Wednesday, October 29, 2014

10.30.14 KA-CHING

This article originally appeared in the 10.30.14 issue of Metroland.

When Apple rolled out the iPhone 6 a couple of weeks ago, most of us were too busy running around yelling about the atrocity of having the new U2 album rammed down our throats to notice a really important development:  the introduction of Apple Pay, a mobile payment app that comes with the iPhone 6.

            Perhaps we didn’t pay attention because it’s fairly mundane and obvious:  Apple has partnered with a bunch of credit card companies, and now you can pay for stuff at participating retailers by simply waiving your phone in front of a reader.  It’s something we all could see coming a mile away—in fact, it’s already been around a couple of years with a cellular carrier-backed mobile payment app for Android users that until recently had the unfortunate name of Isis, but which has been renamed Softcard.  And there’s also Google Wallet. 

            But because this is Apple, Apple Pay feels like a tipping point.  It’s safe to go in the water now.  The future is here, etc.  The seamless app is also fairly secure—the retailer doesn’t get your credit card number or even your identity, so you don’t need to worry about data breaches, at least at the store level.  And since the app is activated by fingerprint-sensor Touch ID, you don’t have to worry about someone absconding with your phone and running up your credit cards, unless they also abscond with your finger.

            It looked like Apple had gotten past the U2 debacle and Apple Pay was catching fire, when the CVS and Rite Aid drugstore chains bluntly announced that they would not be accepting Apple Pay.  The deal is that a bunch of retail chains, including not only CVS and Rite Aid but also Wal-Mart, Best Buy and Target, have been busy cooking up their own mobile-pay app, something called CurrentC.  CurrentC will bypass credit card companies and take money straight out of customer bank accounts.  This means gazillions of dollars to the retailers, who have long complained about credit card fees reaming their profits.  CurrentC will also track consumer habits across all participating retail stores, giving way to an uber-database of individual and mass shopping behavior.  Unlike the other payment systems, which use “near-field” contactless communications, CurrentC will rely on scanning QR Codes, those ugly little bar-codey things that were ubiquitous a few years ago, adopted by all kinds of business trying to be so with-it and modern, that hardly anyone ever actually used.  Oh, good luck with that.

            The initial reaction was damning, with commentators blaming the greedy drugstores for undermining consumer choice and what’s left of consumer privacy.  Then it was disclosed that these chains were contractually bound to use CurrentC exclusively, that when they all signed on several years ago to help develop the service, they all agreed not to allow competing technologies at their check-outs, and agreed to pay heavy fines if they did.  Which is a really stupid thing to agree to, given the rate of change of technology and the tendency for innovation to produce new, unforeseen solutions to old problems.

            So here we are right now, with a weird kind of stalemate, with all these big retailers unwilling to allow the super-hot Apple Pay app while waiting for their own CurrentC app to land, which isn’t supposed to happen until sometime next year.

            I have a hard time choosing sides here.  On one hand, rooting for Apple Pay necessarily involves rooting for the credit card companies, and who wants to do that?  They’re usurious and ugly corporations that hopefully will soon get bitcoined out of existence.  On the other hand, do we really want Big Retail to be able to track all of your shopping habits?  (I’m not sure about this one; I like getting tailored info about deals on things I actually buy)  More importantly maybe, do we really want Big Retail, which has had near-constant issues keeping confidential consumer information secret, to have a direct portal into our bank accounts?

            I suspect that the Big Retail players will get together and agree to let Apple Pay and whatever other mobile-pay technologies come in and compete with CurrentC.  To do otherwise will get people PO’d, and might even be illegal.  I’m no expert on anti-trust law, but something about allowing one payment system and barring all the rest doesn’t smell right.  Apparently all these systems are designed to flow through the same back-bone and use generally the same hardware, so this isn’t a tech problem so much as a business problem.

            Let the gloves come off so we can shop the way we want.  C’mon, this is America for crying out loud.

Paul C. Rapp, Esq. is an often casually-dressed woodsman lawyer specializing in IP law who typically doesn’t go out shopping for anything other than food, power tools and bourbon.

Wednesday, October 15, 2014


This article originally appeared in the 10.16.14 issue of Metroland.


            Six years or so ago the talented-but-phony street artist Shepard Fairey came up with the Obama Hope poster.  It was everywhere, there were even websites where you could “hope-i-fy” your own image, and most of us did. 

            Then there was a crazy rush to figure out what Obama photograph Fairey used as a template for the poster, because he wasn’t sayin’.  This became an online obsession, and particularly weird because Obama was perhaps the world’s most photographed human.  Numerous candidate photos were floated, then shot down.  Finally, after months of this nonsense, somebody found a several-year-old picture of Obama seated next to George Clooney that looked like a perfect match.

            But, uh-oh, the Associated Press claimed that it owned the copyright to the photo, and it was stomping its feet demanding that Fairey pay up.  So Fairey sued the AP, seeking a court declaration that he wasn’t infringing.  Us copyright lawyers were really excited about this, as it looked like an important case, and one that might add much-needed definition to the doctrine of fair use—when it’s OK for someone to use somebody else’s copyrighted stuff without permission.  This case would have far-reaching effects for all kinds of artists and most anyone who creates “content” from cutting and pasting and mashing-up.  Like all of us.  Both sides had ace lawyers and the case was venued in New York federal court, where a lot of really smart judges sit.

            But a couple months in, it was discovered that Fairey had lied to the court, lied to his lawyers, and destroyed evidence.  For no good reason.  His lawyers quit, the court sanctioned Fairey, he quietly settled with AP, game over.  No decision, no nothin’.

            What we got instead, several years later, was an appellate decision in the Richard Prince / Patrick Cariou case involving Prince’s use of Cariou’s photographs of Rastafarians.  The decision was muddled, saying that fair use occurred when there was a transformation of an original work by changes in expression, meaning, or message.  Without a whole lot of analysis, the court decided that most of Prince’s “treatments” were fair use, and a couple were maybes that the court punted back to the district court.  The case then quickly settled.  Not much in the way of guidance, other than that this idea of “transformation” was a pretty big deal.

            Then a couple of weeks ago, a federal appeals court in Chicago issued a major fair use decision with facts identical to those in the Fairey case.  A t-shirt company took a photo of the mayor of Madison, Wisconsin and put a hope-i-fied version on t-shirts.  The photographer sued.

            The court found for the t-shirt company, but said a whole bunch of things that again throws the fair use doctrine to the wind.  The court ruled that it was fair use.  But court also said that because the photograph had been altered so much that what was on the t-shirt wasn’t anything the photographer had the right to protect.  The background was gone, coloring was gone, detail was gone, all that was left, like with the Obama Hope poster, was an outline of a head.  The court said  “what [was] left, behind a hint of [the mayor's] smile, is the outline of his face, which can't be copyrighted.”

            OK, good enough, but if the shirt doesn’t use any of the photographer’s copyright, why keep talking?  It’s not infringement, period, so why then go into a tortured fair use analysis?

            But analyze they did.  They said the most important factor in a fair use analysis was the financial harm to the copyright holder, but since the photographer didn’t say the t-shirt cut into his licensing money they couldn’t address that factor.  They seemed to be troubled that the t-shirt company used a copyrighted image when there just had to be plenty of similar “snapshots” floating around that were in the public domain.  They talked judicial smack about “lazy appropriators”.  Finally, they tore into the Prince/Cariou court’s primary reliance on “transformation”, ignoring the fact that the Supreme Court endorsed this approach twenty years ago.  The court was concerned that over-reliance on transformative uses would wipe out a copyright holder’s right to control derivative works.  Then after all this, the court declared the t-shirts were protected by fair use.

            So here we are, with a whole bunch of troubling language that’s gonna be trotted out by copyright maximalists whenever they feel their precious content has been nicked.  I think the court was right that a too-broad interpretation of “transformative” would wipe out a copyright holder’s derivative works.  But that’s not a reason to discard transformation altogether. 

            The good news, I suppose, is that now we have a very sharp split between two of the most influential circuit courts in the country, which means that maybe a juicy fair use case will get to the Supreme Court where we’ll get, for better or for worse, the final word.

Paul C. Rapp is an intellectual property attorney who also knows his way around a kitchen, a log splitter, a cocktail shaker, and a set of drums.


This article originally appeared in the 10.16.14 issue of Metroland.



OCTOBER 11, 2014

            Part of my deal here at Metroland is a requirement that I check in with Richard Thompson every couple of years to see how he’s doing.  I’m pleased to report that Richard Thompson continues to be doing very well.

            He’s touring in support of his new album Acoustic Classics, basically a greatest hits package performed solo.  Which isn’t nearly as cheesy as it sounds; Thompson’s acoustic reinventions of his material, originally recorded with more-or-less standard rock-band formats, and developed over years of solo touring, are themselves wonderful things to behold.

            Thompson’s acoustic guitar technique is staggering, playing bass and rhythm lines with a pick while his middle, ring, and pinky fingers play melodic and solo lines.  I swear he was playing 3 against 2 at times, fingers against fingers.  Which is just stupid.  Anyway, it’s hard to fathom that one guy with a guitar can make such an ornate, dynamic, beautiful racket.

            Add to this his remarkable catalog of songs, his consummately soulful singing, and his often hysterical between-song banter, and you’ve got some kind of show.  Exhausting, actually, as the sparks come flying so fast and from so many directions that the listener gets worn out just trying to process it all.

            Despite claiming to be getting over a cold, Thompson was in fine voice and spirits, and played a whole bunch of flag-wavers from his 45+ year career.  Everyone should witness him doing “52 Vincent Black Lightning” at least once in their life.  He also played a modern sea shanty about Scottish bands playing on cruise ships which incorporated a couplet rhyming ‘Bahamas” with “pajamas.”  He sang a ribald protest song against a current London land developer that was screamingly funny.  He played selections from his upcoming contribution to the 14-18 Now Project, a multi-disciplinary art remembrance of WWI.  Thompson’s piece involved putting bits of soldiers’ letters to music.  This was ethereal, beguiling, haunting.

            The opening act was the Texas husband-wife duo The Mastersons who sang big fearless songs with big fearless voices and were charming and talented and weird enough to grab and win over the crowd.  I’d go see them again tomorrow.