Wednesday, January 23, 2013


Lawrence Lessig and Aaron Swartz 2001

This article originally appeared in the 1.24.13 issue of Metroland.

            The internet is abuzz at the moment on whether Beyonce lip-synched the national anthem at the inaugural.  I watched it live and was stunned at the performance—it was understated, controlled, and when the somewhat impressionistic arrangement straightened out for the final stanza and Beyonce started belting, I was stunned.  I wondered briefly if it was lip-synched while it was happening, but when she finished, Beyonce was staring straight ahead, motionless; then she blinked and shuddered slightly, like coming out of a trance.  No way, I thought, she sang that thing.  Well.

            Then on Tuesday, somebody with the Marine band (who had accompanied her) said that at the last minute Beyonce decided to go with a recorded track.  Then it was revealed that it was the Marine Band’s recorded track was broadcast, but maybe Beyonce sang and maybe she didn’t.  As I write this, Beyonce just released a photo of her in a recording studio holding the sheet music to the Star Spangled Banner.   Which looks like an admission to me.

            And the debate rages on: was this a scandal?  Is anybody surprised?  Does it matter anymore?  We’ve talked about lip-synching here before; last time I opined that in huge production concerts like, say Britney Spears, boy bands, or even Gaga, the vocals are such a small part of the whole thing, what with the sets, the lights, the dancers, the props, the projections, that it really doesn't matter much whether the acts were pantomiming to tracks.  For shows like this people aren’t coming for the singing, they’re coming for the total experience.

            I’m not sure I feel the same way about the national anthem, where the performer does nothing but stand there and sing.  The vocal isn’t just an important thing—it’s just about the only thing.  Apparently, most big league national anthem performers pre-record the song just in case they lose their voice, or there’s a technical glitch, or the weather gets weird.  Some just lip-synch as a matter of course.  Whitney Houston’s iconic version at the 1991 Superbowl was lip-synched, something I didn’t know until yesterday.

            Most of the commentary from Beyonce's fellow singers has been understanding; it was cold out, not great singing weather, she could have damaged her voice, she wanted the best vocal performance possible, she hadn’t rehearsed with the Marine Band, etc. and so on.  But then, Kelly Clarkson and James Taylor both really sang.  Beyonce didn't.  This doesn’t help things.

            Call me old fashioned, but I think it does matter.  I wish Beyonce had sung it live, I wish I didn’t feel conned by her acting skills.  But I hope she releases the recording, because no matter what, it’s one of the finest versions of the Star Spangled Banner I’ve ever heard. 

            Moving on.  I don’t have enough room here to talk at any length about Aaron Swartz, the 24 year-old internet genius who committed suicide just weeks before a scheduled federal trial for computer hacking or something, but here goes anyway.  Swartz got access to an MIT network and downloaded millions of academic articles from the subscription site JSTOR (these articles available to anyone on the MIT network for free), apparently with the goal of “liberating” these fonts of knowledge from things like subscriptions, paywalls, etc.  He was caught and apparently turned over all of the purloined articles, and JSTOR declined to press charges.  MIT, though, encouraged the US Attorneys’ office in Boston to indict Swartz, and they did, charging him with various felonies that had maximum penalties of 50 years in jail and some huge fines.  The prosecutors leaned on Swartz to plead out, telling him that if they went to trial they’d go to the wall to put him away.  Both MIT and DOJ knew that Swartz struggled with depression, but they pressed on anyway.

            Upon Swartz’s suicide, MIT immediately said it was going to re-evaluate how it handles situations like this.  Good, because they're complicit in the death of a genius. The US Attorneys Office, however, has refused to acknowledge that it has done anything wrong.

            It’s hysterical that Republicans Rep. Darryl Issa and Sen. John Cronyn are calling for an investigation into the DoJ.  What opportunist dicks.  Last I checked, these were serious law and order guys, from the party that constantly ups criminal penalties, and passes new criminal laws that are so vague that any of us could get indicted anytime for almost anything.  This is the stuff that enabled the US Attorney to stick it to Swartz so heavily.  And they want to hang it all on Obama.

            But it’s good there’s going to be an investigation, and it’s good that there is now a serious public conversation about prosecutorial overreach, where indictments are stacked with such severe penalties that something like 97% of all federal cases plead out before going to trial.  It's not a new thing.  For a couple decades, Blacks and Hispanics have been marched off to jail for fairly minor drug offenses for which the prosecution often had weak cases but ginned up indictments.  It’s sad but telling that it takes the death of a white geek genius to bring some sanity to the justice system.

Paul Rapp is a local IP lawyer who likes cold weather, but not this cold.

Thursday, January 10, 2013

1.10.13 OH MICKEY

This article originally appeared in the 1.10.13 issue of Metroland

Techdirt this week highlights yet another pig move by the evil empire that is Disney.  Yes, the wonderful world of hypocrisy has reared its ugly head again, this time in refusing to allow the producers of the new Philip Glass opera about Walt Disney, The Perfect American, to utilize any of the iconic Disney characters in the opera.  The new work is loosely based on a novel written from the perspective of a fictitious and disgruntled Disney illustrator, and focuses on the last years of Walt Disney’s life.  Apparently the opera portrays Walt as a right-wing zealot, a racist, anti-Semite, etc., that is to say not a particularly nice guy, a portrayal which does have some basis in fact.  In any event, the producers asked to use some of Disney characters (Mickey, Goofy, etc. etc.) in the production and Disney said no.

            According to the UK paper The Guardian, approval had previously been sought for the entire production;  the producers submitted the libretto and interpreted Disney’s silence as a green light.  Which strikes me as weird.  Composer Glass reportedly was initially fearful to take on the project, afraid he’d get chewed up by the Disney legal jauggernaut.

           What everyone is worried about is the fact that Disney is among the world’s biggest intellectual property bullies.  Disney repeatedly uses the law and the courts, or the threat of the courts, to bring questionable, if not downright laughable, claims against those who dare to make fun of, have fun with, or to creatively reuse it’s “properties,” or even, as here, to comment on its “properties.”  And virtually every one of Disney’s victims is a LOT smaller than Disney and simply can’t afford a withering legal broadside, even if there’s nothing of substance behind it.

            What’s going on here?  My first question is why did the producers of The Perfect American think they needed Disney’s approval for any aspect of the production?  If we’re talking about copyright, isn’t this a classic case of fair use?  The opera, which not surprisingly is described as “surreal,” comments on Walt Disney and his dynasty by contrasting Disneycorp’s finely-cultivated image as a purveyor of childhood joy with Walt’s real or imagined douchebaggery.  Wouldn’t the creative use of some of Disney’s more iconic characters in this context be “transformative”?  Yes?  Would this act as a market replacement for the original characters?  Of course not.  Boink!  Fair use!

            And if we’re talking about trademark law, no one except the legendary “moron in a hurry” would think for a second that the opera was created by or even endorsed by Disneycorp.  No confusion, no trademark issues.

            And to think that Glass was afraid even to broach the subject.  Given that, is it likely he pulled some creative punches?

            So who suffers here, who loses?  We do.  Intellectual property laws are supposed to be for the good of society in general, and Disney uses these laws as a big stick for the sole good of its corporate shareholders, while suppressing the speech and creativity and freedom of the rest of us.  And that’s plain disgusting.

            Moving on.  The wonderfully nuts music blogger Bob Lefsetz went on one of his tirades this week, going directly at a topic we’ve danced around with here a couple of times: the death of the music album.  Face it, the “album” as a cogent pop music art form only existed for about 10 years, starting in 1967 with Sgt. Peppers, and  largely dying with the ascendancy of punk and new wave, both entirely singles-oriented genres.  The introduction of the CD in the mid-‘80’s only brought focus to the absurdity, as pop music artists struggled to come up with 75 minutes of music, for no other reason than there were 75 minutes to fill on a CD.  And with the widespread acceptance of MP3s and streaming services, the return to a singles-based world was complete.

            For new artists especially, the resources and time necessary to record a consistent full album can be daunting.   And to what end?   It strikes me that albums continue to be made only because of inertia, ego, and ignorance.  Fans and potential fans want to hear a song, not ten.  On their phones and on shuffle-play.  Does anyone sit down and listen to a pop music album start to finish anymore?  Are pop music albums even meant to be listened to start to finish?  Nope.  So the “album cycle,” with an act recording an album, touring, coming home and recording another album, is functionally dead, or will be very soon.

            If you think you’ve got the song, don’t sit on it while you try to spit-shine 10-12 more you don’t really believe in.  Get the sucker out there.  NOW.

Paul Rapp is an IP lawyer in the Bershires who can dance as well as he can walk.