Thursday, September 24, 2009

9.24.09 RIO VEOH

A court decision out of a federal court in California last week set a bar for all of those high-stakes lawsuits by Big Media companies against internet sites where people can post things. A bunch of media companies sued Veoh, a web site that acts as a portal for all kinds of video stuff, and that allows anyone to post videos on its site. The media companies were trying to hold Veoh responsible for stuff posted by users that infringe the copyrights of the media companies. Similar suits have been started against many websites that similarly allow anyone to post content, including lawsuits against YouTube and MySpace. Obviously, if the Big Media companies are successful in their infringement claims in these lawsuits, the damage awards would be astronomical, and the fall-out would undeniably change the architecture of the internet and how we use it.

The media companies were arguing that the websites had a legal duty to monitor and filter stuff that’s posted by users. Veoh has never had humans reviewing what was being posted by its users, but was using a couple of automated filtering devices that scanned incoming videos and would routinely reject duplicate videos or videos that had “fingerprints” identical to known copyrighted works. These systems are far from perfect, though, and all sides agreed that plenty of infringing stuff got posted.

At the center of all of this is one of the few positive provisions of the Digital Millenium Copyright Act, or the DMCA, a morass of incomprehensible laws rammed through Congress at the behest of Big Media in 1998 that were designed to expand copyright protections and bring some anti-consumer “order” to the general chaos that is the internet. Section 512 of the DMCA establishes a “safe harbor” for “internet service providers”, so that the ISP’s won’t be automatically legally responsible for what’s running through their systems. If you liken an ISP to, say, Fed Ex, this is like saying Fed Ex isn’t responsible for stuff it delivers. Not the best analogy, I know, but you get the concept. The DMCA also says that if an ISP is informed by a copyright owner that there’s infringing stuff on the ISP’s site, the ISP has a duty to investigate and take down the infringing material.

OK. There was no real issue that Veoh had always reacted quickly when told that there was infringing stuff on its site. A question was did Veoh have to do more than simply take down individual sites? Once told generally by a record company that there were, say, Kanye West videos on its site, did Veoh have to survey its entire site for Kanye West videos?

The court nuked all of Big Media’s arguments. The court found that Veoh actually was doing more than the law mandated by employing filtering technology to block obviously infringing videos. The court further found that just because Veoh had the “right and ability” to filter and reject videos, this didn’t create a legal obligation for it to do so. In other words, it remains, as it has always been, the copyright owners’ responsibility to police the world for infringement, and the court ruled that the DMCA contains no provisions that will change that.

Now, this decision may well be appealed, and it only has a persuasive, not binding, affect on all the other similar cases out there. But it’s a solid and comprehensive
decision, and it should go a long way in beating back Big Media’s assault on websites that rely on user-contributed videos and music.

There was some very good news this week when the new chair of the FCC came out strongly in favor of implementing steps to insure net neutrality. This will guarantee that your internet provider doesn’t provide better and faster service for, say, it’s own email service than for gmail or hotmail; that it can’t create “fast and slow lanes” based on price or content; that it can’t filter or create artificial bottlenecks for what it’s transmitting, like AT&T did a few years ago when it removed anti-Bush statements from a live Pearl Jam concert is was transmitting (while leaving in all sorts of curse words!).

A few Republicans, toadying up to big business as usual, have criticized the move towards net neutrality, saying things like “we don’t need more government regulation.” Sweet Jumpin’ Jesus! You’d think these people would have given up on that argument after Enron, after AIG, after the near-destruction of the world as we know it caused by capitalism run amok. But no, they’ll keep ringing that bell as long as they’re paid to do it.

Good thing nobody’s really listening anymore.

Thursday, September 10, 2009


This article originally appeared in the 9.10.09 issue of Metroland

MySpace is the both the bane and the blessing of musicians everywhere. It’s clunky, it’s ugly, and the flashing banner ads make you feel like you’ve entered a low-rent carnival midway. Every time I visit MySpace I feel like I should take a shower afterwards and then run an industrial grade virus scan on my computer. And I have a Mac.

If they’ve updated the code that runs MySpace in the past five years it sure doesn’t show. The user experience hasn’t changed at all, which leads to the likelihood that the architecture probably can’t be changed without blowing up the whole decrepit mess. So we’re stuck with it.

There have been plenty of challengers to MySpace’s hegemony with musicians, sites that no doubt run better, look better, and do more and better things. But they all seem to plateau early, then whither and disappear, leaving old crusty MySpace blinking and bleeping and refusing to die.

But, for all its faults, the damn thing works. Gig info is easily updatable, music can be put on and taken off in a flash, photos and videos are easily posted, the search function works OK, and what else do you really need?

And the proof is in the pudding. In the past year, I’ve added a bunch of musician clients who all have the best shots at real success of any musicians that I’ve represented in my twenty years (yikes!) as a lawyer. And they all came to me with offers and opportunities already in hand. And they all got “discovered” on MySpace.

And, even if they can’t fix their crappy code, MySpace seems to be doing a spectacular job of customer service, if my experience this week is any guide. Tuesday morning I got a frantic call from a band who’d just kicked their drummer out of the group. Seems they forgot that the drummer had admin privileges for their MySpace page. So the drummer, after no doubt lying to his girlfriend that he’d “quit” the band and drinking heavily, changed the password to the MySpace page and put on a profile picture of himself smiling demonically and giving the world the finger.

Funny as it was, the band was traumatized. Their main portal to the world had been hijacked. And what was the x-drummer gonna do next?

I’d had lots of crisis situations like this before where a disgruntled x-band member takes over a band’s MySpace site. I’ve seen jilted musicians talk trash about the old band, remove gig info, and post embarrassing photos. In one case, a booted lead singer even formed a new band overnight and posted new photos and band info. It’s not your band, it’s my band! D’oh!

In the past, I’ve written lawyerly letters to MySpace explaining the situation, and the few times I’ve gotten any response, it was usually something about MySpace not wanting to get involved in inter-band disputes and that I’d have to get a court order if I wanted the site back. A court order? That would cost a couple thousand bucks and probably take weeks.

This time was different. I sent off the lawyerly letter, mainly to placate the band, but with no hope that it would really accomplish anything. Within an hour I got an email back from MySpace, telling me to send them “salutes” from each of the remaining band members. There was a nice explanation that a “salute” was a photograph of the band members holding a handwritten sign with the MySpace ID on it. They’d check the salutes against the pictures of the band they already had, and if a majority of the old band members were represented, we’d get our site back.

This took my breath away. First was how quick MySpace responded. I mean, how many of these kinds of complaints do you think MySpace receives every day from the gazillion bands it hosts? Thousands? And somebody actually read my email and responded in an hour. And then the solution: so simple, so elegant, so right.

Moral of the story: number one, if you’re gonna kick somebody out of your band, secure your online stuff first. And number two, for all its faults, MySpace rocks.

Last year a bunch of you attended the Future of Music Coalition’s seminar on making money making music in Albany. If you want the super deluxe version, the FOMC’s big Policy Summit is taking place in Washington, DC October 4-6. Speakers and panelists include Senator Al Franken, Mike Mills of REM, and a ton of music biz 2.0 heavyweights. I’m honored to tell you that I’ll be a panelist on the topic of revenue flows for musicians. The conference is super cheap, especially if you can find a place to crash in DC. If you’re serious about making it in music, you wanna be at this one. Info at