Wednesday, May 19, 2010

5.20.10 FBBFD

This article first appeared in the 5.20.10 issue of Metroland

Facebook has had a rough couple of weeks. We’ve talked here several times about some bouts of mass hysteria that pop up from time to time regarding the omnipresent social networking site, most of which have been entirely unsubstantial. Dumb, even. This latest thing is more real than what’s been blown out of proportion in the past; this is not just another stupid rumor that Facebook will start charging $3.99 per month on July 15. The company unilaterally undid a whole bunch of privacy settings, and users should be paying attention.

What’s happened is that Facebook reneged on its much-ballyhooed privacy policy (developed after one of last year’s episodes of “Facebook is Evil”) and suddenly a whole bunch of stuff you posted about yourself that you thought was visible only to your “friends” is not only visible to everyone on FB, but has been shuttled off to folks like Microsoft, Yelp and Google, so now some of your info is out there for everybody to see. Ev-ree-body.

Not that the public reaction isn’t a little overblown, as usual. As we’ve mentioned here before, the privacy train left the station a long time ago. If you go on the internet at all, your privacy isn’t what it used to be. Heck, if you walk the streets of any city, or if you drive on an interstate highway, or generally get out of bed in the morning, or not, your privacy isn’t what it used to be. Clearly what FB is trying to do is monetize the boatloads of information that it has, and the companies paying for it will use it, directly or indirectly, to sell you things they think that you’d like to buy. It’s nothing new, really. Except info you thought would have limited access now has universal access.

There are zillions of breathy, hyperbolic articles about how awful Facebook is. In almost every article I’ve read it’s mentioned that Facebook’s privacy policy is longer than the U.S. Constitution. To which I can only reply: “Yeah? And?” Apparently there’s a movie coming out about the origins of Facebook that paints founder Mark Zuckerberg as a creep and sex maniac. Yikes. He does and does and does for you kids and this is the thanks he gets?

And the user push-back is pretty fierce,too, albeit predictable. I’ve seen calls for someone, anyone, to develop a Facebook alternative where we can play without being seen, or something, and I guess there’s a date on which we’re all supposed to quit Facebook, like a big virtual Jonestown Kool-Aid party.

Yawn. Neither of these things are likely to happen in any meaningful way. We like Facebook too much, it works too well, and we’re addicted to it. All of our “friends” are there.

In any event, it’s good to see people finally get a little agitato about their privacy, for once. While Facebook is reportedly coming up with a more streamlined way for people to tweak their privacy settings and to opt out of some of the more onerous types of sharing of their info, there are a number of tools out there you can use right now to understand what’s being shared by Facebook and how you can stop it. The best site I’ve seen in this regard is, which has a nifty diagnostic tool that tells you what’s going on with your FB account.

But in general, you (and especially your kids) should heed the words of my pal, media goddess Penny Perkins, who told the Times Union last week that she won’t post anything on the internet that she wouldn't mind seeing on a billboard on 787. It really is that simple.

Moving on! The MPAA, the trade association representing the big movie studios, appears to have stopped its ridiculous mass-lawsuits against kids who download free movies online, but some indy studios seem to still be in the game. There has been a spate of new suits brought recently, apparently looking for quick-hit money from folks who’ve downloaded indy films including The Hurt Locker, Steam Experiment, Far Cry, Uncross the Stars, Gray Man, and Call of the Wild 3D through bit torrent and P2P sites. I’ve been contacted by a local guy who’s received a letter from his internet company informing him that the company’s been subpoenaed to reveal his identity to the movie-makers’ attorneys in a just-commenced lawsuit with over 2000 “John Doe” defendants. Which means he’s behind the 8-ball.

I’m reading reports that lawsuits have been started against as many as 50,000 defendants, which is insanity, but it’s too early to tell how much money will be demanded, or how flexible the attorneys will be, or how nasty they’ll get when somebody pushes back. Or why they think this totally bone-headed strategy is going to work out any better for indy studios than it did for the big boys. We’ll see!

Wednesday, May 05, 2010


This article originally appeared in the 5.6.10 issue of Metroland

Over 15 years ago, in the landmark decision Campbell v. Acuff Rose, the Supreme Court kicked down the door for the development of a modern concept of fair use of copyrighted works. The case involved the hideous hip hop group 2 Live Crew’s hastily thrown together version of “Oh Pretty Woman”, which appeared on their album “As Clean As They Wanna Be”, the Wal-Mart non-stickered version of their multi-platinum album “As Nasty As They Wanna Be.”

2 Live Crew had asked for permission to release a version of the song with the lyrics changed, Roy Orbison’s publishing company said no, and 2 Live Crew went ahead and released the track anyway. Lawsuits and hilarity ensued.

The Court ruled that 2 Live Crew’s version was a parody of the original, and therefore a fair use that didn’t require permission or a license or payment to Roy Orbison. The entertaining decision by Justice David Souter is the first (and still the only) Supreme Court decision to include the word “riff”, may it fo-shizzle the court, yo.

Parody! Here’s a taste of 2 Live Crew’s “parodic” lyrics, which were included in the Court’s decision:

Bald headed woman you know your hair could look nice
Bald headed woman first you got to roll it with rice
Bald headed woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni

Mencken they’re not. Nonetheless, Justice Souter found that 2 Live Crew’s version was indeed a parody of the original, explaining thusly:

2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.

Um-hmm. Whatever! This ruling has always struck me as particularly thin; to the extent the members of 2 Live Crew were thinking about anything (other than their dicks) while “composing” this masterpiece, I’m not sure they were focusing on a commentary of either Roy Orbison or his hit song. But putting the facts of the case aside, this decision literally laid down the law of fair use, and paved the way for a progression of subsequent decisions that clarified a liberalized understanding of how existing copyrighted works may be reused and reconstituted. Campbell led the way for courts’ legitimizing of many types of appropriation art, which many consider to be the most significant art movement of last hundred years. Campbell’s a heavy decision indeed.

And Campbell’s being looked at again right now. Seems Californian tea-bag Senatorial candidate Chuck DeVore has aimed a couple of attack ads at rival Barbara Boxer using altered-lyric versions of Don Henley’s “Boys of Summer” and “All She Wants to Do is Dance.” Don Henley’s not happy, and has gone after DeVore will all his legal guns blazing.

What makes this different from the usual Republican practice of pilfering cool songs for campaign props is the changed lyrics—DeVore is claiming that he’s in part making fun of Henley’s liberal politics in the ads, so that fair use protects him pursuant to the Campbell decision.

I can’t seem to find DeVore’s ads on the web, surprisingly, but all reports are that they are really lame. (“All She Wants To Do is Tax”? Oh, hardee har-har-har!) Which of course isn’t the point. Some commentators have pointed out that DeVore’s claim that he’s making fun of Henley is an absurd post-hoc rationale that arose only after Henley sued him. Henley, for his part, points out that he’s not really a liberal at all, and that he sometimes agrees with John McCain! Dude!

All the parties’ papers are submitted and there will be a hearing before the judge in early June. You can find out a lot more about the case, with very insightful analysis, at Ben Sheffner’s excellent blog Copyrights and Campaigns, located at

Oh, I just don’t know about this. On one hand, the broader the fair use finding, if the court agrees with DeVore here, the better for the arts and artists in the remix / appropriation world. But, sheesh, I hate seeing a tea-bag moron win anything, you know? It’s a conundrum! And doesn't it seem rather odd that using Henley’s full song would be infringement, but lamely changing a few words makes it OK? But then, if you accept that 2 Live Crew was parodying Roy Orbison, it’s pretty hard to find that DeVore’s not parodying Henley. Damn.

There is the possibility that the court could dodge the fair-use question altogether and rule on some alternative theory, like Henley’s unfair business practice claim that DeVore is wrongly portraying Henley as supporting DeVore.

It’s an interesting case with interesting issues and interesting personalities. I’ll keep you poste