts straight on her characters. About a year ago Vander Ark got a book deal. Suddenly Rowling wasn’t such a big fan anymore, and in came the lawyers.

The court held an evidentiary hearing during the Spring. Rowling wept on the witness stand, saying that the mere existence of Vander Ark’s book had destroyed her ability to write, raising the possibility of a second career acting in bad afternoon soap operas. Vander Ark similarly broke down on the stand, saying the lawsuit had caused him to fall into disrepute with the Harry Potter community, suggesting that the rough-and-tumble world of a middle school media specialist had left him, as it has so many others, an emotional wreck.

Fair use cases have increasingly turned on whether the new work, here Vander Ark’s book, is transformational of the first work. Here the judge ruled that the encyclopedia was indeed transformational, just not transformational enough. The 62 page decision contains endless examples of “similarities” between Vander Ark’s book and the Harry Potter series, a painful thing to read, and when you think about it, kind of silly. It’s an encyclopedia, for crying out loud; it shouldn’t be a huge surprise to discover that it contains similarities to the thing that it’s, well, encyclopedia-ing. But the judge was bothered by Vander Ark’s verbatim copying, which he seemed to think was excessive, leading to the bothersome conclusion that had Vander Ark jumped through a bunch of needless hoops and had simply done more paraphrasing, he would have been alright.

The judge also put, in my view, way too much emphasis on the obvious facts that the Harry Potter books were fiction and that Vander Ark’s work was a profit-making endeavor in finding that there was no fair use of Rowling’s works. I think the judge also put too much stock in a couple aged decisions denying fair use in similar situations, one involving a Seinfeld trivia book and another involving a Twin Peaks fan book, both of which I think would be decided differently today given some more recent cases that have opened up the concept of fair use to be more consistent with today’s exploding remix culture.

In short, the judge missed the forest for the trees, over-thinking and over-analyzing a simple matter that Vander Ark’s encyclopedia was a transformative work that did the Harry Potter series of books no harm at all; in fact the existence of the encyclopedia enhances the popularity of the iconic series.

It’s cases like this that contribute to the paralyzing uncertainty artists face when they have an opportunity to create something new out of fragments of our culture, out of already-copyrighted works. It’s certainly not surprising that Warner Brothers added its muscle to Rowling’s case, like she can’t afford platinum-coated counsel on her own. Warners, like all the other Big Media players, want to stomp out fair use in all its forms, so it can continue to charge us what economists call “monopoly rents” for every single use we might make of culture for whatever purpose. I mean, this is the company that still makes $2 million a year on its questionable copyright in the song “Happy Birthday.” And they say they’re “protecting the creator.” Pul-eeze.

And you can also smell the Big Media hubris in its reporting of the case: the headlines are proclaiming “Rowling Rules !” and “Lexicon Crushed!” like this was some kind of slam dunk that just got laughed out of court. Nothing could be further from the truth. It wouldn’t take 62 pages to decide an easy case. And the judge could have awarded Rowling damages of up to $150,000 per infringed work. She got the minimum, $750 per, for a total of $6750.

This case simply must be appealed; hopefully the appellate court will be able to take a step back, look at the big picture, pull some legal wizardry, and turn this thing around.