Thursday, June 30, 2011


This article originally appeared in the 6.30.11 issue of Metroland.

I’m in Montreal at the jazz festival (more on that next week), but I’ll put down my breakfast beer just long enough to inform you about the latest doings in the zany world of information and music.

You might have recently heard something about Apple and The Cloud. There are two parts to this and I’m not sure what the fuss is about, but here it is.

First, now when you buy a song from ITunes, Apple will deliver that song to all of your devices, your computer(s), your phone(s), your iPads(s), whatever is connected to the Internet. I guess this is significant. In order for this to happen, the record companies and publishers (who think they control the rights to the music tracks) must have all signed off on the idea that iTunes can send to you as many as ten ”copies” of a song for the price of one. It reflects the reality that people will bounce tracks around their devices anyway, but in the ostrich-vision world of Big Media, reality rare rides in the front seat.

The thing is, from surveying a sample of one (me), I’m not sure everyone wants everything they buy to get automatically loaded into everything they own. I download songs to my computer, and then decide what I want to go on my phone. I curate what’s on my phone and for good reason: If I tried to load everything in my library (56 days and counting) to my phone, I fear time would start to go backwards and the devil child will awaken and rain doom on us all. So, big deal on this.

Second, and this is where it gets a little more interesting: this Fall, Apple unveils its “iCloud MusicMatch” service. It’s a cloud-based music locker, like those also offered by Amazon, Best Buy, and a few others. You can upload your music library to Apple’s servers and access them anywhere you have broadband or wifi. The twist is that for $25, Apple will replace your uploaded tracks with official iTunes tracks. Reportedly, it won’t matter where you got your tracks, whether you ripped them from a CD, copped them from Limewire or Rapidshare or BitTorrent or your friend’s hard drive, Apple will replace up to 20,000 tracks with high-quality 256 bps MP3s. Also, the process is supposed to be lightning-fast—word has it that the other music locker offerings are sluggish (I haven’t used any of them, and probably never will), and you can spend days uploading your stuff. Apple says their system can handle your library in hours, not days, and especially, I imagine, if you have an Apple rig at home.

So? What’s it all mean, kemosabe? Well, for this to happen, Apple had to get more sign-offs from the big record companies and publishers. The record companies will be getting something like $13 out of the $25 fee, and no word what the publishers get. One sycophantic industry dope wrote about what a victory this was for the labels, getting 13 whole dollars from each MusicMatch customer! What she didn’t mention was that for $13, a customer will be able to convert thousands of “pirated” tracks to legitimate iTunes tracks, which the labels used to think were worth 99 cents each. D’oh!
And it should be mentioned that independent labels appear to be getting zilch. Nice.

A few paranoid critics have declared this a trap to catch “pirates”. Arrr-Matey! As you may or may not know, all MP3s have unique embedded tags in them, some that come from online stores, some that occur during the ripping process, and so on. The argument goes that it is theoretically possible to determine which of the MP3s in your collection were “legitimately purchased” or ripped by you, and which were “illegitimately” given to you by a friend or shared through Limewire or some other online source. So, it’s theoretically possible that you could upload your library to Apple, pay your $25, and get a big fat nastygram from an RIAA lawyer demanding thousands of dollars for all your “illegal” tracks.

Ummm. That’s pretty stupid. But given the RIAA’s lengthy dalliance with stupidity, who knows?

My problem is that a pretty good proportion of my tracks probably aren’t in iTunes 18 million track database, so no conversion for me! And then there’s all the issues about The Cloud I wrote about here a couple of weeks ago. But, I dunno, for $25 to have some of my old 128 and 192 bps tracks tricked out to 256? Might be worth a few hours of my time.

But the biggest problem, as pointed out by lots of folks (most notably the New York Times’ Jon Pareles last weekend), is that this still isn’t the cloud-based “celestial jukebox” everybody’s waiting for. It’s just glorified storage. It’s still ownership-based.

Maybe the future comes in the coming weeks when Facebook announces its long awaited music feature, which as rumor has it is going to include Spotify, the true cloud-based music streaming service that’s taken Europe by storm. Watch this space.

Wednesday, June 15, 2011


This article originally appeared in the 6.16.11 issue of Metroland

A decision out of an Albany state court last week turned some art-world heads —it had to do with Nite Moves, the “gentlemen’s club” on Route 9. The court rejected the stripclub’s owner’s claim for a tax break under a state law that provides a sales tax exemption for admission costs to “live dramatic, choreographic or musical performance[s].”

OK, let the jokes begin. Actually, they already have. Even the court threw in a zinger or two (“...there can be no serious question that — at a bare minimum — petitioner failed to meet its burden...”). But as often happens with cases like this, goofy as they may seem, serious issues are involved, and the way the court decided them is troubling.

The crux, as pointed out in, is that the court went where courts never should go—and decided that pole and lap dancing were not art. And this wasn’t decided because them Lathams dancin’ gals was nekkid; courts have long refused to allow, on constitutional grounds, regulations based on the content of “erotic dancing”. An incredible decision in this regard came in 1998 from local federal judge Thomas McAvoy in a case in which the City of Schenectady tried to outlaw nude dancing. Check out this quote: “Perhaps the City of Schenectady finds the performances in cabarets more objectionable because the audience is mostly men who prefer to drink Budweiser while they view the naked form engaged in dance, rather than the couples at the opera who prefer Dom Perignon with their falsetto.” Yowsa. No question, “erotic dancing” is protected expression pursuant to the First Amendment.

Here, the court tip-toed around the constitutional issues and held that there was no credible evidence that the dancers’ moves were choreographed, despite the testimony of the club’s expert, a cultural anthropologist who testified at length that, yes, what goes on at Nite Moves, both at the pole and on the couches, fits neatly into the definition of choreography.

On one hand, the decision could be read as really dealing solely with evidentiary issues—that the court didn’t like the expert’s testimony, and no dangerous precedent has been set. On the other, it could be argued that the court’s rejection of the expert was a stretch of logic and law, employed to get the court to where it felt it needed to go. Which poses some problems. Hmmm. Buh-bye tax breaks for modern improvisational dance? Folk dancing? The decision will likely be appealed, and we’ll see what happens.

Speaking of what happens, back in February I wrote about this “street artist” character who calls himself “Mr. Brainwash.” He was featured in the film “Exit Through the Gift Shop” which was either a documentary or a mockumentary (or maybe both) about the street art scene. The Hollywood Reporter reports that Mr. Brainwash has just been found liable of infringement for an appropriation piece that was featured in the film, a piece based on a 1990’s photograph of RUN-DMC. Like the recent decision against artist Richard Prince (which I wrote about last month), the court rejected Mr. Brainwash’s claim that his use of the photo was fair use. And like the Prince decision, the judge used some really broad language to justify the ruling:

"To permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act...Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work."

Ouch! Granted, the judge apparently did look at the “four factors” judges use to determine whether something is fair use. Whether he looked hard enough at the “transformative” nature of Mr. Brainwash’s work is another issue. Maybe he did. Whether the judge was correct is actually another issue, too. The big problem is this: to have language like that quoted above just hanging out there, available for lawyers to grab and use out of context in the next lawsuit and dozens after that, will have a huge chilling effect on the creation of new works. Good or bad. The ruling will be a hammer at the disposal of copyright bullies.

I can’t find the decision anywhere online, so we’ll just have the take the reports’ word for it that the court also apparently accepted that Mr. Brainwash was actually the person who created the work (many thought Mr. Brainwash, and his works, were fictitious creations created by Banksy and Shepard Fairey. Ir this were true, the fair use arguments would have been much more powerful), and that he’s liable for the infringement. Which raises the question of whether the film’s producers and directors might now be liable as well.

I’m sensing a trend here, and I don’t like it.

Thursday, June 02, 2011


This article appears in the 6.2.11 issue of Metroland

Here we go again. Last year, loaded up with mountains of money, shiny lobbyists, phony statistics, and cheap rhetoric, Big Media landed on Congress and nearly passed a bill called COICA (“Combating Online Infringements and Counterfeits Act”) that would have allowed the government and the courts to block domains of sites determined to be infringing on someone’s IP, and to require internet services companies to do the government’s bidding in blocking traffic.

COICA was an awful bill, one that essentially ceded to Big Media control of the internet (because the government enforcement would be completely at the behest of Big Media), shifted the responsibility for the enforcement of IP rights from the owner of the IP (Big Media) to the government and ISP’s (we would be paying for the government and our internet providers to prop up the record and movie companies’ otherwise unsupportable business models), and finally, the whole effort was doomed to fail anyway. COICA was nothing more than a blueprint for another big, expensive and stupid game of whack-a-mole, and when COICA inevitably failed to stop stuff moving across the internet, Big Media would use that failure as fodder for even more expansive government/corporate control of the internet. There was a lot of highly paid think-tank support for the bill. Opposition to COICA flowed out of academia, from human rights groups, from First Amendment advocates, from entrepreneurs and artists who owe their careers to an open internet. More than one commentator said that COICA would “break the internet.”

While you’re pondering this law, consider this: the corporate sponsors of COICA have at one time or another have accused Google (and almost every other search engine), YouTube, MySpace (when it mattered), Netflix, Apple, your phone company, your cable company, your internet company, libraries, colleges, the fair use doctrine, and the First Amendment all of being responsible for “piracy” and “stealing”. With COICA Big Media wanted the government to bring down the hammer and kill whatever world-changing disruptive technologies came along next.

Shamefully, the bill was supported in the Senate by the likes of Chuck Schumer, Pat Leahy, and Al Franken, who joined dimwits like John Kyl and Jeff Sessions in letting this thing out of committee. If it wasn’t for a single brave Senator, Ron Wyden (D) of Oregon, COICA would be the law today. Wyden put a “member’s hold” on the bill, and it died. A “member’s hold” is one of those ridiculously arcane and anti-democratic Senate maneuvers that most recently has been abused almost exclusively by Republicans seeking to kill anything remotely progressive. Good to see a little karmic balance with the silly thing.

Well that was last year; this year there’s a new bill, the “"Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act", or the PROTECT-IP Act. Don’t these titles make you want to throw up?

This year the rhetoric is all about how this scary bad internet thingee is stealing good American jobs and needs to be “reined in”. Jobs! America! The bill is a slight improvement over COICA, but is largely the same highway to internet fascism, all in the name of saving those terrific record and movie companies that supply us with such an endless stream of uplifting and inexpensive entertainment products!

Pretty much the same Senators voted for it. Yup, Schumer and Leahy and Franken, again. C’mon Al, fer chissakes you’re smarter than this. Or have you been bought off, too?

Once again, Senator Wyden has stepped in and put a hold on the bill. His statement makes you wonder if maybe he’s the only guy in Washington who understands what’s going on here:

I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. At the expense of legitimate commerce, PIPA's prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet.

The Internet represents the shipping lane of the 21st century. It is increasingly in America's economic interest to ensure that the Internet is a viable means for American innovation, commerce, and the advancement of our ideals that empower people all around the world. By ceding control of the Internet to corporations through a private right of action, and to government agencies that do not sufficiently understand and value the Internet, PIPA represents a threat to our economic future and to our international objectives. Until the many issues that I and others have raised with this legislation are addressed, I will object to a unanimous consent request to proceed to the legislation.

We can’t let this brave soul be the only thing standing between us and the corporate stifling of the internet. Help him before Big Media takes care of him. Write a letter.

6.2.11 Naomi Shelton and The Gospel Queens

This review appears in the 6.2.11 issue of Metroland

Naomi Shelton and the Gospel Queens

Club Helsinki

May 28, 2011

There’s the old black Southern Baptist canard about sinning on Saturday night in a bar and repenting Sunday morning in a church, where the music’s pretty much the same as the night before except with different lyrics. Well, lucky us, we got to sin and repent all at the same time at Helsinki Saturday night, with a righteous and cleansing show from Naomi Shelton and the Gospel Queens.

When soul got replaced by funk in the early 1970’s, classic soul found refuge in the gospel music from whence it came, and that’s what was delivered, classic and familiar big-beat save-your-soul music; the band featured bandleader and keyboardist Cliff Driver, a veteran soul-man and long time Shelton collaborator, and former JB’s bassist Fred Thomas. Damn is right! These cats were on time.

Shelton, who’s gotta be pushing 70, has a limited range, but a fierce spirit and a raspy Otis Redding-like growl, and, like her Daptone label-mate Sharon Jones, she knows how to move a crowd. She pushed the intensity and the vibe and the groove, and was all business, pure-clean-truth gritty, and profoundly adorable. Who knew redemption could be so much fun? And included beer?

The three Gospel Queens were anything but back-up singers—with Shelton, they were the show, singing sweetly and precisely, as one voice. I mean, their vibratos were locked in, for Christ’s sake. (Literally.) Each took a couple of star turns, and I’d pay to see each of them front her own band. The Queens were in a word astounding, and a perfect sweet foil for the fire and brimstone Shelton delivered.

The pacing was breathless, with no pauses between songs, there was thankfully no gratuitous mention of the death of Gil-Scott Heron, Helsinki was as packed as I’ve seen it, and when the band trotted out The Staples Singers “Oh Happy Day” (which my sidekick dubbed “The Mustang Sally” of gospel music) the dance floor loaded up and we were treated to the unfortunate specter of middle-aged white people trying to get what groove they might have on. No matter, everyone was having a blast, and maybe, just maybe, getting it a little more right with their god.

I’d like to suggest that Helsinki beef up its sound system a little bit. What’s there may be fine for cabaret and acoustic acts, but the last couple of shows I’ve seen featured some fairly rockin’ stuff, and the sound lacked the punch and presence the music deserved. Looking around the room one can see sound-soaking material everywhere, and the room seems acoustically dead, which makes for a great sound palette, but the lack of a lively “room sound” needs to be compensated for in the sound reinforcement. Too often Saturday night, I was leaning forward to hear Driver’s keys and Thomas’ bass. In my perfect world, those dudes would have been blowing my hair back.