Wednesday, September 18, 2013

09.19.13 UMBILICAL

This article originally appeared in the 09.19.13 issue of Metroland

This is the 200th Rapp On This.  Damn.  It seems like just yesterday that I celebrated #100. Strangely, though, it seems like eons ago that Steve called and asked if I’d consider writing a column about, in his words, “what you do.”  To which I replied (and Steve will back me up on this), “Steve, I’m not sure Metroland readers would be all that interested in tales of binge-drinking and masturbating like a monkey.”  But alas, apparently you are.  My people!

            The schedule for the 13th Future of Music Coalition Policy Summit is filling up nicely.  It’s the best, most useful, informative, forward-looking music conference on the planet, and it’s cheap. If you’re a working musician or in the biz for real or even just interested in where it’s going you should try to get down there. It’s a blast. October 28-29, Georgetown University, Washington DC,  I’ll be giving a musicians’ legal toolkit workshop mid-day Monday. 

            Moving on.  A close friend recently announced with some fanfare that he was “cutting the cord,” which in modern parlance means ditching his cable TV service.  I found this quite amusing since he’s only had cable for a little over a year!  For most of the twelve years I’ve know him whenever I’ve mentioned something I saw on TV he’d say “We don’t have TV in our house.”  We all know people like this.  They don’t have to spike the statement with tones of hubris and superiority because it’s implied in the words: we don’t need TV.  And, of course, being on the receiving end of the statement invokes certain feelings of shame and remorse: “Geez, instead of watching TV I could be reading a good book, having a meaningful conversation, practicing a timeless craft” and so on.

            But still, his announcement hit me because I’ve just almost decided to do the same thing.  And I’m no newby, no latter-day Luddite; I’ve had cable from the git.  Remember the dark brown plastic box with the light brown buttons and the long brown cord to the TV?  How someone would always trip over the cord, pull the box off the “coffee table” (typically a wooden cable spool rescued from the side of the road) and knock over the bong, sending bong-water everywhere?  Right?

            Cable’s always been part of the household.  And, for a long time, for good reason.  Before the internet it was the portal to the greater world.  Obviously, that’s no longer the case.  But there was also good stuff to watch.  At the risk of sounding like our parents, that’s not the case anymore.

            I don’t actually have cable, I have DirectTV, but it’s the same deal.  There’s like 1000 channels.  I watch maybe 3.  I’ll watch Stewart and Colbert and TCM when there’s a good movie, which is usually.  I love TCM.  A couple of weeks ago they had a Martin Balsam film festival.  Yes! Martin Fucking Balsam.  And I watch Buffalo Bills games (if you’re a Buffalonian you understand), and the occasional Big Sports Event.
            But that’s about it.  My last serious series addiction was Entourage, which I got into because it followed The Sopranos.  I’ve enjoyed the couple of episodes of Madmen and Breaking Bad I’ve seen, but not so much that I wanna plan my life around them. Maybe I’ll watch past seasons on DVD next time I have the flu.

            Channel surfing is dead.  Why?  Because the Big Media assholes have driven general cable programming into the rat hole.  I need a shower after just perusing what’s on.  Tonight’s servings on Direct TV?  Channels 1-50: game shows, lame network series, WWE; Channels 50-100: infomericials (Don’t Let Your Neck Reveal Your Age!  Hip-Hop Abs!); Channels 100-200: pay-per-view, where I’m supposed to pay more to watch premium content. Uh, no; channels 200-300: more infomercials, sports, more sports, and some news and old cable standard channels that used to be good.

            Old standard cable channels: Bravo, A&E, Discovery, MTV, VH-1, etc.  Sigh.  Bravo, initially dedicated to “film and the performing arts.” Now? Real Housewives. A&E, originally documentaries and biographies. Now? Duck Dynasty, Storage Wars, and reruns of shitty crime dramas.  Court TV, which showed actual court trials with in-depth legal analysis.  Now? It’s TruTV, with shows like Top 20 Most Shocking..., Top 20 Funniest..., World’s Dumbest...  And then, of course, we all know what’s happened to MTV and VH-1.

            It’s utterly gruesome.  But still, cable’s addicting.  It’s hard to quit.  I just broke a rib, and thought I’d keep it to watch while I healed, then realized that no amount of pain medication would make that crap watchable.  Hey, the Bills are looking damn fine!  But they’ve done this to me before.  In fact they do it every year.  On the off chance they’re still hot come December, well, there’s sports bars.  Then the other night I watched Al Jazeera news.  OMG.  Unhurried, intelligent news reporting.  No screen crawls, no soundtrack, no 5th grade comprehension level, no pretend attitude, pretty boys or bimbos.  It’s brilliant.  It’s by far the best news programming on TV.

            But I can watch it online.  Buh-bye.

Paul Rapp is a Berkshire IP attorney, lifestyle maven and woodsman who at the moment only hurts when he laughs.


Wednesday, September 04, 2013

9.5.13 IN DREAMS

This article originally appeared in the 9.5.13 issue of Metroland

            Last time, we were talking about the Marvin Gaye’s kids / Robin Thicke debacle, and I mentioned that it was disturbing to see a dead creator’s kids wielding a big stick and abusing intellectual property laws in pursuit of the almighty dollar.  Then last week, on the 50th Anniversary of the March on Washington and Dr. Martin Luther King’s “I Have A Dream” speech, we were reminded of some of the worst abusers of all: Martin Luther King’s kids.  They’ve got that speech locked down tight.

            A big part of the problem here is that copyrights just last too long.  When the first US copyright laws were passed in the 1790s, the term of protection was 14 years.  Then a 14-year extension was tacked on.  In the early 1900’s it was doubled, to 28 years plus a 28-year extension.  Then in the 1970’s, it got blown up to life of the author plus 50 years, or, in the case of a corporate creator, 75 years.  Then in the 1990’s, at the behest of Disneycorp, (whose copyright to the first Mickey Mouse cartoon “Steamboat Willie” was about the expire) Congress passed the "Sonny Bono Copyright Term Extension Act” and added another 20 years to everybody’s copyrights. 

            Now, the Constitution says that Congress may pass copyright laws that provide creators protection “for limited times.” The Constitution also says that the purpose of copyright is for the betterment of society.  The idea is that copyright is supposed to  create a financial incentive for creators to create.  14 years was good enough for a while.  But now...  Is life plus 70 years a “limited time”?  Does life plus 70 create a significantly more powerful incentive than, say, 28 years?  Will creators stop creating if we shorten copyright? And most importantly, how is society better off with laws that allow copyrights to continue for another two generations after the creator croaks?  Post-mortem copyrights too often feature greedy kids and estate fiduciaries who push copyright maximalism to the limit and seal off from the public and hold hostage the dead creators’ legacies.

            Like the “I Have A Dream” speech.  Kings’ kids have notoriously kept it from the public.  It’s being administered by EMI publishing.  If you wanna reproduce or publish it, you gotta pay.  Newspapers, filmmakers and historians have been sued for reprinting it or sticking it in a documentary.    On the 50th Anniversary last week, you didn’t see it replayed on TV.  You didn’t read it in any newspapers.  You can see it, however, in car and cellphone commercials.  And you can buy a DVD of it (for private viewing only) for $20 from the King Foundation.

            What’s wrong with this picture?  Everything.  To be fair to the kids, they are following Dad’s example.  Prior to his assassination, MLK went after companies that put out LP records containing the speech.  After his assassination, his estate (his kids) have been ruthless about “unlicensed” reproductions of the speech, and charge top dollar to anyone who wants to use it.  They charged the non-profit foundation that put together the MLK Memorial on the Plaza almost $800,000 to use the speech and MLK’s likeness.  Think about that.

            This is a speech that changed the world, one of the most important speeches in history.  It doesn’t belong to a cabal of profiteers who pimp it out to the highest bidder.  It belongs to us.  It belongs to the world.  But we’ve got this pesky little copyright law thing.  As a literary work and as a performance, it falls under copyright’s purview.  And there’s no “great speech” exception.  Maybe there should be.  On second thought, absolutely there should be.

            Beyond that, there’s fair use.  In a sharp Washington Post op-ed last week, attorney Josh Schiller made the case that the reproduction of the speech in 2013 would generally be a fair use and not an infringement of anybody’s rights.  And I think he’s right. 

            Broadly speaking, fair use comes into play when the use of a copyright-protected work benefits society more than upholding the copyright would.  Ya think?  More narrowly, fair use protects news reporting, commentary and educational uses.  Recent court cases involving the likes of 2 Live Crew, Jeff Koons, South Park, and Richard Prince have stressed that fair use can be found when the secondary use is transformational in context, purpose, and meaning, or if it is aimed at a different audience or exudes a different aesthetic than the original.

            I think the republication of great historic speeches qualifies, almost by definition. The listener / viewer experiences the speech through the prism of time and observes the changes that the speech may have brought about and the universal truths that have stood the test of time. That’s transformative, and it’s precisely what would have happened had the media sucked it up and ran with the speech last week.  It’s time for the “I Have A Dream” speech to be free.

Paul Rapp is an ornery intellectual property lawyer who lives and works in the wilds of Berkshire County and who enthusiastically applauds the end of summer.