Wednesday, February 24, 2010


This article originally appeared in the 2.25.10 issue of Metroland.

We've been watching how the Obama administration has been handing information and intellectual property issues—these things never break in neat Democrat / Republican Red State / Blue State ways. Bill Clinton, in fact, probably did more damage to rational IP policy than any president ever. So far, there’s been little to report, as Obama’s had his hands full with other things. But there’s a couple really troubling things going on.

First, the administration has been beefing up on what it calls “intellectual property enforcement” by the appointment late last year of the first-ever cabinet-level intellectual property “czar” and just recently the creation of a Department of Justice “task force” that’s supposed to address domestic and international IP “theft.”

It’s unclear what any of this means, but there are plenty of reasons to be worried. As a general matter, enforcement of IP rights like copyrights and patents have always been the responsibility of the IP owners. If you’ve been ripped off, you go get a lawyer and go after the infringer. Only in extreme cases, like with large counterfeiting operations, has the government gotten involved and have criminal sanctions been invoked. This could change.

The fact is that both the IP Czar and the DoJ Task Force have been created at the behest of Big Media, the handful of mega-corporations that control the mainstream music, film, television, and publishing industries; the fact is that Big Media has been running around blaming its problems, real or imagined, on how people use the internet; the fact is that Big Media has for years conflated things like on-line file-sharing and digital copying and storage with “piracy”; the fact is that Big Media has declared jihad on all of us, boldly claiming it’s doing so on behalf of “creators” when it’s really doing so on behalf of its corporate shareholders, who don’t create squat; the fact is that Big Media has commandeered intellectual property laws to be less about the public good and more about protecting, to the public’s detriment, its outdated imperial business models.

And now Big Media is in the White House and the Department of Justice. Should we be concerned? Uh-huh. Big Media is watching you.

Another related area of concern involves a series of secret international trade negotiations that have been taking place over the past year. These closed-door sessions are aimed at creating something called the Anti-Counterfeiting Trade Act (ACTA), and involves representatives from much of the industrialized world, but, notably, neither China nor Russia. ACTA appears to be spearheaded by the United States Trade Representative, also acting primarily at the behest of Big Media, and is thought to have a goal of “toughening” international IP enforcement in order to protect Big Media’s hegemony in the international content market.

But we really don’t know because the negotiations are secret. Why? National security, dummy! Actually, national security is just one of the ever changing and bogus reasons given for incredible lack of transparency. And given what we know about what’s going on, the idea that this process is secret is horrifying.

There have been leaks in the process, and they tend to confirm the worst fears about ACTA: that it’s a massive powerplay by Big Media designed to not only change other countries’ IP laws, but ours, too. The focus of AFTA appears to be “internet piracy”, and leaked documents show a movement towards holding internet service providers (like your cable or phone company) responsible for whatever is being transmitted over their systems. This would, in effect, force your ISP to spy on you, all for the benefit of Big Media. There are signs that AFTA is also looking at essentially suspending any notion of digital privacy at national borders, too. Yikes.

The plan seems to be that our trade representative would negotiate this Big Media wishlist of draconian rules that would change how the internet works, our privacy, our ability to use information, and our ability to create and communicate. Then the Obama administration would send a bill to Congress implementing all these ridiculous rules by changing copyright, trademark, and patent law and probably big chunks of the federal criminal statutes, too. The argument, pushed by Big Media lobbyists, will be that the rest of the world is doing this stuff and we can’t be left behind (Never mind that the rest of the world is doing it because our trade representative told them to, we’ll just leave that part of the story out). And Congress, now more beholden to corporate interests than ever (remember, corporations = people = money = speech) rubberstamps the whole thing. And we’re all royally screwed.

Sound like the tail wagging the dog? That’s exactly what it is. Sound far-fetched? It’s not. This was exactly the game plan Bill Clinton followed to get the Digital Millenium Copyright Act, a similar but less far-reaching travesty of a law, passed in 1998.

So you can’t say it can’t happen here because it already has.

Wednesday, February 10, 2010

2.11.10 MESSMOCA

This article was originally published in the 2.11.10 issue of Metroland


Remember a year or two ago when MassMoca got into a huge brouhaha with Swiss installation artist Christoph Buchel? Sure you do. Buchel was putting a massive art thing in MassMoca’s football-field-sized Building 5 gallery, a post-apocalyptic fake town that was supposed to include a house, a theater, a prison, a burnt-out 747 fuselage, concrete walls, and 150 tons of stuff. When the $300,000-or-so budget ran out (surprise!), Buchel refused to scale down the project, and allegations started to fly, and all hell broke loose.

The art world went generally berserk, with commentators outside of Berkshire County uniformly slamming MassMoca as somehow being profoundly insensitive to the rights of artists, and commentators within Berkshire County (myself included) coming down on the side of the home team, arguing essentially that MassMoca had been blindsided by a grandstanding petulant dickhead.

The whole thing wound up in federal court in Springfield, where after an accelerated mini-case the judge sided with MassMoca, stating that an unfinished work (which this unquestionably was) didn’t qualify for the moral-rights artist-integrity provisions of the Visual Artists Rights Act (known to art-law geeks as VARA), and that MassMoca didn’t violate Buchel’s copyrights by throwing a tarp over the whole she-bang and letting a few people walk through the building to gaze at the hulking mountains of tarp-covered junk.

It was all a satisfying result for those of us MassMoca fans up here in the cheap seats, but was it a correct interpretation of the law? Even the judge in Springfield stated in his lengthy, thoughtful decision that he wasn’t sure. He knew he was walking through a whole lot of uncharted legal territory with a set of facts that were as surreal as Buchel’s artistic vision.

So it wasn’t exactly a surprise when the federal appeals court in Boston reversed the decision, ruling that unfinished works indeed could be subject to the protections of VARA, and that MassMoca might well have infringed Buchel’s copyrights by allowing a few people to view the installation covered with tarps. It’s important to note that the appeals court did not say Buchel won; it only said that he hasn’t lost. So the case returns to Springfield, and, if the parties don’t settle this thing, it will go to trial.

And what a bizarre trial this would be. My understanding of the law here is that even if Buchel proves that MassMoca technically violated his rights under both VARA and the Copyright Act, he’s going to need to prove damages; under VARA, the damages would have to be somehow connected to harm to his reputation and integrity as an artist, and under the Copyright Act, the actual pecuniary loss he suffered as a result of a few people looking at some tarp-covered junk.

Damage to his reputation and integrity? Outside of Berkshire County, where Buchel is uniformly regarded as a jerk, a very good argument could be made that this whole mess has enhanced his reputation, and to an extraordinary degree. As my pal arts-writer John Seven in North Adams points out, Buchel’s sure been busy with high-profile installations in Europe and Asia lately. And in the twisted, often nihilistic and cynical eye of avant-garde art high society, the MassMoca affair has elevated Buchel to the status of A-list cause-celebre bad artsy-boy. Indeed, when the whole controversy was unraveling two years ago, there was speculation that it was all being staged by Buchel and MassMoca as a performance art piece to garner headlines and publicity.

And actual damages suffered by Buchel as a result of MassMoca covering the thing with tarps, and telling people what had happened, and letting them look? Umm, let me get my calculator. OK. Zero!

But maybe that’s the right result, a finding of liability but no damages. As they say in the legal biz, “hard cases make bad law”, meaning, where you’ve got a particularly strange set of facts, and try to bend the law to come up with what you believe is a just result, you often create a precedent that that will have very bad negative consequences for somebody else down the road. And this case is a perfect setting for that to happen.

Let’s face it, MassMoca is not blameless in this. This was in an extremely difficult situation but it was partially of MassMoca’s own making, and some decisions were made that in hindsight were rather stupid. To absolve MassMoca of all legal blame by a cribbed reading of the law would potentially create a legal framework by which institutions could screw artists in all kinds of situations where the equities were reversed, and the institution wasn’t a victim.

So stay tuned. Chapter three in the Christoph Buchel - MassMoca saga coming up.


This article originally appeared in the 2.11.10 issue of Metroland


Brandi Carlile
The Egg
February 4, 2010

Out of the many friends I told I was seeing Brandi Carlile, exactly one knew anything about her. Until recently, I’d only seen her name here and there, and for some reason assumed she was one of these Disney cookie-cutter “pop stars” that fall out of the television every week or so. Then I caught her on a rerun of a 2008 Jules Holland show. She started quietly playing her signature song “The Story.” First I thought “wow, good song.” Then “geez, great voice.” Then, three bars into the second verse, her band just lands with a grunge hammer, and Carlile jumps an octave and starts wailing over the top. I was totally in the tank.

Her show last week was a tour de force, starting with Carlile and her four band members singing the Beatle-esqe lullaby “Oh Dear” around one microphone center stage, continuing for 90 minutes of brilliantly crafted and stylistically diverse songs, wrapped around Carlile’s huge and rangy and majestic voice and her absolutely deadly band. Most of the material came from her two most recent albums 2007’s “The Story” (produced by T. Bone Burnett) and last year’s “Give Up the Ghost” (produced by Rick Rubin).

Carlile’s a tiny little thing, I can’t imagine she weighs more than 100 pounds, but she effortlessly commands attention, even while she’s bookended by her two long-time collaborators, the tall and lanky identical twins Tim and Phil Hanseroth, who play guitar and bass and who themselves have a matching repertoire of rock-star moves. Yeah, the band is something to see, too.

The encore was as goofy and talent show-y as the main body of the show was tight and galvanizing, hysterically hitting on Johnny Cash’s “Jackson” and “Folsom County Blues”, Tammy Wynette’s D-I-V-O-R-C-E, and Loretta Lynn’s “Stand By Your Man.” The twins came out and sang “Sounds of Silence” with their identical voices, prompting Carlile to quip “Have you ever heard anything so wonderful and weird and creepy in your whole life ?” Then the band blazed through the elegant “Pride and Joy” and then it was over.

It’s a testament to the fracturing of any kind of shared musical experience and the fall of radio as a mass taste-maker that someone so hugely talented and so immensely satisfying could evade the purview of me and virtually everybody I know for so long. This was a show that will haunt me for a long time.