Wednesday, October 22, 2008


The folks at WAMC’s Linda Norris Auditorium, WEXT and local music portal are revamping the monthly “CRUMBS Night Out at the Linda” event. Starting next week, this local music networking event will feature not only a free performance by a local musical act but a roundtable discussion about things of interest to working musicians and music fans. They’ve dragged me in to curate the roundtable part of it, and I’ve pulled in fellow local show-biz attorney and pal Paul Czech, and we’re busily putting together some programs for the coming months, some of which might just take your hand and, slowly, blow your little mind. Stay tuned.

Next week, Thursday the 30th, CRUMBS Night Out will feature a performance by the lovely and talented Bryan Thomas, who’s been leaking his spectacular new album 1369 Lights off his site for a couple of weeks, and yes, you must go there now and get some. His last album, 2002’s Ones and Zeroes was Metroland’s album of the year, and based on what I’ve heard so far...well, you tell me. Our inaugural roundtable will feature a discussion among local music critics, including the Times Union’s Mike Eck and David Malachowski, Metroland’s John Brodeur and Josh Potter and the Berkshire Eagle’s Jeremy Goodwin. Find out what they want, what they think they’re doing, why they think Nickleback sucks, and what your band should be doing to get their attention. I’ll, uh, moderate. Whatever the hell that means with this freakin’ panel. See you there.

With the election coming up in under two weeks, you might be wondering what the candidates think about the things that are covered in this column, intellectual property, privacy, tech stuff and the like. As would be expected, in a campaign that’s about military wars, internal culture wars, financial collapse, a sickening vice presidential nominee and what Joe Klein last week called John McCain’s “mud tornado” strategy, these important but nuanced issues have gotten short shrift.

Which is perplexing, because as I’ve said before, these issues defy red / blue categorization. The liberal Democratic aristocracy has had its head up Hollywood and Big Media’s ass for so long that it really is the true enemy to a rational intellectual property policy. And the Republicans? For the most part they don’t understand IP, or the tubes that make up those internets, or people that want to give them a Google. They know “regulation bad, ugg ugg” but beyond that they are basically clueless. So they just vote with who pays them the most: Hollywood and Big Media.

It appears that Obama is in favor of net neutrality, favoring equal free access to the ‘net, and McCain’s sort of against it, because net neutrality requires government regulation. But since definitions and details are sketchy, it’s hard to tell what they mean, exactly.

I just looked, and Bam-Bam’s got a 9 page PDF on his site entitled Barack Obama: Connecting and Empowering All Americans Through Technology and Innovation. This document, as the title suggests, is a whole lot of nothing, really, just a series of nice-sounding platitudes devoid of detail or substance.

And goofy old Walnuts, what’s he got? From “John McCain has a broad and cohesive vision for the future of American innovation. His policies will provide broad pools of capitazzzzzzzzzzzzzzzz.........” Oh, sorry, I’m back. More whole lot o’ nuttin’!

If it wasn’t all so predictable, I’d be depressed. So I guess what we are left with is this feeling that maybe Obama and his folks have demonstrated, by the conduct of their compaign, an understanding of the power of the internet. It’s clear that the members of Team Obama have highly-wired existences like most of us living here in the 21st Century, so that they’ll at least have the aptitude to address issues regarding information and privacy from a position of familiarity.

Which isn’t terribly reassuring, but it’s more than we’ve got from McCain, who appears to be entirely off-line, to whom the internet is this new-fangled mystery he refuses to grasp or try to understand. His aides’ assurances to reporters the candidate actually uses email are about as convincing as Charlie Christ’s fiancé. And his party is responsible for the greatest disintegration in personal privacy protections that we’ve seen in generations.

We’re left with vague impressions that reflect the overriding theme this presidential race: that Obama represents a generation transition, one that should have happened 8 years ago except that the unholy Christianista / corporate alliance stole the transition and installed a moron-puppet who’s nearly ruined the nation.

So I guess we just have to go on faith. And dare I say it: hope.

Thursday, October 09, 2008


Almost exactly a year ago, Jamie Thomas, a single mom from the little town of Brainerd, Minnesota, was found guilty of infringing the copyrights of the big record companies. She was found with 24 song files on the share file of the Kazaa program that was on her computer. A jury decided the penalty for this horrendous behavior should be $9250 per song, so she was banged for a total of $222,000.

There was a lot wrong with this trial, and from my perch it looked as though neither Thomas’ lawyer nor the judge were on top of their games. But then, both were dealing with the RIAA’s onslaught of shiny, pricy lawyers and their platinum coated arguments and A-list experts. Slack should be extended, I guess.

What made this so distressing was that this was the first file-sharing case to go to trial. Some 30,000 citizens have been jammed up by the RIAA’s disgusting reign of terror on the American public, and most have paid the $3000 early-settlement fee rather that take on the combined forces of some of the biggest entertainment corporations the world has ever seen, despite the existence of some very good legal arguments that could tear the RIAA’s playhouse down. The Thomas trial and verdict simply blew through some of these good arguments and served up Jamie Thomas’s head on a platter to the RIAA. It took the fight out of a lot of people. Who’s gonna fight the power when the downside is so devastating?

Anyway, upon reflection and a pile of briefs from public interest groups and copyright scholars, the judge last week declared a mistrial, essentially admitting that he’d been hoodwinked by the RIAA the first time around. The main bone of contention was the “making available” issue. The only evidence that RIAA’s team of cyber-snoops gets in these cases is a snapshot of the victim’s “share-file”, that is, what songs the victim’s P2P program has in the publicly-visible file that can automatically participate in file sharing online. The cyber-snoops don’t see any real trading doing on, no uploading, no downloading, except what the cyber-snoops themselves initiate.

The judge had initially instructed the jury, at the urging of the RIAA, that “making files available” was an infringement of the copyright holders’ exclusive right of distribution. In other words, having a song just sitting there for others to maybe take equals “distribution” of the song.

Over twenty pages of the forty-four page decision, Judge Michael J. Davis knocked down the multiple arguments the RIAA made about “making available” distribution, each argument sillier and more far fetched than the one before. The decision is a clear eyed, unassailable virtuoso performance.

But Judge Davis saved the best part for last, when he addressed the inappropriateness of fining someone $9250 for “stealing” a song that one could download for 99 cents. For once, a judge had the presence of mind to step back and look at what these cases are really about. Dig this:

...The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market...

...While the Court does not discount Plaintiffs’ claim that, cumulatively,
illegal downloading has far reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs, the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs....

...Thomas not only gained no profits from her alleged illegal activities, she sought no profits....In the case of individuals who infringe by using peer -to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence...

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.


You can read the whole decision at