RAPP ON THIS

1.26.12 BOOM

2012-01-25T19:51:00.003-05:00

This article originally appeared in the 1.26.12 issue of Metroland

It’s incredibly rare these days when something good happens in Washington. Even more rare when it happens unexpectedly, spontaneously, and for the right reasons.

But last Wednesday something really good happened in Washington. The SOPA/PIPA legislation, which would have given courts broad powers to blacklist websites and encouraged “voluntary” snooping on your online activities by internet service companies, was nuked as a result of a furious outpouring of opposition from millions of people.

One of my predictions for this year (see Metroland 12/29/11) was SOPA/PIPA “going down in flames” and becoming a major campaign issue for the 2012 elections. This was one of those “in a perfect world” predictions; frankly, I almost left it off because it seemed too ridiculous. I’ve been writing about these bills for over a year (Metroland December 2010, June, October, November, and December 2011) and I felt like I was yelling at a tornado. I was sure the fix was in.

What happened? Awareness of the proposed laws’ dangers had been growing steadily for a couple of months, and in December opposition was started to gain traction. But just a little. There were still dozens of bill sponsors; Congressional hearings were a farce; there was absolutely no mainstream media reporting on the bills for the simple reason that the Big Media conglomerates who own the news outlets were staunchly in favor of the bill. The bill had remarkably broad bi-partisan support, something that’s unheard of these days, and the White House had been sending signals that it also supported the bills. The little opposition that was popping up was mostly grassroots, with only one visible cheerleader in all of Congress, Senator Ron Wyden of Oregon. Wyden had placed member’s holds on Senate versions of the bill and issued thoughtful memos about the bill’s dangers, memos that were ignored by his colleagues.

Then two weeks ago, things started turning. A couple of Congressmen, tea party guys, started publically questioning the bill. This gave the grassroots folks (who probably wouldn’t agree with the tea party guys on any other issue) a boost. Chris Hayes, who has a little-watched weekend morning show on MSNBC, came out swinging against the bill. The White House issued an unexpected and unequivocal message that the “blacklist” provisions of the bills were unacceptable. It was reported on a blog that during a pre-show warm up, someone asked John Stewart why he was ignoring SOPA/PIPA, and Stewart said he hadn’t heard anything about it and promised to look into it.

Supporters of the bill, the RIAA, the MPAA, the US Chamber of Commerce, and all of their toadies in Congress, went into overdrive. The lock-step of their public announcements was absolutely Rovian—everybody, industry flaks and lawmakers, stayed “on message”, and everybody was lying. One day it was that online infringement cost the US economy $25 billion each year, a totally made-up and unsupportable number. The next day it was that SOPA/PIPA would create 180,000 new American jobs in its first year, another ludicrous claim. The next day it was that opposition was being orchestrated and financed by Big Tech, specifically Google. This was absurd, as the most vocal opponents were publicly pleading for the mostly-silent Google to take a public stand on the issue; fact is that the Big Media proponents of the bills had spent four times more than the tech sector lobbying Congress on the bills. Finally, the big spin meme was that opponents to SOPA/PIPA were misrepresenting the proposed laws and fear-mongering people into contacting their officials. Positively Orwellian. And fascist.

Last Wednesday was supposed to be some kind of "day of action." Yawn. Tuesday Wikipedia announced it would go dark for the day, which took everyone by surprise. Late Tuesday Google announced it would do "something", too. Rachel Maddow ended her show with a short rant about the dangers of the law. Wednesday morning I saw headlines about Google blacking out its logo and a bunch of sites going dark. I found some code that was supposed to black out my websites, but couldn’t figure out where to stick it. So I just figured ho hum, and started to go about my day. Around 10AM I got a call from WAMC, asking if I could come in at 2 to do a special VoxPop about SOPA/PIPA. I’m like, really? I took a look again at the news and saw that an unprecedented game was on.

By the end of the day, some 13 million people had contacted their representatives. Phone lines were jammed, websites crashed. Sponsors bailed in droves. The next day votes were being canceled and by Friday SOPA/PIPA were dead.

The mainstream media is still reporting that this was a fight between Google and Hollywood. It wasn’t. It was a triumph of democracy. And there will be more. Big Media will continue to attack the internet. This ain’t over.

Paul Rapp is an intellectual property lawyer based in Housatonic MA. He can be reached at paulapp.com.

1.12.12 SWEARING ON THE TEEVEE AND DRINKING AND ROCK AND ROLL

2012-01-12T08:24:00.005-05:00

This article originally appeared on the 1.12.12 issue of Metroland.

The Supreme Court is taking another whack at FCC v. Fox , a case that’s been bungeeing around the courts for years. We’ve talked about the case here at least twice before. This time the big question is teed up—whether FCC restrictions on speech on broadcast television are constitutional. Arguments were held before the Court this week, and the various justices’ comments were pretty interesting.

The case involves FCC penalties that have been levied against networks for a couple of spontaneous, unscripted F-bombs dropped by Nicole Ritchie and Cher during broadcasts of the Billboard Awards in 2002 and 2003 and a woman’s bare butt that flashed on NYPD Blue in 2003. I tried to find out whose bare butt is in issue here and failed. Shading everything is the fact that the challenged regulations apply only to over-the-air broadcast networks, which the FCC has always had jurisdiction over, and not cable or satellite networks, over which the FCC has no jurisdicition.

Predictably, and rather sadly, the “conservative” limited-government justices Roberts and Scalia came out in favor of the government regulations over speech, mainly on grounds of “public decency.” Chief Justice Roberts said all the government wanted was a few channels where one can’t see nudity or swearing. Apparently he doesn’t believe in the wisdom of the markets like his fellow indoctrinated neo-cons, nor has he watched the Nickleodeon or Disney cable networks lately. Constitutional originalist Justice Scalia observed that “[t]he government is entitled to insist upon a certain modicum of decency.” Which means that on one hand, he thinks corporations (which, don’t forget, are people) have the unfettered right to “speak” by giving unlimited, untraceable money to political candidates, that’s just perfectly “decent”; but if someone utters a certain word or shows their butt on a teevee with rabbit ears, well that’s indecent, and the government is “entitled” (entitled!!!) to bring out a big can of government-issued whoop-ass. And that’s in Constitution where? Isn’t that the only place we should be looking for guidance?

Fellow conservative Samuel Alito took the most interesting tack of the group, pointing out that over-the-air broadcast television was rapidly going the way of 8-track tapes and vinyl records, so why do anything? Why does it matter? Ummm...because 95% of us watch these channels on cable or satellite and your censorship affects us, too? Because nobody knows when over the air TV will die, if ever? Because freedoms delayed are freedoms denied? Need more? Holla. I got ‘em.

There is supposed to be a decision issued in June.

Moving on. There was an interesting article in the New York Times recently about how rock music, however defined, was treading water, if not drowning. Well, yeah, this has been happening for a long time, it’s evolutionary, and there’s all kinds of reasons one can point to for why rock appears to be withering on the vine. And I’ll talk about one right here.

It hit me when I read the coverage of Van Halen’s recent triumphant re-introduction set at the tiny Café Wha’ in New York City. David Lee Roth gushed that the band played little venues like this 5 days a week for 4 years until they broke in the late 1970’s. That triggered a memory of Cheap Trick’s Rick Neilson’s, who at a talk last Fall said that Cheap Trick played 4 sets a night 5 nights a week for years before they broke.

And I’m thinking, “who the hell does that anymore?” Pretty much nobody! Most local bands are lucky to get two or three gigs a month, and those are usually for a set or two. And they pay crap. If there is a “tour”, it’s usually something the band saves up for, and winds up a grim, money losing, bad food, sleep-on-the-floor disaster. And everybody is playing in 3 or 4 bands at once just to keep busy and interested.

So musicians don’t get the opportunity to develop the chops, instincts, or stagecraft necessary to become rock stars in any classic sense of the term. Bands don’t get to develop as cohesive machines, they don’t develop a distinctive sound or a strong collective personality.

And I’ve rung this bell before but I’ll ring it again: a major contributing factor to this is the absurdity of having a 21-year-old drinking age. Van Halen and Cheap Trick were able to play 4 sets a night 5 nights a week because every town had a couple roadhouses, or gin joints, or converted warehouses that hired bands every night of the week and drew big crowds, made up mostly of 18-21 year olds looking to get wasted, to hook up, and to rock out. We’ll never see that again.

So. Buh-bye, the rock.

12.29.11 PUTTING THE DICT BACK INTO PREDICTION

2011-12-29T08:45:00.005-05:00

This article originally appeared in the 12.29.11 issue of Metroland.

Once again, I’m batting around .500 with my predictions for last year. Hank Jr. was bounced from Monday Night Football, but he wasn’t replaced by Kanye. Justins did threaten to stop booking jazz (again), but no populist uprising saved the day. No new local musicians broke nationally, although a couple of them got real close. A Rolling Stone did not croak. Samson Contompasis did not cut his hair off, and I had money on that one, dammit.

So, without further a-doo-doo, here are my predictions for 2012.

OK, THIS year a local daily newspaper will fold, and all of the local mainstream media will run around blaming the internet and saying oh what will we ever do...Meantime, a couple of independent locally-focused internet news sites will pop up and start aggregating local news outlets, local blogs, real-time multi-media reporting, and reader contributions. These sites will attract readers and advertisers.

Madonna will get booed big-time whilst lip-synching at the Superbowl. There’ll also be some major and embarrassing technical glitch, too. Her dismay will be obvious, and this will go down as the most memorable, iconic Madonna moment, like, ever. Her new album will bomb. Meantime Gaga will continue her inexorable march to super-super stardom and immortality.

Some ridiculously massive guest musician will show up at the JB Scotts reunion in May and jam with whoever’s onstage.

Live Nation and other mainstream promoters will try to muscle in on the dubstep scene and the dubstep audience will totally reject them for political reasons and the artists who signed up with them will be branded forevermore as greedy capitalist pariahs.

SOPA / PROTECT IP will go down in flames and the legislators who backed it will have some splainin’ to do on the campaign trail in the fall because it will have become a major and explosive issue.

Mitt Romney will be the Republican nominee for president and the ONLY musical artists that stump for him will be Wayne Newton and Hank Jr., and neither will be particularly helpful. He will lose majorly.

Against every conceivable odd Cohoes will increasingly be the cool place to live, the cool place to hang, the cool place to be.

Carmine’s new Brazilian joint will take Albany by storm. Meat, meat, and more meat! On swords, baby!

A defunct local band that’s not Blotto will get a huge surprise and a big payday when one of its old forgotten recordings is picked up for a national ad campaign.

A tiny regional theater company will score big when it premiers a new play by an unknown playwright and the play blows up and heads to NYC.

Occupy will have a huge impact on virtually every election in the country, while the Teabaggers will quietly crawl back into their doublewides.

The NY federal appeals court will make a bad ruling in the Richard Prince infringement case, a ruling so broad that it eviscerates the fair use doctrine. As the case heads to the Supreme Court, artists will stage big unstoppable high tech public protests on the internet and elsewhere and heat will be put on Congress to clarify the law. Meantime, lots of lawyers will make lots of money.

The Anonymous hacker collective will pull off something so astonishing and that has such a huge positive impact that it will be next year’s Time Magazine person of the year.

Tanglewood will book Bon Iver and The Civil Wars and the show will sell out in hours. Just kidding. They will book the Beach Boys reunion tour, which will be OK only because it’s Brain and his band with those other creeps just along for the ride and the paycheck.

Music service Spotify will grow and expand, and as musicians paychecks increase, the hold-out bands and labels will fall over each other to put their stuff back into Spotify’s catalog. Rhapsody will revamp its streaming site and put some heat on Spotify, and both services will improve dramatically as a result. Another huge player will jump in with a competing service that’s also great. CD sales will collapse, and the growth of download sales will stall.

The FCC will open up new bandwidth for communications. Then under public pressure, it will hold hearings on data restrictions for cellphone users, find that they are a sham, and order all cell carriers to immediately offer only unlimited data plans. Several carriers will be levied massive fines for screwing around with customers’ bandwidth after this.

Have a safe and fun New Years’, and I’ll see you on the other side.

12.15.11 LAWYERS NUNS AND MONEY

2011-12-14T21:35:00.004-05:00

This article originally appeared in the 12.15.11 issue of Metroland

There’s a fascinating drama playing out right now in Albany County Supreme Court. The Daughters of Mary, a group of nuns associated with the St. Joseph’s Church and Convent in Roundtop, New York, have sued Albany art dealer Mark LaSalle in connection with the 2006 sale of a painting by late 1800’s French master William Adolphe Bouguereau. It’s alleged that LaSalle advised the Daughters that $450,000 was a fair price for the painting, then unscrupulously arranged the sale to another art dealer who then flipped the painting for over $2 million.

The Daughters and St. Joseph’s have been occasional clients of mine for a couple of years; I’ve given them intellectual property advice mainly regarding various items they sell in their gift shop. I was called to testify briefly at the trial on Tuesday, just to say that I had nothing to do with the sale of the painting, which happened several years prior to the Daughters hiring me.

The trial has been going on for three weeks and while it’s apparently been moving at a snail’s pace, there has also been lots of drama, strange characters, bizarre accusations and theories (even murder plots), and of course, nuns.

There is some incredible reporting of the trial happening over at newyorkcitizenone.com, which picked up the story on Tuesday the 6th and has been posting smart, insightful and funny articles ever since. This is citizen journalism at its finest—a thoroughly intriguing story which is way beneath the radar of traditional news outlets, brought to light with style and attitude to spare. Check it out.

It seems like only yesterday, but it was almost 6 years ago that the Google Books lawsuit started. In a nutshell, the Authors Guild and a bunch of publishers decided to sue the bejesus out of Google for having the temerity to want to digitize all the books in the world. Keep in mind that Google wasn’t going to give away any books (except those in the public domain) but rather create a massive database where we could do keyword searches and find out what books used what words.

The Authors Guild ran around screaming “infringement” and “theft” when the only infringement that was happening was the fairly benign process of scanning of the books into a hard drive. Each book. Once.

As many of us pointed out at the time, this was an absurd lawsuit totally at odds with the Authors Guild’s members’ self-interest. Google wasn’t stealing any books! It was simply making all books, even books out of print and long-forgotten, easier to find and easier to use. All books, like, ever.

After a couple years of posturing and legal hoo-hah, the parties announced a settlement that, strangely, gave Google more rights and revenue opportunities than it had wanted originally.

The settlement was presented to the court; in March 2011 the court rejected the settlement, for a variety of reasons, including that the settlement gave Google almost unlimited market power that was not likely ever to be challenged by any other market player. Market power that it hadn’t originally sought, but that it got in the settlement.

This week, the Authors Guild filed a request for the court to certify as a “class” every author in the United States, a first step in the commencement of a class action lawsuit. The Guild is starting over, right back to where it was in 2005, trying to bring a new asinine legal proceeding to stop what would be one of the greatest advances in scholarship and the distribution of knowledge the world has ever seen. While the vast majority of Google’s digitization effort sits on servers somewhere, unused. Urgh.

OK, what else? Oh yeah, this. From time to time we talk about how your smart phone might be spying on you, to the point of ratting you out. I don’t do it often because a lot if it is way too tech-y for my Luddite brain. But recently some folks discovered that a lot of smartphones, particularly phones sold by Sprint and Verizon, have this sketchy and deliberately hidden software called Carrier IQ, that can track and report a ton of information about the phone user, including location, keystrokes, and browsing behavior.

Techdirt reports that the company responsible for Carrier IQ, after first threatening to sue the researcher who “discovered” it, claimed that the software was used only for diagnostic purposes, to report dropped calls, to track network issues, and the like. The company said that it would never use the software to breach anybody’s privacy. Maybe that’s so, but it looks like somebody else is. Another research decided to FOIA the FBI, seeking documents showing whether and how the FBI was using Carrier IQ derived data. Rather shockingly, the FBI replied this week that it had such documents, but refused to turn them over because doing so “might interfere with ongoing investigtions.”

Uh-oh. We’re all screwed.

12.03.11 I'm Tired of White People (And by “People” I Mean 50 to 90 Year Old Men…with penises.)

2011-12-03T23:08:00.003-05:00

I posted this after I saw it had been taken down from where I first saw it.

By Michael Boatman

Okay, I said it. I’m tired. Fed up. F’shtunk’d and downright verplotzed with the white American Man. Listen, I’m not a racist. (Some of my best friends are white.) And isn’t everyone tired of Hillbilly comedians; hairy, disenfranchised boy-men; sexually hopeless bearded geeks who secretly breakdance really well and are actually qualified to rule the world if only their alcoholic fathers, hot blonde cheerleaders and Charlize Theron would acknowledge their true greatness?)

I’m fed up with trying to navigate the empty thought caves abandoned by long-dead puritan land-stealers, slave-owning drunken Indian fighters and World War II Whores. Yes, I don’t give a shit about “The Greatest Generation.” Acknowledgement of Black involvement in World War II, though overwhelmingly heroic, is as hard to find in the mainstream historical record as a taped interview with Bigfoot. Besides, most—-if not all—-of the Greatest Generation are dead or shitting in their diapers these days; wishing like hell that they could turn back the clock to a “simpler” time; a time when women understood their God-given inferiority; when God was in His White Heaven and blacks were smart enough to keep their big mouths shut. Yeah, I love the Greatest Generation; the Generation that looked at Japan—-a bankrupt nation on the verge of surrender—-and dropped atom bombs on its unsuspecting civilians. Meanwhile Adolph Hitler ass-raped entire races of human beings. But no nuclear bitch-slap for Berlin, no: Uncle Klaus and Aunt Hirdy-Girdy live in Berlin! Bomb the Japs! Nobody’s actually related to them! Eat it, Greatest Generation.

For a while there, back in the 80’s and even early 90’s, it seemed like the country was straining toward some kind of understanding, a new cultural gestalt wherein everyone understood that the old puritanical ways of thinking were on their way out. Everyone was afraid of dying in a nuclear war and Sting was the King of the Universe. Then George W. Fucking Bush became “President,” and the national debate turned into one big Nascar rally; a rally that dragged the country—-James Bird style—-through the Violent Special Ed cafeteria of the most vicious High School since the Marquis de Sade graduated from Cruella De Vil Abbatoir & Country Day Prep.

Nearly everyone I encounter these days seems to have given up I.Q. points just to get through the day. Nearly everyone I meet seems to think it’s okay to bomb the shit out of Iraqi wedding parties just because a decade ago, some dumb-ass Muslim extremists hit the World Trade Center instead of Bernie Madoff’s beach house.

Most irritating, is this Judeo-Christian fascination with so-called End-Times. As an atheist, I’m sick of watching the metaphorical death throes of Whitey’s illegitimate and largely illusional “culture.” I say: LET IT DIE! Guess what, Tom? There are fresher perspectives out there, if you’d only pull your head out of grandfather’s checkbook long enough to look: People of color, women, atheists, agnostics and non-Judeo-Christians; the handicapped and Gay, lesbian and yes, trans-gendered people. (Although my friend ‘Gale’ lives and dresses like a woman—-living as a man living as a trans-gendered, bi-sexual hermaphrodite. Sometimes I think ‘Gale’ is just plain silly.)

For anyone who needs more proof of the fundamental decline of The White Man, I’ll point them to the so-called Super Committee, appointed by the President to set our debt issues in order. Those guys are for the most part so white that the backs of my eyeballs throb when I look at them. John Boehner is a White Man, for Christ’s sake. If Boehner isn’t the poster-boy for the end of white male supremacy I don’t know what is.

The aforementioned President Bush and “Vice-President” Frankenstein Junior screwed the country as hard as they could before evacuating their dying seeds of destruction all over the face of the American Dream. Laughing all the way to the banks they subsidized, they handed the keys to a broken nation to the first non-threatening black dude who came along and fucked-off back to West Texas or Upper Right Montana or whatever hyper-conservative shit-ditch welcomes these people. Now the whole country is too busy dodging giant mutant chickens coming home to roost to remember who schtupped the golden goose. Here’s a hint…

It sure as Hell wasn’t Morgan Fucking Freeman.

I’m tired of White People.

12.1.11 ONCE MORE WITH FEELING

2011-11-30T21:18:00.003-05:00

This article originally appeared in the 12.1.11 issue of Metroland.

A few months ago we talked about how an arm of the Department of Homeland Security was getting judges to sign orders for the seizure of internet domains that appeared to be trading in counterfeit goods. The legal basis for the seizures was shaky (if it wasn’t, why would we be talking about these hideous proposed SOPA/ProtectIP laws?), and their effectiveness was questionable (only the domain names were seized, so whoever was behind them could simply register a new name and be back in business in minutes), but hey, it makes for good headlines.

This week Homeland Security (remember, trademark infringers are terrorists) was at it again, seizing a couple hundred domains, most of which appeared to be counterfeiting clothing and the like. A couple of IP news sites are reporting a strange twist—if you go to the seized sites, you find that the Feds have placed an “anti-piracy” video that was produced by NBC / Universal about the evils of the "unauthorized" downloads of movies. It’s a typically one-sided, oversimplified, stupid little street drama that equates downloading movies with people losing their jobs (“What’s more important, that movie or this human being?”).

Which raises a couple of questions. First, why is the government promoting the bullshit propaganda of the film industry? Second, why isn’t the government disclosing that it’s promoting the propaganda of the film industry (the film ends with no credits, only with the badges of DHS and the FBI)? We’ve used the F word about this sort of thing here before. No, the other F word. Third, why are they showing a film about the evils of movie downloading on the seized domains of some goombahs selling stuff like counterfeit golf equipment? And finally, as pointed out on the IP news site PaidContent, not only is the legal basis for these seizures extremely questionable, but federal law dictates that any seized property must be destroyed or sold. The law doesn’t say anything about using seized property to launch a deceptive PR campaign on behalf of Big Media.

Moving on. There’s been more of this anti-Spotify thing spinning around out there—a bunch of indy labels have pulled their stuff off the music streaming site claiming that the royalty rates are too low, are not fair, and are hurting sales. All of them cite some statistics about how that it takes several gazillion “listens” on Spotify to get a royalty payment equal to one sale of a download. Dudes, get a grip. As we’ve discussed before, these numbers are going to go up. Spotify isn’t paying on a per-stream basis, so stop thinking about it that way. 70% of the company’s revenue is paid out to artists, songwriters, record companies, and publishers on a pro rata basis. The more money Spotify gets, the more money everybody gets. When our six-month free trials start getting restricted or end, lots of us will happily pony up for the $10 a month subscription, because for lots of us, that’s a bargain. Spotify will get more money, and royalties will jump. Don’t believe me? Well then consider this: in Sweden, where Spotify comes from and where the service has been available since 2008, music industry revenues went up over 10% in 2009, largely because of Spotify. And as far as the indies’ claim that Spotify is hurting sales? Are you kidding me? What, are you reading the RIAA’s playbook of nonsense? What would you prefer, 1 sale and 100 illegal downloads, or 1 sale and 100 Spotify listens? Sales are over. Fini. Gone the way of the buffalo.

What will it take to get Spotify (or a competing streaming service) up to the level where the royalties are at a proper, “fair”, level? Heavy promotion would help, and a couple of bundling packages with cable or cellular companies would help, too (Spotify’s success in Sweden is attributed, in part, to a bundling deal with a cable and phone company. It will happen. It can't not.

Finally, there have been a couple more “sky-is-falling” articles linked to a studies showing that artists selling their music through digital aggregators like CD Baby and Tunecore make, on average, just about bupkus. Oh, the humanity! The Long Tail’s a lie! Won’t somebody do something?

For the love of god please shut up. This is not a bad thing. In fact, it’s exactly what you’d expect with a marketplace that has no barriers to entry, when anybody with a computer and a song in their heart can record a track and get it out for sale through companies like CDBaby and TuneCore or through a widget on your Facebook page. Many, maybe even most, of the musicians who have put stuff up for sale through these services are much more hobbyists than they are working musicians. Many, I suspect, are thrilled and amazed to see any sales. For those who are working musicians, or if they’re like me and have band that had some success in the past, these services drive sales, pay fairly and efficiently, and provide significant revenue where there otherwise would be none.

The sky, my children, is not falling. Au contraire.

11.23.11 SHONEN FUCKING KNIFE

2011-11-24T20:38:00.004-05:00

live photo totally stolen from Kirsten Ferguson

SHONEN KNIFE w/ THE LAST CONSPIRATORS

Valentines Music Hall and Beer Joint

November 21, 2011

Japanese punk princesses Shonen Knife’s 2011 world tour conluded with their debut Albany gig at Valentines. Good freakin’ get Mr. Glassman! Looking like 1960’s stewardesses in coordinated Modrian-inspired A-line dresses, the girls raised a fuss and a holler through an hour and a quarter of unbridled rock joy. The main show was a rapid-fire set of original songs spanning the band’s 30-year 20-album career, mostly simple three-chorders with equally simple topics (“Let’s Rock Society”, “I Am A Cat”). There was constant motion, cool rock moves galore, lots of heavy metal hair tossing and throwing of the horns. And utterly charming broken English stage patter. And tons of smiling. If a member wasn’t singing on mic, she was smiling and singing along off mic. If this is Shonen Knife’s schtick, I’ll take it over other bands’ grim and dour schtick (um, like the Feelies?) every day of the week. It was impossible not to smile back.

What was apparent from the git-go was that Shonen Knife is, on top of everything else, a very, very, very good band. New drummer Emi Morimito was a monster, and she and effervescent bassist Ritsuko Tenada are one of the more formidable rhythm sections you’ll ever see. And pixie matriarch and sole original member guitarist Naoko Yamano lords over the proceedings with grace, dignity, and loudness. Like the point needed to be proven, the set ended with tune that bounced between jarring precision speed metal and Sabbath-like sludge. We’re talking jaw-dropping.

The band left the stage after an hour and disappeared into the dressing room. After a few minutes, strains of Ennio Morricone’s “The Good, The Bad, And The Ugly” began blasting out of the PA. This was the Ramone’s traditional entrance music. The girls stormed the stage wearing torn jeans and black leather jackets over Shonen Knife t-shirts. 1-2-3-4! They played 8 Ramones tunes off their new tribute album “Osaka Ramones”. A grown woman from the somewhat geriatric crowd tried a stage dive. It worked. The room was totally unglued.

Many shows these days leave me vaguely empty, either some old coot meaninglessly running down old triumphs or some young lost souls jockeying for position by copping stuff that was done better 30 years ago. This show left me shockingly blissful and goddamned glad to be alive.

Local vets The Last Conspirators opened the show in grand style, pumping out rock-solid songs over the humungous beat of Al Kash, the nuanced psychedelic slinkiness of my new favorite guitarist Terry Plunkett, and, of course, the boundless voltage of the irrepressible Tim Livingston.

11.17.11 GET OUT THE GUNS AND AMMO

2011-11-16T11:25:00.005-05:00

This article originally appeared in the 11.17.11 issue of Metroland

Back in the Spring I wrote about some extremely dangerous legislation that had been introduced in Congress. Well it’s still there and it’s crunch time. The legislation is called SOPA (Stop Online Piracy Act) in the House and PROTECTIP (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) in the Senate.

The bills give government and everybody else broad powers to create blacklists on the internet, to disable sites suspected of “engaging”, “enabling” or “facilitating” infringement, to force companies like Mastercard and Visa to stop servicing suspected sites, and to require your internet company to monitor your internet usage, to spy on you, and to throw you off the internet if it thinks you've been a bad boy or girl.

It’s insidious and dangerous. It will change, some say break, the internet as we know it, by turning the internet into a limited portal where you can’t do much more than buy what they want you to buy, and only from them, and to read only what they want you to read, and for a price. It’ll be like the internet in China, but worse.

I’m not exaggerating. Listen, anything that the goons from the RIAA and MPAA and the utterly fascist scumbags from the US Chamber of Commerce are going to the mat for should raise a flag. Remarkably, the Chamber of Commerce posted on its site that the law couldn’t possibly create a blacklist because the word “blacklist” doesn’t appear anywhere in the text of the bill. So there. Yes, they think we’re that stupid.

And maybe we are. The bills are backed by corporate and bi-partisan political might, justified by cooked and even made-up statistics. The bills appear to have the support of the Obama administration, given statements by administration officials and the clueless Joe Biden. As I write this on Wednesday morning, a House hearing is about to start, where Congressmen will hear from five witnesses speaking in favor of SOPA, and only one speaking against. That’s how House Republicans do things, you know, when they’re not waging war against women.

Supporters say that SOPA and PROTECTIP are patriotic bills designed to protect American jobs. Aren’t you sick of these clowns playing the jobs card? Censorship is good for jobs, hydrofracking is good for jobs, a police state is good for jobs, wars are good for jobs. Jobs uber alles. Enough!

And, remarkably or not, supporters are saying that despite the bills’ broad language, once enacted the law will only be used against real bad guys. Yeah right. These laws place huge power in corporate hands to police the internet in unprecedented ways. And to the Big Media companies, real “bad guys” include Google, YouTube, Vimeo, Facebook, Flikr, etc etc etc. And Big Media will abuse the law, exploit its vagueness (you tell me what “engaging, enabling, or facilitating infringement" means! Go ahead! Try!), and blanket-bomb and destroy what has become the social norm and the cherished way of the world, the free internet.

As for the government, their use of the laws will be measured and rational? Really? You know, the old don’t worry about what the law actually says, you can trust us to do the right thing, because we’re the government?

Are you paying attention? Do you remember the exact same crap being said by government officials when the Patriot Act was passed? We need this law to protect us from foreign terrorists? Don’t worry, your civil liberties will be OK? And how did that work out? With the phone companies giving the Department of Homeland Security unlimited access to listen to your phone calls. With the Department of Homeland Security heading up the prosecution of domestic garden variety copyright infringers. THIS WEEK, WITH THE DEPARTMENT OF HOMELAND SECURITY COORDINATING THE SYSTEMATIC POLICE ATTACKS ON OCCUPY SITES BECAUSE SPEAKING OUT ON GOVERNMENT ENABLED GREED, THE DESTRUCTION OF THE MIDDLE CLASS, AND UNPRECEDENTED INCOME DISPARITY WHILE CAMPING IN A PARK IS A THREAT TO OUR NATIONAL SECURITY.

Sorry, didn’t mean to yell. Well, OK, I did mean to yell. This is important.

The time to act is now, citizens. I’d guess the House is hopeless, since it’s populated by Republican lemmings who all vote the way the Koch Brothers tell them to vote, and who are way too stupid or cynical or bought off to care that an open internet is a fundamentally conservative concept, and one that is critical for a functioning democracy. But contact your Representative anyway. Who knows, maybe someone will grow a conscience. And hammer the Senate. Oregon Senator Ron Wyden, who sometimes seems to be the only person in government who understands this stuff, is threatening to filibuster the bill. Tell Kristin and Chuck and get behind him.

There’s several places on the web where you can fill in your name, push a button, and let your representatives know where you stand on this. Go get ‘em.

10.20.11 UNNECESSARY MIDDLEMEN

2011-10-19T21:38:00.004-04:00

This article was originally published in the 10.20.11 issue of Metroland.

The Sunday Times Union had a good article about a young rapper from Ravena who got invited, and then dis-invited, to perform at Red Square at a show put together by an Atlanta company called Afton Shows. Afton Shows trolls social media music sites and invites bands to play gigs it sets up in local clubs all over the country. The bands are expected to sell a certain number of tickets to the shows, and Afton splits ticket money with the bands if enough tickets are sold. The kid in the article got bounced from the show, according to Afton Shows, because Red Square didn’t want any hip-hop in the club. Which is strange, since Red Square has hip-hop shows all the time, even lists hip-hop on its home page.

The T-U writer, Cathy Woodruff, called me last week to talk this out. While what Afton Shows did to this kid wasn’t cool (it appears he really got bounced because he hadn’t sold enough tickets) what Afton does doesn’t offend me terribly. It’s a pay-to-play situation, and that’s something that’s not uncommon out there in clubland. Plenty of clubs only pay bands after they’ve brought in a set amount of money at the door, which is more or less the same thing. At a club-owner panel I put together for a CRUMBS Night Out at the Linda a couple years ago, someone asked Howard Glassman how a new band could get a gig at Valentines. Howard’s response was “promise me 50 people on a Tuesday night and I’ll book you.” That makes perfect sense.

So Afton Shows gives unknown musicians the opportunity to gig in a real club, something that might not otherwise happen. And really, if you can’t sell 15 or 20 tickets to your gig (which appears to be Afton’s number), maybe you shouldn’t be gigging. So is it a rip-off? Not really. Although Afton could be more upfront about the ticket thing. What happened to the 16 year-old rapper from Ravena shouldn’t have happened. But, you know, that's show-biz, babe!

This brought up something I’m seeing more and more these days—the unsolicited pitches to musicians from companies looking to “help” musicians get famous. A few years ago, this was happening on MySpace, and now I’m seeing it happen on SonicBids, ReverbNation, Facebook, and Bandcamp.

The pitches are all similar—the company really digs your music and wants to “sign” you to a deal—a deal for distribution, maybe to pitch your songs for film, and so on. Of course you’re flattered, because you dig your music, too, and everybody wants to get famous. But beware.

First of all (and as Cathy quoted me in the T-U article), if the pitch involves you paying money to them, run away as fast as you can. A real music deal involves the company paying the musician, not the other way around. There was a flurry of unsolicited offers made to local musicians a few years ago from record producers, guys who’d produced a minor hit or two years and years ago. The deal was that you’d pay the producer thousands of dollars to produce your music (and, of course, this amount was but a fraction of the producer’s “going rate”), then the producer would shop your stuff to labels and publishing companies (and the producer is, of course, oh so connected), and you’ll split all the money you make after the producer made you famous. Uh, no.

Just this week a local singer-songwriter asked me to look over an offer he’d gotten through SonicBids. It was from an Australian company called Blue Pie, and they wanted to digitally distribute his album and pay him 60% of the proceeds, and also pitch his stuff to film and TV and pay him 50%. And they wanted to “administer” his publishing, too. Not unreasonable on its face. But the more I looked, the worse it got. The digital distribution was through The Orchard, a company that handles digital distribution for lots of labels. The pitching to film and TV appeared to be through a number of online click-through licensing companies like Pump Audio and Rumblefish, which themselves charge 50-65% for placements. Blue Pie was aggressively soliciting musicians on SonicBids through “contests”. The deal my client was offered came through Blue Pie’s sales department. If a musician wanted “promotion”, there were packages that could be bought.

Clearly this company was looking to fatten its catalog on the cheap, and if something pops, great, if not, well, no loss other than paying for a little bit of server space. I told my client that he could accomplish everything Blue Pie was offering in an afternoon on the internet. Anybody can get comprehensive digital distribution through companies like CD Baby and TuneCore, and after a modest amount of upfront money, you keep 90-100% of the dough. And there’s a zillion placement services on the web that will offer your stuff to film and TV, and they’ll pay you directly, too.

It’s a jungle out there. Be careful.

10.6.11 #FMC11

2011-10-05T20:18:00.006-04:00

Uber-dude Casey Rae-Hunter of FMC, Dave Frey (manager of Cheap Trick), Rick Nielson

Got back really late last night from the 10th annual Future of Music Coalition Policy Summit in Washington DC. As usual, it will take weeks to get my brain around everything I saw and heard there, but here’s some first impressions.

This was my fifth (sixth?) FMC summit and to be sure now it’s a different world than it was when I first went. I’m different now, too, different than the wide-eyed, fawning country rube who showed up at the conference years ago and got all ecstatic and stunned to hear all these really smart people actually talking about these revolutionary things I’d only read about. Today I’m more of a jaded, cranky, and impatient country rube who hates everything. You talkin' to me?

That being said, I felt less passion, less buzz, and more uncertainty this year, continuing a trend that for me started at last year’s conference. This may be due to the decreased attendance from previous years; and maybe that's due to the fact the conference was announced way late, barely a month out, and many panels weren’t firmed up until a week out. Or maybe it’s the location: the Georgetown University campus location is inconvenient to folks who are broke, i.e. musicians. To be sure, the lack of fireworks can be attributed to the fact that superstar musician advocate Tim Quirk was conspicuously absent this year. Quirk, a rock musician, alt music-biz heavy, and conference regular, always lit up the proceedings with his uncanny ability to break down complex issues into bite-size morsels, and to hilariously skewer the mainstream music industry. It was like he was the interpreter and id of the conference; his very presence made everybody else honest; and he wasn't there. Drag.

There’s always technocrats and enterpreneurs at this thing hawking their “musician-helper” wares, some amazing, many incomprehensible, and most laughable. This year they seemed slicker and better fed than in previous years. Is this because they’re making lots of money off musicians? If so, that’s not good, because musicians sure as hell aren’t making more money using their stuff. Or maybe it’s because there’s been an uptick in venture capital money feeding these new idea business. Which is fine, I guess. For now. But damn, these dweebs can be annoying.

The politicians and bureaucrats were slicker, too. Maria Pallante, the Register of Copyrights, moistly recounted her personal relationship to music, even dropping Frank Zappa’s name, and then went on to pitch, without naming it, the internet freedom-killing PROTECT IP Act that's currently before Congress. Later that day, Congressman Robert Goodlatte (R, VA), expertly told a couple irrelevant down-home jokes, and then, again without mentioning it by name, pitched the PROTECT-IP Act using virtually the same talking points as Pallante. I'm gonna stick my neck out and say that none of these talking points came from Pallante's or Goodlatte's staffers; they came, instead from lobbyists of groups like the RIAA and the MPAA. Disney. Viacom. One got the sinking feeling that the fix was in and, worse, that we were getting our noses rubbed in it. This became abundantly clear when both gave non-answers to Chicago journalist Greg Kot’s questions about how these proposed get-tough laws (like making unauthorized streaming a felony) would affect personal freedom in a world in which 95% of music that's consumed these days is acquired "illegally." Trust us, they both said. We won’t harm the little people! Hoo-boy. Those guarantees sure worked well with the Patriot Act. Especially jarring was Goodlatte’s repeated claim that Congress was just trying to put into action the Constitution’s guarantee that creators’ works would be protected. Dude, the Constitution says no such fucking thing, and you know it. The Constitution gives Congress the right, but not the obligation, to make laws to protect creators’ works only when such laws are in the best interests of society. Which is a vastly different thing, Congressman. Urgh.

For the last two years, my post-FMC conference articles have consisted of interesting quotes from speakers and panelists at the conference. Not only were they great columns (if I may say so myself), they wrote themselves! This year, I came away with no banner quotes. Nuttin’. Even the loquacious visionary Jim Griffin, who’s always good for two or three rocket quotes, let me down, as he had to resort to long, convoluted sentences to explain the intricacies of things like rights clearances. It seems that a lot of big issues have been settled and now we’re into the details. Which are goddamned complicated.

I was prepping my own workshop and had to skip the panel that had the biggest buzz of the conference, about building and sustaining local music scenes. According to the tweets, Chicago rapper Rhymefest singlehandedly supplied all the excitement I found missing the rest of the time. Kills to me have missed that.

The tribute to outgoing FCC Commissioner Michael Copps was moving and bittersweet. The high point of the conference? Cheap Trick’s Rick Nielson, talking about his long career and the recent spate of festival stage collapses this year (one fell on him this summer in Ottawa) spotted an attendee sleeping in the front row. He stage-mouthed “what the fuck?”, reached into his pocket and started flicking guitar picks at the guy, hitting him in the head on his third try.
Perfect.

I guess the takeaway is this: times are scary, uncertain, and complicated, things are changing fast, there’s still bad guys, and we gotta stay smart and focused. Can’t wait ‘til next year.

9.22.11 THIS TIME YOU'VE GONE TOO FAR

2011-09-21T18:47:00.004-04:00

I think I've used this picture before. This article originally appeared in the 9.22.11 issue of Metroland.

If you’re one of my 1300+ “friends” on Facebook, you know that I’m a frequent, perhaps compulsive, poster of unusual, funny, and informative stuff. I’ve defended Facebook here from time to time when some silly rumor pops up about some evil the service is about to commit, and I’ve rolled with the changes that get imposed on us, because mostly these changes have been either benign or they actually improve the experience, once you get used them. I dare say that Facebook has made my life more varied and interesting, and allowed many actual friendships I wouldn’t otherwise enjoy.

This morning (Wednesday) I logged on to find new changes that are neither benign nor do they improve the service. The first thing I see is a bunch of posts that Facebook has decided must be "important" to me. As the man said about the thermos, “how do it know?” Well, Facebook doesn’t know, and for it to presume it can prioritize my interests via some algorithm,is bizarre and, I guess, funny if it weren’t so absurd. Then, to make matters worse, they’ve stuck what they call a “ticker” on the right hand side of the page, a little box that streams friends’ comments or something. I haven’t bothered to find out what the “ticker” does, because it’s always moving as new things get added and it is distracting and annoying as hell. And as far as I can tell, you can’t elect to turn either of these truly useless features off.

Suddenly, the clean and utilitarian site is starting to feel like MySpace: dirty and cluttered and embarrassing. Just a few hours in, there are reports of rage among lots of users. I’m seeing universally angry comments. While every Facebook change gets panned, the past changes have just taken some getting used to or they've been readily disabled. The criticism quickly dies down. That’s not the case this time, and one wonders if Facebook is gonna back off this nonsense.

If it doesn’t, it’s going to take a hit. For the last couple of months I’ve been wondering why anyone would spend time on Google+, a newly hatched Facebook competitor. Facebook worked fine, and one social network seems like more than enough for a human to deal with. But today, I know I’m not alone in thinking Google+ is looking pretty good.

Moving on. The Author’s Guild is a trade association that claims to represent the interests of professional writers. If I were a member, I’d be quitting in disgust right about now. The organization (which is leading the ridiculous lawsuit against Google Books, a case that’s ongoing) just sued five major universities (Cornell and the Universities of Michigan, California, Indiana, and Wisconsin) for embarking on a project to make available for digital text searching any “orphan works” in their collections. “Orphan works” are out-of-print books that might have copyright protection attached to them, but the copyright owner cannot be identified or located.

Basically, the librarians at these colleges became impatient with both Congress (which has considered, but been unable to pass an orphan works law that would protect anyone copying an orphan work) and the pace of the Google Books lawsuit (where orphan works are a central issue). As these books are all out of print and many irreplaceable, the librarians wanted to digitally preserve the books for posterity, and at the same time allow the public to search the digital archive for key words. The librarians were not allowing the reading or downloading of the orphan works, just text searching.

And so the Author’s Guild is suing the librarians' colleges to stop the project, accusing them of willfully trampling on authors’ rights and causing them irreparable harm. Pathetic. How, exactly, is an author of an out-of-print book being harmed? How are society’s interests (remember, the purpose of copyright law is the betterment of society) being harmed by these librarians?

Shortly after the lawsuit commenced, the Authors Guild announced that it had located one of the orphan works' authors from a Google search. The Guild website is crowing about this (and mischaracterizing what the librarians are doing and what the lawsuit is about) in a manner more befitting Fox & Friends than an organization that is supposed to be protecting the interests of the best and brightest among us.

One librarian posted an open letter to the author, pointing out that the book in question, long out of print, had not even been checked out of the librarian’s library in over 15 years, and now was in deep storage. He summarized the libraries’ goal for the digitization project as “to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books. Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.”

The Authors Guild should be ashamed of itself.

9.8.11 Gettin' It All Back

2011-09-07T20:52:00.007-04:00

This article was originally published in the 9.8.11 issue of Metroland
Musicians: Our friends at the Future of Music Coalition have just launched a comprehensive study on how working musicians make money these days. (I know, I know...what money?) This is an important undertaking as the landscape of musician revenue has changed wildly over the years. Go fill it out! Right freakin' now! Yes, I am talkin' to you, as a matter of fact. I also should remind you that FOMC’s annual Policy Summit is taking place October 2 and 3 at Georgetown University in Washington DC. Panelists so far include the CEO of Tunecore, the Chief Product Officer at Rhapsody, brilliant digital copyright law professor and writer Jessica Litman, and a whole lot of folks from all over the emergent music industry. I’ll be running a lunchtime workshop with my pal Marcy Wagman from the Drexel music industry program. And it’s looking like Ozomatli is playing the party Monday night! It’s the only professional conference I attend, and every year I learn what’s coming next and meet a bunch of incredible people. This conference is cheap and fantastic, and if you are in the biz even a little you really should try to go. More info on all of this at www.futureofmusic.org.

Moving on. I got a lot of correspondence this week about recent articles in the New York Times and elsewhere reporting on the pending battle over copyright reversion rights—where creators can get back copyrights they sold off, starting in 2013. Now, if you’ve been a regular reader of this column, you already know about all of this because I wrote about it almost exactly a year ago. But for you newbies, and those of you who, like me, have memory issues, perhaps brought on by overly rigorous activities in the 1980’s, I offer a shortened version of what I wrote a year ago:

Once upon a time, Congress made copyright laws that supported the Constitutional purpose of copyright law, that being the betterment of society, and we got a fair and sturdy bunch of laws as a result. Those days are long gone. These days most new copyright laws are written by lobbyists for Big Media companies, and Congress dutifully passes them because they’re “good for business” and the lobbying money is good for the lawmaker’s campaign chests.

Anyway, there is a provision in the copyright law that, believe it or not, says that you can reclaim your copyrights 35 years after you transfer them. The law was put in place to protect artists who transferred their copyrights for cheap when they were young, stupid, and broke, and/or pursuant to lousy deals that paid them squat.

This law went into effect on January 1, 1978, and applies to all works transferred after that date. 35 years after that is January 1, 2013, and that’s when artists can start getting their stuff back.

This law is expected to have the biggest immediate impact on the music business, because it affects the heart of what’s come to be called “classic rock”, some of the most valuable recordings in the history of music.

The music industry, which has made a fortune selling this music to you first on vinyl albums, then on cassettes, CDs, digital downloads, re-mastered versions, best-of repackages, soundtracks, etc., isn’t taking this sitting down. In 1999, the recording industry tried to nuke this law by pulling one of the most sleazy legislative stunts ever—through a bought-off congressional staffer, it snuck a law through Congress that explicitly exempted sound recordings from this whole rights reversion thing. Once musicians got wind of this, they descended on Congress and got the law repealed. (FYI, the congressional staffer who made this happen, a creep named Mitch Glazier, was hired a few months later by the RIAA and is now making millions as its chief lobbyist.)

Undeterred by this profoundly public embarrassment, the RIAA continues to claim that sound recordings aren’t subject to the rights reversion law. The RIAA’s legal arguments about this are strained, convoluted, stretched and weak, but you can bet that the RIAA is ready to spend millions of dollars (all of which it’s made off musicians) to fight off musicians’ attempts to get their copyrights back to their own recordings.

As reported last week in the New York Times, Detroit Congressman John Conyers is looking to pass a revision to the copyright law that explicitly states that sound recordings are subject to the rights reversion law, and he's going to actively solicit bipartisan support for the bill. Could luck with that. Not only is the atmosphere in Congress absolutely toxic to any sort of cooperation, Conyers will be trying to convince a bunch of bought-off politicians who receive millions of dollars of contributions every year from the RIAA and the rest of the Big Media companies, none of which are particularly fond of the rights reversion law. Politicians who are banking on their belief that you aren't watching. But, as Conyers says, his proposed law would provide fairness for artists who've traditionally been ripped off by the record companies (yeah, he really said that!) and would avoid huge legal battles, fights that most musicians simply can’t afford anyway.

So we’ll see. Meantime, the Digital Music News site has posted a fantastic and comprehensive guide to the issues along with detailed instructions for how to get your rights back. You can find it right here: http://www.digitalmusicnews.com/stories/082910termination.

8.25.11 My Little Black Box

2011-08-24T20:48:00.007-04:00

This article originally appeared in the 8.25.11 issue of Metroland.

According to my abacus, this is the 150th ROT. ‘Scuse me while I kiss this guy. Mwah!

Moving on. A friend sent over an article yesterday about an art exhibit in New York that consists of a one terabyte digital storage unit. Looks like the storage unit on my desk, and maybe the one on yours. What makes this one gallery-worthy is that the artist claims that it contains $5 million worth of stolen content that he downloaded from the internet. The list of “stolen” works include:

- every published work of literary fiction from 2003-present, which the artist found online in a single bittorrent file
-a Rosetta Stone Language Pack...
-113 GBs of music...
-lots of gaming software
-a whole bunch of Adobe and Autocad software

Now, like most of you, I take a pretty dim view of a lot of so-called conceptual art, like the guy whose performance at the Knox-Albright Gallery in Buffalo a few months ago consisted of looking at a Jackson Pollock painting for 40 hours (the “performance” was streamed on the internet, so you could watch him watch). But this terabyte storage piece packs a wallop.

The artist couldn’t have spent more than a few hours finding and downloading this stuff and no doubt most of that time involved waiting for it to download. Any of us could do the same thing right now. Most of us, to a greater or lesser extent, already have.

And while some have questioned the valuation of the stuff (and the artist admits that some of his estimates are a little loose), the cumulative retail price of what’s on that drive is surely in the neighborhood of $5 million. OK, say it's only $3 million. That’s still a lot of moolah packed into a little black plastic box.

The artist calls into question, again, the efficacy of intellectual property laws, particularly copyrights, in a world of digital media and the internet. When technology allows unlimited copying and the storage and transfer of gigundous amounts of information and media with the push of a button, when everybody has that technology in their homes and offices and dorm-rooms, well, what does that mean, exactly? And do we try to control it? Should we? Why? On behalf of whom? And at what cost? Is it even possible to control it? How?

What happens if the artist gets sued? After all, he (or she) is admitting to “stealing” millions of dollars worth of copyrighted stuff. Would a First Amendment defense fly? “I downloaded $5 million worth of stuff as an art performance, to make a statement about the nature of digital media and about the compensation of authors, musicians, and other players in the creative realm.” Would a fair use defense fly? “My installation was a purely creative piece, my purpose for copying was different than the purposes for which the various downloaded works were originally created, and my work has caused absolutely no displacement in the marketplace for the original works.” Next.

And who’s gonna defend the artist should the combined corporate legal forces of the RIAA, the Association of American Publishers, the Authors’ Guild, the Business Software Alliance, etc. etc. etc. all land on the artist at once? Yikes! And think about what the legal complaint would demand: the seizure of the little black plastic box, a finding of willful infringement, and damages of up to $150,000 per infringed item. That’s $150,000 for every song, game, book, and application that are sitting in a common device smaller than a bread box that you can buy anywhere for $80, all acquired in a few hours of activity on the internet that any of us could do. The damage claim would, of course, make the $5 million retail value of the stuff on the drive look like chump change.

Do you think the world of IP law might be a teensy-weensy little bit out of balance?

Now, imagine if the artist went out and bought five (or fifty, or five hundred) more one terabyte storage units and daisy-chained them up in the gallery and pushed “copy”. You could watch “piracy” on a mammoth scale while listening to the soft whir of spinning hard drives. How exciting would that be? And how apoplectic the various “content owners” would get.

The gallery display of the $5 million terabyte is simultaneously extremely banal and wildly provocative. My guess is that the artist won’t get sued for his little storage device, because that would only draw attention to the issues it raises. In the midst of their propaganda campaigns about stealing, piracy, lost jobs, ties to terrorism, no more music, no more movies, no more newspapers, and no more books, the last thing the Big Media companies want is for you to actually think critically about these things.

And that’s exactly what this modest and simple art exhibit does. Bravo.

8.25.11 THEY WERE THAT GOOD

2011-08-24T18:56:00.012-04:00

This review originally appeared in the 8.25.11 issue of Metroland.

THE LEFT BANKE

BEARSVILLE THEATER

AUGUST 20, 2011

In the annals of band train-wrecks, few tales are sadder than that of the Left Banke. Back-to-back hits in 1966, abortive tours, treachery and angry lawyers in 1967; by early 1969, before any of the band members had reached the age of 20, the Left Banke was done. The smattering of articles and interviews on the web indicates that the various members have all lived marginal musical lives since then, always in the shadows of two of the most hauntingly beautiful singles ever to grace the airwaves: Walk Away Renee and Pretty Ballerina. And left to wallow in obscurity were two albums worth of inventive, baroque pop.

Until now. Two of the original members, Tom Finn and George Cameron, have teamed up with a bunch of NYC musos to recreate the studio masterpieces from those two albums. Saturday was their fourth show, and it was glorious.

Make no mistake—this was not some goofy oldies show. This was a performance of repertoire, similar to the recent Brian Wilson tours, where Wilson’s dense studio creations are treated as compositions rather than pop songs, and are recreated with loving and curatorial care.

Not that it didn’t rock. Powered by The Grip Weed's guitarist and lead singer Rick Reil on drums (yes, you read that right), the 10-piece band brought modern rock heft to the songs, while the two string players and two keyboardists (including downtown rock maven Joe McGinty) supplied the classical flourishes that the Left Banke pioneered back in the day.

A considerable part of the show rode on the shoulders of vocalist Mike Fornatale, who was, in a word, spectacular. He handled the often-serpentine melodies with ease, grace, and authority. And Fornatale added a bit of understated yet awesome old-school rockstar presence to the proceedings. I mean, when was the last time you marveled at somebody’s tambourine rangling?

Original members Finn and Cameron added the rich, complex harmonies, occasional lead vocals, and between-song patter that was at once knowing, self-deprecating, touching, and fall-down funny. All in all, the show revealed in spades how the Left Banke, in its short and fragmented existence, somehow managed to create a body of work that employed sounds, structures, and mannerisms that influenced and would be echoed by groups like 10CC, XTC, Queen, Oasis, REM, and even (dare I say it? Yes I do!) the Beatles.

And Saturday’s show had one element that I’m sure the band’s ‘60’s shows never had: unrestrained joy. Everybody on stage was beaming for the entire show.

There was mention of maybe a new album of new material. Here’s hoping that first they capture this live show and release it. I wanna relive what I experienced Saturday night over and over and over again.

8.11.11 HACKNEYED

2011-08-10T19:18:00.005-04:00

This article was first published in the 8.11.11 issue of Metroland

There have been lots of headlines lately about Anonymous, a mysterious “hacker collective” that’s pulled off a string of “attacks” on websites as varied as those of Sony Corporation, the government of Tunisia, and last weekend, dozens of rural U.S. police agencies. The mainstream media reports on Anonymous typically focus on the criminal aspects of the hacks, the impacts on the various victims, and the efforts of international law enforcement to get the “bad guys.” It’s not unusual for Anonymous to be described in news reports as some kind of terrorist organization.

Which is totally ridiculous. Anonymous and its various strains (like the associated group LulzSec) are a loose and leaderless international collection of activists, apparently mostly teen-aged boys, who hack their way into the internet environments of their carefully-chosen targets in order to embarrass, to bring about social change, and for bragging rights. The “members” communicate via chat rooms, develop and exchange hacking software, and execute. Typically, a hack is immediately announced on the internet, along with proof of the hack, things like confidential documents and other types of supposedly “secure” information like customer identities and data.

While what they do certainly involves breaking some laws (mostly odd laws that are the digital equivalent of breaking and entering), if you ignore the mainstream media hysteria and look at what Anonymous really does, it’s obvious that they are overwhelmingly a force for good.

Take, for example, last weekend’s hack of police agencies. The agencies’ websites were defaced and a bunch of police information and some credit card numbers were posted online. It turns out that all of the affected agencies maintained their websites through the same internet company, and the hack that got Anonymous in through the back door remained open and undetected for as much as a week. A spokesman for one of the police agencies stated that the hack had compromised some ongoing police investigations; this was an isolated quote that was featured in every mainstream media report I’ve seen. But the bigger story, and one not mentioned by the media, was that whole bunch of law enforcement agencies had entrusted their confidential files to a third party vendor that left the files vulnerable to teen-aged boys in suburban bedrooms pecking away on their laptops.

If the motley and over-caffeinated members of Anonymous were the thieves, pirates, anarchists, or terrorists that the media portrays them to be, we’d probably never hear of the hacks until real damage was done. The information gathered from the hacks would be used for further nefarious activities, really criminal stuff, and not simply posted online like a geek trophy. The stolen credit card numbers would be used, not posted (although last weekend’s police hack had a funny exception to this: Anonymous announced that a few of the hacked credit card numbers were employed to make modest “involuntary contributions” to the ACLU, the Electronic Frontier Foundation, and the Bradley Manning Defense Fund).

In other words, if Anonymous finds your vulnerability, you just get humiliated. And you spend some money making your system more secure. If a truly criminal enterprise gets there first, you and everyone you’ve got information on could get wiped out.

Also unexplored and unreported by the mainstream media are the activities of Anonymous in the geo-political arena. Anonymous played a critical role last year in the Arab Spring uprisings throughout the Middle East and Northern Africa, attacking and disabling government websites and digital communications while simultaneously enabling the internet capacities of the protesters on the streets. Right now Anonymous is in a pitched battled with the murderous and corrupt Syrian regime.

Governments that enact internet censorship laws are attacked, as Turkey was a few months ago and as Australia was in 2008’s appropriately-named Operation Titstorm. The Church of Scientology is a frequent target, and it appears the evil Westboro Baptist Church is getting teed up for a takedown. This morning I read that Anonymous claims that it will take down Facebook in a few months for its shoddy privacy policies. The ultra-right wing Koch brothers, who have shoveled millions upon millions of dollars into the Tea Party and other fascist causes, are constant targets. And of course Anonymous has been unwavering in its support for Julian Assange, Bradley Manning, and Wikileaks.

Do I agree with everything done in the name of Anonymous? Of course not, and neither do the members of Anonymous. There are constant disputes among the members about what’s OK and what’s not, and these fascinating disputes are utterly transparent in public online arguments. And as this is a decentralized, leaderless, and formless group, reported Anonymous hacks are increasingly being quickly disavowed by members of Anonymous. In fact, a recent thread in Anonymous blogs involves claims that governments are staging phony Anonymous attacks on themselves in order to justify more internet censorship and stiffer anti-hacking laws.

Go Anonymous.

8.4.11 BANG ON THIS

2011-08-04T08:48:00.004-04:00

This article originally appeared in the 8.4.11 issue of Metroland.

Bang On A Can Marathon

MASSMoCA

July 30, 2011

Celebrating its 10th summer residency at MASSMoca, Bang On A Can pulled out all the stops for this year’s joyous and heady 6 hour, 16 piece celebration of sound. As always, the uber-casual concert featured the BOAC faculty (a bunch of the finest new-music composers and performers on the planet), and a couple dozen students who came from all over the world to North Adams to hang, learn, and perform with the masters.

The show started on a full sprint, with Christine Southworth’s Super Collider, featuring an electric gamelan, a creature of MIT’s Media Lab, played by eight musicians. The kinetic and gorgeous piece also featured a Todd Reynolds-led string quartet, a couple tabla players, and Ms. Southworth demurely controlling the gamelan from her MacBook. Not something you see everyday.

This was followed by Return of the Nine Foot Banjo, a tribute to Bennington College’s legendary Gunnar Schonbeck, who for decades constructed huge instruments and then enlisted musical novices to play them. This piece involved all of the students, most of the BOAC faculty, and Schonbeck’s “Original Instruments,” including a gigantic marimba, congas, guitar, and banjo. And a lot of hoses. Goofy and awesome.

Soprano Jaime Jordan seemed to be everywhere, with a crystalline voice that defined beauty. Evan Zipthorn led a six-piece band through his arrangements of 4 pieces written in the late 1940’s by obscure eccentric composer Conlon Nancarrow. The works, rooted in ragtime and the dance music of the time, were so complex and difficult that Nancarrow couldn’t find musicians to play them so instead he built custom player-pianos to perform the works from paper-rolls that he’d punched out by hand. But Zipthorn’s band rocked the impossible, showing that Nancarrow presaged prog-rock, fusion, and post bop by decades. If you’re a Zappa or Captain Beeheart freak you’ll want to get with Conlon Nancarrow.

Three young folk musicians from Uzbekistan were featured throughout the program, singing and playing bulbous string instruments with unpronounceable names. They dazzled whether jamming on some avant-funk blues or playing elegant Uzbek folk songs; they got standing ovations every time they finished a piece.

I could go on (and on and on). Suffice it to say that the Bang On A Can Marathon is the most fun, accessible and friendly “serious” music event you’ll ever attend. Each piece was introduced and explained by one of the BOAC faculty, who were mostly dressed in t-shirts and jeans. Each work was less then 15 minutes long, and the 6 hours went by in a flash. The stage crew miraculously whipped the change-overs of the wildly varying ensembles in 5 minutes or less, and the sound was perfect all day. The musicians and composers all hung out in the courtyard, and were super eager to chat about their works. As I was leaving I stopped to thank the Uzbek dudes for their stunning performances. “Thank you thank you!” they all said, beaming. I think that was all the English they knew, and it was all they really needed. They'd communicated plenty in the universal language.

7.28.11 THE NEWEST NEW THING

2011-07-27T21:58:00.004-04:00

This article originally appeared in the 7.28.11 issue of Metroland.

Well, Spotify finally got here. The music streaming service that has proven so wildly popular in Europe debuted here a couple weeks ago. So far, it’s living up to the hype.

Free Spotify accounts are readily available through invitation; in Europe a few years ago, open registration caused such a crush that the servers came down, so entry is now regulated. You can ask for an invitation directly from the company’s site or get one from a friend or any number of companies offering them as promotions.

A free account involves unlimited listening over the internet, but you have to deal with commercials ever y 4 or 5 songs. The commercials I’ve heard so far are for Spotify’s premium services or for particular artists—the commercials are annoying, a little too loud and the artist ads aren’t calibrated to correspond with what you’re listening to. I was listening to the new Dave Alvin album and had to suffer through an ad for some gangsta clown. Harshed my mellow, to put it mildly.

But still, what fun. Spotify claims something like 15 million tracks in its catalog, so your listening is pretty much limited by your brain’s ability to come up with what you want to listen to right now. Like all the other legal online services, there are some gaping holes—no Beatles, no Led Zeppelin, no Pink Floyd, etc., and there are the territorial issues—a fave Japanese band that has a bunch of fabulous albums, out everywhere on earth but the US, is not in Spotify’s US catalog save for one live track from Bonnaroo.

The terms of the current free service are a little confusing, and may change over time, but it looks like you get unlimited free listening (with ads) for six months, then listening will be limited to a set number of hours a month. There’s no mobile app at the free stage, so your listening is over your computer only. At a $5 a month subscription you get unlimited listening with no ads, and at $10 a month you get that plus mobile apps and an offline feature that appears to allow you to listen to previously selected playlists on your computer or smartphone even if there’s no internet handy. In other words, for $10 a month, you can have access to 15 million tracks wherever, whenever. Stop to contemplate that for a minute.

What sets Spotify apart from the other streaming services that have been out there for a couple of years (Rhapsody, MOG, Grooveshark, etc.) is its ease of use and operability. It’s not browser-based like the others, with all the clunkiness that involves. The stand-alone interface is incredibly clean and follow-your-nose simple—there’s no learning curve, you just log on, search and play. It’s like a simpler version of iTunes. A caveman could do it. Probably the biggest advance is that Spotify is in part a peer-to-peer service, like an updated and legal Napster. Your music isn’t all coming from a Spotify server somewhere, everyone on the Spotify network is contributing to some degree to the flow of music, and that makes Spotify much faster and more reliable that its predecessors. My experience has been that listening is instantaneous.

There is also a social aspect involving posting, sharing and collaborating with playlists. I haven’t had time to get my brain around this one, and personally I don’t feel a burning need to share my private listening experiences with anybody. But a number of friends are posting theirs — local sex god Matthew Carefully has been putting up nicely curated playlists of local tracks that you can drag into your computer and enjoy. At some point I know I’ll be doing it too.

The major criticism one hears is that Spotify hasn’t been paying musicians and songwriters very much money. The nattering nabobs don’t understand how things work. The deal Spotify has with record companies and publishers is for a percentage of Spotify’s income. Right now and for the near future, Spotify isn’t gonna have a whole lot of revenue so the payouts will be necessarily small. But as Spotify grows, so will the revenue, and it’s entirely possible that in a couple of years mucisians and songwriters will be getting paid multiples of what they’re getting now, not just from Spotify, but from everywhere. Think about what will happen if enough folks think the $10 Spotify experience is better than (a) paying 99 cents to own a single crappy track, or especially (b) rooting around the internet for free tracks. Suffice it to say that in Sweden, Spotify’s home country, Spotify is paying record companies more money than any other retailer, online or off.

Internet theorists have long maintained that the music business, to survive, has to successfully “compete with free.” Spotify is the first company to test that theory.

7.14.11 SIX STRIKES AND YOU’RE, UH, WELL, UM....

2011-07-13T19:05:00.003-04:00

This article first appeared in the 7.14.11 issue of Metroland.

First, the dates of this year’s Future of Music Coalition Policy Summit have been announced. It’s gonna held October 2-3 at Georgetown University in Washington DC. Panelists and topics have not yet been listed yet but rest assured that there will be heavyweights galore from the new media / alternative music industry talking about what happens next. And there are always great parties. This is the only professional conference I attend, and I always come home informed and inspired. If you’re serious about this music thing all the kids are crazy about you really should make it your business to attend. There are musician scholarships, there are volunteer opportunities, and it’s cheap to begin with (early-bird tix are $199). Info and registration at Futureofmusic.org.

Moving on. Last week the RIAA and MPAA and all the major internet service companies (including Time-Warner, Verizon, and AT&T) announced a big new program they say is designed to “curb piracy” by internet users. It is the kind grandly stupid, innocuous, convoluted and ineffective initiative that could only come from months of negotiations among a bunch of $500-an hour corporate lawyers who are out of touch with reality and lack even a smidgen of common sense.

In a nutshell, it goes like this. Investigators from the media companies will continue to monitor suspected “illegal” file sharing over the internet and will send offending internet addresses to the ISPs. The ISPs will then contact their customers corresponding to those internet addresses, telling the users that they’ve been observed sharing files and to stop doing such an awful thing. There are six levels of warnings that will go in sequence, with increasingly dire messages and user requirements. Users “caught” file sharing will variously have to respond to the ISP via email or telephone, will be forced to look at a hideously misleading copyright re-education website, and the like. The unlucky users who reach the sixth level of doom risk being subjected to “mitigation measures”, which could include having their internet slowed down or, at least hypothetically, shut off entirely.

There’s going to be a procedure where one can protest these warnings, some sort of arbitration board to which a user can try to show that the offending file-sharing was actually legal, but users will be charged $35 for the pleasure of doing so.

Have you ever heard of anything so ridiculous in your life? Me neither. Apparently, this is going to replace the RIAA’s and MPAA’s disastrous campaign of suing their own customers for file-sharing, although there is nothing stopping them from continuing to do that. And, of course, this doesn’t impact the rash of nasty mass file-sharing suits brought by movie producers that started popping up last year. The press releases stress that the emphasis here is on education and not punishment, and the ISPs are saying that the “mitigation measures” won’t leave any customers without “essential” services like email or internet phone service.

Reaction to this from the Big Media toadies (which includes the Obama administration) has been predictably rapturous, like this is the coolest thing ever. Advocacy groups (like EFF, the Future of Music Coalition, and Public Knowledge) and reality-based news and commentary sites (like Ars Technica and Techdirt) have been skeptical, although some have been surprisingly lukewarm and even supportive of the program. I suppose the positive reaction stems from several factors including: the ISPs’ assurances that any kind of punishment will be an absolute last resort; that this silly program is much less onerous than most of the alternatives that have been floating out there, like France’s draconian “three-strikes” program that reportedly has people getting bounced off the net droite et gauche; and the fact that anyone getting caught downloading movies and music six times is a freakin’ moron we shouldn’t feel too sorry for in the first place.

But it is as troubling as it is absurd. It leaves customers with unprotected wireless networks and businesses offering free wifi vulnerable to harassment and punishment. All of these promises of “measured responses” made by all of these mega-corporations could well mean just the opposite. The “education” programs that offenders will be exposed to will consist of copyright maximalist tripe that will ignore the realities of fair use and the fact that the copying of copyrighted works is often perfectly legal, not to mention that Big Media has been digging its own grave with bone-headed policies for years now. And if this bizarre program does get off the ground, it will succeed only in driving users to file-sharing sites that are undetectable by the industry’s investigators.

In other words, the hopelessly banal game of copyright whack-a-mole keeps on rollin’.

7.6.11 Festival International de Jazz de Montréal 2011

2011-07-06T19:19:00.042-04:00

This is the long-form version of an article published in Metroland

So, here we go again to the Montreal Jazz Festival. The Festival ran from the 25th to the 4th, and I had four nights to cover it. I choose Monday the 27th to Friday the 1st, right in the middle of the schedule. Was this the best choice? Who cares! The Montreal Jazz Festival is so well put together, so perfectly modulated, and so huge (800+ concerts inside and out) that there can be no bad choices. I would imagine heaven to be like this, except here there’s better music and food.

My friend Dave was my co-pilot and executive programming consultant this time around. Dave’s a jazzbo, a sax player specializing in free and avant-garde jazz, who played and recorded for much of the ‘80’s and ‘90’s. It was great to be around somebody who understood this stuff...

Everybody makes snarky comments about the festival programming: A good chunk of what’s presented here ain’t jazz by any stretch. Most jazz festivals book pop music, and MJF probably more than most. And that’s OK. Jazz today is a genre in severe distress, and if it takes booking Prince or the B-52’s to get the numbers up, so be it. Somebody coming to see a pop show will likely wind up at a jazz show, too, and might learn something about this rich, complex, and rewarding genre.

As I mentioned last year, what’s so remarkable about this festival is that it’s so easy. Free shows are going constantly, from mid-afternoon to late, on six stages spread around the Place Des Arts complex which is located smack in the middle of the city. Ticketed shows take place in the several beautiful concert halls in the Place Des Arts or in smaller venues a block or two away. Schedules are available everywhere, food is available everywhere, drink is available everywhere. Shows run on time. Despite on-going construction in and around the festival site and tons of people going every which-a-way all the time, one can always get from one end of the festival to the other in about five minutes.

And then there’s the city itself. It’s got that French thing going on, you know. And that means, among other things, that the food is good. Great. Astounding. And the bistros on St. Denis or Old Town are a 15 or 20 minute walk from the festival.
Good shopping, too!

What’s not to like? Absolutely nothin’. Say it again y’all.

DAY ONE

How easy was it? How’s this: we drove into town, and inside of an hour were checked in to the hotel, got press credentials, had a beer, had some food, dodged a gaggle of freakin’ mimes, and were in our seats at the Theatre Jean-Duceppe for Marc Ribot’s Caged Funk.

Which was a strange show to start out with. Guitarist-composer Marc Ribot is a downtown NYC icon of the avant-garde, noted for inventive uses of the electric guitar and collaborations with everybody from Tom Waits to Elton John. This was the last of three nights of Ribot shows, following a night with his trio Ceramic Dog and another with his Latino ensemble Y Los Cubanos Postizos.

Caged Funk grew out of a joke Ribot made to a promoter a few years ago after a few drinks about starting a funk band that played nothing but John Cage tunes. The promoter booked it on the spot. So, Ribot wrote some charts with guitarist Marco Cappelli and debuted the works last year and reprised them here. He brought some serious firepower for this show: Cappelli on guitar, Bernie Worrell on keys, Brad Jones on bass, DJ Logic on turntables, and JT Lewis on drums.

It was a difficult show. The material was, shall we say, challenging. It didn’t help that the group was severely under-rehearsed—everybody had their heads deep into sheet music, and you can’t bring the funk if you’re reading goddamned sheet music. Of course there were moments, like sparkling solos from Ribot and Cappelli, DJ Logic creating turntable magic, and Worrell playing the inside of a grand piano with a pencil. Ribot’s solo piece Some Of The Harmonies Of Maine was pastoral and lovely, albeit a little long. But too much of the show was a lot of bleeps and blurps, with the seated Ribot gesturing franticly, the other musicians staring at their sheet music and looking perplexed, and almost none of the groove thing suggested by the show’s title. Nothing ever really cut loose; there was plenty of tension and little resolution. A video of the performance I found on the web reminded me of nothing more than those hysterical “Shreds” videos on YouTube that feature classic rock performances overdubbed with fractured, absurdest music. Ouch.
Tell me I'm wrong.

Oh well. Next! I stopped in at L’Astral, a smallish theater dolled up like a nightclub, to see international popster Keren Ann. I caught the last song by opener Chris Garneau and was blown away. Playing and singing with his back to the audience at a grand piano, appearing to be painfully shy, he whispered when he spoke and sang dramatic yet simple songs in a breathy voice a la Antony or Chan Marshall. And as affected as that may sound, it didn’t come off that way. It was beautiful, emotional, and the packed house was riveted.

Keren Ann, with whom I was barely familiar, didn’t have a drummer, and I’m sure that had everything to do with money. Damn the economics of touring today. She needed one. While the initial downtempo songs were marvelous and atmospheric, with only an acoustic guitarist and pocket-trumpeter for accompaniment, the bottom fell out whenever she tried anything upbeat. Which is too bad. Keren’s a great singer, songwriter, and guitar player with stage presence to burn. But an audience should not have to conjure up drums in their heads to make a performance work. Looking forward to seeing her do a proper show one day.

Then it was but a few steps to the massive Scene TD stage for Galactic. Led by drummer Stanton Moore (who looks surprisingly and disturbingly like Seth Rogen), Galactic is known for massive big-beat New Orleans instrumental music, and that’s what was delivered, at least starting out. Big and bouncy. A few songs in they brought out Living Colour’s Corey Glover, dressed like he was going to a golf outing circa 1920, and things went up a notch. Then, strangely, the band quieted down, and played a few mid-tempo funk-lite pieces that wouldn’t have been out of place on a Crusaders record. The late-night crowd’s interest was starting to wane, but Galactic brought it back with a stone rocker that featured an incredible Moore solo, with him on the lip of the stage playing a snare drum and various other things that were held up by his bandmates, who were also holding microphones all around to get the madness through the sound system. The effect was great in all sorts of ways, especially sonically. Then the band started in on what seemed to be a light reggae groove, Glover came back out, then a familiar guitar wah-wah thing started to repeat. Dave looked at me and said “is this what I think it is?” just as the band exploded into Led Zeppelin’s epic “How Many More Times.” When they landed on that riff, Moore was standing behind his drums, hitting everything he could hit was hard as he could, beaming and looking like a happy wind-up monkey. What a way to close day one.

DAY TWO

My festival routine goes like this: work in room through the morning, go have a ridiculous late lunch, nap, then go to shows. It works out well for me.

So, early afternoon we walked up to Rue St. Denis and the uber-French bistro L’Express. We’d both eaten here before and were way psyched to be back. We were seated in the back under some skylights. I ordered Rillettes L’Express because I had no idea what it was, and the Sauté Canard Confit avec Salade, Dave got the Salmon Frais du Something Something. And out came the kick-ass pickles. Les RillettesLe ConfitDave's Salmon du Something SomethingLes Pickles du Kick-ass

I finished the Rillettes and still had no idea what it was, other than kind of a pate kind of deal. I just looked it up and see that it’s a pate kind of deal usually made with pork, although I think mine was made with tuna. It was good, although a little mild. Didn’t know what a confit was either, and now see that it’s laboriously prepared hunks of duck; had I known that I would have paid more attention to my duck. Dave made out big time with the salmon, which looked fantastic.

Nap.

Off to my favorite festival room, Gesu, a small grotto-like concert hall in the basement of a former church about half a block from the festival site. We saw a 6 PM show featuring Fly, a trio of youngish NY jazz vets: saxophonist Mark Turner, bassist Larry Grenadier, and drummer Jeff Ballard. The music was stridently post-bop, with hints of blues and swing tossed in here and there. The group was captivating. I was focused on drummer Ballard, first out of annoyance; he had this odd style, quietly stabbing at the drums and not letting the sticks bounce. He looked awkward and stiff. Then I began to appreciate the ingeniousness of what he was doing, and I found I was fixating on him to the exclusion of everybody else. In amazement. Bassist Grenadier was agile and lyrical on the stand-up bass, and towards the end brought out a bow and played the bass like it was a fiddle and we were at a hoedown. Turner might be the most understated musician I’ve ever seen. He stands in one place, feet together, and moves slightly up and down while he plays, bending at the knees. It didn’t help that he was a black guy, dressed all in black, standing under a wash of green light, while the other two were white guys in white shirts standing under white floods. In any event, Turner was a measured and interesting player with a beautiful and controlled tone that echoed the dry woodyness of Coltrane’s alto sax.

We flew out of Gesu and hustled down to Metropolis for Bootsy Collins. Metropolis is a old theater-turned-club with a 2300-person capacity, and word had it that seating was at a premium. There was no way us two geezers were gonna stand for what promised to be a marathon show, so we got there an hour early to get seats. Good thing, too. We got third row stools on the tiered balcony; and within 20 minutes the balcony was packed.

At 8:30 on the dot a young band, dressed in jeans and t-shirts, started laying down one big super funky groove. This is a bit of a casual look for a Bootsy band, I thought, but the sound is definitely right. Then, out walks this tall skinny black kid waving a trombone in the air, and the crowd goes batshit.

This was my introduction to Trombone Shorty. I had no freakin’ idea. I haven’t watched Treme, where a lot of people know him from. I’ve seen the name, he’s played Infinity Hall down the road. Based on his name, I assumed he was a little old dude playing some NOLA second-line stuff on trombone. Ummm, wrong! Where, exactly, the hell, exactly, have I been? I’ll answer that. I don’t know. Just out of it, I guess.
Trombone Shorty nee Troy Andrews is hands down the most incredible individual performer I have ever seen. And I’ve seen a few.

He and his band took no prisoners with a huge funk sound (helped by a spectacular sound system and someone on the board who knew how to use it) with Shorty soloing over the top on trombone and trumpet, with a pair of saxes riffing in the back. The tunes were all great, the show started on a plane waaaay up there and then climbed higher. Breathtaking. It occurred to us that this was what Galactic was supposed to do the night before, and didn’t. This was like a younger, beefier Tower of Power on lots and lots and lots of steroids. The drummer pounded with long hair flying, like a young Dave Grohl. The whole band was locked in.

Lately, I’ve seen and heard a lot of wimpy anemic music. It seems like the entire alternative music scene has been taken over by sensitive neutured guys with acoustic guitars and ukuleles and lousy beards singing about their freakin’ little feelings like I freakin’ care.

Trombone Shorty kicked the ass of all that and most everything else, too. Severely. After an hour of this relentless, heart-stopping, cerebral funk, Shorty, now stripped down to a wife-beater and raggedy jeans, traded 8’s for a few minutes with the saxophonists and the guitarist. These dudes could all play, not surprisingly. At this point the entire crowd, right down to the most lethargic, jaded, and brain-dead, were totally, helplessly engaged with everything happening on the stage. The room was going nuts.

Then the band suddenly took it down, to the first quiet groove of the night, and Shorty stood, slightly crouching, looking away from the crowd. Then he pounced, grabbing the mic, leaning into it, and letting go with a perfect: “bayeeayyyyybee”, and hello Marvin Gaye. Sexual Healing. Devastating. Time stops. Yup, Shorty sings, too. Oh man can he sing.
He next introduced a song by “our hero Louis Armstrong”, and off they went with a fairly straightforward version of “Sunny Side of the Street.” Shorty took the solo on trumpet, and it was pure Satchmo, the tone, the trills, the feel...I actually started crying right here, I was so moved. Then the solo changed, Shorty landed on a note and held it while the band vamped. Circular breathing. Two minutes, three, four? He kept the round tone and the pitch absolutely steady, with a barely-perceptible dip just before the top of the passage. The crowd was howling when he ended the exercise with an upward shriek and collapsed on his back. Cheap theatrics? Yup. Easy to do? Nope. Effective? Oh god yes.

Encore, more hard funk, with some 70’s style All Band Movement, then just to make the sublime go to another dimension, they all switched instruments mid-song. Without dropping the beat. Shorty was now drumming, the drummer was on guitar, the bassist and conga player were on horns, like that. AND THEY STILL KICKED ASS.

And that was it. Dave and I traded hyperbolic “best show” this and “best show” thats. Which is not unusual after a really good show, we all do it, and then one usually wakes up the next day realizing that OK, that show was great, but the best? C’mon.

Neither of us had those second thoughts the next day. Or now. This was seeing someone totally game-changing just as he’s hitting full gallop. Like seeing Springsteen in 1976 or Prince in 1980. And I don’t use these parallels lightly. Go see him soon, before he slicks up, slows down, or morphs into something else. No one can burn this bright forever.

45 minutes or so later and it’s Bootsy time. The band comes out as the DJ plays a narration about The Funk, Parliament Funkadelic, George Clinton, Bootsy, The Mothership, etc.. The band starts vamping while a big MC stalks the stage, continuing the fascinating discussion about The Funk, etc. Big, and suitably ridiculously attired, band: two keys (including Bernie Worrell, back for more), a DJ, assorted singers and horn players (including a singer all in white, with a white miniskirt, and furry white knee-highs), and assorted guitarists and two bass players (Bootsy would make three). And out comes Bootsy, in a shiny sparkly gold suit, top hat, and platforms, along with the star-shaped shades and star-shaped bass. Star time.
I gotta tell ya, after Shorty, this was all a bit silly. And not good silly. Kind of pathetic silly. And we had come for Bootsy, we’d come for exactly this. And it was WAY too loud. Bad loud. Violent, hurting loud. So loud you couldn’t hear anything. A booming din without definition, without form. After the second song, Dave and I looked at each other, and without saying a word, we split. And we weren’t the only ones. There was no point in staying. Night, Bootsy.

DAY THREE

For lunch we went to La Paryse, a tiny joint a few blocks from the festival that is touted as serving Montreal’s best burger. I went last year and liked it fine. And I liked it fine this time, too. But best burger in Montreal? Doubtful. Fine, righteous burger nonetheless? U-bet.

Nap.

5 PM, and we hit the Heineken Pavilion, where roots-rock was presented on a little open-air stage. We wanted to check out a band we’d gotten just a glimpse of the night before, local Montrealers Buddy McNeil and the Magic Mirrors. Dressed ludicrously in sailor garb, these folks played raw, goofy, 50’s-60’s garage / primitive music with a ton of smarts and soul. In the same territory as The Cramps or Southern Culture on the Skids or The Detroit Cobras or our Knyghts of Fuzz, every song was full of familiar riffs and disarming lyrics and a surfeit of attitude. The cutesy-pie girl bassist was a star, as was the loose-limbed lead singer, who sang like Richard Hell and had a pocketful of cool Keefer moves. The jazz festival audience, sitting on resin chairs and eating and drinking, didn’t seem to have a clue what to make of this. But the waitresses were all dancing, every single one. And sometimes that’s enough.

Back to Gesu, to see Darcy James Argue’s Secret Society, an 18 piece big band that played Argue’s compositions with Argue conducting. The band looked disheveled and grim, and Argue was initially a dark presence on the stage. Turns out they’d played Vancouver two nights before and Ottawa the night before and probably hadn’t slept much. But the music was glorious, lots of Philip Glass-like repetition underneath layered with long, complex, but rarely discordant, notes over the top. This music had almost nothing to do with traditional big band music. This was really a chamber orchestra, with five trumpets (who all also had flugelhorns), four trombones, and an interesting assortment of winds, including bass clarinet and bass flute.

The band and Argue warmed up as the show progressed, with Argue revealing a charming, if dry, wit. The song topics and inspirations revealed a vivid imagination and wild range of interests; the moon disintegrating, the Jacobin Club, an imaginary Brooklyn, Maher Arar, the innocent Canadian victim of US rendition, and taking the Fung Wah bus to Boston. Every song was fascinating, provocative, and beautiful. I’m hoping Argue gets big money gigs scoring major films. That’s where he belongs.

Down the street to Club Soda, a club set up similarly to Metropolis, but half the size. Lee Fields and the Expressions were mid-set. Fields is an old school soul shouter who’s been putting out records on obscure labels, often his own, since the 1970’s. His recordings have been the bounty of crate-diving collectors; Fields is associated with and uses musicians out of the stable of the soul revivalist label Daptone Records, who’ve brought you the likes of Sharon Jones and Naomi Shelton.

Maybe I’m weary of this “authentic” soul revival thing. I dunno. Perhaps this is unfair, but it feels like Brooklyn white hipsters presenting distinctively black performers to other white hipsters. Like some kind of cross-cultural freak show. There’s something unsettling about that. Here was Fields, in his ruffled shirt and fronting an all-whiteboy band. The first thing I heard him say was “This song is for the ladies. C’mon everybody, give it up for the ladies.” The white hipster crowd swooned. Why, they’re so close to the source! Givin’ it up for the ladies! I just had to sigh. There was something seriously wrong here.

So, I wandered block up to the world music stage where the Roberto Lopez Project was cranking out salsa and a range of other afro-cuban styles. They were good and they were fun. I was shocked to later learn that the band is Canadian, made up mostly of ex-pats from various Central and South American countries. Fronted by the radiant Massiel Yanira (El Salvador) on vocals, the group sizzled with intelligence, energy and charm.

Then a block over to the blues stage for Lucky Peterson. I grew up watching Peterson, known then as “Little Lucky,” playing the organ on the Buffalo morning TV show “Bowling for Dollars.” (Yes, only in Buffalo.) I wanted to tell him that the last time I saw him he was sitting on Howlin’ Wolf’s lap in a Buffalo juke joint in 1970. I wonder if he remembers that. Sadly, Lucky’s show, what I caught of it, was a mess. Starting out as a trio with Lucky on organ, music was a secondary consideration to “entertaining” the people with incoherent buffoonery. After a couple songs Lucky, who’s not so little anymore, picked up a Tele and started wailing with Hendrix riffs. He somehow got his 300 pound body off the stage and into the crowd, where he pretty much stopped playing, leaving his bassist and drummer to riff and look at each other for about 5 long minutes. Strange. Then his daughter came out to sing, Lucky reappeared, it was more than halfway through the “set” and I split as they launched into a tepid version of “Take Me To The River.”

Grabbing a quick slice at the Heineken pavilion we could hear and see what was going on at the big Scene TD stage. A Canadian female singer named Ima, some kind of Faith Hill wannabe, did totally banal versions of “Me and Bobby McGee” and “Fire.” On the biggest stage at the festival! Really?

Finally, back to Gesu for an 11:00 show of Apex, featuring alto saxophonists Rudresh Mahanthappa and Bunky Green. What an odd and cool pairing—Rudresh, young and eclectic, and Bunky, the elegant veteran and celebrated jazz educator. Great couple of names for the marquee, too. My notes for this are as incomprehensible as my brain was fried for this show, but I recall lots of fireworks, one very Eastern sounding tune (Rudresh, very much a Midwesterner, discovered Indian jazz while at Berklee and has spent much of his recent time introducing it to the world), and a couple of gorgeous Green ballads. Rudresh’s powerhouse style contrasted nicely with Green’s more nuanced playing. The set was marred only by the overplaying and overpowering of drummer Damion Reid. Reid is as technically proficient a drummer as you’ll find, jaw-dropping, in fact, but his aggressive playing often obscured whatever else was happening onstage, especially the terrifically constructed solos of pianist Matt Mitchell.

With all the running around to 5 shows, I totally forgot that Fitz and the Tantrums were playing on one of the free stages. Damn, that one was on my must-see list.

DAY FOUR

Got up and found a real 'murkin breakfast in a Vietnamese diner.

Then we walked across town to the Montreal Museum of Fine Art; the featured exhibition was the “art” of Jean-Paul Gauthier. Give me a break. The rest of the museum was mediocre at best.L'art, mon amis

Decided on an early dinner, tried to get into Au Pied De Cochon and couldn’t, so we wound up at Bieres et Compagnie on St. Denis which came highly recommended...it was interesting (lots of beers and a three-page mussels menu) but not quite spectacular.les mussels de something or other and some tasty sausages

So then it was time for....Peter Frampton! I put in for Frampton tickets because, well, I don’t exactly know why. Because there wasn’t a whole lot going on otherwise? I guess. Because I have a soft spot for the guy? Maybe. Because it was a silly thing to do? Guilty! The show was in the big (3000 seats) Salle Wilfrid-Pelletier Place des Arts, the most beautiful modern performance space I’ve ever been in. A really cool space.

OK, what do Canadians have against aisles? In all of the big halls I’ve been in, you can enter from the far left or far right, but there are no center aisles. Which can be pretty weird when the hall is 50-60 seats across like this one.

Anyway, the show was the 35th anniversary performance of Frampton Comes Alive and it was sold out. There was tangible excitement in the air. Really! I was thinking about how few have risen so high and fell so quickly and completely as Peter Frampton, how the utter shellacking he took from the rock press and the public in the late 70’s was unfair and undeserved. In a few short years, the guy went from highly respected blues guitarist (I mean, five albums with Humble Pie!) to someone nobody would admit to ever liking. How the punk movement rendered obsolete and laughable rock stars in white suits. But here was Frampton, 35 years later, reliving the dream. Perhaps I over-romanticize, but that’s my story and I’m sticking to it.

He came out beaming to a hero’s welcome, looking hearty and healthy at 61. He had that black Les Paul with the three pickups and he launched straight into “Something’s Happening”. The band was on and included bassist Stanley Sheldon, who played on Frampton Comes Alive the first time around. Frampton noted that the show was going to be in a different order than the album, because the order of the original show was changed to fit onto vinyl albums, and also that songs that didn’t make it on the album but were in the original show would be played. Gotta like that attention to detail. He emphasized certain lyrics that acknowledged his strange journey, like “never to accept defeat” from “Lines On My Face”; before I had to split I’d heard “Show Me The Way”, “Take Me To The Sun”, “Baby I Love Your Way”, great pop songs all... He directed most of his solos at bassist Sheldon. He likes being in a band. And he can still play that guitar. There was nothing wrong with this show. I’m so glad I was there.

Over to the world music stage for a taste of Baloji, a Congolese-Belgian whose name we’d been making cruel fun of all week (like “what’s his first name, Heywood?”). Idiots we are. Baloji & his band laid down a brilliant mix of Congolese / Nigerian traditional and afro-pop styles, informed heavily by American hip hop and soul. The lanky Bajoli was mesmerizing, charismatic and defiant in his delivery, like an African Joe Strummer. I could have watched him all night, but could only hang for a couple of songs, because...

I had to boog to get up to the big stage in time for the highly-touted New York salsa band La Excelencia. A top-shelf band to be sure, but they weren’t remotely ready for their close up. The press on them says they care more about social issues and the music than fashion or glamour. Which is fine, but dudes, when you’re on the big stage, with the huge projection screens and the massive lights and 20,000 or so people out front, you gotta put on a show! The lead singer, decidedly non-glamorous and dressed nondescriptly in black, rarely ventured far from the mic; the music, while solid, lacked the drama that typically gives salsa its kick. It wasn’t until the very last song that we got a piano solo (and a conservative one at that) and a percussion break. La Excelencia put on a great dancehall show; unfortunately it was for a stadium-size audience, and it simply didn’t read.

And that was it. Time to go home. Madge is on the phone. Thank you Jazz Festival. You rock. Thank you Montreal, you lovely city you. I’m already looking forward to next year.

6.30.11 HEY HUGH GET OFFA MCCLOUD PART 2

2011-06-30T08:36:00.003-04:00

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.

6.16.11 LAP DANCE LAW

2011-06-15T23:21:00.004-04:00

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 ArtInfo.com, 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.

6.2.11 BREAKING THE INTERNET

2011-06-02T19:15:00.003-04:00

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

2011-06-02T19:00:00.002-04:00

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.

5.19.11 HEY HUGH GET OFFA MCCLOUD

2011-05-19T10:51:00.002-04:00

This article originally appeared in the 5.19.11 issue of Metroland

Everybody’s talking about The Cloud. Microsoft, in a series of typically cloying advertisements designed to communicate simple ideas to folks who aren’t all that bright, has actors proclaiming, like so many low-rent Captain Kirks: “Take me to The Cloud!”, so they can look a some crappy family photos stored there. Google has been all about The Cloud for a while now---GMail stores all your precious emails there, and there’s all sorts of business and other applications that you can use remotely, without installing big program files to your computer, without worrying about updates or storage or some virus wiping the whole thing out. A slew of laptops are coming out that use Google’s Chrome operating system, which apparently pushes an awful lot of we’re used to doing on and in our computers into The Cloud. Amazon and Google (and soon Apple) have brand new cloud-based music storage services, where you can upload music from your hard drive and then listen to your music on whatever device wherever you are. And one day, one day soon, the major record labels are going to break down and allow true and affordable subscription streaming music services where everything ever released will be available for your listening pleasure at the push of a button. From The Celestial Jukebox, a/k/a The Cloud. Oh yeah, and then there’s Netflix. And that silly little thing called Facebook. The future looks cloudy.

For some of us, going to The Cloud involves a leap of faith, and one we’re not quite ready to make. I like the fact that all my e-mails, all my 52 days of music, all my pictures and my work files are right here on my lap and in that little black box on the corner of my desk. Call me old-fashioned, but there they are, right in front of me, where I can look at them. Sort of. What if everything was in The Cloud? Where, exactly, is that? Up? On some server where? In this country? Guarded by whom? And it got there how?

Say I go all-in with The Cloud. It’s only as good as is the availability of broadband wifi. I live in the Berkshires, where, despite a lot of talk about universal broadband-this and fiber-that, the vast majority of the area has no broadband. None! Hell, even the cell-phone coverage sucks out here! And while my cable-broadband service has been increasingly reliable, it does go down, and when it does I’d be completely out of business. And traveling? Fuhgettaboutit. Trains, airplanes, hotels, strange cities? The availability and quality of internet access while traveling is a crap shoot, which makes The Cloud, for now, a bad bet, especially when the alternative is having it all on my lap, all the time. Backed up. Right here.

And recent news doesn’t make me think this is gonna change anytime soon. A few days after Amazon announced its cloud-based music storage thingee (which, frankly, I just don’t get) Amazon’s entire cloud infrastructure went down for days, taking with it various social networking applications like Foursquare and lots of online retailers and lots and lots of frustrated people. Oops. Microsoft’s Cloud went down numerous times just last week, leaving all sorts of businesses twiddling their thumbs. Like a power outage. But worse.

Perhaps the most alarming event was the virtual destruction-by-hacking of SONY’s massive PlayStation network, which was accompanied by the compromising of the personal data of its 79 million subscribers. (As an aside, seems to me that if some hackers were looking for high-value personal info they wouldn’t be seeking data on what must be primarily male couch potatoes whose idea of a great night is playing Grand Theft Auto for six hours. But perhaps I’m missing something.) The system has been out for weeks and still is not right. Weeks.

Here we have three of the main behemothian mondo-gods of the internet, and they can’t keep their clouds together? Really? And I’m supposed to feel like rushing headlong to trust them (or anybody else) with my modest, but to me, profoundly important collection of stuff? Why, exactly, would I do that? For piece of mind? For convenience? To save money? I don’t think so. As to the economics part, I see where two terabytes of memory in a little book-sized device is ducking under the $100 mark. That’s, like, nothing.

Apparently much of the business world is committed to taking everything to The Cloud, and soon—I suppose at a certain level, many large networked businesses have been there for a while now anyway, and it’s just a matter of who’s running it and how well. But for you and me?

I’m thinking this is one these columns that I’ll look back at and say “geez, what a close-minded ignoramus I was.” I feel like I’m pushing against the tide. Many of you reading this know more about this stuff than me. Tell me what I’m not getting.

5.5.11 COMIN' TO GITCHOO

2011-05-04T21:02:00.002-04:00

This photo was so stolen from Nicholas Lue without permission. This article originally appeared in the 5.5.11 issue of Metroland.

Seven years ago, the record companies decided the best way to combat online “piracy” was to sue people. People like you and me. Mostly, the industry focused on college kids using peer-to-peer networks like Kazaa and Limewire, virtual networks that were for a time, immune to effective legal challenges. So they sued kids. It was bone-headed and destructive, it did nothing to slow down the movement of music across the internet, and it reportedly cost the labels many millions more than was collected from their victims.

A couple years ago, the labels announced they’d stop the nonsense. There are a few court cases still lingering, dealing with issues like why damage awards in the tens of thousands of dollars are appropriate for the filching of digital files that cost ninety nine cents at the iTunes store. But for the most part, things are quiet on the music downloading front.

Not so in other media. A few media players have decided that suing people for downloading stuff is still a good idea, despite the catastrophic failure of the tactic in the music world. And it’s not clear they’re faring any better than the record labels.

A handful of movie producers (most notably the producers of The Hurt Locker and The Expendables) hired a private law firm (that deceptively calls itself “The U.S. Copyright Group”) that has investigators collecting internet addresses (a string of numbers that identifies an internet subscriber’s location) where movie downloads are detected, and then the law firm demands that internet service providers reveal the names of the subscribers with those addresses. Nasty letters are sent out demanding thousands of dollars, and all the folks who don’t respond are sued in big mass lawsuits. There’s a former divorce lawyer in Chicago doing the same thing for some porn companies.

Here we go again. You get a letter, or worse, a summons and complaint, telling you in stilted legalese with a lot of unnecessarily capitalized and italicized words that you’ve broken the law and are liable for up to $150,000 in damages. You’re given a phone number to call and the rude person on the other end of the line tells you this can all go away if you pay $4000 right now. And yes, they take credit cards.

Finally, a few judges out there are recognizing the incredibly unfair nature of all of this. It’s a shakedown. First, a number of judges have thrown out the mass-lawsuits, where thousands of individuals from all over the country are sued in a single action. Essentially, the judges have been ruling that people need to be sued in the jurisdiction where they live, that it offends due process to force people to defend themselves in a far-away court in a lawsuit involving the downloading of one movie. This, of course, makes the prosecution of these suits much more expensive and administratively difficult. Maybe prohibitively so.

Another interesting twist happened last week when a judge tossed one these mass cases and wrote about the inherent unreliability of matching up an internet address with the individual who may have downloaded a movie. One major problem is the explosion in the number of wireless internet networks in the last few years, and the tendency of folks to leave their wifi networks open without passwords. An internet address can pinpoint where downloading took place, but the who can be a different issue altogether. The judge referenced a recent FBI raid in Buffalo, where a young family were assaulted, had their house ransacked and all their computer gear seized by a bunch of G-men looking for child porn. Turns out there was no child porn anywhere in the house, but there was a wifi network, and a perverted neighbor.

Equally chilling is a bunch of out-of-control lawyers who call themselves Righthaven, who have been trying to police copyrights for a couple of newspapers, the Las Vegas Review-Journal and the Denver Post. What these guys are doing is trolling the internet, and when they find an article or photo from one of these newspapers on a website or blog they haul off and sue. No take-down notice, no cease and desist letter. Bang!

Righthaven has gotten slammed in the courts for bringing suits where the reuse of an article or photo was obviously fair use and perfectly legal; in one case they sued someone who published a report on a Righthaven lawsuit who included the photo that was being sued over! Matt Drudge has been sued. The New York Times reported this week of a 20-year old blogger getting sued after posting a picture of an airport patdown, a picture that had already gone seriously viral all over the internet.

All of this is the sad flailing of industries in decline, of resistance to evolutionary change, and of lawyers taking advantage of outdated legal paradigms. And it’s the little people that are getting hurt.

4.21.11 THE NEGRO PROBLEM

2011-04-20T21:10:00.003-04:00

This article originally appeared in the 4.21.11 issue of Metroland. Pic stolen from Bryan Thomas' FB page and it must have been taken by Matt Mac Haffie. And do click on the Metroland hyperlink up there.

STEW AND THE NEGRO PROBLEM

Helsinki on the Hudson

April 15, 2011

“You know how when you’re black and you’re in Aspen?” Thus started a typical rambling and hysterical soliloquy by Stew. His long-running “band”, The Negro Problem, consisted this night of just his long-time collaborator Heidi Rodewald, although he hinted at bringing an 11-piece band back to Helsinki next time up. But the two-person line-up was better than fine. It was casual, nimble, and it was all Stew all the time.

The Aspen set-up led to the song Black Men Ski, with Stew singing the last verse with a ski mask pulled over his face. The effect was typical for the evening: revealing, absurd, bittersweet, biting, and in the context of Stew’s world, oh so funny.

Like their rangy Tony-award winning play Passing Strange, racial issues never far from the surface but were only one of numerous targets of Stew and the NP’s skewed tunes: he took on liquor (while simultaneously enjoying several Guinness Stouts), drugs, Brooklyn hipster moms in bars with strollers ( the side-splitting “Sexy Brooklyn Mommy”), and sexual stereotyping (in what he called “the 47th or 48th song about gay Ken dolls”, starting with the lyric “My name is Ken. I like men” and blossoming into an opus-like extravaganza about a gay Ken rebellion).

At some point, I stopped laughing long enough to remember I was reviewing the show. I wrote down “omnipotent black Buddha with perfect comedic timing.”

Rodewalds’s presence grew through the evening, revealing more bit by bit, to the point where she took a monologue or two and sang a couple; but throughout she called the songs, drove the bus, was the glue on bass and keys. Fascinating dynamic up there.
Of one mind and relentlessly musical.

They did a couple songs from “the play” and made a big deal of an obligatory run-through of “Gary, Please Come Home” a song they wrote for Spongebob. “When I die and when Heidi dies people won’t mention Passing Strange or any of the great albums we made. You know you’re fucked up when the first mention is of a song you wrote about a fucking snail that isn’t even real.”

They call it “Afro-baroque cabaret”. That’s pretty good. Randy Newman occurred to me once or twice. The refreshingly multi-racial crowd was heavy on laughter but light in number, and we’ll chalk this up the fact that this was a late booking, announced little more than two weeks out. How many Tony awards and Spike Lee movies do you need to pack a club? The Helsinki folks didn’t seem phased. Stew shall return, maybe with the big band. Watch out.

4.21.11 ART ATTACK

2011-04-20T20:44:00.004-04:00

This article originally appeared in the 4.21.11 issue of Metroland

This past October I got a call from a woman named Melanie Gold, who lived in Warwick, in Orange County. Melanie was a teacher who’d applied for and had been awarded a small county grant to commission a couple of murals to be installed on an old factory building on the main road leading into the nearby Village of Greenwood Lake. As she explained to me, all she wanted to do was spruce up the place, which was getting a little long of tooth. She had a couple artists ready to go, the building owner was all for it, and she’d checked with Town Hall that it was perfectly legal. But then the Mayor and the Village Board caught wind of it, and told Melanie that she couldn’t put up her art without their approval, despite the fact that there were no village laws about public art. There was something control-freaky going on.

That’s when Melanie called me; I think she’d heard me on VoxPop or something. She was very distraught and it was clear she wasn’t some narcissistic hipster or agitprop troublemaker—rather she was a nice lady trying to do something nice for her town, and trying to make sense of what appeared to be small-town small-minded power-mad politics. She didn’t want to be talking to me about this.

Could they do this to her? Ix-nay! Remember 15 years ago or so when the Town of Colonie tried to ban a couple big honkin’ Daniel Ben-Schmuel metal sculptures from a guy’s front yard, except the Town didn’t have a law to base the ban on? No? Well it happened, and the Town got spanked in court, bad. Melanie’s was an almost identical situation.

I really wanted to jump on this one, but couldn’t--I was staring down the barrels of three upcoming trials and couldn’t take on another pro-bono-maybe-a-contingency-someday kind of case, no matter how noble the cause, and this was about as noble as they come. But I was able to get Melanie a meeting with the fantastic folks at the New York Volunteer Lawyers for the Arts and they found some lawyers at a big Manhattan firm to take the case.

Meantime, the Village, apparently fearing an art epidemic of some sort was about to break out, passed a total ban on public art in Greenwood Lake. Melanie, at this point suitably p.o.’d, went ahead and installed her paintings (nice, sedate landscapes) on the factory building anyway, and the building owner was issued a couple citations with reported fines of $25 each.

I mean really, have you ever heard of anything so pathetically petty and stupid in your whole life?

Village, meet the Manhattan lawyers. Village, meet the nation of laws, not men. Village, meet the First Amendment. A federal lawsuit was filed in February, and it didn’t take long for the Village to back down and settle. Their new little law trying to outlaw art is toast; so are the $25 citations. Melanie’s art stays up. I hope the lawyers got paid. We all win.

Moving on. YouTube this week unveiled its “Copyright School” video, which is just breathtakingly bad, dangerous in fact. Apparently, if you are accused of posting infringing material on YouTube, you now have to watch this 4 minute copyright tutorial and take a quiz before you can continue as a YouTube user.

First, this applies when a complaint (called a “take-down notice”) is filed. Even for sham notices. Maybe somebody is getting harassed with fake take-downs, or over-reaching take-downs (like Prince’s infamous take-down of a 20 second video of a baby dancing to “Let’s Go Crazy”), maybe the person gets hit with a bogus take down notice every week. Now this person, who’s entirely innocent, has to watch this insidious video (see below) and take the same test every week?

Not only is the concept nonsense, the Copyright School video itself is utter crap. It’s a silly, breezy cartoon, featuring what appears to be a lime-green feral cat in a pirate outfit, and the swarmy narrator pooh-poohs mash-ups, suggesting that “creating original works” is instead the thing to do, and actually mocks the fair use doctrine as too complex to deal with.

As Mike Masnick said over at Techdirt “[f]or a company that employs both William Patry and Fred von Lohmann, you would think that the video would be a lot better,” referring to parent company Google’s legal staff that includes the dean of fair use lawyers (Patry) and the irrepressible former lead counsel with the Electronic Frontier Foundation (von Lohmann). You got that right.

Maybe Google thinks it has to dog-and-pony the issue because of its ongoing legal battles with Big Media companies like Viacom. But it doesn’t have to spew mis-information and the worst kind of copyright absolutist dogma. Shame on Google.

4.7.11 UP AGAINST THE PAYWALL

2011-04-06T21:37:00.003-04:00

This article originally appeared in the 4.7.11 issue of Metroland

Last year I reported on a lawsuit in which Eminem’s production company had successfully argued that it was entitled to 50% of record label revenues from the sale of digital downloads, instead of the usual 12% (or so) royalty it had been receiving. The theory of the case was that download sales were “licensed sales” by the label; the label did little but hand off a single digital file to each of the various digital stores (like iTunes and Amazon) and then wait for the checks to roll in. Contrast that to CD or album sales, where there is a physical thing that is manufactured, packaged, stored, shipped, etc.. In most record contracts, the revenue from a licensed sale is split 50-50 between the label and the artist, while with CD sales artist typically gets somewhere around 10-15% of the retail price of the CD. And all the major labels have been treating downloads like CD sales. And lots of artists felt they were getting reamed.

In September a federal appeals court, reversing the trial court, agreed with Eminem, and ruled that download sales were licensed sales, and Eminem was entitled to a 50% cut. The record company, Universal, jumped up and down and said it was going to take the case to the Supreme Court. I observed at the time that the high court wouldn’t be interested in the case, which was in essence a simple garden-variety case of contractual interpretation that the trial court had gotten horribly wrong and the appellate court right.

May I gloat? Thank you, I will. Last week the Supreme Court declined to hear the case. Eminem is in for a big payday, as he’s been stiffed big time on a couple of his biggest albums. A few commentators have mentioned that the labels may now be facing billions of dollars of payments to its legacy artists who have all been hideously underpaid for digital download sales.

Meantime, Universal is still jumping up and down. This time it’s saying that the effects of the ruling are limited to Eminem, and that everyone else’s recording contracts are somehow different and immune. Bullshit.

It never ceases to amaze me how big corporations feel that their free speech rights allow them to brazenly lie whenever it suits them, whenever it might protect “shareholder value”, if only for a few days. Here Universal is lying to protect shareholder value by lying to its shareholders so they won’t do the only rational thing there is to do here, and that’s to dump Universal (and any other major-label) stock plenty chop chop.

The language of Eminem’s contract was typical across the industry, and so it didn’t take long for the other shoe to drop. This week the estate of Rick James brought a class-action lawsuit against Universal on behalf of it and all “similarly situated” recording artists. They all want of that sweet, sweet Eminem money. Expect similar suits against the other major labels soon.

Karma’s a bitch, bitch.

In other news you may have heard that the New York Times is now trying to charge money for online access to the ol’ grey lady. Well, sort of. The paywall only clicks in when you want to see your 21st article in a month. The first 20 are free. And then, it’s kind of a half-assed paywall. I’ve read if you click on an outside link to an article, like a Twitter link, it will bypass the paywall. Somebody’s posted a widget, based on four lines of code, that you can use that disables the paywall entirely. Techdirt’s Mike Masnick proclaimed it “the Emperor’s New Paywall.”

Even more confounding is the fact that the Times paid a reported 40 million dollars for this thing that is business-stupid (paywalls don’t pay, just ask Newsday or The London Times) and doesn’t even function well. Imagine what kind of journalism 40 mill could buy. You know, maybe Frank Rich and Bob Herbert could have been persuaded to stick around.

I can’t help but wonder if the Times is taking some wild, post-post-modern, Derrida-meets-Harvard-MBA leap into the digi-stential void here. Maybe it’s been watching the Radiohead and Trent Reznor tip-jar experiments. Maybe it’s banking that a number of its well-heeled, highly-educated loyal readers (and if one publication in the world has them it’s the Times) might feel a twinge of guilt when the pathetic little paywall goes up. Maybe it’s banking that at least some of these people will decide “well, I know I could hack around this damn thing, but by golly somebody’s got to pay these writers,” and will pony up their Amex Gold Card numbers in a gently-coerced gesture of goodwill. I know people who would do this. So do you.

In other words, maybe the Times knows that rigid paywalls are a commercial disaster, but that a well-played guilt trip might just work.

If they’re right and it works, and who the hell knows these days until you try, I’m in awe of them. But it’s a helluva 40 million dollar gamble.

4.7.11 PEPPINO!!!

2011-04-06T21:16:00.003-04:00

this article originally ran in the 4.7.11 issue of Metroland

Peppino D’Agostino
March 29, 2011
The Woman’s Club of Albany

To I’m sure anyone who’s seen him perform, just why guitarist Peppino D’Agostino isn’t some kind of superstar is one of those mysteries that makes one damn the fates, popular taste, the music industry, or all three.

Peppino played Tuesday in the ballroom of The Woman’s Club of Albany, one of those grand buildings near the park on Madison we’ve all driven by a zillion times and wondered “I wonder what goes on in there?”

Guitar slinging, that’s what. Peppino played two generous sets of solo acoustic guitar that was in turns soothing, dazzling and challenging. He was gracious, modest and fun. It doesn’t hurt that he looks like Bryan Ferry’s little brother and speaks with a soft Italian accent. We’re talking the whole package, and the near-capacity audience of about 100 folks was absolutely rapturous from the git.

His selections were literally all over the map---after a few hyper-melodic originals, he turned to an Antonio Carlos Jobim tune, and laced the bossa number with insanely cacophonous grace notes throughout. He played ‘50’s Italian jazz, Sardinian folk music, an Irish dirge, and an Argentinian tango. He used harmonics, a variety of open tunings, he played with just his left hand, just his right hand, and he utilized a whole bunch of strange techniques that may or may not have names for them. He talked about getting fixated on Earl Scruggs-style bluegrass picking as a teenager in Italy, and hilariously played and sang a little bit of an Italian bluegrass song he wrote, and then launched into an orgy of three-finger picking that simply defies description. OK, I’ll try. Fast. Then faster. There was a Beatles medley. He did “Walk Away Renee.” And a pile of originals that were flat-out stunning.

Hats off to impresario Corliss Caroll for bringing Peppino to town and to The Woman’s Club for hosting. The ballroom, with its curved ceiling, parquet floors, and wooden wainscoting just screams “old Albany” and is a fantastic place to experience music. What’s next?

3.24.11 BREAK THE NEWS

2011-03-23T19:36:00.006-04:00

This article was originally published in the 3.24.11 issue of Metroland

For as long as this column has been here the point has been made that the one thing that makes enforcement of online infringements so scary is that it inevitably involves some serious invasions of privacy. In order to determine that you’re downloading something maybe you shouldn’t, someone needs to snoop on pretty much everything you’re doing online. And where I come from, if it’s a matter of personal privacy versus the intellectual property rights of a record company, a movie studio, or even an individual creator, personal privacy rights win out every time. It’s this point, brought on by the simple fact that digital media obliterates any natural scarcity in most copyrighted works, that calls into question the efficacy of copyright law as we’ve gotten to accept it over the last couple hundred years.

We’ve been watching the Obama administration doing a little dance around this issue, and there have been troubling signals galore—the inexplicable involvement of the Department of Homeland Security in domestic infringement cases, the creation of an Intellectual Property Czarina, who’s made a bunch of broad general statements that parrot the worst delusional and vapid industry rhetoric about infringement, and Veep Joe Biden running around comparing “illegal downloads” to a smash-and-grabs at Tiffany’s. Recently the Feds have been securing court orders and shutting down domains of websites it thinks are involved in counterfeiting and online infringements, a tactic that many legal analysts believe is totally lacking in any kind of due process and will get shot down as soon as a court gets to hear more than one side of the story.

Now it’s getting even more scary. Last week IP Czarina Victoria Espinel announced a bunch of specific measures that the Obama administration would like to see enacted. Along with a bunch of things that are laudable (step up measures to combat counterfeit medicine? Well, duh?) are few things that are downright awful. Like changing the criminal law to make streaming of copyrighted works a felony, which would allow cops to wiretap people “suspected” of infringing streaming.

C’mon now. Your ISP or phone company sees that you’re using a bunch of bandwidth, so they tell the Feds, the Feds go to a judge, and suddenly, you’ve got company online in the form of a cyber G-man keeping track of everything you’re looking at. A spokesman for an internet industry group called it “the Patriot Act for Hollywood” and that’s not far off. And you really think there will never be a quid pro quo for unnecessary government protection of the entertainment industries and the entertainment industries’ complicity in quelling political dissent? AT&T didn’t have a problem with it, do you really think Warner Brothers will? As Poly Styrene observed in 1978, “Oh Bondage, Up Yours!”

We’ll see how interested in “personal liberty” and “freedom” these pasty white Tea Party idiots really are when this comes up in Congress.

Moving on! A couple years ago Microsoft introduced the Zune, an undistinguished MP3 player that the press went all nuts over—“could this be the iPod killer?” No, it couldn’t be. It’s freakin’ Microsoft. It was basically DOA upon release, and it finally died for good last week, with a whimper. Told ya.

On the legal front, uber-appropriation artist (and local guy) Richard Prince got slammed in a New York federal court when a judge declared his collages based on photographs of Rastas taken out of a book by photographer Patrick Cariou were not fair use. Among other things the judge ruled was that Prince’s works were not “transformative” because they didn’t fundamentally change the message or purpose or comment on the original works. As the likely damages look to be astronomical (Prince’s works sell for millions, and there may well be attorneys fees on top of that), an appeal is expected. This case really looks at the limits of appropriation art and fair use---the space between Jeff Koons’ paintings and Marcel Duchamp’s urinal; I don’t think that fair use arises by sticking a feather in your cap and calling it macaroni, and many of Prince’s works approach that. So where is the line? Can there even be a line? Meantime, this decision is sending a chill across the fertile world of appropriation art, where legal uncertainty can translate into artistic timidity. Stay tuned.

Another unfortunate court decision dropped this week, a New York federal judge struck down the Google Books settlement that was reached among the various parties to the lawsuit last year. I haven’t had time to read the decision yet, but from what I read one thing the judge really didn’t like the fact that Google would have the opportunity to profit from selling books for which a copyright holder couldn’t be identified or located, and that provisions of the settlement would discourage competition in the scanned-book archive space. Both of these holdings strike me as ludicrous, but I’ll look into it and have more on this (hopefully) next time.

2.10.11 TOOL TIME

2011-02-10T07:51:00.003-05:00

This article originally appeared in the 2/10/11 issue of Metroland

The Shepard Fairey / Obama ‘Hope” saga has more or less sputtered to a disappointing halt, but a related and much weirder dispute has jumped in to take its place.

As many of you know, Fairey is the shallow and showboating graphic designer whom the press insists on calling a “street artist” because they seem to need a street artist to write about and they don’t get Banksy, the reclusive, secretive and brilliant Brit who seems to be a real street artist. Fairey’s responsible for the Obama “Hope” poster, which is, despite what I just said in the previous sentence, one of the most iconic images of our time.

In 2009, after months of furious online speculation and wrong guesses, somebody announced that “Hope” was based on an AP news photograph; upon learning this, AP tried shaking down Fairey, Fairey sued AP for a declaration that “Hope” didn’t infringe, AP countersued for infringement, then the actual photographer, Manny Garcia, jumped in and said it wasn’t AP’s copyright, but his. Good times!

It looked like a prime battle that would help define the fair use doctrine, the maddening, morphing, and critical legal doctrine that determines when using somebody else’s copyrighted stuff is OK, and which impacts appropriation art, collage, sampling, social commentary, and basically the entirety of what’s come to be known as “remix culture.” Great facts, good representation on both sides, high visibility art. The fact that Fairey was an incorrigible publicity hound was actually good—it meant that the public would be engaged and interested in the controversy. Game on.

But about a year ago the wheels fell off when Fairey was forced to admit he’d destroyed evidence and lied about what photograph he’d actually used to create “Hope”. Lied to the court, even lied to his lawyers. The strange thing was that his deceptions wouldn’t have helped his case; it was pure nihilistic and immature stupidity. Fairey’s attorneys quit, the Court announced that it would consider sanctions against him at the end of the case, there was talk of criminal prosecution.

A few weeks ago it was announced that Fairey and the AP had settled the case, with terms undisclosed except that Fairey had agreed to never use an AP image in the future without getting a license first. So Fairey sabotages his own case, then caves on the issue of fair use, the very principle upon which his career has been built.

Still remaining in the case is a marketing company that licensed the “Hope” image for merch, and which is claiming, apparently, that its use of the image was fair use, and if it wasn’t, and it was an infringement, that was Fairey’s fault. So maybe at the end of the day we’ll get some kind of helpful fair use ruling, but from what I’m reading, the odds are against it.

Meantime similar issues have popped up in a lawsuit involving the Oscar-nominated film “Exit Through the Gift Shop.” This strange little Banksy-and-Fairey backed documentary chronicles the meteoric rise of a Fairey / Banksy wannabe who creates a massive amount of mediocre street-style appropriation art and hypes himself to a witless and lemming-like public into super-stardom. There is considerable speculation that the film is a hoax, an elaborate send-up of the modern art world—too many things don’t add up or appear to be staged, and the Fairey-Banksy connection just screams spoof. Either way, it’s a funny and knowing film, a tongue-in-cheek Spinal Tap for the visual art world.

And in the real world, the “Exit Through the Gift Shop” artist, a doofy mutton-chopped Frenchman who calls himself “Mr. Brainwash”, is getting his ass sued for copyright infringement. One of the dozens of bad pieces of appropriation art Mr. Brainwash appears to create in the film cops an old photograph of Run-DMC, and the photograher is suing. Mr. Brainwash, of course, is claiming that his use is a fair use. It’s exactly what we had with “Hope”, except with Run-DMC instead of Obama, an individual photographer instead of the AP, and Mr. Brainwash instead of Fairey. That is, unless Fairey actually did Mr. Brainwash’s work, or unless Mr. Brainwash is actually Banksy, or unless the photographer (who’s worked with Fairey in the past) is willingly playing a part in an elaborate conceptual art piece that includes the lawsuit and everything that goes with it. Like the freakin’ Oscars! Nothing creates Oscar buzz like lawsuits, right?

Mr. Brainwash was deposed late last year and testified under oath that he’d created the piece as a promotional piece for the “Life is Beautiful” show that is at the center of “Exit Through the Gift Shop.” I guess it all depends on what “create” means. Now the photographer’s attorney wants to see accounting books from the show as well as out-takes from the film.

This could get interesting. Or not. I’ll keep you informed either way.

1.27.11 GOOD BYE AND GOOD LUCK

2011-01-26T19:43:00.002-05:00

This article originally ran in the 1.27.11 issue of Metroland

I was more than a little saddened to see that Keith Olbermann was taken off his 8 PM perch at MSNBC. There was a time I watched his show, Countdown, religiously, every night. I’d miss him over the weekend, when MSNBC turns into just another stupid exploitive cable station.

But I haven’t watched Keith in a while. He had gotten shrill, predictable, and more than a little sanctimonious. His “expert guests”, inside-the-beltway heavies like Howard Fineman, Richard Wolffe, Eugene Robinson, and Jonathan Atler were reduced to sycophantic yes men night after night; Olbermann’s questions to them would be long, rambling expositions of whatever he thought about something, ending with something like “isn’t that right?” and the answer would invariably start with “Yes, Keith and...” It was all so disingenuous and dogmatic and sad.

But even though I stopped watching, I was comforted knowing he was still on the air, that he was ready to pounce when we needed him. Because he always did.

Remembering back to the Bush years, Keith was the first and for a long time the only person in mainstream media who stood up to the post 9/11 mania, to the invasion of Iraq, to the hideousness that became the executive branch of government, and he called them out on no uncertain terms. Night after night. Nobody else had the balls. His early “special comments” were the impassioned, rational, wake-up-dammit speak-to-the-power missives that no one else on television was making, and that we so desperately needed. And I rarely disagreed with a single word he said. Whatever else he does, whatever else happens to him, Keith Olbermann will go down as a giant of editorial journalism, and of the resistance to the fascist takeover of our nation by the neocon, corporate, Murdochian and teabag right-wing.

He’s also responsible for bringing Rachel Maddow to the national stage. She has proven herself to be one of the most astute (and fun) political commentators the world has ever seen. And we have Keith alone to thank for bringing Rachel into our lives. Name me one other person in the mainstream media who would give a shot to an outspoken openly gay female with an attitude, someone with little on her resume but some airtime at a failing liberal radio network. And Keith first put her on mano-a-mano with arch-conservative former Nixon speechwriter Patrick Buchanan, who may be a lot of things, but he sure ain’t dumb. And she charmed him and smoked him at the same time. Keith trusted her, and she delivered.

Keith built the MSNBC we know today. The only other person there who’s close was Chris Matthews, who means well, I suppose. But Matthews is, if anything, more annoying than Olbermann, a political rat who’s not really capable of building a thing, and who surfed Keith’s wake to success.

The scuttlebutt is that it’s the Comcast merger that did Keith in. To prove that is kind of like trying to prove that Sarah Palin’s violent rhetoric pulled the trigger on Gabrielle Giffords. I dunno about that. Look, since its inception MSNBC has been owned by General Electric, for crying out loud. Do you really think a takeover by Comcast would to be make the atmosphere more oppressive?

Maybe we’ll never find out, although I’m hearing rumblings that Keith has been wanting out for at least a year. Maybe he was getting as bored with the shtick as we were. He always has been a little on the restless side, famously quitting ESPN in the 90’s quitting and getting fired from Fox News for insubordination just before coming to MSNBC. That is to say, just before coming back to MSNBC, where he’d walked off his news gig in 1998 because he was sick of reporting about Monica Lewinsky.

So where does he go from here? There’s talk of his building an online “media empire” a la The Huffington Post. I just don’t see that working, I don’t see people flocking to a website to get a dose of Keith. There’s also talk of his joining an HBO project being developed by Aaron Sorkin (The Social Network, West Wing) about the behind the scenes goings-on at a cable news network. Which sounds interesting, but not interesting enough to get me to sign up for HBO again.

In either case, he’d be marginalized, a long was from the middle of the fray, which is where we need him to be. We need him in the fight in real time, dropping bombs on the hypocrites and corporate stooges that comprise much of the Republican Party and the Right Wing. Because nobody else does that like Keith Olbermann. Maybe he just needs to cool his jets a little, and then come back to nightly cable. I hope that’s it.

1.13.11 SCHMIVACY

2011-01-12T19:00:00.004-05:00

This article originally appeared in the 1.13.11 issue of Metroland

I’ve rung this bell a bunch of times in the past and I’m gonna keep ringing it:
Your right to privacy is slowly and steadily going down the dumper. Something happened last week that demonstrates this in spades.

California’s highest appeals court ruled last week that it’s perfectly legal for police to rummage through the cell phone of someone who is under arrest. The Court based its decision on 1970’s era Supreme Court precedents that held that police may inspect and examine whatever they find on a person after that person is arrested. The case involved a drug bust where the arresting officer found text messages on the defendant’s cell phone that further implicated the defendant in a drug sale.

Do those rulings make sense if they are extended to cellphones? As smartphones become increasingly powerful and popular, court decisions like this become increasingly problematic. Smartphones are quickly encroaching into the territory previously occupied by home computers, and between increased power and memory and the growing use of cloud-based computing and storage, a smartphone can hold or be a conduit to massive amounts of personal information.

A few years ago when the RIAA was suing thousands of kids for downloading songs, I argued here that the courts’ usual practice of allowing the RIAA to inspect the hard drives of the kids’ computers to find evidence of downloading was hideously invasive, because a serious computer user’s hard drive is very much an extension of the user’s brain. To force a kid to give up his hard drive for inspection as a condition to allowing the kid to defend himself in a copyright infringement lawsuit struck me as absurd. I was hoping that the right client would come along so that I could make this argument in a court somewhere, but none of the cases that I handled in the RIAA terror campaign got to that point.

The same considerations apply here, except here the ramifications are so much worse. A cop can take you into custody for any kind of crime, even a DWI, and then take a look at whatever your smartphone might reveal: your emails, your texts, your photos, your contacts, documents, links, the whole nine yards. Clearly there is a profound lack of balance between the effects of this ruling and most people's expectation of privacy. It’s like Orwell on steroids.

I used to think that rulings like this were the result of geriatric or technophobe judges who just didn’t understand the world of computers and the internet. But this was a 5-2 ruling by the highest court in California, and these judges have shiny bright law clerks fresh out of law school doing their research, and the march of time has made an understanding and appreciation of today’s technology pretty much universal.

In any event, this decision is at odds with several previous decisions from other courts that have held that searching ones cellphone or computer after an arrest is indeed a breach of privacy and unconstitutional. This conflict among courts could set the stage for the issue to be looked at by the Supreme Court.

Which of course raises some more troubling problems. The Supreme Court hasn’t taken on many right-of-privacy cases lately and hasn’t addressed the right in any kind of comprehensive way in a long time. And the Court as it is currently constituted could have a problem with the right of privacy. You see, the word “privacy” doesn’t appear anywhere in the Constitution or the Bill of Rights. The right of privacy we’ve known all of our lives was constructed by judges, who believed the right could be inferred from various guarantees in the Bill of Rights to create a “penumbra” of a right to privacy.

Several of the justices on the Supreme Court, most notably Justice Antonin Scalia, don’t buy into the whole penumbra deal. They are strict constructionists, or “originalists”, who insist that the Consitution must be read narrowly and interpreted pursuant to the intent of the guys who wrote it. In 1787.

Just last week Scalia said in a speech that he didn’t think the Constitution or the Bill of Rights provided for equality for women. Think about what that means. Think about how that jibes with your understanding of the world, of your country, of the law. And then come to grips with the fact that there are people on the Supreme Court of the United States who not only believe this, but are in the position of being able to impose this belief, and other similarly shocking beliefs, on you.

So what happens if this cell phone case makes it to the Supreme Court? By any measure of rationality, it should be reversed based on the right of privacy. But we don’t live in a rational world.

12.30.10 CRISWELL PREDICTS 2011!!!

2010-12-29T17:32:00.003-05:00

This article originally appeared in the 12.30.10 issue of Metroland

OK, I have to admit I was actually pretty good with last year’s predictions, my first ever. You can look them up at rapponthis.blogspot.com if you’re so inclined. OK, some of the stuff hasn’t happened. Yet. In any event, I’m gonna try it again. Here’s what I think will be going down in 2011:

A bunch more Capital Region music artists will follow Phantogram and Sean Rowe and Sirsy and hit the national spotlight big-time; a national publication will observe that it’s odd that so much great music is coming out of an area that doesn’t seem to have much of an actual local music scene; hipsters with ironic facial hair and dubious musical talent will start moving here from Brooklyn to taste the local juju; the local scene will pick up a little, but not much.

Apple will sign on with Verizon for the iPhone, and then come out with a new cheaper iPhone with all sorts of new features, all geeky and user friendly and amazing, and after that the only people who don’t buy iPhones will be contrarian dead-enders who irrationally won’t ever buy an Apple product just to spite an ex-boy / girlfriend.

People, including a lot of those really stupid white-trash people, will continue to get sick of Sarah Palin; her TV show will be dumped from whatever crap cable channel it’s on; one of her kids will be popped for meth possession in Wasilla, and she’ll try to spin this into a positive on Fox News. And that won’t work.

A local daily newspaper will fold, and the rest of the local traditional media will go wiggy about the significance of this while the rest of us yawn.

One of the Rolling Stones will kick the bucket of (ahem) “natural causes”; sales of the band’s catalog will go through the roof, and the release of new “best-of” compilations and box sets and DVDs will happen WAY too quickly.

Albany will land on one of those dumb “best places to live” magazine lists, and great restaurants will be listed as a reason, and Burger Centric on Delaware Avenue will be name-checked.

One of our oldest major music venues will shut down for a while, claiming financial duress; another revitalized mid-sized concert venue will open.

Joe Bruno Stadium will be mercifully renamed. I’m cannot predict to what it will be renamed, but I pledge to shoot myself if it is renamed anything like “Tech Valley Field.”

People will start to realize that the privacy train left the station years ago and that between the government and corporations, everything they do is being watched. There will be calls for the government to “do something.” Government won’t do anything.

Justins will start booking jazz again, almost none of the people who promised they’d come back to see jazz if they did that actually show up, so Justins threatens to pull the plug again, and people start showing up!

Either Apple, or Google, or most likely both are gonna come out big with some sort of online music thingee after paying the major labels gazillions of dollars for the rights; small indy artists will be COMPLETELY left out of the equation; a wave of lawsuits will quickly follow as everybody screams anti-trust and collusion; Government won’t do anything.

Samson Contompasis will cut his hair off in a performance at the Marketplace Gallery. Well, maybe not.

MassMoca will stop presenting “work-in-progress” performances, instead advising artists to just finish the damn things first, then come put on your show;

Wikileaks will reveal stuff about financial institutions and health insurance companies so hideous that the Department of Justice will put a bunch of executives in jail; fascist Republicans will continue to scream for Julian Assange’s head, but he’ll be universally hailed as a hero by everybody else. The revelations will not only stifle Republican attempts to undo financial and health care reform, but will trigger calls for more aggressive regulation of the financial and health care industries.

The new American Idol will be a total epic fail.

EMPAC will present something so mind-boggling and brilliant everybody will want to see it; it’ll get written up internationally; the run will be extended; Troy will become, if only temporarily, the global avant-garde cultural destination it always should have been and all of the other art institutions in the area will get a nice bump as a result.

The FCC will start taking applications for low-power radio stations and a bunch of local institutions, grass-roots organizations, and religious groups will jump in with applications.

There will be some kind of catastrophic hacker-related event that will cast a pall on this whole cloud-computing thing all the kids are talking about; millions will lose their stuff, and millions more will run out and buy cheap desktop storage.

Sunday and Monday Night Football will replace Faith Hill and Hank Jr. with Gaga and Kanye.

November 11 will go down as the loudest day in history.

12.16.10 POLLS

2010-12-16T08:02:00.000-05:00

This article originally appeared in the 12.16.10 issue of Metroland.

Been wanting to go here for months.

We hear all kinds of sniping about Fox News, and to be sure there’s lots to complain about. The vast majority of what airs there is vile and biased nonsense, most of the current putative Republican candidates for president are on the Fox payroll, we know that Fox management actively controls what its people say (last week it was revealed that the term “public option” was banned during the run–up to the health care vote) and we know Fox News’ parent company gave piles of money to Republicans during the last election cycle. And that’s just the money we know about.

But really, the mainstream media is equally dangerous, pathetic, and, yes, a threat to democracy. It’s just a small matter of degree. From Julian Assange, to health care, to Sarah Palin, truth is now a relative thing. Typically, the MSM uncritically adopts the rhetoric of whoever provides it with information, often as a gesture to make sure the information keeps coming. When the information, accurate or not, arrives at the doorstep, there’s no need to do any real investigative journalism. That saves money! And ratings stay up, too: Julian Assange being labeled a rapist is good for ratings. Sarah Palin’s book signings are good for ratings. Death panels are good for ratings. And none of these things have anything to do with reality.

Take, for example, the MSM’s obsession with polls. Polls are golden. “The American people” think this, they think that. Pay attention to how much of the news you hear consists of the regurgitation of some poll findings, followed by an “analysis” by the “pollster” about what the findings mean. A healthy chunk of what is supposed to be “news” consists of nothing more than a report of what “the people” think the news is. Which is not what the news is. And reporting on polls is easy, risk-free and dirt cheap. And the more time the MSM talks about the polls, the less time there is to talk about actual, factual, real-world news.

Which results in a race to the ignorant bottom. Here’s an example. Over the summer a local reporter quoted a poll that said that something like 68% of New Yorkers favored holding a state constitutional convention. I was driving when I heard this, and almost went off the road into a tree. Really? A constitutional convention? Maybe first we should ask how many New Yorkers even know that New York has a state constitution? And then ask those who say yes (and I’m guessing this would be a small percentage), to describe one thing that’s in the state constitution that they would like to see changed. I guarantee you that the number of coherent responses would hover around zero. So, then, what does the “fact” that 68% of New Yorkers want a constitutional convention actually tell us? That people think New York State government somehow needs to change? We need a poll for that?

And as the news is dominated by talking about polls instead of news, we’ve become a nation of morons. Now, I know I’m on shaky ground by using poll data to dismiss poll data, but here we go anyway. When polls aren’t asking our opinions about complex policy issues we know nothing about, they are revealing that we’re quite stupid. One poll recently reported that a large majority of us didn’t know that Republicans just took over the House of Representatives. Another poll this fall showed a large majority of people in Louisiana didn’t know that their Senator, David Vittner, had been nailed in a scandal involving a prostitute. He won re-election shortly thereafter. A majority of Republicans think Obama is Muslim, and a quarter of them think he’s the Antichrist, for crying out loud! A few days after one poll announced that a majority of Americans approved of Elena Kagan joining the Supreme Court, another poll revealed that two-thirds of Americans could not name a single Supreme Court justice.

Polls have always been suspect, and for good reason. The science of polling is the science of manipulation and pre-determined outcomes. The results of a poll can be swayed by the wording of questions, the order of the questions, or the speech inflection of the person asking the questions. Last fall the Rasmussen campaign polls consistently showed a 10-15% bias towards Republican and conservative candidates. And this only became clear because it was a rare instance of lots of different pollsters wading into the same pool at the same time. And, as dumb as they are, polls are likely getting dumber. Polls generally focus on people with land-line phones. And urban, young, and educated folks are ditching landlines in favor of smartphones or VOIP phones in larger numbers than any other demographic. So they don’t count.

If the mainstream media is going to remain even a little relevant, it has to stop blaming the internet for its troubles and start reporting news instead of nonsense. I just called around to some of my friends and 70% of them agree.

12.1.10 DOO PROCESS

2010-12-01T18:49:00.003-05:00

this article originally ran in the 12.2.10 issue of Metroland

Over the last couple weeks there’s been a proposed law bouncing around Congress named the Combatting Online Infringement and Counterfeits Act (COICA) that would authorize the federal Department of Justice to block any website that was determined to be "primarily designed" and "has no demonstrable, commercially significant purpose or use other than" to promote copyright and trademark infringement.

My understanding is that the bill would allow the Feds to generate a blacklist of domain names and forbid your ISP from transmitting sites associated with that domain name to you. Mostly, this appears to be aimed at foreign sites that are now beyond the reach of U.S. law—operators of websites in the U.S. can and are simply be sued for infringement, so COICA’s not about homegrown sites. Rather, COICA would allow a block, basically at our borders, of websites that the Feds convince a court is dedicated to infringement. Note that the law doesn’t target the operators of foreign sites or even the content of the sites that are out of U.S. jurisdiction—it just allows U.S. users’ access to those sites to be blocked.

I wasn’t paying a whole lot of attention to this because I’ve been insanely busy with other stuff, and because the reports I’d been reading indicated that COICA wasn’t likely to get through our profoundly-dysfunctional-and-getting-worse Congress. Also, the whole thing was a little bit too geeky for me to easily get my brain around.

But it was irksome—the law would give the government sweeping powers that would change the landscape of the internet in the US. You know how we all click our tongues dismissively when we learn that some Asian country has blocked YouTube, or Facebook, or Google? That’s the arena we’d be getting into. Wholesale blocking of sites that the Feds convince some judge lacks a “demonstrable, commercially significant purpose.” I’ve seen those arguments used, here and recently, by Big Media trade associations, against the likes of YouTube and Google. Take this COICA law, add a Christianista / Tea Party executive branch and a bunch of Federalist Society judges and voila, you’ve got a sanitized internet. Just like in China. Look at the buffoons that are dominating public discourse these days. It can happen here.

Looked at another way, if you consider a web domain to be like a newspaper, a television station, or any other media outlet, then this law condones outright censorship, period.

And then last week COICA was passed unanimously by the Senate Judiciary Committee, after the MPAA, the RIAA, Nike, Nintendo, the U.S. Chamber of Commerce, unions, media, and everybody else in the business world landed on the members with a bunch of ginned-up statistics and horror stories. These fine American business interests also took special care to brand anyone opposing the bill, like civil libertarians and free speech advocates like Public Knowledge and a host of academics, as un-American coddlers of online thieves. So what Senators voted for the bill? Well, folks Jeff Sessions, Tom Coburn, and John Kyl. And folks like Al Franken, Dianne Feinstein, and Chuck Schumer.

Wha? Really? Still, most commentators were saying the bill would likely not get through the entire Senate and certainly wouldn’t make it through the House. So OK, maybe all these Senators were just quietly making sure that their corporate contributors were placated on a vote that ultimately was meaningless.

But Al Franken?

Anyway, on the heels of this vote came news late last week that the Department of Homeland Security had seized 80+ domains that were suspected of infringing activity. This caused a huge WTF all over the bloggosphere because nobody could figure out (1) how the hell DHS did it and (2) since they did it, why we needed this COICA law. Then there’s the persistent question we’ve talked about here before—just what the hell is Homeland Security doing chasing music file-sharers and handbag counterfeiters when there are people out there who really want to blow us up?

The dust hasn’t really settled yet, but so far this seems to be the story. DHS hired a private contractor to figure out a way to convince a judge to order the “seizure” of a bunch of domain names that pointed to a bunch of sites that appeared to have something to do with infringement. The sites that were seized were all .com and .net domains, and there was jurisdiction because the company that oversees .com and .net sites, Verisign, is a U.S. company. Verisign chose not to fight the court orders. Adios, domains! Many of the foreign companies that lost domains have already adopted .info sites and have continued operating, apparently out of the jurisdiction of the court order.

Questions remain, though, because some of the sites, particularly a couple music sites, don’t appear to be directly or primarily involved with infringement. In fact, two of them, the hip-hop blogs RapGodFathers and Onsmash, regularly post tracks and mix-tapes at the request of artists and labels. I’m guessing DHS didn’t tell the judge about this.

But the bottom line is that government is helping business by restricting speech. Where I come from, that’s a hallmark of fascism.

10.7.10 FUTURE OF MUSIC 10

2010-10-06T18:25:00.004-04:00

This article was originally published in the 10.7.10 issue of Metroland

I got home late Tuesday night from the 10th Annual Future of Music Coalition Policy Summit, three days packed with panel discussions, interviews, networking, drinking, and great music. I’ll be decompressing for a couple of weeks, but here are some initial thoughts and a bunch of notable quotes.

As a general matter, there seemed to be a little less certainty about where things were going, and a little less optimism that things were going to get better right away for working musicians. It certainly wasn’t doom and gloom, but more a recognition that in a world where the purchase of recorded music is now a voluntary act (something that’s been long recognized by the FOMC) and where there is more music than ever being created and released, the entire paradigm of being a professional musician is changing fast, and in so many ways and in so many directions that how it’s gonna look in even the near future is anybody’s guess.

There were the usual cutting-edge peeks at how folks are making things work: rapper Oddisee was dazzling in describing his use of tracking software to maintain direct relationships with his fans and his need to regularly turn it all off in order to go about the business of creating music; Erin McKeown, who’s been there and back, confidently eschewed the need for record labels; fan-funding pioneer Jill Sobule and video genius Damian Kulash (OK Go) described their joy at being totally independent and in control of their careers; self-described super-nerd Jesse von Doom (cashmusic.com) talked eloquently about the struggle of working-class musicians and his company’s quest to give them the tech tools to make it all work; Canadian Member of Parliament and former punk-rocker Charlie Angus was awe-inspiring as he talked about the role of the internet and music as vehicles for societal change.

There were plenty of disconnects and dissonance: Obama’s new cabinet level IP enforcer Virginia Espinel awkwardly spouted talking points about the administration’s IP strategy and said very little of substance in her 20 minute speech; Facebook and YouTube made disappointing presentations that were little more than sales-pitches designed for numbskulls; and T-Bone Burnett stunned everybody by proclaiming the future of music was analog, not digital, and that new artists should not put their music on the internet. After the shock subsided, most folks decided that T-Bone’s talk was brilliant performance art; in any event, he was such a lovable curmudgeon that everybody loved him even though nobody agreed with much of anything that he said.

All in all, there was some consensus: physical music media is dead, except as a market segment for collectors, audiophiles, and people who need bling. The future of the music industry lies in the cloud, with always-on subscription music services that wirelessly deliver whatever music you want to wherever you are--interestingly, even the RIAA representative, who’s been so swarmy and belligerent in the past, seemed to agree with this concept. The music consuming public is wildly varied and roughly evenly divided between folks who are indiscriminate and just want some music delivered to them, and those of use who are active, fevent listeners and fans. And for this latter group, the future of music is all about social media.

Here’s some money quotes:

Erin McKeown: “Don’t sign with a label. You don’t need it.”

Tom Silverman (Tommy Boy Records): Tom Silverman “A lot of people don’t give a shit about music...On demand is only going to be for the most active listeners.”

Dina LaPolt (attorney): “Labels don’t even call themselves labels anymore—they’re ‘multi-rights management conglomerates’, which is a really bad way of saying you don’t know what the fuck you’re doing.”

Hank Shockley (Public Enemy / Bomb Squad): “My son’s 11 and he hates the shit I listen to, and that makes me happy. And I hate the shit he listens to. And that’s great! Barry Manilow came on yesterday on my iPod and I’m like, holy shit, this is good!”

Charlie Angus (Canadian Member of Parliament): "To all who say the Internet is killing the music industry--I was there in the analog days, and it sucked...You can lock down all the content you want, but that doesn’t mean artists are going get paid and you’ll only create a criminal class of people who just want to enjoy their culture.”

Chuck D (Public Enemy): “The other a day I saw a terabyte you could hold in the palm of your hand. And I’m like, just what the fuck are we talking about now? The question for the next ten years is how do you become the #1 fan of your #1 fan. Stalk your fans.”

Jim Griffin (Onehouse): “The music industry has got to become more like a woman and less like a man. Amazon’s like a woman—it remembers your name, your phone number, and your likes and dislikes.”

9.22.10 COME TO DADDY

2010-09-22T07:47:00.002-04:00

This article originally appeared in the 9.22.10 issue of Metroland

The Great Rights Reversion Migration of 2013

Before I get in to this, I should remind you that the 10th Annual Future of Music Coalition Policy Summit is taking place October 3-5 at Georgetown University in Washington DC. If you’re a muso of any stripe, this will be a mind-blowing event. Featured speakers include T. Bone Burnett, Chuck D, Tim Westergren (Pandora), Ian Rogers (Topspin Media), and Fred Von Lohmann (EFF). Musician scholarships are available, and the whole thing is cheap to begin with. I’m on a panel on Sunday. Come on down and rock it with me. Info at Futureofmusic.org.

OK. Two weeks ago I said I’d talk to you about what I’m calling The Great Rights Reversion Migration of 2013. So here we go.

Once upon a time, Congress made copyright laws that supported the Constitutional purpose of copyright law, that being the betterment of society. Laws were thoughtfully debated, and academics and experts were sought out to describe how new copyright laws might or might not be good for society. Many lawmakers were thoughtful and paid attention, and we got a fair and sturdy bunch of laws as a result. Those days are long gone. These days most new copyright laws are written by lobbyists for Big Media Companies, and Congress dutifully passes them because they’re “good for business.”

Anyway, there is a provision in the copyright law that, believe it or not, was designed to protect and reward artists who sell their copyrights to somebody else. This law says that you can reclaim your copyrights, you can just ask for them and get them back, 35 years after you transfer them. Yes, the law was put in place to protect artists who transferred their copyrights for cheap when they were young and broke, or pursuant to lousy deals that paid them squat.

This law went into effect on January 1, 1978, and applies to all works transferred after that date. 35 years after that is January 1, 2013, and that’s when artists can start getting their stuff back. In 2013, anybody who transferred their rights in 1978 can go reclaim them, in 2014, anybody who transferred in 1979, and so on.

While this reversion right applies to anything that’s subject to copyright law, it’s expected to have the biggest impact on the music business. Let’s see, what US artists had big albums in 1978? Journey, The Talking Heads, Foreigner, Boston, Tom Petty, Van Halen, The Cars, Billy Joel...and the list goes on. Yup, we’re talking about the heart of what’s come to be called “classic rock”, a whole bunch of the most valuable music in the history of music.

And all this music might be coming home to Daddy.

As you can imagine, the music industry, which has made a fortune selling this music to you numerous times (all of this stuff has been out on vinyl albums, cassettes, CDs, digital downloads, re-mastered versions, best-of repackages, soundtracks, etc.) isn’t taking this sitting down. In 1999, the industry tried to sneak a law through Congress that would have re-classified all of this music, post hoc, as “works for hire.” This would mean that all of the music would be owned by the record companies from the git-go, with no transfer by the artist, and no right of reversion. A congressional staffer, acting on behalf of the RIAA, tacked an amendment to the copyright law onto a satellite television bill that got passed in the middle of the night and signed by Bill Clinton shortly after. Nobody even knew it was in there. Problem solved! Musicians screwed!

Ahhhh...not so fast there, bucko. In a remarkable display of power politicking, a bunch of well-spoken musicians (including Don Henley and Sheryl Crow) descended on Washington and got the bastard law revoked. However, the RIAA got language in the revoking bill that stated that neither the facts of the passage of the law, nor its revocation, could be considered by a court law. Let’s all pretend it just didn’t happen!

So, basically, the whole “work for hire” argument was left for another day. And that day is almost here. You can bet that the industry will fight tooth and nail any artist’s attempts to exercise their legal right to get the copyrights to their master recordings back. The legal machinery is already gearing up for the fight.

I’ve looked at this issue every which-a-way and I don’t see where the labels have a chance. Congress doesn’t list sound recordings as a category of works that can be a work for hire. And recordings don’t fit any of the other categories. And the law is there for precisely the reason why the musicians are going to exercise their rights: to get out of old, bad deals.

And that Congressional staffer who snuck in the language in 1999? He’s now the RIAA’s chief lobbyist. Getting paid a whole lot of money. I kid you not.

9.9.10 IT'S ALL OVER NOW

2010-09-08T20:55:00.003-04:00

This article originally appeared in the 9.9.10 issue of Metroland

Eminem’s da man. He’s behind a decision that was issued by the Federal appeals court in California last Friday that may bring down the record companies entirely. Turns out a lot of musicians are owed a lot of money by a lot of record companies.

Here’s the deal: until very recently, your standard recording contract was a hideously unfair affair. In return for a recording advance, the artists would give the copyrights to their recordings to the record company, and receive a royalty payment of something like 12% of the retail price, minus 25% for packaging, another 10% for “breakage” and another 10% for “free goods”. So the effective royalty was often around 8% of retail (if that), out of which the artist had to pay back the recording advance, and often had to pay a producer, a production company, a manager, etc.

In other words, in a traditional recording deal, the artist usually got bupkis on the sale of recordings.

However, traditional recording contracts also provide where the recordings are licensed for manufacture by a different recording company, or for use in a movie, television show, or advertisement, the money is split 50-50 between the recording company and the artist.

That’s still unfair, but it’s better than bupkis.

In 2003, after almost a decade of stonewalling, lawsuits, and general dicking around, the major record companies caved to threats of anti-trust and copyright abuse lawsuits and let Apple sell their music at the iTunes store. A bunch of other vendors, like Amazon and Rhapsody followed. iTunes recently announced it had sold its 10 billionth track.

Eminem had one of these standard contracts with his record company, Aftermath, which is part of major label Universal. Since 2003, his record company has been treating iTunes sales and the like just like CD sales, that is, paying Eminem bupkis.

So Eminem’s production company sued Aftermath, claiming that digital download sales by third parties (like iTunes or Amazon) were more like licenses, and that Eminem ought to getting 50% instead of bupkis.

Think about it: with a CD, the record company has to make the CD, package the CD, warehouse the CD, and ship the CD, accept returns on unsold product, deal with wholesalers, bill and collect payments from a whole variety of sources. With a digital download, the label ships a digital file to a handful of download companies and then sits back and waits for the checks to roll in. Just like they would with any other licensing deal.

The trial court refused to rule, instead letting the question to go to a jury (beats me why a question of contractual interpretation is left to a jury, but hey...), and the jury, perhaps piqued about Eminem’s many past transgressions, found in favor of the record company. Bupkis for you, Mathers!

But at the appeals court, where passions tend to run cooler, the trial court ruling was overturned. In a succinct 15-page decision, the court ruled that it was unambiguous from the plain language of the recording contract that these arrangements between Aftermath and iTunes, etc. were licenses, plain and simple. Aftermath argued that the word “license” doesn’t appear in any of its agreements with these third-party vendors; the court found, in so many words, that these agreements quacked like a license. Eminem is entitled to 50% on downloads, ringtones, and everything else sold by somebody else. Period.

Aftermath / Universal announced that the ruling was limited to just Eminem’s license. Uh, no. The contract language was boilerplate; the exact same or similar language appears on virtually every major label contract in effect today. Then Aftermath / Universal vowed to fight the ruling. Good luck with that. The options are severely limited...they can ask the court to reconsider, which it won’t, they can ask for a hearing before the full panel consisting of every Ninth Circuit judge, which will probably be denied, and they can petition the Supreme Court, which will probably decline to consider what’s essentially a garden variety contractual interpretation case.

There’s a bunch of similar pending cases out there, brought by bands like The Allman Brothers and Cheap Trick, seeking millions of dollars of unpaid royalties. This case will affect those cases. And I’m guessing just about every other major label artist on the planet has called their lawyer this week asking if there’s something in this for them. And the answer is likely to be yes. Or more like, hella yeah.

I don’t think the impact of this ruling can be underestimated. It’s pretty huge. Maybe the labels should just all declare bankruptcy right now in order to protect their shareholders. Who everybody knows are more important than the artists.

If this doesn’t kill the labels dead, the Great Rights Reversion Migration of 2013 will. I’ll tell you about that in two weeks.

8.26.10 WHO'S NUMBER ONE?

2010-08-25T20:01:00.002-04:00

This article originally appeared in the 8.26.10 issue of Metroland

We sure like our lists, don’t we? We love it when someone else tells us what we’re supposed to like, and in what order we’re supposed to like them. When whatever is #1 on some list is also our personal #1, we’re vindicated, and if it’s not, well, that just means we’re so much smarter than all the stupid people out there. Right?

Right! Lists are lampooned every night by David Letterman, and were absolutely lacerated ten years ago by Richard Thompson, whose millennium-ending “1000 Years of Popular Music” list included everything from dead-language rounds to Britney Spears’ “Oops, I Did It Again”. We need the lists. They represent order.

And lists have nowhere been more important than in the music business. I remember listening feverishly to AM radio on Saturday mornings to find out if the Beatles or the Dave Clark Five would be #1. It was important! Music charts have always been vital to a band’s marketing: look at the advertising for any oldies show—usually it’s little more than a list of chart statistics next to a highly Photoshopped picture of the artist. If your band charted, you'd go batshit crazy issuing press releases and telling everybody, yes you would.

The Billboard Magazine chart has always been the big kahuna, the gold standard. Books containing nothing more than decades of Billboard charts are always among the best selling music books. Billboard’s tabulation methods have changed over time, and the numbers of charts have exploded, but these days Billboard weekly charts are based largely on sales and radio play. And the industry and fans alike watch Billboard chart movements like a hawk, like it’s the only thing that matters.

This week Cee Lo demonstrated that it actually may not matter much at all. Last Thursday, Cee Lo posted a new song, entitled “Fuck You”, exclusively on YouTube. It’s a brilliant, bouncy, perfect, hysterical bunch of soul-pop ear candy, with a video that faithfully supplies lyrics, including the relentless refrain “Fuck you and fuck her, too.” As of this writing (Wednesday AM) there have been 2.3 million hits at the official version on YouTube, and that’s not counting the hundreds of reposts, mash-ups, and reply vids that have been put up not only on YouTube, but on every other video posting platform on the internet.

There’s a very good argument to be made that “Fuck You” is the number one song in the world right now, and it’s not even a blip in Billboard’s radar. Why not? Because there hasn’t been a single sale, and it sure as hell hasn’t been played on any Clear Channel stations.

We’re in a world where sales of a paltry 60,000 units can put an artist on top of a chart, while at the same time tracks are flying around the internet, kids are devouring music through their earbuds 24/7 or “watching” songs on YouTube. Sales-and-radio-based charts have nothing to do with how music is actually being acquired and consumed.

Enter the smart people at Big Champagne, who have for ten years monitored folks’ online activity and have made lots of money selling “illegal download” data to the major labels (who tellingly use the data for marketing, not enforcement purposes). At the New Music Seminar in NYC last month, Big Champagne unveiled “The Ultimate List,” a singles music list that it claims is based on billions of data points from all over both the Internet and the physical world.

For all the hoopla, the Big Champagne chart doesn’t look a whole lot different than the Billboard Chart, at least not today. And Cee Lo’s “Fuck You” is nowhere to be seen. Are the billion data points, metrics, weighting systems, and human massaging of data capable of tracking reality in this day and age?

And the Ultimate Chart, like the Billboard charts is compiled weekly. Huh? A week today is a lot longer than a week was even a year ago. Who cares what the #1 hit was six days ago? Or six hours ago, for that matter? What’s #1 right now, dammit, isn’t that what we want to know?

I’m guessing that’s coming, as Big Champagne claims that The Ultimate Chart is only the beginning, and that a lot more stuff is coming down the pike soon. Meantime, I wonder if Big Champagne’s noble effort is just so much tail chasing, or maybe just a big smoke and mirrors play to come up with fodder for our insatiable need to be told what we like.

The great thing, and the scary thing, about internet and its decentralization of our culture is that we’re left to find what music we like for ourselves out of the cacophonous, primordial, and endless flow of music shooting through the ether. But, if you’re lucky, every once in a while some song miraculously rises to the top and presents itself and you’re never quite the same.

Like, you know, “Fuck You.”

8.19.10 I AM TRYING TO BLOW YOUR MIND

2010-08-19T09:50:00.005-04:00

This review originally appeared in the 8.19.10 issue of Metroland

This was so overwhelmingly surreal that I figured at some point I’d just wake up and it would all be over. The Chandler Travis Philharmonic, 9 pieces strong, were playing an unannounced gig on the deck of Zaika’s, an Indian restaurant a stone’s throw away from the Clifton Country Mall. I’d found out only because of a Facebook post where Chandler mentioned a “secret” gig on Saturday following a Caffe Lena gig on Friday. Neither wild horses, nor Wilco, would keep me away.

For the unwashed, or perhaps for the washed, the CTP is from Cape Cod, play there and Boston a lot and maybe once a month in NYC, and once in a couple blue moons over here. Described as stylistically something like “Dixieland on acid”, they have a proclivity for wearing bright-colored pajamas, tag-sale gag hats, being profoundly irreverent, and doing generally whatever the hell they want. For a time in the late ‘90’s, they released a new CD every two weeks. They are to a person virtuoso players, expertly handling Chander Travis’ brilliant pop tunes and various members’ arrangements of oddities from the 40’s to today all whilst maintaining a constant low-level riot onstage. They exist somewhere on the continuum among middle period Kinks, any-period NRBQ, maybe a pinch of Sufjan Stevens, and every Grammy winner in every category in the history of the world. The CTP simultaneously is and isn’t for everyone.

So here we are on the massive and massively cool deck of Zaika’s, overlooking an artificial pond and the mall, with one of the best, weirdest, and most unsung bands in the universe just laying it down, sounding like a million bucks, and looking like happy, disheveled hell. I can’t imagine how an unsuspecting, god-fearing Clifton Park family, perhaps seeking a quiet, restorative summer dinner of vindaloo and nan, would have handled coming face to face with such stark truth and beauty. Oh, did I tell you the drummer is a slender, athletic, and tall transgendered woman, who happens to be the finest pure groove drummer this side of Jim Keltner? She looked fab Saturday night in a zebra print dress. And goddamn can she play.

Off they went, from the stately, heart-rendering “Home” (from their album Have a Pancake) with the horn section slowly building the tender counterpoint refrains, to the push-me-pull-me audience-participation “Fruit Bat” (from their upcoming The Chandler Travis Philharmonic Blows), to an irresistible hard-swing version of Maxine Nightingale’s "Right Back Where We Started From". Every member of the band was mesmerizing to watch. Not the most attractive band in the world, mind you (and, in all fairness, there can really only be one of those) but mesmerizing nonetheless.

Half-way through the second set, just after playing the signature “Chandler Travis, King of the World” (“waitresses and stewardesses love him, especially waitresses”), Chandler announced they would play something they just worked up, something from the film The 5000 Fingers of Dr. T, the obscure Stanley Kramer / Dr. Suess kiddie masterpiece generally considered one of oddest movies ever made, and a personal fave of mine since I was, like, 4. Bands, you want me totally in the tank for you? Do that.

Throughout the evening I kept getting tweets and IMs from friends over at Joe Field at MassMoca, folks watching Mavis Staples and Wilco. One said she was at the best place ever, at the best concert ever. Hmmm. Now, I visited Joe Field on Sunday and yes, it’s a bitchin’ venue, and I’m sure Tweedy & Co. were fine, but consider this: I was sitting 15 feet away from one of world’s greatest, most unique and charming bands, playing at the top of their game. I was picking at a spectacularly fine Indian vegetarian platter. The pretty waitress would stop by every 15-20 minutes and ask me if I’d like another beer. (My answer was uniformly “yes, please.”) I wouldn’t have wanted to be anywhere else. I wanted it to last forever. I was in heaven.

Or maybe I just haven’t woken up.

8.12.10 See Change

2010-08-11T22:01:00.005-04:00

this article originally appeared in the 8.12.10 issue of Metroland

Well, the deck chairs have started moving, but nobody’s quite sure what it means. First, the Copyright Office issued a stunning set of rulings two weeks ago. These had to do with a particularly stinky part of Digital Millennium Copyright Act that was rammed through Congress in the ‘90’s—a law that made it illegal to unlock “copyright protection” technologies. This absurd little law virtually wipes out any notion of fair use of copyrighted works, because is makes it illegal to simply get to copyright protected works in the first place! It’s also a dangerous law insofar as it outlaws technologies in the name of copyright law. Predictably, the law has been routinely abused by Big Media companies seeking to stop folks from tinkering with their stuff, and utterly ignored by the hacker community, which proves day in and day out that “copyright protection technologies” are silly and doomed to fail.

Congress did leave a little door open: citizens could petition the Copyright Office for exceptions to the law---if it could be demonstrated that disabling a “copyright protection technology” was in the “public interest”, the Copyright Office would grant an exception to the law. (People forget that copyright law was created to serve the public interest, and not the stockholders of Viacom and Disney) The Copyright Office is mandated to issue these rulings every three years.

In the past, these exception rulings would be published and were so picayune or technically dense that most of us paid them little mind. In this round the Electronic Frontier Foundation and a bunch of academics got involved with the exemption requests and two weeks ago a couple bombs dropped.

If you’ve heard about this at all from the media, you’ve probably heard that there were Copyright Office rulings involving smart-phones, jail-breaking, and the use of “unauthorized” apps. The mainstream media went nuts about this because both rulings were smack-downs of Apple, and there’s been this childish fever for Apple-bashing lately. I doubt either of these rulings will have much direct impact on anybody. As to jail-breaking (hacking the phone so it’s not tethered to a particular cellular company, in Apple’s case, AT&T), folks have been jail-breaking iPhones for a while now anyway; Apple’s reaction to the ruling was a shrug and a statement that jail-breaking would void an iPhone’s warranty. Now, one of the things we like about our Apple stuff is that on the off chance it goes south on us, we can just take our broken stuff to the Apple store where nice people fix it all up, often for free. So, jail-break away kids. I’m chicken and I’m stayin’ put. As far as apps go, Apple hasn’t exactly been limiting developers in the app store, blocking mainly porn or apps that might destabilize your phone. So, OK, jail-break your iPhone and watch porn while talking on the Sprint network. Hope it works out for ya.

The much more interesting and important ruling allowed the copying of scrambled DVDs (and almost all commercial DVDs are scrambled) for use by educators, documentary film-makers, and almost anybody who wants to remix a movie on a non-commercial basis. This is just freakin’ huge. As scholar Peter Jaszi points out on his ©ollectanea blog, the breadth of this exemption is remarkable, with the Copyright Office taking a very broad view of what fair use is for movies and who could take advantage of it. You know those great YouTube videos involving the scene from the German film Downfall? With Hitler reacting to everything from the break-up of Oasis to Renaldo going to play for Real Madrid? How they’ve been taken off of YouTube for “copyright violations”? Well, they ain’t copyright violations no more! You know the big scary warnings at the beginning of DVDs about how ANY copying or unauthorized use of the movie is punishable by torture, death and a fine of $750,000? Buh-bye!

The other big news involves net neutrality. The FCC is struggling with whether it can and should impose rules insuring equal access and pricing on the internet in the face of opposition from telecom industry and commercial interests. This week Google and Verizon released a “joint proposal” that caused some excitable techies to scream about the “death of the internet” but left most of us scratching our heads. What is being proposed is absolute net neutrality for wired internet, but not for wireless internet. Which is not good, because wireless is soon likely to be the dominant portal to the internet. This is kind if like saying “OK, we’ll protect typewriters, but not computers.”

What’s most stunning about this is the participation of Google, which one would think would be staunchly in favor of net neutrality across all platforms. But then, we know that Google has been out in front in the expansion of things like municipal WiFi, where boatloads of money could be made with premium service tiers.

But, like I said, nobody’s really sure what it all means. It makes my head hurt.

8.5.10 CAN BANGIN' 2010

2010-08-05T08:51:00.003-04:00

A Bang on a Can ensemble featuring the svelte Todd Big Daddy Reynolds

This article originally appeared in the 8.5.10 issue of Metroland

BANG ON A CAN MARATHON

MASS MOCA

Saturday, July 31, 2010

Saturday marked what for some of us is the high cultural point of a culture-drenched season: the Bang on a Can Marathon, where a gaggle of 30-some professional musicians, students and composers conclude a three-week residency at Mass Moca with a 6-hour orgy of what some might call “new music.”

One of the many things that makes this event so fabulous is the friendliness of it all—the event features some 20 pieces, ranging from a couple minutes in length to maybe twenty minutes tops—there is no chance of getting caught in the black vortex of some interminable and ugly modern work. Everything is bite-sized and manageable for even the most untrained listener.

And each piece is played by a different ensemble, ranging from duets to ensembles with 10+ members. (A special mention has to be made of the stage and sound crew, who morphed the stage some twenty times in six hours, and who didn’t appear to break a sweat or miss a trick. Amazing.) And the whole thing is soooooo casual. The action takes place in the big Hunter Auditorium, and even with an audience of 500, finding a good seat is never a problem, and the audience is always free to wander in and out, grab a drink in the courtyard, look at a gallery, or maybe steal a glimpse of Leonard Nimoy, who was being feted out on the deck.

So there’s the vibe, what about the music? It’s always been great, but this year there seemed to be an emphasis on fun, an attribute not often associated with “new music”. Each piece was introduced by either the composer or one of the BOAC-ers intimately familiar with the piece, and all of the introductions were not only personal, but charming and often downright goofy, all of which served to greatly enhance what was to follow.

At the top of the list was Tom Johnson’s Narayana’s Cows, a narrated piece that musically solved an ancient math puzzle about how many cows you’d have after 17 years if you started with just two. Each year was a movement, each cow got a note and each generation got a pitch. The first movement lasted about a second, the seventeenth must have gone on for five minutes. With a deadpan narration (that included the drinking of some milk), and an ensemble that grew whenever a new generation arrived (finishing with two basses, a couple keyboards, three electric guitars, a bass clarinet and a cello), the frenzied, complex piece just got more hysterical with each passing year.

I wish I could write 2000 words but I can’t, so other highlights included excerpts from Ted Hearne’s Katrina Ballads, an operetta of sorts that featured a libretto taken verbatim from the news, including Hearne sputtering “Brownie, you’re doing a heckuva job” like a mis-firing digital sampler over a disjointed chamber accompaniment; three young virtuosos from Uzbekistan, who played traditional instruments on traditional Uzbek pieces that all fit seamlessly among the shiny adventuresome new pieces played by everyone else; David Lang’s Forced March, a strident piece featuring a repeated pattern over shifting time signatures, so that the pattern is never situated the same way twice, or as the composer observed “the worst of both worlds: endless variety, but you don’t really notice it”; and Michael Gordon’s Yo Shakespeare, an epic large conductor-less ensemble work with so much counter-rhythm that the musicians were instructed to hop and dance in order to keep the downbeat in place.

Lots of concerts make you feel good, hit your pleasure points, make you sweat. The Bang on a Can Marathon never fails to do all that, along with making me feel more aware, more alive, and more in touch with the endless possibilities of the universe. Really.

7.15.2010 HAVE YOU NO DECENCY?

2010-07-14T19:22:00.002-04:00

This article originally appeared in the 7/15/10 issue of Metroland

While sitting around Tuesday afternoon thinking I had nothing to write about, I was alerted to a court decision just handed down by the Second Circuit Court of Appeals declaring the FCC’s punishing of television networks for broadcasting “fleeting expletives” unconstitutional. I’m like “huh? Haven’t we been here before?”

Well, yes we have, sort of. This is a case that’s been bouncing around the upper levels of our court system for a couple years, and we’ve talked about it here a couple of times. And I’ve got a feeling this won’t be the last time, I don’t know. Oh, no.

The case involves George W. Bush’s attempt to turn the FCC into a Christianista strike force, to placate the religious extremists like James Dobson’s Focus on the Family, by trying to cleanse the airwaves of anything remotely un-Christian. As part of this crusade, the FCC dramatically raised penalties and started going after networks and individual stations that aired any “dirty words” on broadcast TV in ways the FCC had never done before. In 2003 the FCC issued around $400,000 in fines; in 2004, the FCC issued over $8 million in fines.

The FCC’s wrath in this case was leveled at a Cher “fuck ‘em”, a Bono “fucking brilliant”, a Nicole Ritchie “cowshit,” a NYPD Blue “bullshit” and an Early Show “bullshitter.” These things all happened in 2002 and 2003.

Oh, we’ve seen this case before. The Second Circuit already determined in 2007, in a thorough and delightfully snarky decision, that the FCC had acted arbitrarily in suddenly changing its standards for indecency, and therefore was in violation of the Administrative Procedure Act, a federal law that governs how agencies like the FCC operate. The Second Circuit didn’t look at the Constitutional dimensions of the FCC’s behavior because it didn’t have to. There’s a axiom in the courts that a Constitutional question should always be avoided if a case can be decided on some other basis, and that’s what the court did. So the 2007 Second Circuit ruling goes to the Supreme Court, which “ruled”, if you call a 5-4 decision with SEVEN separate opinions something resembling “ruling”, that the FCC wasn’t arbitrary at all. Or something. The plurality decision, authored by Justice Anton Scalia, essentially abdicated a big part of the Supreme Court’s responsibility to be a check and balance on the executive branch, at least as far as the regulation of individual speech goes.

In any event, whether or not what the FCC acted constitutionally was still up in the air, and that question came back to the Court of Appeals, which ruled this week that the “standards” now applied by the FCC for indecency on broadcast TV are unconstitutionally vague.

The 32-page decision is a good read. It’s authored by Judge Rosemary Pooler, who also wrote the wonderful first decision back in 2007. A good part of it is explaining to Justice Scalia exactly how he got it so pathetically wrong in the 2009 decision and lays down the gauntlet for why the Bush FCC’s actions were so bumbling, so deplorable, and why the freedom of speech is so sancrosanct.

Here’s some highlights:
Why the 1978 Supreme Court ruling in the George Carlin “seven words you can’t say on television” case is probably no longer relevant:
[W]e face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.

Examples of how the FCC’s current standards are impossibly vague:
For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not.... Other expletives such as “pissed off,” “up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive... This hardly gives broadcasters notice of how the Commission will apply the factors [regarding indecency] in the future.

On the basic futility of trying to regulate speech:
The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.

Pooler’s use of the word “crusade” was revealing, because what the FCC attempted in the Bush years was just that. The fundamental point is that when a speech regulation is vague, speakers will self-censor to an extreme degree to avoid being penalized, to society’s detriment, and the Court provided a bunch of examples of how this is already happening.

One wonders if Obama’s FCC will take this back up to the Supreme Court, and if they do, why? The Supreme Court, as presently constituted, has proven itself incompetent to deal with issues regarding our fundamental freedoms. Unless, of course, you’re a corporation or consider carrying a gun around a fundamental freedom.

7.8.10 Mon Dieu!!!

2010-07-08T07:34:00.004-04:00

This article originally appeared in the 7.8.10 issue of Metroland.
Some more extensive coverage of the Montreal Jazz Festival can be found below in this blog.

The Montreal Jazz Festival is commonly hyped as the largest and best jazz festival in the world. That well maybe so-- after the four days I spent at the Festival last week I can say it is mind-blowing, it is immense, it is intoxicating, and it’s in Montreal. What more do you need?

Now in its 31st year, the Festival is spread out over almost two weeks from late June to early July. The Festival locus is the Place Des Artes, a roughly eight-city-block expanse smack in the middle of Montreal; there’s a couple big modern buildings there, housing a number of big theaters and auditoriums, and a ton of open space, where a half-dozen very large outdoor stages are spread out. Admission to the Festival is free, and there are hundreds of free shows on the six large outdoor stages and a number of smaller stages; there’s even a small wooden dance stage built into the sidewalk that was busy every time I walked past it. And then there are hundreds more ticketed shows in theatres, auditoriums, clubs, and cafes either inside or a stone’s throw from the Place Des Arts.

The festival is extremely well laid out; even with tens of thousands of folks milling around, one can quickly scope out the entire Festival grounds—even with a lot of construction going on; next year, when the work is done, the layout will be even better.

Food and drink are everywhere—Heineken is a major sponsor, so there’s “jazz bars” every ten feet or so, there’s food vendors selling these serious hotdogs everywhere, and outdoor cafes overlooking the outdoor stages throughout the Festival. I stood in very few lines for anything, and, remarkably, nobody was charging “festival prices.” Livin’ is easy at the Montreal Jazz Festival.

Of course, the frosting on all of this is that the Festival’s in the heart of Montreal, one of the great cities in the universe. There are hundreds of hotels near the Festival (mine was two blocks away), and there are insanely good restaurants of all types everywhere. And as the Festival doesn’t really crank up in earnest until the evening, afternoons are a time to explore Montreal. And to make that easy, there is a municipal bicycle system, hundreds of computerized bike racks holding thousands of bikes. For $5 a day, you get unlimited bike usage for 24 hours. I biked to all these restaurants recommended by my Facebook friends and ate like a freakin’ prince. Heaven.

OK. The music? Well, as is the case with most “jazz” festivals of any magnitude, this is really a generic music festival, with major headline acts that tend towards the banal, like Steve Miller and Lionel Ritchie. Below that is a wild variety of world music, hip hop, folk, some rock, and a whole lot of other things that one wouldn’t necessarily associate with jazz. In the course of 12 hours, I saw three (count ‘em) strolling “gypsy” bands. But, then, there is a TON of jazz going on if you look for it, and what makes this Festival so special is that you don’t have to drill down very far to find real substance, whatever the genre. This is a very thoughtfully and tastefully curated festival, and even the most jaded muso can zero in to the source playing something somewhere here.

My highlights included the first half of the John Zorn Masala Marathon, an explosion of Zorn’s experimental “Jewish music”, featuring downtown heavies like guitarist Marc Ribot, pianist Uri Caine, cellist Eric Friedlander and trumpeter Dave Douglas. Lyrical, challenging, varied, centered, and fun. I missed Zorn’s other big show, with pals Laurie Anderson and Lou Reed, an amalgam of Zorn’s old No Wave noise projects and Reed’s Metal Machine Music. Apparently, the show wasn’t marketed particularly accurately (a rare misstep for Festival organizers) and a goodly number of the 3000 strong audience thought they were gonna hear medleys of old Velvets tunes, or something. The “lou’s” turned fairly quickly to “boo’s”, reportedly causing Zorn to scream “if you don’t like this music you can fucking leave!” Now that would have been something to see.

Anyway, another brilliant show was the impromptu trio of drummer Manu Katche, bassist Richard Bona and guitarist Sylvian Luc. The Festival has this delightful habit of mashing up talent like this--each of these supremely gifted folks was headlining with his own group elsewhere--and this show, in a small grotto concert hall in the basement of an ancient church, was an hour of improvised groove nirvana, good humor, and dazzling virtuosity.

On the outdoor free stages I saw LC-33, a Columbian salsa group who were spectacular; Brooklyn’s Slavic Soul Party, who were annoying; L’Orchestra Internationale du Vetex, a young, scraggly Quebequois hippie-gypsy band, who were brilliant and everything Slavic Soul Party wasn’t; Wop Pow Wow, some sort of misguided Canadian conceptual world music group that I never want to think about again; Beast, a Montreal trip-hop group, who tried hard but didn’t do it for me; Caravan Paradise, a Parisian techno group who did do it for me (and 100,000 other screaming people) in a big way; Grace Kelly, the teen-aged Bostonian saxophonist and singer, who quietly ruled; and Chicago Goes West, a young trio from Calgary who Friday afternoon took over the biggest outdoor stage at the Place Des Arts and with all the calm in the world reminded the massive crowd what jazz is.

But for me the most fun was seeing the Queen of Rockabilly Wanda Jackson with her backing band, our own Lustre Kings. Wanda played to a packed house in this cool nightclub right in the center of the Festival—the kind of club that you see in gangster movies, never in real life—and she utterly killed. And what fun to see Mark and Chops and the boys doing what they do so well, what they do for us all the time, in front of hundreds of ravenous fans. It was nuts. Wanda’s on the comeback trail with an upcoming Jack White produced album, and she’s dragging the Kings along with her, and if this show was any indication, this comeback will have legs.

Sometimes we have to be reminded that this wonderful city is little more than a three hour drive away. And with events like this, so utterly well conceived and run, so fun and life affirming, so affordable, it should be a crime to stay home. See you there next year.

Montreal Jazz Fest Post Two

2010-07-04T14:27:00.019-04:00

Jazz Festival Post Two

Thursday July 1 Montreal Quebec Canada:

Up. At ‘em. 7 AM. That awful in-room coffee then a run behind the hotel through the beautiful McGill campus. I was about 3 blocks from the hotel and I realized I was in front of the building where the Future of Music Coalition Conference was held almost 4 years ago.

Everybody’s been telling me I had to go to Schwartz’s for a smoked meat sandwich, it was back up in the same general neighborhood as the joint I’d eaten at Wednesday, and the web site said “hot meat 10 AM.” So I grabbed a bicycle and got up there around 10:30. Place was empty (people had warned me about lines there at lunchtime) and surprisingly tiny and dingy. The sandwich just two small pieces of rye, a bunch of corned beef, and yellow mustard, was sublime. $5.90.

Decided to give the Festival every possible chance to redeem itself to me after the very uneven showing the day before. I started hitting the free stages shortly after noon, and the first thing I ran into was L’Orchestre Internationale du Vetex, a strolling gyspy-like band. Very young, they all looked like they’d slept in their clownish clothes. And they rocked the smallish early crowd hard. Let me put it this way—they did everything I thought Slavic Soul Party was supposed to do, and didn't. They all moved constantly, they fawned when one of them took a solo, the girl on the bass drum had one of the better grooves of the Festival, and most of all, they were having the time of their lives playing together, and that shit’s infectious.

My bud J. Eric Smith just wrote a thing for his Times-Union blog about how collectivism doesn’t work for rock and roll, it’s hysterical and dead-on and you can read it here:
http://blog.timesunion.com/jericsmith/rock-and-roll-is-not-collective/2076/. Now, it may not work for rock and roll in a fairly strict sense, it can work, in spades, for a scraggly, neo-hippie, street gypsy band like L’Orchestre Internationale du Vetex.

The Vetex’s were followed quickly by a smaller, slicker, but similar group called Gruv’n Bass, who were merely OK. Despite name, the groove was not nearly as strong as for L’Orchestre.

There wasn’t a whole lot more going on, and the streets were starting to get crowded. It was starting to get to this critical mass where all of the free stages were turning into mob scenes, regardless of who was playing. The crowds were like waves, getting bigger by the hour.

I hung in at the press room, drinking expresso and writing, and watching the other writers milling in and out of the staging room for press conferences. I almost went in for the Richard Bona press conference (he was doing a big solo show Friday night) just ‘cause I wanted to find out more about the guy.

I had a 6 o’clock date with John Zorn’s Masada Marathon, the 1st of a 2-part concert where Zorn was going to bring together all of the strains, and many of the musicians, from his more than a decade-old project to create “new Jewish music.” This was held in one of the major theater venues in the Plaza Des Artes, the Theatre Maisonneuve, a 60’s era 1500 seater. My issue was that I had also picked up tickets for a 7 o’clock show down the road by Canadian avant-folk group Courtney Wing---I figured I’d catch 45 minutes or so of Zorn then split. Unfortunately, there were no aisles in this damn place and I was in middle of a row, maybe 30 seats from the side entrance. Leaving in the middle of the performance, while doable, would be a serious effort and a disruption all around.

Turns out the show was so cool I didn’t want to leave. The show was split into 4 or 5 sections, each with its own ensemble / artist, each lasting roughly 20 minutes. They were bookended by larger groups, led by Zorn, either as a seated conductor or a saxophonist. These were utterly fantastic. When the first group started—featuring guitarist Marc Ribot, drummer Joey Baron, bassist Greg Cohen, cellist Eric Friedlander, percussionist Cyril Battiste (and I’m forgetting a few more) –what struck me was how perfect the sound was, and how mesmerizing, from note one, this music was. The later ensemble included Uri Caine on piano and Dave Douglas on trumpet. In all of the songs there was some structure, melody, and themes, but Zorn sculpted the pieces as they went along, using a series of hand gestures to call solos, duets, techniques and sequences. It was as much to watch as it was to listen to. Most pieces had a middle-eastern modality to the melodies, but all kinds of stuff flew in and out from every direction.

In between were smaller ensembles and some stunning solo cello from Friedlander, the only mis-step and it was fairly minor, was the women's acapella ensemble. Four women, dressed in what appeared to be mismatched (and uncomfortable) bridesmaids gowns, smiling nervously and singing fairly quiet little avant-garde ditties in what sounded like Hebrew. Neither they nor the music were ready for this stage or this show.

This was the biggest ticketed event I attended at the Festival, and all in all it was an absolutely brilliant two-plus hours. I was wishing that I had grabbed tickets for part two, which was going up at 9:30... And I’ll just have to catch Courtney Wing some other time.

Back out on the street, I realized that I was hungry, not having eaten much since Schwartz’s. I hiked up Ontario to La Paryce, who several folks had told me to go to for Montreal’s finest burger. There was a line, but I snared a stool at the tiny bar. Yes, it was one righteous burger, not too big, but with a great mess of stuff on it, tomato, onion, pickles, cheese, etc. And reasonable, like $7 or so? I was in and out fast.

There was some white-boy blues at the blues tent, very mediocre stuff; and LC-33 had just finished their second night; damn, I was ready for another dose of those guys.

Up the hill, I did get a look at Bostonian saxophonist-singer Grace Kelly, the 17 year-old Chinese girl who played Pittsfield back when she was like 14. There’s a picture from the Pittsfield gig of her wearing Phil Woods’ hat while a hatless Woods watches her play, and it is one of the best jazz photos I’ve ever seen. Anyway, she was on one of the smaller outdoor stages, and had a packed, and I mean jam-packed, courtyard in the palm of her hand, playing and singing bluesy bop jazz like a seasoned pro. With a crack band.

After all of the ethnic, multi-techno, world music I’d been seeing over the last couple of days, it was refreshing to see something, finally, that could only be categorized by the word “jazz.” This was, after all, a jazz festival.

Anyway, I’m a big Grace Kelly fan. Next time she should be on a bigger stage.

Instead of, say, Jose James and the Blackmagic Band, some kind of jazz hip-hop fusion thing that played right after Grace on the Scene TD stage, and thereby automatically attracting tens of thousands of curious onlookers, and who left me, well, completely cold.

Back for a third time to Gesu to see my truly wild card show, something called Punk Bop!, featuring a drummer named Ari Hoenig. I was started to dread this, because the name of the group was so lame, and was thrilled that the group, while having nothing whatsoever to do with anything remotely “punk”, was a seriously fire-breathing bop group. The young Armenian pianist Tigran Himasyan really stood out, but they all played with a great shared sense of dynamics, of fun, and of purpose. Drummer Hoenig was a character, looking at times like a wind-up monkey, and making more facial expressions in the course of one tune than most drummers make in a lifetime. He’s not quite as showy as that guy in the glitter jacket who’s all over YouTube, but he’s almost as disconcerting to watch. But in any event, Punk Bop! was a super-fine show despite to off-putting band name.

That’s Thursday.

Friday: took a jog down to old town to look at a little highly recommended café. It was a long run back uphill through Chinatown, but I got home. Worked again through the morning, around 1 decided it was time for that last big Montreal meal. Almost walked, as it was just beautiful out, but decided to grab another bike. It’s just too much fun on the bike. Got to old town, which, unlike at 7:30 in the morning, was crawling with tourists. The little café was loud, crowded, I was given a table in the middle of the place and a laminated menu. Uh, no. I split, got another bike, and headed back up to the plateau. I couldn’t find the highly recommended La Cocayne on Rue St. Denis, but wound up at Le Cherrier. I was sweaty from the uphill ride, and the hostess stuck me in a booth inside and turned the ceiling fans all the way up, which was sweet. I had the house red, a meat plate appetizer, and duck breast with some kind for fruit sauce—might have been boysenberry. It was French, it was good, it wasn’t expensive, I was happy.

I had one real musical event today—Wanda Jackson and The Lustre Kings. Mark Gamsjager of the LKs has been a friend for, what, 25 years? Hell, I’m their lawyer, come to think of it! The LKs cover Blotto’s 1-2-3 Hang Up, fer cryin’ out loud. And here they are with the Queen of Rockabilly, a former GF of Elvis, a lady who just recorded an album with Jack White. Yeah baby...

Met up with Mark and his bassist, my pal Chops, at the L’Astral venue, right under the press room, a place that looks like an old movie theater from the outside, with it’s marquee, big glass doors, and lobby, but is in fact a really cool club, with a big stage, tables all around, a wrap-around balcony with a couple tiers of seats, and a couple of bars. Like I posted, the kind of nightclub you only see in Gangster movies.

Mark and Chops had plenty of prepping to do, so I decided to take one more walk around the grounds. I tried to get some kind of official Jazz Fest shirt for my 16 year old, but found the designs and colors available simply and profoundly ugly! Somebody was going for some kind of 60’s-70’s-retro look, and utterly failed to bring a contemporary sensibility in with it. Instead of retro, then, we got a bunch of designs and colors that long ago fell out of style, and for good reason. And yes, there’s a difference.

Anyway, I took a walk and was startled to have all the characters from the daily New Orleans-style parade all come walking around the corner, heading back to their staging area. They were still on stilts, or in full costume, but they were all just heading home after the gig, chatting with each other; one showgirl had her daughter and husband walking along. I wish I’d been more ready, I snapped a couple shots but not want I wanted. This was nothing less than Picasso’s harlequin paintings sprung to life—totally unguarded, and very beautiful.

Head spinning from this I got up to the Scene TD stage, and I heard something strange there. I heard jazz. Coming around from behind the stage I was stunned to see a young jazz trio from Calgary called Chicago Goes West, just playing relaxed bop jazz like they were in a basement club in some college town. And thousands of people were listening, and every place down the massive mall that people could sit, people were sitting. And grooving. It was a trumpet trio, and there was a LOT of Miles in what the young cat was playing. But it stunned me that here, on a Friday evening, on this gigantic stage and mall that had really been the bane of my existence since I got here, they had booked the most basic of jazz ensembles. To play jazz. I got a beer and one of these extraordinary hot dogs and found a chair to savor this. Good show.

Time for Wanda. There was a line down the block to get in. A smattering of rockabilly cats and kittens, but not as many as I’d expect in Montreal. Got a high-top just off stage right. A young couple walked by looking for seats and I invited them to join me. Lovely folks, visiting from Minnesota, just drove into town and bought tix for whatever was available. The place was packed when the Lustre Kings walked out. They played a couple, then Mark gave Wanda the big show’ biz intro. She’s a little thing, and walks with a slight stoop, but has a beaming smile, and her raspy voice is still very much intact. And she’s razor sharp, cracking jokes, and improving with people in the crowd yelling stuff to her.

At one point the folks between me and the stage just got up, picked up their tables and moved them to the side, creating a little dance floor that quickly filled up with young girls, who were boppin’ the blues to a 70-something year- old lady.

She was fabulous, spraying water on the front rows, talking about her new album, talking Elvis, talking Jesus; she had an obvious affection for the Lustre Kings, she mentioned each member by name, and when they laid into “There’s a Riot Goin’ On’”, well, there was a riot goin’ on. A big happy riot. The crowd was just swooning for Wanda the whole night. My new friends from Minnesota were just blown away. Me, too.

Afterwards Wanda and her husband Vernon (who looked exactly the way the husband of a 75 year old Queen of Rock and Roll should look) greeted fans out in the lobby. The line, again, wound around the room and up the stairs. People were snapping up the 45 of the new Jack White single and getting is signed. It was over an hour before the place got cleared up. I got caught up with Mark, his wife Kathy (another old, great friend) and Mark’s mom who'd made the trip up. Then it was time to call it a Festival. I wandered out into the warm night. It was after 11 and the place was a mob scene. I decided to take one last look at the Scene TD, which had a “Surprise Concert” scheduled for 11. I came around the corner and was blasted with light and sound and energy from 200 yards away. There was a techno group on stage (who I later learned was Parisian band Caravan Palace), but unlike the others I’d seen previously up there, these guys were where they belonged. The girl singer, dressed up in leather, owned the stage, singing her ass off in French. There was an acoustic guitar virtuouso playing over the din, a violinist, too. The lights were incredible. And there must have been 100,000 people on the Plaza, screaming and dancing.

This was what it was all about. This was brilliant. I’ll remember this last scene the rest of my life. Good night, Montreal.

Montreal Jazz Fest Post One

2010-07-03T20:50:00.012-04:00

I attended the 2010 Montreal Jazz Festival as a journalist from June 29 to July 2.
What follows are my quick impressions.
I will be publishing a 1000+ word feature in Metroland drawn largely from this. Minus all the food stuff. This post recounts the 29th and 30th. More to come.

I kind of fell into this one. This deep one. For a couple years I’d been listening to my pal Seth Rogovoy raving about his trips to the Montreal Jazz Festival for Berkshire Living magazine: the free hotel, the press credentials, the great vibe, the great scene, the great music, the great food. A few months ago I said to him “Dammit, how come I don’t get to do this?”

He responded “Well, have you asked?”

“Well, no.”

“Hold on,” he said. About 20 minutes later I got an email from Ann, the US publicist for the Festival, inviting me to submit a short application. She was apparently familiar with some stuff I’d written for Metroland. Next thing I know, I’m in. Like Flint. Damn!

What follows, then, is part travelogue, party diary, part draft for whatever I’m gonna submit to Metroland. I’m committed to a 1000 word article—I’ll put everything down here and then take snippets (and leave off most of the food stuff) for what ultimately gets published.

*****************

So Seth, his son Willie, and I set off mid-morning from Great Barrington on the 29th for Montreal, arriving at the Delta Hotel in mid-town about mid-afternoon. The Delta’s a big, corporate hotel, 4-stars according to it, and I had a very nice corner room with no right angles and a balcony. The Delta’s also two blocks from the Festival. Oh yeah.

I followed Seth to the Festival press room, which had banks of computers, tables full of literature, and a whole bunch of press liaison people. And a bar with free wine, beer and expresso. I was handed a folder full of info stuff and an envelope with some tickets for shows I’d indicated I wanted to see. And a big press credential thingee to wear around my neck.

Here's the deal with the Festival. There are 6 major outdoor stages where the music is free. Music starts around noon every day, with mostly school groups and up and comers going sporadically 'till six, when things start cranking in earnest, usually at least three things happening at once.

There are also a dozen or two venues in or near the Festival site for which you need to buy tickets. These range in size from auditoriums, where you get to see the likes of the Steve Miller Band and George Benson, to mid-sized theaters, to small clubs and cafes. I put in for press passes for a number of smaller ticketed events, and got tickets for most of them. I asked strictly for shows I thought I would most enjoy--I avoided the big auditorium shows; I didn't come to see pop stars and mega-shows, I came to see jazz.

I decided food would be a major part of the equation this week. At home I don’t eat out much, and when I do it’s usually burgers with friends. I figured this: I’m in one of the great gastronomical cities in the Northern Hemisphere; I’m alone; I’m gonna be spending money on food anyway; I’ve got oodles of time each day on my own—the main Festival musical events don’t start ‘til around 6 PM.

I’d sent out a Facebook request for restaurant suggestions and got a mess of them, almost all within a mile of my hotel.

And the closest was Beaver Hill, and old school, sedate, French restaurant. This was stop #1.

I walked in around 5 on Tuesday, too late for lunch and too early for dinner, so it was pretty much empty. The place looks like it’s been here forever, banquettes up and down the sides and tables in the middle. I got some wine and started trying to figure out the Festival schedule, where the stages were, what I had tickets for, where and when. What else I wanted to see, where and when. Daunting.

But back to the food. They had a special seafood platter, half a lobster, some mussels, scallops...I went for it. I was sipping wine and having some kind of olive spread on bread when a waiter came out with a big hunk a pate, a “gift from the chef.” Wow! The chef digs me! It was great! The dish came out and looked just un-friggin-believable. Tasted fantastic. As I finished up I was struck by just how little food there actually was. Half a little lobster tail, two dinky scallops, some kind of tasty paste-y thing, some crab meat on the little ball of cheesy rice or something. Tasty as all hell, though.

The big free show Tuesday was something called Beast— trip-hop duo, a girl singer and a “multi-instrumentalist”...playing the huge Scene Festival TD stage. Beast had some industry muscle behind them—a full page ad in the Festival program, massive posters all over.

The show was listed for 9, I got to the Scene TD around 8:45, and thousands were already there on the massive concrete all stretching out before the huge, high stage. I got as close as I could with out having to push my way through the crowd, maybe 150 feet from the stage. 9 became 9:15. Apparently the show had been moved to 9:30. A sad reality started coming clear to me. A combo of old teenager football hits and weekend warrior exploits as an adult have left my back a fragile wreck—and I can’t stand in one place for more than 15 minutes or so without starting to hurt and hurt bad. I wasn’t long for this party.

Finally around 9:30 stuff started happening on stage. Lights went on and off. Stage smoke started moving blowing about. A little string section appeared on a riser. Then music started, kind of a droney sound and then a plodding rock beat, played by a real drummer, who appeared to be “the multi-instrumentalist”. The girl singer came out in a trenchcoat to a roar from the now-massive crowd. The close-ups flashing on the big screens revealed that she was no “girl”, she was easily in her 40’s, maybe older. She was wailing along, then got into this aggro-rap kind of thing. It was all sort of Eurythmic-y, in both good and bad ways. There were a couple of young black female back-up singers going that cool back-up singer dance thing and cooing every now and then. Lights flashed. No one looked terribly comfortable up there, and I was in agony down here.

I'm sure I took pictures, but I can't find them. Not a big loss.

Beast was OK. I’d probably enjoy seeing them in a club. I didn’t so much enjoy seeing them with 30,000+ people and an aching back. It was a much bigger stage than they were prepared to handle. It all was a little surreal. Chalk it up to the “big in Canada” syndrome, I guess. Maybe I’ll expound on that a little later on.

Wikipedia informs me that the girl singer is Betty Bonafasi, a multi-faceted talent who’s big claim to fame is having been one of the voices in Les Tripplettes of Belleville and performing at the Oscar ceremonies in 2004. Wish I’d known that before. Although in some ways this just makes it weirder.

Up early Wednesday, and I decided to take my morning run up to the plateau, were so many of the friend-suggested restaurants were located. Boho town. All bistros, little shops, sidestreets of neat and funky rowhouses. Going through on foot gave me a sense of the place and I liked it. I mean one of those “how can I make a living here so I can live here” feelings. I wound up running a lot further than I normally do at home.

Back to the hotel, worked through the morning. Around 1 PM I figured enough, time for Big Lunch. First I swung through the Festival site and watched what must have been a junior high school jazz band, who were killing what sounded like television music, very simple, but these guys were so dead-on and cute that it brought a tear to me eye.

From there I retraced my steps up to Rue Denis and this little joint recommended my several friends called L’Express. Nothing fancy, long, skinny place, I opted for a table near the front windows ‘cause the place was almost empty, and I needed to spend more quality time with the Festival schedule that I spread out on the table. The waitress recommended the tar tar or the octopus and lentil balsamic salad. Don’t know why, I went for the salad...And it came out in a flash...The look of this thing took my breath away and it et as good as it looked. This brilliant little space-ship shaped bunch of food is what I came for.

At this point, I’m feeling pretty damned cosmopolitan about myself. So when the waitress asked me if I wanted dessert I said hella yeah. And I ordered this caramel thing and a glass of port. This may have been a mistake. The dessert was almost as big as my head, and hard caramel glaze was intense, and there was a LOT of it. I did not finish my dessert.

So here I am, a mile and a half, two miles from the hotel. I’d had a couple glasses of wine and a port. It occurred to me that the walk back was not something I wanted to do. Shit, I’d already run back and forth then walked here. That’s plenty. Then I spotted a rack of these renta-bikes.

All over Montreal there are all these bikes locked into these computerized racks. Every rack has a terminal for credit cards and bike passes. You ride to where you want to go and leave your bike in the nearest rack. It’s brilliant. People get annual subscriptions in lieu of owning cars. I wonder if/how it works in the winter.

Anyway, this was something I wanted to do, notwithstanding the fact that I hadn’t ridden a bike in probably 30 years. I heard Cheese Blotto’s voice, saying “might as well drive, I’m too drunk to walk.” Now I certainly wasn’t drunk drunk, but I will admit to having achieved a certain state of tumescence. And I was alone in a strange city in the middle of a weekday afternoon. And, not unlike the arc of my existence, it was mostly downhill. Let’s go for a freakin' ride already. I figured it would be just like riding a bike.

I got 24 hours of bikes for $5. It rocked. I rode like a bastard, weaving in and out of traffic, down hills, through red lights, dodging pedestrians, and found a rack about ½ a block from my hotel. Took like 10 minutes. And I didn’t hurt myself or any bystanders. I don’t think I even annoyed anyone.

OK, mid afternoon nap time. I’m officially in some kind of groove. Even though I’ve been here for an entire day and have seen exactly two musical acts. First up tonight was a trio composed of African-French drummer Manu Katche (best known perhaps for the killer drumming on Simple Mind’s Don’t You Forget About Me, and also his work with Peter Gabriel and Sting), African bassist Richard Bona and French guitarist Sylvian Luc.

This show was at Gesu, a small grotto theater in the basement of one of oldest churches in Montreal, located literally steps from the Festival. It’s a beautiful space—envision the main theater in The Egg but about 1/6 the size, with a couple massive stone pillars thrown in. Needless to say, not a bad seat in the house.

This was one of those shows featuring a mash-up of performers who each were appearing on their own elsewhere at the Festival, and as such no one had anything to sell, or for that matter, anything to prove. All three were beaming the entire set, each doing all they could to surprise and challenge each other, and to make the each other laugh. All three were listening so, so hard to each other. And, of course, what made it so ecstatic for the audience was that these are three monstrous, versed, knowing, and hip players who left their egos at the door. Mike Eck once compared Buck Dharma’s guitar playing to watching a professional race car driver going very, very fast. OK, this was that times three. Everybody overplayed like nobody’s business, and it was a big glorious, take-your-breath-away mess of a jam session.

Luc played a couple of acoustics and one of those fat hollow-body jazz electrics, and was equally proficient with elegant finger-picking, lighting-fast single note leads, and when things got frisky, some very out and aggressive noise. Katche grooved like crazy. He is one elegant drummer. Bona was a revelation. A big guy, with massive dreads and shiny red sneakers, he showed a total mastery of styles, of colors, of the vernacular of music. And he referenced “Smoke on the Water” in the middle of a conversation with Luc, which always gets points in my book. (Luc answered with “Mission Impossible”). He also sang with an astonishingly beautiful falsetto.

OK, this was a 6 PM show so now we’re all blissed out and it’s around 7:30 and we’re dumped back out into the Festival, which at this point is cranking. And now we see how well this thing is laid out and run. Let me count the ways.

There are live stages all over, from tiny intimate stages you stumble upon to the massive Festival Scene TD stage facing a huge mall that can hold over 200,000 people. There’s even a hardwood break-dancing stage built into the sidewalk off on one end of the Festival that was busy every time I walked over there.. All of this is set into the Place Des Artes, a maybe eight-city-block area smack in the middle of Montreal. There’s a number of massive buildings housing theaters and shops, a metro station, and a whole lot of open space filled with stages, tents and various temporary structures. Right now there’s considerable construction going on in and around the Place Des Artes, but getting around in the midst of the massive crowds was still fairly easy. Imagine what it will be like next year, when the construction is done.

Food and drink? Everywhere. Heinekin is a major sponsor, so there’s a “Jazz Bar” every ten feet or so, plus guys walking around with racks of drafts. There’s also lots of hot dog carts, selling these big, serious, old-fashioned gourmet doagies. There’s sit-down cafes, many that look out over a stage. And there are private restaurants that ring the Festival grounds, some within the grounds. Now, I choose to do the majority of my eating off-site, but what I did eat inside was great. There were no lines for anything ever. And the prices were right. Not Yankee Stadium or SPAC Live Nation prices. Not by a long shot. OK? Great food, lots to drink, all easy to get at, and decent prices. You really can’t beat this.

I wander down the hill (it’s Montreal, it’s hilly) past the blues stage. Yes there’s a stage devoted to the blues. Canadians dig their blues. Most of what I saw there was pretty run-of-the-mill white-boy blues, you know what I’m taking about. I’m really sorry I missed Coco Montoya, though, who reportedly blew it up.

Behind the blues stage was another big stage and here is where I discovered LC-33, a young Columbian 12-piece salsa band, making their Canadian debut. And did they ever make it. This was pure punk in attitude, timeless in musical tradition-- super high energy salsa, lots of Total Band Movement, a lead singer wearing an AC DC t-shirt.

Everybody in the band was singing the background parts whether or not they had a microphone. They were mesmerizing and infectious; I only wish there were more folks dancing—the closer one got to the stage the more sardine-like it became. But these cats were ultra-cool, ultra fun.

I wandered back up the hill, to find this strange ensemble playing, calling themselves Wop Pow Wow. There was a guy playing an acoustic bass, a dimestore Indian waiving a tomahawk (no, I'm not kidding), a couple of girls who were trying to sing "meaningfully", and a couple other people playing things, and they were playing bad new-age jazz. I read something about this being some kind of Italian world music thing, from Quebec. Seriously? It sure didn't look like an art project to me. It just looked kind of stupid. Wop Pow Wow? That's not even funny.

It was on to the Scene Festival TD stage, where NYC hipster band Slavic Soul Party was getting going in front of another massive crowd. They sounded great, although a little of this stuff can go a long way for me. I found these guys generally annoying, mainly because of the leader of the band. He plays the bass drum, and runs around the stage with it, while the rest of the band doesn’t seem to move much. And he’s doing by far the least amount of work musically. I give him the 2010 James Pankow award for obnoxious stage behavior. He also does all the talking between songs, most of which could be dispensed with for reasons of general unctuousness. At one point he introduced his trombone players by saying “These guys are really overlooked” and I’m thinking, “well, whose goddamned fault is that?” On top of this, I’m not sure there was anyone remotely Slavic in the band, with the possible exception of the quite excellent accordionist.
Stuff like this generally doesn’t bother me, and no I’m not going to make an allegation of “cultural appropriation”, but when you call yourself “Slavic Soul Party”, well?

Then up to the smaller stage above that. Very briefly. For an Ontario jazz guy named Darren Sigesmund who was leading an uncomfortable-looking group through some music that was changing time signatures and grooves constantly and annoyingly, especially because it did not swing, even a little bit. It was just awful.

Back to Gesu (I wound up at Gesu alot, but it was a really nice room and they had Jameson at the bar, so I was OK with that), for the 10:30 show of trumpeter Dave Douglas and his group Keystone. Douglas is somebody I’ve been meaning to get acquainted with, and I will, even if this show was a little strange. You see, they played the soundtrack to the as-yet unreleased Bill Morrison film “Spark of Being” which is apparently about Frankenstein, or something. But, of course, we didn’t get to see the film. And much of the music, standing alone, well, it sounded like soundtrack music. A lot of ambient, not a lot of substance.

It was a quintet—bass drums sax keys and Dave on trumpet; although there was a ton of interesting electronic sound going on, that had been created by somebody named DJ Olive, who wasn’t there, but someone off stage was pushing Olive’s sounds out, which was pretty weird, too. Even if the dude just had a laptop, let him come out.

There were points were things got coherent, even bracing; drummer Adam Benjamin is an absolute monster player, one of those big guys who makes huge noise, laying down simultaneous counter-rhythms, without appearing to exert any energy, without breaking a sweat. Also, once Douglas described what was going on in the film before the band played—and that would have been really helpful throughout. The mental picture helped immensely, because all too often, the music just didn’t stand up terribly well on its own. Some of it was pretty, some was pretty messy, but the fact was the music was chasing something we weren’t privy to, and that was the drag.

I know you know this, but there’s only so much music you can listen to in one day—if you’re really listening. I had reached the limit. I was done. Toast. I assiduously avoided Slavic Soul Party's second show on the big stage on the way back to the hotel.

I was a little perplexed. So far the majority of the music I'd seen was just not very good to my ears and eyes. Especially on the bigger free stages. Am I some kind of grouchy old dick here? Would things get better or was this going to be a long, long week?

Thursday I was gonna rock the fest, and try to make it happen for me.

7.1.10 GooTube Wins and Here Come the Feds

2010-07-01T08:47:00.002-04:00

This article originally appeared in the 7.1.10 issue of Metroland

The big news this week, maybe this month, maybe this whole year, is that Viacom’s gazillion-dollar infringement suit against YouTube was thrown out by a New York federal judge. This surprised and delighted most everybody on my side of the fence, because the decision came so quickly (federal judges can take their sweet time with the most rudimentary of decisions, believe me), was so decisive (Viacom was thrown out on its ear) and so damn right! The rightness was particularly sweet—judges in copyright cases have for time immemorial been vulnerable to the arguments of the Big Media cartel to treat intellectual property just like real property (which it’s not), and, when confronted with those parts of the Copyright Act that counsel otherwise, simply ignore the law or, as the Supreme Court did a few years ago in the Grokster case, make the law up. Judge Stanton in New York last week did neither, and thank god for that. YouTube lives on.

As we’ve mentioned before, the suit basically tried to hold YouTube responsible for any infringing material someone might post on the site. It’s always been the copyright owner’s job to police his or her own copyrights, and Viacom was trying to shift that responsibility to YouTube. It’s a ridiculous argument—how is YouTube supposed to know what’s infringing and what’s not? Is YouTube supposed to make fair use determinations? As I pointed out in the past, somebody posted my old band’s videos on YouTube a few years ago, and I was thrilled---it saved me the trouble of doing it. And I’m 100% positive there’s thousands and thousands of other copyright owners out there who feel the same way about their stuff showing up on YouTube. We’re elated. At the “infringement.” Wish more people would do it. I know there’s live shoots of Blotto out there. Post the suckers. I’m begging you.

Fortunately, there’s a provision in the law that says if an internet service provider like YouTube promptly investigates and takes down infringing material from its site when it receives a complaint from a copyright owner, it can’t be held responsible for infringement. And YouTube does that, all day, every day, maybe even a little too zealously. How many times have you gone to look at something, only to be told that it had been removed at the request of the copyright owner? That’s what I’m talking about.

This apparently wasn’t good enough for Viacom, but it was more than good enough to satisfy the law, and so ruled the judge. Viacom, for its part, vowed to appeal.

In closely related news, Victoria Espinel, President Obama’s “Intellectual Property Enforcement Coordinator” released a big ol’ plan of action last week. On its face the document is fairly neutral, free of much of the rhetoric of the intellectual property wars, where the cartels like the MPAA and RIAA claim to champion “creators’ rights” when they are actually stealing money from creators and feeding it to their shareholders, and then label anyone who would disagree as being somehow “anti-creator”. (Um. I’m pretty sure I’m not anti-creator. Ask my clients. Anti-fascist, anti-bully, anti-bullshit, sure, anti-creator, nyet.) Most of the “action items” in the plan are laudible, if not a little banal, like making sure government contractors use authorized software, or calling for a clampdown on counterfeit medical devices. There is also a nice little shout-out about the importance of the fair use doctrine in copyright law to “innovation and artistry”, which shows, maybe, that the whole she-bang isn’t completely industry-driven and corrupted, as many had feared.

Probably the most significant aspect of the report is the promise of a white paper report, to be produced in 120 days, making recommendations for changes to the copyright laws. This is where the vagueness and platitudes of this initial report will start to take shape as actual policy recommendations. You know Big Media will be hammering hard to continue its decades-old trend of hijacking copyright law from its original purpose of protecting the public good to its new purpose of protecting Big Media. Despite the reserved tone of the report, we know Big Media already has a big pal in Joe Biden, who announced the report with a typically blathering statement equating “piracy” with “theft”: “It's smash and grab. It ain't no different than smashing a window at Tiffany's and grabbing [merchandise]."

Urgh. As Mike Masnick in Techdirt points out, infringement and theft aren’t the same, they’ve never been the same, and the courts have been recognizing this for centuries. So Joe, once again, shut up, please. Copyright law is a big complex deal, one that may well be beyond your jumbled but well-intentioned powers of thought. Leave it to the experts, and, please, beware of the glad-handers in the shiny suits.

Report in 120 days. Right around Halloween. It’ll be a graveyard smash.

6.17.10 THE FEVERISH FLUX

2010-06-17T07:21:00.002-04:00

This article originally appeared in the 6.17.10 issue of Metroland

Some new developments in controversies we’ve talked about over the last couple of months.

First, there’s been a tiny but significant bit of activity in the Associated Press / Shepard Fairey lawsuit. Fairey’s the guy who created the “Obama Hope” image, using what turned out to be an AP photograph as his template. Fairey and AP sued each other a year ago, the AP claiming infringement and Fairey claiming fair use. Then Fairey cops to lying to everybody, including the court, about which photograph he actually used, and to destroying evidence to hide the fact. Oops.

A couple weeks ago the judge, in the midst of deciding a discovery motion, suggested that the lawyers double down in their efforts to settle the case. Without much elaboration, he said that he felt that sooner or later Fairey was going to lose. Uh-oh. Meantime, Fairey is under criminal investigation for lying to the court. Gulp. Despite the judge’s admonition, I’ve seen little to suggest this one will go away soon.

And then that uniquely Republican tendency of using music for campaigns by musicians who hate Republicans continues apace. David Bryne recently sued Florida Governor Charlie Christ (whom I suppose is not a real Republican anymore) for using the Talking Heads’ “Road to Nowhere” in his campaign for the US Senate. And Rush (yes, Rush!) is going after phony libertarian nutcase Rand Paul for using bits of “Tom Sawyer” and “The Spirit of Radio” in his campaign. Paul apparently is not only using their music during campaign stops, but is also quoting Rush lyrics in his speeches. All copyright issues aside, the idea of a libertarian Rush freak holding any kind of elected office totally skeeves me out. You know what I’m talking about.

But the big news on this front is that Don Henley has for now won his suit against California knuckle-dragging far-right Senate candidate Chuck Devore for the use of a couple Henley songs with rewritten lyrics (i.e. “All She Wants To Do is Tax”) for his failed campaign to run against Barbara Boxer. Just this week the judge rejected Devore’s fair use defense, finding that the new lyrics didn’t directly target Henley nor did they indirectly make fun of Henley’s liberal politics, as Devore had claimed. Because of this, the judge reasoned, Devore’s use wasn’t a parody, and therefore wasn’t fair use.

These developments in both the Fairey and the Henley cases are mildly satisfying to me on the basest level, because I dislike Shepard Fairey and Check Devore and would enjoy seeing them both lose; however, the courts swinging that way they have involve overly restrictive interpretations of the fair use doctrine, and that’s not such a good thing.

As we’ve mentioned before, the trends for fair use, at least in visual art, have been the increasing allowance of the re-use of other’s copyrighted works if the new use is “transformative.” Jeff Koons, for example, was recently allowed to use a big chunk of a fashion photo for one of his tedious paintings commenting on the banality of modern life. And that’s good; it certainly is in keeping with the purposes of copyright law, which is to encourage the creation of new works. And the Koons decision and the growing body of decisions like it recognize the legitimacy of appropriation art, which is probably the most significant art movement of the last 100 years, and which is legitimate, whether you happen to like it or not.

This liberalizing trend has not yet spread to music, where the big record companies and publishers put a big legal kibosh on digital sampling in the early ‘90’s that has yet to loosen up. (Ironically, the transformative use argument gained prominence in a music case we discussed here a few weeks ago—the 2 Live Crew / Roy Orbison case, but has only rarely been applied in music cases since then.) As these big companies become less of a force in the music industry (and they’re losing their hegemony by the second), I think more rational fair use standards for music will emerge and develop.

Whatever the standard, one person’s transformation is often another’s infringement, and the courts in Fairey and Henley may be getting swayed by the facts before them. Is Fairey’s use transformative? Sure it is, in a big way. But is the court going to reward Fairey for lying and cheating? Doubtful. Are Devore’s stupid little ditties transformative of Don Henley’s monstro-hits? I really hate to say it, but I have to say it: of course they are. The courts in both cases are headed in the wrong direction.

This doesn’t bode well for any clarity in the foggy law of fair use, or for any level of comfort for appropriation artists in all media who’ve long labored under a legal cloud. As these cases play out, hopefully they’ll both wind up in appeals courts, where the passions run cooler, the issues get sharper, and the decisions get smarter.

5.20.10 FBBFD

2010-05-19T21:15:00.006-04:00

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 ReclaimPrivacy.org, 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!

5.6.10 DIRTY LAUNDRY

2010-05-05T18:07:00.004-04:00

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 copyrightsandcampaigns.blogspot.com.

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

4.22.10 PICK A NUMBER

2010-04-21T19:29:00.005-04:00

This article originally appeared in the 4.22.10 issue of Metroland.

We’ve mentioned here that something’s afoot in Washington regarding intellectual property rights: Obama’s appointed an IP “czar” (them damn socialists, again), the Department of Justice is beefing up its IP enforcement section, there’s some secret international treaty being negotiated – and while there hasn’t been much overt activity on any of these fronts yet, all of these things appear to be happening at least in part at the urging and with the support of corporate media companies. The buzzwords in the cacophony of corporate talking points are things like “stricter enforcement” and “digital piracy”, and this stuff is endlessly repeated to us blithely as real news by the mainstream media. We hear that “piracy” is costing us X billions of lost sales and X thousand lost jobs. Well freakin’ yikes, we’d better do something right?

Well, maybe not. Maybe it’s all a bunch of, um, hokum. The problem being that mainstream media is owned by the same corporations that are hammering Washington with these arguments, so you’re not gonna hear any skepticism about this on television or read about it in the newspaper. Fact is, very few people analyze, question, or ask if we really need stricter IP enforcement, or inquire what it will it cost us in terms of consumer choice, consumer cost and especially, personal privacy. What we have is hordes of well-paid lobbyists spouting the company line and a few moderately-funded public interest groups out there arguing for the rest of us.

The “statistics” about “piracy”-related lost sales and lost jobs have always been a little suspect, but both Big Media and the government keep spouting them as justifications for beefier laws, more protections, more enforcement. But something happened last week that might, just might, provide a little balance and perspective.

The federal General Accountability Office, the above-reproach research arm of Congress, was directed to look into the effects of intellectual property piracy and counterfeiting, and last week issued its report. (You can look at it at www.gao.gov/new.items/d10423.pdf) And guess what they found?

The GAO found that the numbers are all made up! Now, this is a short but rambling report, a survey and analysis of the information that’s out there about “counterfeiting” and “piracy”. It also covers a bewildering expanse of territory, talking about things like counterfeit pharmaceuticals, airplane parts, circuit boards, handbags, CDs and DVDs along with digital downloading. As such, it doesn’t really go very deep into anything, but the general finding is that we’ve all been getting a snow-job.

The report found that the basic raw data used for these estimates is of questionable origin, and then the assumptions that are used to extrapolate that data are not supportable. One of the most ridiculous assumptions, that one “illicitly” acquired good equals one lost sale, was singled out for inflating the estimates to multiples of what they should be. The “one-to-one substitution” assumption has long been used by the music, movie, and software industries in describing their losses from people acquiring free copies of stuff over the internet, and it’s the height of absurdity: every song we grab for free online somewhere is a song we would have paid a dollar for if it weren’t available for free? Of course not. It’s a small fraction of that. But industry takes questionable and inflated numbers about, say, how many songs are shared over the internet, multiplies that number by 99 cents, and says here, we’re losing billions and billions of dollars! And the media uncritically repeats this nonsense and we all believe it.

Even more amusing is the GAO’s take on the federal government’s use of these bogus statistics:

“A number of industry, media, and government publications have cited an FBI estimate that U.S. businesses lose $200-$250 billion to counterfeiting on an annual basis.... FBI officials told us that it has no record of source data or methodology for generating the estimate and that it cannot be corroborated. A 2002 CBP press release contained an estimate that U.S. businesses and industries lose $200 billion a year in revenue and 750,000 jobs due to counterfeits of merchandise.... a CBP official stated that these figures are of uncertain origin, have been discredited, and are no longer used by CBP. A March 2009 CBP internal memo was circulated to inform staff not to use the figures. However, another entity within DHS continues to use them....”

Yeow! The GAO essentially concludes that while "piracy" and counterfeiting is indeed a problem, it’s really impossible to know how much of a problem it is, and that at least for digital downloading, the estimates tossed around by both industry and government are wildly overstated. In fact, it’s pointed out that the availability of free digital media online may have significant positive effects in the form of consumer sampling, free promotion, and the tempering of monopoly pricing.

You know what they say about liars and statistics...

4.22.10 No Headlights

2010-04-21T17:53:00.004-04:00

photo stolen from Seth Rogovoy, who sat next to me and wrote a more positive review than I did, which you can read here
this review originally appeared in the 4.22.10 issue of Metroland.

JAKOB DYLAN AND THREE LEGS
The Egg
April 17, 2010

I really like Jakob Dylan; love his new album Women and Country; one of the most memorable shows I’ve seen was the Wallflowers / Sheryl Crow show at the Palace back in the ‘90’s. Burned in my brain is the image of Crow, decked out in a Syracuse University cheerleader outfit waving pom-poms in Dylan’s face while her band dismantled his drummer’s kit mid-song. The whole show breathed of life and passion.

And Dylan's appearance at the Egg Saturday breathed of neither. It was the opposite of exciting. And so unexpectedly so.

As the titular leader, maybe some blame can be laid at Dylan’s feet, but he didn’t play a bad show. His voice was full of character and presence and he sang great, with depth of feeling and intelligence. And the songs he sang, leaning heavily from the new album, are interesting, diverse, and straightforward. He showed up.

Nope, the blame is on the band, which spent the evening exploring the meaning of perfunctory. The band is borrowed from the great alt-siren Neko Case, who was along singing back-up vocals along with fellow thrush Kelley Hogan. This all looks really good on paper, don’t it? That’s what I thought.

Instead there was a stony chill that ran through the set. The band vamped without emphasis, guitarist Paul Rigby had his back to band most of the night over on stage right, everybody else barely acknowledged one another and just played their little parts. Were they trying to emulate the relative quietude of the record? That’s not gonna happen effectively unless producer T-Bone Burnett’s at the board, and he wasn’t. Were they bummed because there was (surprisingly) only half a house? Grow up. Were they just too hip for the room? Bite me. It all felt simply so phoned in.

To the extent there was something like a high point, it was Case’s and Hogan’s back-up vocals, which occasional jumped out to something like a confrontation. These are two very good singers here. But their considerable talents were underused and essentially wasted; too often their parts were just obvious and unimaginative harmonies on choruses, or worse, unison parts an octave up. And they seemed to be stricken with the same spiritual malaise as everybody else.

Zzzzzzzz.

4.7.10 WITHOUT A NET

2010-04-07T17:35:00.003-04:00

Yesterday’s court ruling that the Federal Communications Commission lacks the authority to punish Comcast for messing with its customers’ internet service has caused all sorts of wailing and knashing of teeth. Headlines are screaming that the ruling means the end of net neutrality, “the day the internet lost”, a huge comeuppance for FCC Chair Julius Genachowski, a huge defeat for the Obama administration, etc.

Geez, guys, get a grip.

First of all, understand that the case was about an FCC ruling that was made during the Bush administration, in August of 2008.

As several of the more informed and rational reports have pointed out, this decision wasn’t unexpected, nor is it necessarily a bad thing. Fundamentally, it must be stressed that the court did not say, or even infer, that net neutrality was a bad thing, or that what Comcast was doing to its customers a few years ago (it was interrupting service to customers it suspected were using file-sharing programs) was a good thing. The court was merely holding something that many commentators have been saying for years: that the FCC overstepped its statutory authority—that it was trying to regulate something it did not have the legal right to regulate.

Which doesn’t mean the death of anything. What it means is that the FCC took things a little out of order. Which merely underscores the old adage, if you’re gonna do something, it’s a good idea to do it right the first time.

You see, the FCC is a creature of statute and its own regulations and, like every other regulatory body out there, it’s kept on a very tight leash. And for good reason: FCC commissioners and staff aren’t elected officials, so they don’t answer to voters, just to the statutes and regulations. And when they step outside of the statutes and regulations, the courts must step up and reel them in. This is called order; this is a government of laws, not people, as it should be.

And so what happens all the time is that issues of process and authority always come before the substantive issues of right versus wrong, to insure that the FCC isn’t overstepping its bounds or ignoring its own rules. And that’s what happened here. And that’s what’s being totally ignored by most of the mainstream media and other commentators.

I haven’t had the time or inclination to dig into the court’s decision (rulings on administrative decisions are typically incredibly dense, dry, and boring) but this is what seems to have happened, in the most basic and elementary terms (I’m running at the edges of my understanding here, so if you know more about this than me and want to clarify or correct me, I’d be much obliged):

The FCC exercises broad authority over what it deems to be “common carriers” of telecommunications services, traditionally, telephone, radio and television services, based on the fact that these services use public facilities (bandwidth, streets, etc.), the fact that these services are not always naturally prone to competitive pressures that would keep prices down and quality high, and the fact that these services provide things that are necessities to modern life. What the exact nature of this “broad authority” should be is an ever changing, constantly debated issue. The court-driven break-up of AT&T, for instance, was a paradigm shift in what this authority was for telephone service. The FCC has never exercised this kind of broad authority over the internet, instead deeming it to be a “lightly regulated” communications service.

Which in many ways is a good thing. In the Bush years, we heard lots of calls from the Chritianista legislators that the FCC should regulate the content of what goes out over the internet, like it does for network television, or like the governments to in places like China or Cuba. Imagine what that would be like. These calls were successfully resisted, internet remained “lightly regulated” and the content of the internet remains largely unencumbered by any governmental intrusion.

Lately, as broadband internet service has been touted as something like a basic human right, or at least a cornerstone of modern civilized society, there have been increasing calls for the FCC to take greater responsibility in making broadband universally available to all (like it does with basic telephone service, or like FERC does with electricity) and to make sure that the internet stays user-neutral—that is, that internet providers can’t discriminate among users for commercial reasons.

And yesterday the court ruled simply that the FCC can’t do this so long as it deems the internet a “lightly regulated” service.

Obviously an act of Congress would fix this. Obviously getting anything through a Congress that’s been hi-jacked by a minority of knuckle-dragging racist partisans is a tall order. Some have observed that the FCC, under existing law, can simply re-classify the internet as a “highly regulated common carrier service” and then do what it wants to do.

Which sounds like sleight-of-hand to me, but if it’s legal and legit, considering the stakes, hey, why not? The dogs will bark, then the caravan will move on.

2.25.10 GOOTUBE

2010-03-24T21:48:00.003-04:00

This article originally appeared in the 2.25.10 issue of Metroland.

The YouTube / Viacom lawsuit, which has going on for so long I’d forgotten about it, bubbled up again last week when both sides filed summary judgment papers in federal court in San Francisco. Viacom (the media giant that owns cable networks like Comedy Central, MTV and BET along with movie studios, etc.) is suing the bejesus out of YouTube for, in Viacom’s words, operating “as a haven for massive copyright infringement. The lawsuit was brought, curiously or not, just a few months after Google bought YouTube for 1.7 billion smackeroos. Viacom is seeking a billion dollars in damages.

The filings reveal a lot of the kind of litigational nonsense one would expect from corporate behemoths going the scorched earth route. For example, YouTube seems to have “lost” a great deal of internal emails that would otherwise be relevant in the case. One reason they gave is “computer crashes.” Whoopsy! Viacom, on the other hand, has included in its briefs a bunch of quotes of YouTube bigwigs that look incredibly damning, but YouTube has responded by providing the entire communications from which the quotes were taken; time after time it’s clear that Viacom has wildly and deliberately misrepresented what the bigwigs were saying.

The practice of taking words totally out of context is something I see in litigation all the time, and I’ve never been able to get my brain around why lawyers do it, or why courts tolerate it. It’s usually simply a matter of the other side jumping through a few hoops to prove the deception, and the side responsible for stretching the truth to the breaking point runs the risk of looking bad. But they rarely do, as judges typically consider these kinds of shenanigans fair game. I suppose the offending lawyer figures there’s some chance the misquote will not be challenged, or that maybe some judge or juror will get duped into buying the lie, or at the very least that the making of the deceptive argument will burn up the other side’s resources in having to counter the lies with facts. As far as I’m concerned it’s a hideous practice that advances neither the truth nor justice, it wastes all kinds of time and money, and it’s one of the justifiable reasons why people hate lawyers.

Anyway, what all these court papers also show is that Viacom really doesn’t have much of a case. Web portals like YouTube are protected by the “safe harbor” provisions of a law called the Digital Millenium Copyright Act, which says that YouTube generally doesn’t have to actively monitor what’s being posted on its site. Once the portal is informed that there’s infringing stuff posted, it has a duty to investigate and take down offending material. This merely reaffirms that it’s the copyright owners’ duty to police its copyright, not someone else’s. In other words, it’s Viacom’s job, not YouTube’s.

This makes perfect sense. Because often the copyright owner is fine that their stuff has been posted without permission. A few years ago I noticed that folks had posted Blotto’s old videos on YouTube. My reaction was “great, now I don’t have to do it.” I’d been meaning to do it myself but was too lazy to figure out how. We wanted the videos up, for whatever promotional value they might bring. Somebody even posted “Lifeguard” under the heading “Worst 80’s Video Ever.” It’s closing in on a quarter-million hits, and the comments are amazing. And I ain’t touchin’ it.

And I’m certainly not alone here. Lots of copyright owners turn a blind eye to “unauthorized” posts. In fact, Court papers filed by YouTube show that Viacom, while screaming bloody murder about “massive infringement” on YouTube, was at the same time surreptitiously putting up thousands of its own programs for promotional purposes. Or maybe it was trying to set up YouTube for a disingenuous infringement rap.

Several times a day someone sends me a YouTube link, usually of some old music video that’s brilliant, funny, or revealing, often all three at once. Does somebody own the copyrights to these things? Undoubtedly. Did they put them up themselves? Maybe, maybe not. And are they mad that their stuff’s on the internet? Probably not. They’re probably delighted.

In any event, in the lawsuit Viacom is trying to create an affirmative duty on the part of YouTube, and every other internet portal to actively monitor everything that comes its way and to block “obviously copyrighted” material posted by a non-owner, basically eviscerating the safe harbor protections that allow all kinds of cool stuff to get put on the internet. If they win, there will be a lot less stuff to enjoy on the internet, and a lot fewer places to enjoy them.

03.11.10 SLOW NEWS WEEK

2010-03-11T08:18:00.004-05:00

So I look at the timeless issue of infringement v inspiration, which has been popping up a lot lately.

This article originally appeared in the 3.11.10 issue of Metroland.

IN FRINGES

It’s just one of those serendipitous things in my law practice that I get waves of similar matters thrown at me all at once. One week maybe it’s a gaggle of writers with publishing or licensing deals, the next week it’s a series indy film makers looking for quick and dirty investor contracts; lately it’s been extremely perplexing and dicey infringement problems with visual artists.

This has been particularly surprising because I’ve had very, very few of these “is it infringement or not” issues in the 20-or-so years I’ve been at this. Typically, the situation is that somebody just took an entire work and the issues are who actually created the work or whether there was permission to use the work. Sometimes it’s a matter of somebody’s hand in the cookie jar, like cutting and pasting off a website, and the only issue is how much the damages ought to be and whether we can collect them. But almost all the infringement cases I’ve dealt with have involved fighting over the same work, not two works that are really similar, with the creator of the older work crying foul.

Which is kind of weird because the fundamentals of what’s infringement often dominate my classes and lectures. Many people, artists included, think there’s a set of rules that dictate whether a work infringes, like a “5-note rule” in music or a “20% rule” in visual media. There’s not. Infringement is a wildly subjective thing that the law struggles to turn objective, and fails miserably.

The test is whether the second work copied from the first, and if so, if the second work took too much of the “protectable elements” of the first. Duh. Not much help there. But this test does set up endless metaphysical discussions, technical discussions, esoteric discussions, and moral discussions. Then somebody always raises the “there’s no such thing as originality” canard. Or quotes Picasso: “mediocre artists borrow, great artists steal.” Which wasn’t even an original quote by Picasso. He stole it from Igor Stravinsky, who stole it from Henry James, who nicked it from Oscar Wilde, who got it from...

Anyway, over the last couple of weeks I’ve had new clients on both sides of this fence, artists claiming to have been ripped off, and other folks accused of ripping off other artists.

In none of these cases were works simply reproduced. But in all of the cases the second work was aware of the first, and borrowed liberally. In all of the cases, one looks at the junior and senior works and says “well, yeah, there it is.” And in none of the cases can a credible fair use argument be made—the junior works don’t comment on the senior works, nor are they transformational in purpose, media, or message. The junior works just clearly and boldly took from the senior works. But is it infringement? Or is it inspiration?

This is where the law comes in, and as I said before, the law fails miserably. There’s two tests the courts have developed to analyze claims of infringement like this. The junior user, the alleged infringer, always tries to hide behind the so-called “subtractive” test. The works are picked apart with a fine-tooth comb and all the dissimilarities are pointed out: “the clouds in the sky are different”, “the road is in a different place”, “the film exposure and color intensities vary wildly”, stuff like that. The longer the list the better. And the argument is that all that’s left after this surgical chipping away of details, all that was really copied, were ideas, and ideas can’t be protected by copyright. Not a bad argument. We don’t want to give anybody a monopoly over an idea.

The “victim”, on the other hand, is going to argue the “totality” test. Here, the “infringer” took the “essence”, the “look and feel”, the “heart” of the first work. Not a bad argument either, especially in the cases like mine, where you look at the two works and say “well, yeah.” You can’t just rearrange the chairs and say you’re now in a different house.

The problem being that with all of my present cases, well-made arguments under each test come to opposite results. Trust me, I’ve been making them over here for weeks. Under the subtraction argument, no infringement. Under the totality test, absolutely infringement. Not even close.

So what do we do? March off to court? And let a judge or jury decide? Nobody’s going to admit it, but that would be insane. Judges and juries are all well and good, but putting questions like this before them would be tantamount to a coin toss. With lawyers, which makes it worse than a coin toss. And WAY more expensive and time consuming.

So we’re left with the two sides huffing, puffing, bluffing, threatening, both sides knowing in their heart of hearts that it’s just so much sound and fury, signifying nothing.

2.25.10 BAM BAM WATCH

2010-02-24T17:57:00.006-05:00

This article originally appeared in the 2.25.10 issue of Metroland.

We've been watching how the Obama administration has been handing information and intellectual property issues—these things never break in neat Democrat / Republican Red State / Blue State ways. Bill Clinton, in fact, probably did more damage to rational IP policy than any president ever. So far, there’s been little to report, as Obama’s had his hands full with other things. But there’s a couple really troubling things going on.

First, the administration has been beefing up on what it calls “intellectual property enforcement” by the appointment late last year of the first-ever cabinet-level intellectual property “czar” and just recently the creation of a Department of Justice “task force” that’s supposed to address domestic and international IP “theft.”

It’s unclear what any of this means, but there are plenty of reasons to be worried. As a general matter, enforcement of IP rights like copyrights and patents have always been the responsibility of the IP owners. If you’ve been ripped off, you go get a lawyer and go after the infringer. Only in extreme cases, like with large counterfeiting operations, has the government gotten involved and have criminal sanctions been invoked. This could change.

The fact is that both the IP Czar and the DoJ Task Force have been created at the behest of Big Media, the handful of mega-corporations that control the mainstream music, film, television, and publishing industries; the fact is that Big Media has been running around blaming its problems, real or imagined, on how people use the internet; the fact is that Big Media has for years conflated things like on-line file-sharing and digital copying and storage with “piracy”; the fact is that Big Media has declared jihad on all of us, boldly claiming it’s doing so on behalf of “creators” when it’s really doing so on behalf of its corporate shareholders, who don’t create squat; the fact is that Big Media has commandeered intellectual property laws to be less about the public good and more about protecting, to the public’s detriment, its outdated imperial business models.

And now Big Media is in the White House and the Department of Justice. Should we be concerned? Uh-huh. Big Media is watching you.

Another related area of concern involves a series of secret international trade negotiations that have been taking place over the past year. These closed-door sessions are aimed at creating something called the Anti-Counterfeiting Trade Act (ACTA), and involves representatives from much of the industrialized world, but, notably, neither China nor Russia. ACTA appears to be spearheaded by the United States Trade Representative, also acting primarily at the behest of Big Media, and is thought to have a goal of “toughening” international IP enforcement in order to protect Big Media’s hegemony in the international content market.

But we really don’t know because the negotiations are secret. Why? National security, dummy! Actually, national security is just one of the ever changing and bogus reasons given for incredible lack of transparency. And given what we know about what’s going on, the idea that this process is secret is horrifying.

There have been leaks in the process, and they tend to confirm the worst fears about ACTA: that it’s a massive powerplay by Big Media designed to not only change other countries’ IP laws, but ours, too. The focus of AFTA appears to be “internet piracy”, and leaked documents show a movement towards holding internet service providers (like your cable or phone company) responsible for whatever is being transmitted over their systems. This would, in effect, force your ISP to spy on you, all for the benefit of Big Media. There are signs that AFTA is also looking at essentially suspending any notion of digital privacy at national borders, too. Yikes.

The plan seems to be that our trade representative would negotiate this Big Media wishlist of draconian rules that would change how the internet works, our privacy, our ability to use information, and our ability to create and communicate. Then the Obama administration would send a bill to Congress implementing all these ridiculous rules by changing copyright, trademark, and patent law and probably big chunks of the federal criminal statutes, too. The argument, pushed by Big Media lobbyists, will be that the rest of the world is doing this stuff and we can’t be left behind (Never mind that the rest of the world is doing it because our trade representative told them to, we’ll just leave that part of the story out). And Congress, now more beholden to corporate interests than ever (remember, corporations = people = money = speech) rubberstamps the whole thing. And we’re all royally screwed.

Sound like the tail wagging the dog? That’s exactly what it is. Sound far-fetched? It’s not. This was exactly the game plan Bill Clinton followed to get the Digital Millenium Copyright Act, a similar but less far-reaching travesty of a law, passed in 1998.

So you can’t say it can’t happen here because it already has.

2.11.10 MESSMOCA

2010-02-10T18:27:00.002-05:00

This article was originally published in the 2.11.10 issue of Metroland

UH-OH

Remember a year or two ago when MassMoca got into a huge brouhaha with Swiss installation artist Christoph Buchel? Sure you do. Buchel was putting a massive art thing in MassMoca’s football-field-sized Building 5 gallery, a post-apocalyptic fake town that was supposed to include a house, a theater, a prison, a burnt-out 747 fuselage, concrete walls, and 150 tons of stuff. When the $300,000-or-so budget ran out (surprise!), Buchel refused to scale down the project, and allegations started to fly, and all hell broke loose.

The art world went generally berserk, with commentators outside of Berkshire County uniformly slamming MassMoca as somehow being profoundly insensitive to the rights of artists, and commentators within Berkshire County (myself included) coming down on the side of the home team, arguing essentially that MassMoca had been blindsided by a grandstanding petulant dickhead.

The whole thing wound up in federal court in Springfield, where after an accelerated mini-case the judge sided with MassMoca, stating that an unfinished work (which this unquestionably was) didn’t qualify for the moral-rights artist-integrity provisions of the Visual Artists Rights Act (known to art-law geeks as VARA), and that MassMoca didn’t violate Buchel’s copyrights by throwing a tarp over the whole she-bang and letting a few people walk through the building to gaze at the hulking mountains of tarp-covered junk.

It was all a satisfying result for those of us MassMoca fans up here in the cheap seats, but was it a correct interpretation of the law? Even the judge in Springfield stated in his lengthy, thoughtful decision that he wasn’t sure. He knew he was walking through a whole lot of uncharted legal territory with a set of facts that were as surreal as Buchel’s artistic vision.

So it wasn’t exactly a surprise when the federal appeals court in Boston reversed the decision, ruling that unfinished works indeed could be subject to the protections of VARA, and that MassMoca might well have infringed Buchel’s copyrights by allowing a few people to view the installation covered with tarps. It’s important to note that the appeals court did not say Buchel won; it only said that he hasn’t lost. So the case returns to Springfield, and, if the parties don’t settle this thing, it will go to trial.

And what a bizarre trial this would be. My understanding of the law here is that even if Buchel proves that MassMoca technically violated his rights under both VARA and the Copyright Act, he’s going to need to prove damages; under VARA, the damages would have to be somehow connected to harm to his reputation and integrity as an artist, and under the Copyright Act, the actual pecuniary loss he suffered as a result of a few people looking at some tarp-covered junk.

Damage to his reputation and integrity? Outside of Berkshire County, where Buchel is uniformly regarded as a jerk, a very good argument could be made that this whole mess has enhanced his reputation, and to an extraordinary degree. As my pal arts-writer John Seven in North Adams points out, Buchel’s sure been busy with high-profile installations in Europe and Asia lately. And in the twisted, often nihilistic and cynical eye of avant-garde art high society, the MassMoca affair has elevated Buchel to the status of A-list cause-celebre bad artsy-boy. Indeed, when the whole controversy was unraveling two years ago, there was speculation that it was all being staged by Buchel and MassMoca as a performance art piece to garner headlines and publicity.

And actual damages suffered by Buchel as a result of MassMoca covering the thing with tarps, and telling people what had happened, and letting them look? Umm, let me get my calculator. OK. Zero!

But maybe that’s the right result, a finding of liability but no damages. As they say in the legal biz, “hard cases make bad law”, meaning, where you’ve got a particularly strange set of facts, and try to bend the law to come up with what you believe is a just result, you often create a precedent that that will have very bad negative consequences for somebody else down the road. And this case is a perfect setting for that to happen.

Let’s face it, MassMoca is not blameless in this. This was in an extremely difficult situation but it was partially of MassMoca’s own making, and some decisions were made that in hindsight were rather stupid. To absolve MassMoca of all legal blame by a cribbed reading of the law would potentially create a legal framework by which institutions could screw artists in all kinds of situations where the equities were reversed, and the institution wasn’t a victim.

So stay tuned. Chapter three in the Christoph Buchel - MassMoca saga coming up.

2.4.10 BRANDI CARLILE

2010-02-10T17:57:00.002-05:00

This article originally appeared in the 2.11.10 issue of Metroland

WHO DAT

Brandi Carlile
The Egg
February 4, 2010

Out of the many friends I told I was seeing Brandi Carlile, exactly one knew anything about her. Until recently, I’d only seen her name here and there, and for some reason assumed she was one of these Disney cookie-cutter “pop stars” that fall out of the television every week or so. Then I caught her on a rerun of a 2008 Jules Holland show. She started quietly playing her signature song “The Story.” First I thought “wow, good song.” Then “geez, great voice.” Then, three bars into the second verse, her band just lands with a grunge hammer, and Carlile jumps an octave and starts wailing over the top. I was totally in the tank.

Her show last week was a tour de force, starting with Carlile and her four band members singing the Beatle-esqe lullaby “Oh Dear” around one microphone center stage, continuing for 90 minutes of brilliantly crafted and stylistically diverse songs, wrapped around Carlile’s huge and rangy and majestic voice and her absolutely deadly band. Most of the material came from her two most recent albums 2007’s “The Story” (produced by T. Bone Burnett) and last year’s “Give Up the Ghost” (produced by Rick Rubin).

Carlile’s a tiny little thing, I can’t imagine she weighs more than 100 pounds, but she effortlessly commands attention, even while she’s bookended by her two long-time collaborators, the tall and lanky identical twins Tim and Phil Hanseroth, who play guitar and bass and who themselves have a matching repertoire of rock-star moves. Yeah, the band is something to see, too.

The encore was as goofy and talent show-y as the main body of the show was tight and galvanizing, hysterically hitting on Johnny Cash’s “Jackson” and “Folsom County Blues”, Tammy Wynette’s D-I-V-O-R-C-E, and Loretta Lynn’s “Stand By Your Man.” The twins came out and sang “Sounds of Silence” with their identical voices, prompting Carlile to quip “Have you ever heard anything so wonderful and weird and creepy in your whole life ?” Then the band blazed through the elegant “Pride and Joy” and then it was over.

It’s a testament to the fracturing of any kind of shared musical experience and the fall of radio as a mass taste-maker that someone so hugely talented and so immensely satisfying could evade the purview of me and virtually everybody I know for so long. This was a show that will haunt me for a long time.

2.28.10 TICKETMASTER & IPAD

2010-01-27T21:30:00.004-05:00

This article originally appeared in the 2.28.10 issue of Metroland

Playing Monopoly

This week the federal Department of Justice’s anti-trust division filed what it termed restrictions on the proposed merger between music industry giants Ticketmaster and Live Nation. These two companies already dominate primary ticket selling, the management of many superstar artists, and own or have exclusive rights to present concerts at many major concert venues. And now they want to merge, arguing that by combining forces, they’ll be more efficient in delivering entertainment to the masses.

The DOJ and a bunch of states sued to stop the merger going ahead as-is and quickly moved to reach some kind of common ground, conditions by which the merger could go forward. These “restrictions” are apparently part of that process. To bless the merger DoJ wants Ticketmaster to license its main ticketing program to AEG, another behemoth multi-headed music and sports company, to spin off some of its operations to Comcast, and to promise not to retaliate against any venues that decide to use a competitor’s services.

There’s plenty of head-scratching going on about this, and it’s fair to say that nobody has any idea what these measures, if accepted by Ticketmaster and the court, will really mean to the consumer.

But I have a hard time believing that things will be better. Over the last several years the “service charges” we have to pay for increasingly expensive concert tickets have skyrocketed to levels that are multiples of what we used to pay for the tickets alone. And in this age of automation, point-and-click buying, the reason for this is? Could it be lack of competition? Ya think?

And allowing the two biggest players in the game to merge will make it better? When these two companies have both been busily snapping up other assets, like superstar management contracts, partnerships with record companies, and concert venues, all of which position them to be what economists call vertically integrated companies? So we can buy tickets from Ticketmaster to go see Ticketmaster acts on Ticketmaster labels at Ticketmaster venues?

I’m no anti-trust lawyer, but it seems to me that allowing this merger of giants to go through, even with the DoJ’s “conditions”, isn’t good for anybody but the stockholders of the companies. I’d rather see Ticketmaster and Live Nation dismantled and disbursed, so we can have a real marketplace with real competition. Of course Wall Street and the neocons call this forced break-up of companies “government intervention” and even “socialism” (a term that has lost all meaning recently) but this whole laissez-faire approach to big businesses has given us things like a predatory Wal-Mart, three and a half major record companies that collude to keep prices high, and banks and insurance companies that are too big to fail. Along with a ticket-selling concert-presenting near-duopsony that’s about to get worse.

OK. So Apple’s announcing the release of the tablet, basically a simple interactive screen. Steve Jobs reportedly said that this is the most important product he’s ever introduced, and folks are saying the tablet will revolutionize, well, like everything.

I dunno. Maybe it will come clear to me down the road. I mean, I love my iPhone but I sure don’t use it up to its capability. The only app I have is “Flashlight”, probably the stupidest and most useless app out of the gazillion they’re selling at the app store.

But one thing lots of pundits are saying is that the Apple tablet is going to save the newspaper industry. Somehow, people are going to buy their Apple tablets, and morph into mindless zombies who will automatically subscribe to online versions of newspapers! Woot woot! This coming hot on the heels of the New York Times’ announcement that it was going to stop putting the newspapers online for free sometime, maybe by the end of the year.

As Mike Masnick at Techdirt points out, there’s not a lot of logic behind the “newspapers will be saved” argument, and plenty of reasons why online newspaper subscriptions shouldn’t happen. Maybe I’ll get into this deeper in a future column, but I fail to see how trying to bottle up the news is good for anybody. Putting the news up for free online isn’t killing newspapers so much as other things like Craigslist, competing media, and imprudent parent company consolidations which have left most newspaper companies wallowing in debt. Recently the Times Union started to withhold selected news stories from its Sunday online edition. No, that’s not going to incent me to get in my car and go out and buy the paper, unless the article’s about me. Rather, it’s going to incent me to find the news somewhere else. Several months ago the Long Island paper Newsday put its content behind a firewall. It was just announced that so far, Newsday has sold 56 online subscriptions. 56.

D’oh!

1.14.10 PROPOSITION HATE

2010-01-13T17:13:00.005-05:00

This article originally appeared in the 1.14.10 issue of Metroland.

Proposition Hate

While the mainstream media ranted incoherently about irrelevancies like Harry Reid, Jay Leno, and Sarah Palin, something truly remarkable has been taking place in California. On Monday, in a San Francisco federal courtroom, a trial began in the case Perry v. Schwarzenegger, about the constitutionality of California’s Proposition 8, which bans gay marriage. This may be the Scopes Monkey Trial of our generation.

The case is fascinating and important on so many levels, it’s hard to know where to begin. But two things are jumping out at me right now. The first is the lawyers involved. The plaintiffs, two San Francisco couples who were denied marriage licenses shortly after Proposition 8 became law, are represented by David Boies and Ted Olson.

Olson’s participation is simply mind-boggling. He would appear as solidly Republican as anyone on earth. He was an Assistant Attorney General under Reagan, led the charge against Bill Clinton in the Paula Jones case, represented the Republicans in the “hanging chad” case that decided the 2000 presidential election (Boies, incidentally, represented the Democrats) and was Solicitor General under George W. Bush from 2001-2004. (A prominent footnote to Olson’s life is that his wife, uber-conservative political commentator Barbara Olson, who was a passenger on the plane to crashed into the Pentagon on 9/11.)

So what’s he doing arguing for gay marriage? He explains it in an essay appearing in the current issue of Newsweek entitled The Conservative Case for Gay Marriage. I could stick quotes in here, but I won’t. Instead, just go to Newsweek.com and read it. It’s fantastic, rational, and impassioned.

This of course has caused all sorts of consternation amongst the prevailing knuckle-dragging Republicans—the neocons, the Christianistas, Sarah Palin’s “real America.” Gay marriage certainly doesn’t fit into their worldview, in which gays are hedonistic predators, in which being gay is either a satanic choice or a sickness that can be cured, in which hate and fear are the most cherished and most clearly expressed values.

Andrew Sullivan, the massively read blogger, who is both gay and conservative and who has been hyper-critical of the Republican party while bemoaning the decline of pure conservatism, noted that the right-wing blogosphere is virtually silent about Olson’s breach of what has been, up to now, fundamental right-wing doctrine.

Of course the longer term impact of Olson’s manifesto won’t be known for a while, but it does represent a massive shift in the gay rights debate, and a further and serious fracturing of factions within the Republican party.

Another interesting development in this case was the judge’s decision to allow cameras in the court room, with closed circuit broadcasts in other courtrooms around California and posts on YouTube. Cameras are generally barred from federal courtrooms, although several courts around the country are experimenting with their use.

The defenders of Proposition 8 (interestingly, the State of California refused to defend its own law, so the “defendants” in the case are represented by one of those well-funded “conservative” groups that runs around the country opposing gay-marriage initiatives) filed an emergency motion to keep the cameras out of the courtroom, arguing that it would imperil the safety of some of their anti-gay witnesses. Surprisingly, the Supreme Court issued a ruling, less than 30 minutes before the trial was to begin on Monday, temporarily barring the transmission of any video of the trial except to other rooms in the San Francisco courthouse. The stay only lasted through Wednesday, and by the time you read this, the Court will likely have issued a more elaborate ruling. And it could go either way.

The whole cameras in the courtroom thing has always bugged me. Courtroom proceedings are, with a very few exceptions, public events as a matter of constitutional right. None of the arguments supporting keeping cameras out of the courtroom make much sense or stand up under even a little scrutiny. Spare me the “dignity of the courtroom” stuff. Why is that compromised when the cameras are on?

Many states allow filming and broadcasting of state court proceedings, and with laudible results. Back when there was a Court TV, before it turned into whatever lowest-common-denominator dreck channel it is now, Court TV regularly aired court proceedings, and some of them were among the most compelling things ever on TV. As circus-y as it was, the live broadcast of the OJ Simpson trial was compelling, brilliant and educational. All of a sudden the entire nation was engaged in discourse on the nature of things like probable cause and the admission of evidence.

So, it’ll be interesting to see where the Supreme Court goes with this, and why. Meantime, keep your eyes on California.