Sotomayor on Copyright Law

As a followup to Monday’s post, head over to the blog Ex(c)lusive Rights to see an impressive list of all of the copyright/soft-IP decisions Judge Sotomayor did while working the Second Circuit and the S.D.N.Y. As Gizmodo puts it, Sotomayor knows stuff about computers. Many thanks attorney Shourin Sen for putting this list together (and promising to update it as more are found).

This might have been my weekend reading material, if my weekend wasn’t already so busy reuniting with my old production/promotion company to help produce one more festival. See you all when I come back.

Sotomayor on the law

The changing nature of the law and the conduct of lawyers give the public understandable pause. We must not, however, fall prey to the public’s cynicism. We must instead expect more of our profession. There is a limit to how far an individual lawyer can elevate the bar as a whole. What a lawyer can do, as argued above, is educate the public–at the very least in the person of his or her clients–and personally raise standards by living up to a code of conduct beyond what is “enforceable.” This responsibility is not confined to attorneys in private practice. The others who operate in or around the legal framework–judges, prosecutors, juries, witnesses, public officials, and the press–must also educate themselves, and others, and apply higher standards of conduct to their own behavior.

Soon-to-be-announced Supreme Court nominee Hon. Sonia Sotomayor (with Nicole Gordon), Returning Majesty to Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 49 (1996).
This is going to be an interesting couple of weeks. SCOTUSblog has a nice outline of what we have in store, and what the plans of attack will be.

RIP: Jay Bennett

(Jay, at TT the Bear’s in 2005, from Flickr user rustedrobot)

So sad to see this story from Muzzle of Bees: Jay Bennett, former member of Wilco member and one of the masterminds behind their epic Yankee Hotel Foxtrot, died in his sleep last night after undergoing hip replacement surgery. He was 45.

Wikipedia points us to this MySpace post just before he went under the knife. After disclosing he had a torn ACL, which he ignored for several years:

Well, it turns out that these types of injuries don’t really heal themselves, as I naively told myself might just magically happen, if I rested that leg, used a cane for a while, and lost a bit of weight. So, major surgery it was to be…the only glitch, I am among our nations under-insured (my previous injury to that leg was listed as a pre-existing condition, and any injury that could be linked to the same root cause, I was told would not be covered). Some time passed as I contemplated my next “move,”—how to come up with the money to pay for the surgery “out of pocket,” and as I brainstormed, my hip finally decided to lock up, and the pain got worse. So I began the arduous, or more accurately, extremely time consuming and endlessly frustrating, process of finding a surgeon and hospital that would perhaps “cut me a deal,” be willing to bargain/barter a bit, or at least allow me to make installment payments. As it turns out, this is possible, but also difficult to arrange, if you can not come up with a sizable down payment as a show good faith, etc. I have been saving as much money as possible ever since I made this new commitment to my health, my future, and my quality of life, and have sold off some vintage recording gear, whose monetary collectors value now far outweighs it’s functional value. As time has passed my mobility has continued to erode, to the extent that, for quite some time now, it has even been difficult to sit at the computer for more than just a few minutes—as I only own an ancient, yet reliable (don’t get mad at me baby), old Dell desk top PC, I can’t lie on the couch with a lap top and leisurely engage in the cyber world as I had so enjoyed since I made the commitment to enter the 21^st century (or at least the late 20^th) and interact with all of the wonderful people who have chosen to be my friends on myspace. And, even if I have said it enough already, I’ll just keep saying it over and over again; what an thoroughly enjoyable experience it has been, it’s like hanging out at a bar talking to folks with similar interests, swapping stories, answering questions, asking questions, getting to know people, reacquainting myself with old cronies, all without having to shout above the music (which I hate, unless of course it is of my choosing)…and I really have missed these interactions on so many levels. I know that I owe many of you mails (my trips to ye olde Dell are painful and now almost non-existent…this note was hand written and transcribed). I also owe some of you input on music that you have sent to me, for these transgressions, I apologize, but trust that you will understand.

I’m not suggesting that Jay’s lack of insurance gave him any less than the best treatment when he did go under the knife for various leg work, but his problem is one that thousands of musicians in America face: ours is an industry which does not provide for health insurance. So, for Jay, may I suggest donating some money over at Rock For Health, a Northeastern-born organization dedicated to raising money to provide artists with health insurance. You can donate on their MySpace here.

Also, earlier this month, Jay sued Wilco frontman Jeff Tweedy for unpaid royalties (see the complaint here). Sad to think Jeff and Jay left on such bad terms, after nearly a decade as bandmates.

Godspeed, Jay.

Quick update: /. says Last.fm did in fact give up users to the RIAA (but they didn’t want to)

Update 6/3 - As that “grain of salt” warning suggested, Ars Technica posted on Monday 6/1 that that last.fm denies this in the clearest terms possible:

As a result, Last.fm’s Russ Garrett has issued a strongly worded denial on Last.fm’s forums. “That particular data is controlled tightly inside Last.fm and is only stored for a short period of time. Any request for such data would have to be approved by myself first. The suggestion that CBS’s ops team provided this data is just not possible—Last.fm operates as a separate entity and their operations staff do not have access to our system,” Garrett said. “It really seems like someone is trying to slander us here.” In another post, Garrett clarified that Last.fm has never given data linking IPs to scrobbles to any third party or to CBS, for that matter.

This doesn’t really change my analysis below as to whether they could do such things without violating the Privacy Policy for the website, but it certainly should allow last.fm users to breath a sigh of relief.

Original post below…

All of this is done with anonymous sources, so take it with a grain of salt, but /. contributor “suraj.sun” says TechCrunch, the party responsible for breaking the Last.fm-gives-up-users-to-the-RIAA story in February, now has released another story claiming additional sources have confirmed that Last.fm data was leaked to the RIAA, by way of parent company CBS:

Here’s what we believe happened: CBS requested user data from Last.fm, including user name and IP address. CBS wanted the data to comply with a RIAA request but told Last.fm the data was going to be used for “internal use only.” It was only after the data was sent to CBS that Last.fm discovered the real reason for the request. Last.fm staffers were outraged, say our sources, but the data had already been sent to the RIAA.

I documented the initial leak back in February, and I noted how impractical it would be to try and base an infringement claim on Last.fm data. It seems TorrentFreak agrees with that conclusion. I still am very skeptical that this happened, but given what we’ve seen from the RIAA over the past few months I’m more inclined to believe the RIAA would try this, as part of their “kitchen-sink” strategy for litigation.

TechCrunch also argues in the link above that such disclosure would violate Last.fm’s own Privacy Policy. I assume the part they mean is…

Certain third party individuals or organisations may have access to your personal information (excluding your email contact information) via Last.fm’s API and webservices or as a result of agreements between Last.fm and its preferred partners. (However, you should be aware that if you provide your e-mail contact information and/or username directly to any such third parties, they may use your information for their own purposes.) Such partners may use such information for their own purposes, which may be either commercial or non-commercial in nature and which may include targeted advertising or direct marketing. These third parties may be based in the United Kingdom or elsewhere (including outside of the EEA). [Emphasis added; British spellings in original]

…paired with this:

We believe in privacy and therefore will take all reasonable measures to ensure that your personally identifiable information remains private. However, in the event that we are required to disclose personally identifiable information by a court, the police or other law enforcement bodies for their investigations, regulation or other governmental authority we will make such a disclosure without being in violation of this Policy.

Assumedly, TechCrunch is arguing that Last.fm lists mandatory disclosure to “a court, the police, or other law enforcement bodies” at the exclusion of other interested third parties (to wit, the RIAA). As Last.fm promises not to give up your “email contact information,” this would mean a personally identifying disclosure to someone who is not a court or the police would be off limits acording to the Privacy Policy. However, you also see this clause…

We collect data regarding the users of Last.fm, including: (i) The Internet Protocol (IP) address of the user’s computer. This may or may not be associated with a particular Internet Service Provider (ISP); (ii) The referring URL, if any; (iii) The browser software identification (i.e. the brand and version of your browser software).

… and it makes no mention as to whether or not the IP address is part of the “personal information” which Last.fm makes available to third parties. So, by disclosing the IP address and not the email, CBS/Last.fm could still give up info to the RIAA and not violate the Policy.

(When I posted about this a couple months ago I also got into a quasi-fight with one Jonty Wareing of Last.fm, who thought I was doubting his existence. Jonty? You still read this? Want to comment on this story?)

Dark Night of the Soul

(Sparklehorse, from Flickr user broma)

Hello again, folks. My transition into summer has left me with little time for blogging. This is a shame, as always, as there has been a veritable eruption of news in areas about which I love to write. I hope to post up a couple more heady things on current IP affairs over the next few days. In the meantime, I wanted to make sure you all heard the news regarding the new Sparklehorse/Danger Mouse album.

This collaboration is the materialization of a rumor that has been around for years. Danger Mouse helped Sparklehorse on some tracks in 2006′s Dreamt for Light Years in the Belly of a Mountain, and Sparklehorse’s artistic center, Mark Linkous, had cryptically mentioned a more formal collaboration in several interviews since that time. In early April Pichfork noted that the longstanding rumor looked to be true, and what’s more, they were bringing a tour de force of guest artists, including Black Francis (of the Pixies), James Mercer (of the Shins), The Flaming Lips, Scott Spillane (of Neutral Milk Hotel and The Gerbils), Vic Chesnut, and Iggy Pop. Early this month we learned more: the project, called Dark Night of the Soul, is not exactly an album, but rather a multimedia series which you can explore in the link above. The album/book, indeed featuring all of the artists mentioned, was slated for release later this month, with an art installation in LA debuting May 30th to highlight some of the works and showcase some media created by the one and only David Lynch to accompany the music.

As of last week the indie rock world was buzzing in anticipation of this pending, star-studded album. But then, on Friday, Billboard announced that the album was “scrapped” due to “unspecified legal issues with EMI.” This puts the parties involved in a very awkward situation, as on May 7th the album was leaked, and earlier on Friday NPR began streaming the album as part of an exclusive first-listen series. As Idolator and Boing Boing and many others have since reported, also on Friday (and the timing of all of these events is very unclear for those who just got all these news stories in an RSS-feed dump), Danger Mouse and others decided to release the album as a blank CD-R with the full booklet and a label disclaiming “For Legal Reasons, enclosed CD-R contains no music. Use it as you will.” In subtext, it sounds as if Danger Mouse is going to rely on the same filesharing architecture which made him world famous in 2003 to help spread his latest project.

It’s hard to comment on this until details about the legal issues around this album come to light. For what it’s worth, my guess is that it has to do with appearance rights for one of the guest artists. Often times as part of a larger record deal an artist will promise not to appear on other record labels’ albums without prior approval from their record affiliate. This is only a guess, however, and we’ll have to see in time what is the actual problem at issue here. Certainly the blank CD-R move is a pretty clever stunt, and probably helps drum up some publicity for the album, but an album with this lineup needs no large publicity push and Danger Mouse doesn’t exactly need to do anything to prove his anti-RIAA stance and thus earn fans in the college age, tech-driven demographic. However, equally apparent is the fact that people are not going to come out in equal volumes to buy an album containg a blank CD. It’s hard to remember sometimes, but there are many millions of music consumers out there that do not follow the web and its affairs as thoroughly as us, and without knowing the backstory behind this album they aren’t going to buy up the guy from Gnarls Barkley’s latest spinoff project unless the CD actually has the audio on it. Besides, unless this “legal issue” has to do with one’s exposure to further liability from a third party (e.g. EMI is preventing Danger Mouse from releasing this because EMI might then get sued by company X for whatever reason), all involved would probably be better off if they simply allowed the album to be relased. It seems as though those who seek to scrap the album have never heard the old expression about trying to unring a bell. At this point the album will never disappear, any damage is likely done, and whoever is holding this up likely has little to lose and everything to gain going forward.

The NPR stream is still live, and I encourage everybody to listen here. I’ve been listening while writing this, and I love it. Danger Mouse’s influence I clearly felt, and his signature presence does much to unearth the broody layers that have made Sparklehorse one of my favorite bands for years (Good Morning Spider is without a doubt a desert-island record for me). Hearing so many familiar voices, with songs tied together by Sparklehorse’s instrumention, is beautiful accompaniment for this quiet Sunday afternoon. Let’s hope the parties involved can work through whatever’s keeping this from having a full release and give this work the full commercial benefit it is most certainly due.

New Flaming Lips album to be called “Embryonic”

(The Flaming Lips at the Green Apple Festival in DC)

You heard it here third: via Paste (via Stereogum). The description of the music certainly piqued my interest:

The way Coyne describes the album, the band’s 12th, it’s almost as if it’s a tale of two cities. On the one hand, it sounds like it’s going to rock, and on the other, some of it sounds like it will be rather sparse. “I don’t think we’ve done this combination on purpose before,” Coyne tells Stereogum. “So that’s kinda where we’re at. We have like 10 or 11 songs that kind of go between being utterly free freakouts and songs that are very simple that are a couple of instruments playing.”

Sounds wonderful. I can’t wait.

Turns out we can get ourselves back to the gaaaaaaaaaarden

(Yasgur’s Farm, now part of the Bethel Woods Center for the Arts. From Flickr user_Robert C_)

Billboard, NYT, and Brooklyn Vegan report that several of the original Woodstock performers are playing a show August 15 at Bethel Woods (site of the original festival), to honor the 40th anniversary of the worldchanging concert. Headliners include:

• The Band Levon Helm Band
• Jefferson Airplane Starship
• Janis Joplin, with Big Brother and the Holding Comp.
• Country Joe and the Fish
• Jimi Hendrix

So, it’s highly derivative and a lot of the artists that gave the original lineup some zest are long since gone. But at least Canned Heat will be there (with only one original member).

Live Nation sells Orpheum, Paradise, and Opera House to unnamed buyer

The Boston Globe reports this morning that three of the largest venues in Boston were just sold to an unnamed buyer: The Orpehum, The Paradise, and The Opera House. Live Nation is still going to handle promotion, and is taking an earnout on the Orpheum for he next five years.

My music industry friends are already buzzing with speculation as to whom the new buyer might be. Until we know it’ll be hard to say exactly what impact this will have on the local scene (but as one of my friends observed, “could it be worse?”). I’ve reached out to a few people I know in management at these venues, and haven’t heard anything back.

Idolator reports that Live Nation is currently looking for a lessee for New York’s Grammercy Theater (probably better known as “the Blender”). Whether this is their method of coping with these troubled economic times, or instead a chance to dodge the ongoing antitrust investigation vis-à-vis the Ticketmaster merger, remains to be seen. While I’m tempted to find deciet in all that this company does, I have to think it’s more about the former. Live Nation’s stock price has fallen from around $17.50/share to about $5/share in the past six months.

Update: The Herald and Globe confirm the buyers to be none other than Don Law and David Mugar. Law has been in the Boston industry since the 60s, first while a student at BU managing The Remains, later as the managing partner of Boston Tea Party (a venue which later moved and changed its name to the Avalon, recently demolished for the new House of Blues), and the chief promoter for Boston Garden concerts in the late 70s and 80s. He’s a fairly polarizing figure in the industry; many credit his heavily profit-driven attitude as one of the major reasons why the concert production industry became so much about the bottom line, at the expense of fan experience. Interesting to see him own the Orpheum again, considering he ran the place under Don Law Entertainment when SFX bought it out, then SFX became part of Clear Channel Entertainment, Don Law became head of the New England division, Clear Channel spun out Live Nation (with “Tea Party Concerts” as a front name for the northeast regional promoter, a tribute to Law’s old company), and now Live Nation is selling this to Boston Opera House Ventures, LLC, a partnership with Mugar and Law. This is like a twisted circle of life coming out of the Boston concert scene.

As for Mugar, he’s probably best known as the CEO of Mugar Enterprises, executive producer of the July 4th celebration in Boston, noted philanthropist, and son of Stephen Mugar (of Star Market and [in your best Leonard Nimoi voice now] The Mugar Omni Theater). Hard to know what his role will be in this operation.

Welcome Back, Folks

After finals effectively destroyed any chance of keeping up with my feeds, I turned on my RSS reader for the first time in a couple weeks. I was met with over 4000 items. There’s no way I’ll be able to give these a full treatment (and to pile these all together makes for pretty scattered reading), but here are a few highlights:

• Perez Hilton responds to a negative ad by the National Organization for Marriage (of the horrible “Gathering Storm” ad fame) by sending them a near-frivolous DMCA Takedown notice. Sorry, Perez: this isn’t cool even when I agree with your message.
• My buddy Greg Whitney is featured in an Emerson student’s profile of Boston’s own Louie (better known as The Tricycle Man). Seeing this made me miss Boston more than anything else during finals week.
  Thanks to Bostonist and Ms. RDP for the scoop.
• Swineophobia hit close to home this week. My Alma Mater Northeastern opted to forgo with handshakes for commencement. I don’t think the Garden counts as a “small confined space” to avoid under VP Biden’s analysis.
• Early reports from the iTunes Music Store’s new variable pricing system are not favorable. Digital Music News reports that revenues are down, and consumers are increasingly leaving iTunes in favor of other alternatives.
• The Boston Globe did a nice profile of Justice Souter’s hometown of Weare, NH. I was a little surprised to find that Justice Souter lives relatively close to my house. He lives a few dozen miles due north of me, straight up Rt. 13 (which turns into NH Rt. 77 in Milford). To help understand his (and to an extent, my) upbringing: equidistant from our towns is Peterborough, NH, best known as the town credited as the inspiration for Grover’s Corners in Thornton Wilder’s Our Town. I feel a deep affinity for that play, and the towns in the Monadnock region that it celebrates. I have a feeling he does too. While I’ll miss reading Souter’s opinions, I’m sure he’ll enjoy his return to our figurative neighborhood.
• On a related SCOTUS note, Justice Scalia’s opinions on the “privacy right” (which GWU Law Professor Dan Solove characterizes here) were tested when Fordham University Professor asked his legal privacy class to create a dossier on Scalia. Scalia responded with gusto.
• EFF’s Hugh D’Andrade gives the Obama White House partial credit for licensing photos taken by White House photographer Pete Souza under a Creative Commons Attribution license, but suggests the fairly obvious: shouldn’t these, as government works, be in the public domain?
• Japanese designer surgical face masks. Now I’ve seen everything.
• Iron & Wine are (is?) going to release a 2CD/3LP collection of rarities and outtakes called Around The Well on May 19th, spanning the entirety of Sam Beam’s career. This week we have new St. Vincent and Akron/Family for your listening pleasure.
• Wired’s marks for Obama’s first 100 days: Copyright, D; Cyber Security, C; Science, A-; Net Neutrality, B+; Transparency, B-; Privacy, D-. Saddens me to say, but I have to agree on most of these marks. But let’s not forget that he’s getting damn close to an A on virtually everything else.
• Tripod.com co-founder Ethan Zuckerman wrote a lovely and humorous eulogy for Geocities, which officially closed last week.
• Is A&R dead? Music Think Tank poses the question, and the comments are generally in favor of the rarified profession. (I for one still prefer my old sensei Dave’s joke on the subject: “How many A&R guys does it take to screw in a lightbulb?” “I don’t know. What do you think?”)
• A lot of people complained that the  White House photo op of Air Force One over NYC could easily have been done in a matter of an hour or two on Photoshop. Scott Kelby demonstrated, creating a rather lovely shot that could have saved us over $300,000.
• And for the finale: in March of 2007 WFMU posted 79 versions of Gershon Kingsley’s “Popcorn.” Using the EchoNest API Paul Lemere was stitched them all together into a 12 minute anthem. I’m very glad I didn’t find this until after finals, as I would have listened to only this, and that probably would have done my brain in. Paul Lemere – A Big Kettle of Echo Nest Popcorn
  

I hope to be back to more regular schedule now that my 1L year is over and the summer has begun. I make my return to Boston tomorrow; can’t wait to see you all. And to my new DC friends: congrats and thanks on a wonderful year, and I hope to see a lot of you up here or down there soon.