Wednesday, July 29, 2009


About six months ago there was this big kerfuffle on Facebook; somebody looked at the new terms of service and OMG!!! OMG!!! Facebook was trying to steal everybody’s stuff! There was an instant Facebook revolution, with people forming massive Facebook groups dedicated to hating the evilness that was Facebook.

Except there was no real problem. There was some boneheaded new language in the terms of service that if read very, very broadly might have inferred some malevolent intent, but that language got nuked but fast when the uproar hit. And hopefully a lawyer got spanked. So the whole episode was a little silly.

Well, it just happened again. Late last week people started posting dire FB messages that Facebook was allowing third parties to grab users' pictures for advertisements, and a detailed set of instructions for changing some setting in your Facebook account to stop Facebook from doing this awful thing. I’d gotten about 30 of these messages in two days last week (and I’m still getting them today), and it didn’t make any sense, so I checked it out.

Once again, this just wasn’t happening. Facebook wasn’t taking your stuff. A quick look at the urban-legend site lead me to an official Facebook blog that explained what was really going on. Apparently there’d been some bad behavior by a few third party apps that were grabbing people’s images, but Facebook is pretty diligent in chasing those creeps down and kicking them off the island. In fact, the latest miscreants were long gone before the rumor mill cranked up last week.

As explained in the blog (and as borne out if you really look at the settings options you just hysterically changed) Facebook sells advertisements (remember, somebody has to pay for the damn thing you spend all day fooling around on) and it allows users to say they’re “fans” of the companies posting the ads, just like you can be a “fan” of movies, musicians, historical societies, and all sorts of insanely stupid stuff. And when you look at the ad on Facebook, you can see which of your FB friends are fans of the company posting the ad. And if you indicate you’re a “fan” of an ad, your FB friends will know about that.

So you get to see people you “know” (at least hypothetically) endorsing a product, and that could be pretty useful information. But the utility of this has now been compromised by another stunning example of stampeding paranoid group-think. The settings “fix” flying around FB removes your endorsement.

On the balance, though, I think this is a good thing. Social networking systems, search engines, cloud computing, just logging on to the internet exposes every one of us to all kinds of breaches of personal privacy. There’s really no such thing as being too paranoid about that, and it’s good to see that folks are being vigilant about it. Albeit sometimes a little misdirected.

Moving on, a couple of recent studies are claiming that kids aren’t illegally downloading nearly as much music as they were just a year ago. But they aren’t legally downloading, either. And they certainly aren’t listening to less music. According to the studies, they’re listening to on-line streams.

The teenage kids I know haven’t bought a CD in years, and most wouldn’t bother buying downloads for 99 cents. Why should they? They can listen online for free, or like-free. The only reason they need MP3’s at all is to stock their iPods, and that’s a big annoyance. Once a mobile wireless listening alternative comes along that makes sense to them, and you can be sure it’ll come in through their cell phones, they’re gonna grab it.

These kids expect, and are demanding, the ability to push a button and have their favorite music come out of a little thing they can put in their pocket. “Ownership” of music is irrelevant, convenience is the thing. Whether it’s free, like ad-supported sites MySpace or Pandora or the coming soon (and by all reports, fabulous) Spotify, or low-cost subscription sites like Rhapsody or the coming soon (and watch out for this one) Choruss, “music in the air” is moving fast, especially among teenagers. Pretty soon, the 60 GBs of music I store on my hard drive is gonna look as antiquated as the box of vinyl tucked away in my basement.

And as the New York Times’ Brad Stone pointed out last week (and as theorists like Choruss’s Jim Griffin have been saying for years), this could work out great for everybody. Why? Because these online streaming sites pay the royalties to record companies and songwriters that free downloaders don’t.

So the kids get what they want and the industry gets what it wants. Not to get too warm and fuzzy here, but sheesh!

Paul Rapp is an intellectual property attorney, musician and writer based in Housatonic MA. You can visit him a

Wednesday, July 15, 2009


I’ve spent the last couple of days ripping through Chris Anderson’s highly anticipated new book Free, The Future of a Radical Price. Free is about the “economics of free,” the idea that by giving away copies of creative works (like music, movies, or books), the creator of these things can still make money from other, related, and ancillary sources, and sometimes much more money that by just selling copies of the work itself. I read Free for free online at, and it’s also posted at Google Books, and for sale as real book everywhere else.

It’s a fabulous, provocative, illuminating book. A central tenet is that free “content”, be it music, or photographs, or whatever, is the inevitable result of the digital age. Forget about traditional concepts of copyright, of ownership, or the overheated arguments about stealing or piracy...once something is reduced to a digital file, it’s gone if it’s something people want. It’s a law-of-nature phenomenon, not a moral one. It’s inevitable. Like I tell clients, if you post something on the Internet, don’t be worried that people might download it. Be worried that people won’t.

This all became graphically real to me one snowy morning in 2000, when I first fooled around with the original Napster program. My first search was for recordings by my band Blotto, and as the little search button blinked I had the epiphonic realization: How the hell was I going to feel if we weren’t on there?

Anyway, starting with the assumption that good content is inevitably going to be free content, Anderson goes on to make the case that this isn’t necessarily a bad thing for creators. Yes things may change: yes some business models are going to crumble; and yes some creators (or, more than likely, their corporate overlords) aren’t going to make as much money as before. But there are other ways to skin the cat, and if maybe the cat wasn’t as big as before, there will be most definitely be more cats to choose from. And more creators skinning them.

For me, one of Anderson’s more interesting points is that a lot of this isn’t particularly new, that enterpreneurs have been dealing with the economics of free for as long as there’s been the economics of anything. He starts the book using the example of how Jello broke through to commercial success, by the company printing millions of Jello cookbooks and giving them away door to door to create interest and demand in Jello. It worked. (Note: Next time you’re on the Thruway driving to Buffalo, get off in Le Roy, NY and visit the Jello Museum. Yup, the freakin’ Jello Museum.)

Did you know that RCA first started broadcasting radio programs for free as a way to sell more radios? Then they had a contest for people to suggest ways to pay for more radio broadcasts, and the winner was a tax on vacuum tubes? Then finally, somebody came up with an advertising model, so radio was free to the listeners and advertisers were the true “consumers” of radio, paying for listeners’ attention, and that was the model that stuck.

In part, this is what Anderson sees as happening now, a period of technological and entrepreneurial evolution. Case in point: right now there are at least 50 different models for internet advertising, some that work, some that don’t, some that are being tweaked, some that await an audience.

Of course the establishment reaction to Free has been unrestrained hysteria. There was the big plagiarism charge, that he’d nicked a bunch of things from Wikipedia. Truth was his publisher didn’t agree with the form of his submitted Wiki citations and took them out. In the version I read, Anderson cites Wikipedia constantly, as you’d expect he would. Wikipedia supports, if not proves, his premise. Free rocks.

Most criticisms of Free are like the gibberish in failed Internet entrepreneur Andrew Keen’s odious and intellectually dishonest book The Cult of the Amateur, in which the evil Internet is made out as the cause of the destruction of civilization. I imagine most of these critics haven’t bothered to read Free, and if they have, were so horrified by its truths and its challenges to their livelihoods that they decided the only effective response was to just yell stuff. Disappointingly, the New Yorker’s Macolm Gladwell, a thinkin’ feller if there ever was one, filed a remarkably tone-deaf diss last week, one I suspect he’ll eventually regret as his deadline and dread of change fade.

Despite being posted for free on the web, Free is right now the Amazon’s 75th best selling hardcover book overall and the 25th non-fiction title.


Next week’s CRUMBS night out music biz panel will be looking at gigs, featuring a bunch of folks whose job it is to hire musicians and pay them real money. We’ll have promoter Greg Bell, Valentine’s Howard Glassman, Revolution Hall’s Jared Kingsley and maybe a few more folks who are gonna talk about how you make the move from your basement to their stages. Thursday, July 23, at the Linda, Sumac plays a set at 7, Panel at 8.

Wednesday, July 01, 2009


This article originally appeared in the 7.2.09 issue of Metroland

Amid all the hoopla about famous people dying last week, the Supreme Court announced that it was refusing to undo a federal appeals court ruling that allows cable companies to offer customers remote recording and playback of programs. People have for years been able to use Tivo digital recorders and other set-top boxes (often provided by cable companies) to digitally record programs for later playback. But these systems involved having the hard drive that stored the programs in your living room, and what the cable companies wanted to do was move that recording function back to their own servers. The customer experience would be exactly the same as before, although presumably cheaper and more convenient, because you no longer needed a hunk of hardware in your house. Doesn’t sound like that big a deal, does it?

Of course all of the big TV and movies studios went nutso over this, claiming that the cable companies were somehow stealing their programs by allowing customers to copy the programs onto cable companies’ servers. That the Supreme Court refused to hear the case may or may not be particularly momentous, as the Court generally only takes up copyright issues every couple of years; perhaps they didn’t think this one was big enough or ripe enough to warrant a second look. What was interesting, though, was that the Obama administration submitted a brief siding with the cable companies, one the first indications of where Obama’s going to come down on intellectual property issues. The Justice Department’s IP lawyer hires have been mostly from Big Media-related organizations and law firms, so it was heartening to see the administration go the other way.

In any event, expect your cable company to be serving up some much-needed flexibility for your viewing habits over the summer.

Of course, after the Supreme Court announced it would let the ruling favoring cable companies stand, various Big Media mouthpieces decried the decision as being detrimental to the rights of “creators”. Yes, absolutely, it’s so very bad for “creators” that it’s now become much easier for people to see the television programs that they’ve already paid for! Right!

It’s all part of the rhetoric of copyright issues. Big Media trumpets the rights of “creators”, when they’re actually talking about execrable behemoths like Disney and Universal Music Group. My favorite Big Media public relations ploy is labeling anything that benefits the end user as a big conspiracy on the part of some ephemeral conglomeration of evil computer hardware and software people who are clandestinely plotting to destroy intellectual property law for their own (dramatic pause) profit. This twisted, paranoid, Rovian argument basically takes the position that anything that allows people to move information around more freely is bad. Mmhmm!

I’ve heard similar arguments being made about the perennially proposed orphan works legislation, which would allow the use of otherwise copyrighted works where a copyright owner can’t be identified or located. I’ve heard plenty of people who should know better refer to orphan works laws as some dark conspiracy by nameless bureaucrats at nameless trade organizations to invalidate artists’ copyrights!

Crazy talk like this does nothing but obscure the actual issues and derail rational discussion about the huge problem that was created when Congress decided that everything that gets created by anybody for any purpose was subject to automatic copyright protection for years after the author has died. While the orphan works laws are problematic for certain types of artists, the laws are a rational attempt to at least emulate something resembling a public domain, which has been stagnant since the copyright laws changed in 1978. And I know plenty of educators, writers, librarians, archivists, historians, and, yes, even visual artists, who can’t wait for Congress to finally move the orphan works laws along. And they’re not evil doers, thieves, knaves or baddies. They just want their culture back and want to be able to use it without fear of getting their asses sued.

You may have heard about the Jammie Thomas file-sharing retrial in Wisconsin. In her first trial, the jury banged her for around $220,000 in damages the 24 songs she allegedly downloaded. On the retrial, represented by higher-profile lawyers, the jury banged her for $1.9 million! D’oh!!! That’s $80,000 per song, and the record companies’ actual damages from the lost sale of a song (assuming that every “illegal” download is a lost sale, which is a nonsensical assumption, but there you go) is something south of fifty cents.

Ms. Thomas’s options now are to settle, or to appeal, or to declare bankruptcy. And the latest news is that she ain’t settling. So we’ll see where it goes, but the Thomas case does little more than underscore how comically silly copyright law can be.