Wednesday, April 21, 2010


This article originally appeared in the 4.22.10 issue of Metroland.

We’ve mentioned here that something’s afoot in Washington regarding intellectual property rights: Obama’s appointed an IP “czar” (them damn socialists, again), the Department of Justice is beefing up its IP enforcement section, there’s some secret international treaty being negotiated – and while there hasn’t been much overt activity on any of these fronts yet, all of these things appear to be happening at least in part at the urging and with the support of corporate media companies. The buzzwords in the cacophony of corporate talking points are things like “stricter enforcement” and “digital piracy”, and this stuff is endlessly repeated to us blithely as real news by the mainstream media. We hear that “piracy” is costing us X billions of lost sales and X thousand lost jobs. Well freakin’ yikes, we’d better do something right?

Well, maybe not. Maybe it’s all a bunch of, um, hokum. The problem being that mainstream media is owned by the same corporations that are hammering Washington with these arguments, so you’re not gonna hear any skepticism about this on television or read about it in the newspaper. Fact is, very few people analyze, question, or ask if we really need stricter IP enforcement, or inquire what it will it cost us in terms of consumer choice, consumer cost and especially, personal privacy. What we have is hordes of well-paid lobbyists spouting the company line and a few moderately-funded public interest groups out there arguing for the rest of us.

The “statistics” about “piracy”-related lost sales and lost jobs have always been a little suspect, but both Big Media and the government keep spouting them as justifications for beefier laws, more protections, more enforcement. But something happened last week that might, just might, provide a little balance and perspective.

The federal General Accountability Office, the above-reproach research arm of Congress, was directed to look into the effects of intellectual property piracy and counterfeiting, and last week issued its report. (You can look at it at And guess what they found?

The GAO found that the numbers are all made up! Now, this is a short but rambling report, a survey and analysis of the information that’s out there about “counterfeiting” and “piracy”. It also covers a bewildering expanse of territory, talking about things like counterfeit pharmaceuticals, airplane parts, circuit boards, handbags, CDs and DVDs along with digital downloading. As such, it doesn’t really go very deep into anything, but the general finding is that we’ve all been getting a snow-job.

The report found that the basic raw data used for these estimates is of questionable origin, and then the assumptions that are used to extrapolate that data are not supportable. One of the most ridiculous assumptions, that one “illicitly” acquired good equals one lost sale, was singled out for inflating the estimates to multiples of what they should be. The “one-to-one substitution” assumption has long been used by the music, movie, and software industries in describing their losses from people acquiring free copies of stuff over the internet, and it’s the height of absurdity: every song we grab for free online somewhere is a song we would have paid a dollar for if it weren’t available for free? Of course not. It’s a small fraction of that. But industry takes questionable and inflated numbers about, say, how many songs are shared over the internet, multiplies that number by 99 cents, and says here, we’re losing billions and billions of dollars! And the media uncritically repeats this nonsense and we all believe it.

Even more amusing is the GAO’s take on the federal government’s use of these bogus statistics:

“A number of industry, media, and government publications have cited an FBI estimate that U.S. businesses lose $200-$250 billion to counterfeiting on an annual basis.... FBI officials told us that it has no record of source data or methodology for generating the estimate and that it cannot be corroborated. A 2002 CBP press release contained an estimate that U.S. businesses and industries lose $200 billion a year in revenue and 750,000 jobs due to counterfeits of merchandise.... a CBP official stated that these figures are of uncertain origin, have been discredited, and are no longer used by CBP. A March 2009 CBP internal memo was circulated to inform staff not to use the figures. However, another entity within DHS continues to use them....”

Yeow! The GAO essentially concludes that while "piracy" and counterfeiting is indeed a problem, it’s really impossible to know how much of a problem it is, and that at least for digital downloading, the estimates tossed around by both industry and government are wildly overstated. In fact, it’s pointed out that the availability of free digital media online may have significant positive effects in the form of consumer sampling, free promotion, and the tempering of monopoly pricing.

You know what they say about liars and statistics...

4.22.10 No Headlights

photo stolen from Seth Rogovoy, who sat next to me and wrote a more positive review than I did, which you can read here
this review originally appeared in the 4.22.10 issue of Metroland.

The Egg
April 17, 2010

I really like Jakob Dylan; love his new album Women and Country; one of the most memorable shows I’ve seen was the Wallflowers / Sheryl Crow show at the Palace back in the ‘90’s. Burned in my brain is the image of Crow, decked out in a Syracuse University cheerleader outfit waving pom-poms in Dylan’s face while her band dismantled his drummer’s kit mid-song. The whole show breathed of life and passion.

And Dylan's appearance at the Egg Saturday breathed of neither. It was the opposite of exciting. And so unexpectedly so.

As the titular leader, maybe some blame can be laid at Dylan’s feet, but he didn’t play a bad show. His voice was full of character and presence and he sang great, with depth of feeling and intelligence. And the songs he sang, leaning heavily from the new album, are interesting, diverse, and straightforward. He showed up.

Nope, the blame is on the band, which spent the evening exploring the meaning of perfunctory. The band is borrowed from the great alt-siren Neko Case, who was along singing back-up vocals along with fellow thrush Kelley Hogan. This all looks really good on paper, don’t it? That’s what I thought.

Instead there was a stony chill that ran through the set. The band vamped without emphasis, guitarist Paul Rigby had his back to band most of the night over on stage right, everybody else barely acknowledged one another and just played their little parts. Were they trying to emulate the relative quietude of the record? That’s not gonna happen effectively unless producer T-Bone Burnett’s at the board, and he wasn’t. Were they bummed because there was (surprisingly) only half a house? Grow up. Were they just too hip for the room? Bite me. It all felt simply so phoned in.

To the extent there was something like a high point, it was Case’s and Hogan’s back-up vocals, which occasional jumped out to something like a confrontation. These are two very good singers here. But their considerable talents were underused and essentially wasted; too often their parts were just obvious and unimaginative harmonies on choruses, or worse, unison parts an octave up. And they seemed to be stricken with the same spiritual malaise as everybody else.


Wednesday, April 07, 2010


Yesterday’s court ruling that the Federal Communications Commission lacks the authority to punish Comcast for messing with its customers’ internet service has caused all sorts of wailing and knashing of teeth. Headlines are screaming that the ruling means the end of net neutrality, “the day the internet lost”, a huge comeuppance for FCC Chair Julius Genachowski, a huge defeat for the Obama administration, etc.

Geez, guys, get a grip.

First of all, understand that the case was about an FCC ruling that was made during the Bush administration, in August of 2008.

As several of the more informed and rational reports have pointed out, this decision wasn’t unexpected, nor is it necessarily a bad thing. Fundamentally, it must be stressed that the court did not say, or even infer, that net neutrality was a bad thing, or that what Comcast was doing to its customers a few years ago (it was interrupting service to customers it suspected were using file-sharing programs) was a good thing. The court was merely holding something that many commentators have been saying for years: that the FCC overstepped its statutory authority—that it was trying to regulate something it did not have the legal right to regulate.

Which doesn’t mean the death of anything. What it means is that the FCC took things a little out of order. Which merely underscores the old adage, if you’re gonna do something, it’s a good idea to do it right the first time.

You see, the FCC is a creature of statute and its own regulations and, like every other regulatory body out there, it’s kept on a very tight leash. And for good reason: FCC commissioners and staff aren’t elected officials, so they don’t answer to voters, just to the statutes and regulations. And when they step outside of the statutes and regulations, the courts must step up and reel them in. This is called order; this is a government of laws, not people, as it should be.

And so what happens all the time is that issues of process and authority always come before the substantive issues of right versus wrong, to insure that the FCC isn’t overstepping its bounds or ignoring its own rules. And that’s what happened here. And that’s what’s being totally ignored by most of the mainstream media and other commentators.

I haven’t had the time or inclination to dig into the court’s decision (rulings on administrative decisions are typically incredibly dense, dry, and boring) but this is what seems to have happened, in the most basic and elementary terms (I’m running at the edges of my understanding here, so if you know more about this than me and want to clarify or correct me, I’d be much obliged):

The FCC exercises broad authority over what it deems to be “common carriers” of telecommunications services, traditionally, telephone, radio and television services, based on the fact that these services use public facilities (bandwidth, streets, etc.), the fact that these services are not always naturally prone to competitive pressures that would keep prices down and quality high, and the fact that these services provide things that are necessities to modern life. What the exact nature of this “broad authority” should be is an ever changing, constantly debated issue. The court-driven break-up of AT&T, for instance, was a paradigm shift in what this authority was for telephone service. The FCC has never exercised this kind of broad authority over the internet, instead deeming it to be a “lightly regulated” communications service.

Which in many ways is a good thing. In the Bush years, we heard lots of calls from the Chritianista legislators that the FCC should regulate the content of what goes out over the internet, like it does for network television, or like the governments to in places like China or Cuba. Imagine what that would be like. These calls were successfully resisted, internet remained “lightly regulated” and the content of the internet remains largely unencumbered by any governmental intrusion.

Lately, as broadband internet service has been touted as something like a basic human right, or at least a cornerstone of modern civilized society, there have been increasing calls for the FCC to take greater responsibility in making broadband universally available to all (like it does with basic telephone service, or like FERC does with electricity) and to make sure that the internet stays user-neutral—that is, that internet providers can’t discriminate among users for commercial reasons.

And yesterday the court ruled simply that the FCC can’t do this so long as it deems the internet a “lightly regulated” service.

Obviously an act of Congress would fix this. Obviously getting anything through a Congress that’s been hi-jacked by a minority of knuckle-dragging racist partisans is a tall order. Some have observed that the FCC, under existing law, can simply re-classify the internet as a “highly regulated common carrier service” and then do what it wants to do.

Which sounds like sleight-of-hand to me, but if it’s legal and legit, considering the stakes, hey, why not? The dogs will bark, then the caravan will move on.