License Update

As of this morning I’ve shifted the Creative Commons license governing my original content on this site from a CC Attribution Noncommercial Share-Alike 3.0 license to a CC Attribution Noncommercial 3.0 license.  Any uses of my work pursuant to a Creative Commons license no longer need to be released under a CC-BY-NC-SA license, but still have to include proper attribution and be a noncommercial use.

Enjoy your added freedom,
Andy

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

• Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
• Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
• Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
• On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
• My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
• For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
• On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
• My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of glennbeckrapedandmurderedayounggirlin1990.com against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
• Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
• And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

Special note for the GW Law Community

Fully recognizing how weird it is to use a worldwide forum for a message targeting about 1500 kids, here’s a special message for the GW Law community:  I’m on the e-board of the Cyberlaw Students Association, and we want you.

So if you’re a GW Law student and interested in cyberlaw, come to our meeting on Wednesday. There’s free food in it for you.

A Performer’s Tribute to Teddy Kennedy

Hello again.  I’ve been writing a lot since my last post, but no draft has quite percolated up to postworthy.  One or two of them will soon.  For now, I want to quickly re-post Universal Hub’s video of a man paying tribute to Senator Kennedy as his motorcade passed the Roxbury Crossing station on Mission Hill:

Thanks to UHub for posting this and Steve McCarthy for capturing this moment.  A Boston historian could spill gallons of ink on the imagery and subtext here, but I’d rather let the video speak for itself.

Rest in peace, Teddy.

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.

Quick words on Sony v. Tenenbaum

The case of Sony BMG Music Entertainment v. Tenenbuam has been quite the legal curiosity for those of us who follow the RIAA lawsuits. There’s lots to learn from a case like this, not necessarily in terms of its professionalism or legal practice standards (those that know far more than me say this is a far cry from a hallmark case), but in the actions of its cast of characters. This lawsuit, one way or another, has brought in every legal mind in this field, on both sides of the issue. And everyone is writing about it. A lot. I suspect that this will be the case people will remember when the story of the RIAA lawsuits gets written up some years from now.

Charles Nesson, a Harvard Law Professor and longtime legal guru, now heads the case for the defense. He also founded and does extensive work at the Berkman Center at Harvard. I will be working this summer at Berkman. I know a lot of you have asked me to write on this case, and while that does a whole lot to inflate my ego, I think it would be better in light of my perceived conflict of interest to instead link out to others for now. I’ll bring you news as it comes forth, but for now I leave the discussion to others. Thanks for understanding.

Here’s who I have been reading to stay abreast of this:

- Recording Industry vs. The People (Ray Beckerman)
- Joel Fights Back
- eon (Charles Nesson)
- CyberOne
- Copyrights & Campaigns (Ben Sheffner)
- Excess Copyright (Howard Knopf)
- Twitter user CopyrightLaw (Michael Scott)
- Corante Copyfight blog (Alan Wexelblat)
- Slashdot YRO
- Groklaw

Journals!

(insert Myst joke here)

One of the cornerstone secondary sources in our legal system is the law journal. Articles in law journals are frequently cited as persuasive authority in interpretations of the law in both papers and court opinions alike, and can be tremendous catalysts for developing legal thought and policy.

Every major law school has a journal, and it may surprise some to find that these journals are actually run by law students. Naturally, the pressure is tremendous and the stakes are high for law journals to state the law accurately and make persuasive arguments in interpretation, so schools do not let every student who expresses interest to join, as they might a school newspaper. Law schools invite first year students onto the boards of their journals though a rigorous competition held sometime during the 1L year. It just so happens that for my school that competition is this weekend.

Of course, it’s not like editors of law journals ever go on to do good things.

This is why I haven’t been writing here all week, and why you won’t see me here until at least after Monday. So have a good one, and I’ll be back sometime next week (when we get our well-earned spring break).

Cheers.

The Albums Getting Me Through Law School, Introduction

I’ve been meaning to write this for a long time.

A lot of you readers these days are fellow students of law at GW (Go Colonials, or something…). So I don’t need to tell you how hard law school can be, or how much time we spend reading, preparing for class (or now as it’s mid-November, finals). For those of you not in law school and not a member of our noble profession, you might have some offhand familiarity with the subject through books like One-L or movies like The Paper Chase:

or, for that matter, Legally Blonde:

Now, this does not reflect reality – at least not at this school, and from what I hear not at that old one up by the Charles River, either. Our teachers are not fiends out to get us, but actually incredibly nice and warm people (not to mention brilliant minds). But this is a fairly good representation of a law student’s fundamental fears. We try not to embarrass ourselves in class, out of respect for our professors (whom we respect quite highly) and our peers (who like the pace of class to be swift, not stagnant in hesitation). As a consequence – and truthfully the reason why we are here and paying so much money – we study very, very hard. We try to never fall behind in reading, at the expense of social activity and the slacking off we all enjoyed as undergrads. Although we settle into more of a gentle routine as the months progress, we never take the time to pause and reflect that what we call a “gentle routine” today was “absurdly hard working” only a few months ago. When you spend all day running, you start to think that jogging is taking it easy.

Now we all have our mechanisms for dealing with this heavy workload. Some of us institute a regimen of exercise, some of us make a point to go out every Thursday night and drink, some of us start movie watching groups (or, as my friends do, call every Sunday night West Wing night, and pile into a friend’s room for a couple hours). For me, the thing that is carrying me through the hundreds of pages I read on any given week and hours I spend preparing for class is, no surprise, music. Listening to music and writing here are how I fill the hours I don’t spend in solitude at the library.

But, as you might expect, it has to be the right music, and not just the music that I really like. For example, I will drive for hours on end listening to London Calling, but I can’t focus on reading while Strummer and Jones are in my ear. I get too distracted. I want to play guitar or dance about or something. So I need albums that will get me into a little groove, just enough to tap my feet or rock in my chair, while not pulling me away from subject matter jurisdiction, equitable estoppel, mens rea for homicides, or negligent tortfeasors. So, less London Calling and more Sandinista!. I like the former more, but I can study better with the latter.

I’m going to start sharing these albums here, for a few reasons. First, they are all amazing albums and come with a very hearty recommendation. These are not just good albums to study with, but also good albums in general. Second, for my law school friends, maybe this will help you out with your work, too. I hope it does. And third, these are good study albums in general, for whatever it is you do these days. Be it working with blood diseases at a Cambridge biotech firm, troubleshooting the IT of the United Nations, hyping up the infectiously distracting content over at Gamesville, zipping photo lenses across the country from a secret basement headquarters, sabotaging the movie-watching plans of patrons in the video section of bookstore, assessing research grants in air quality for the government, studying music and public health in New Orleans, fixing bikes, studying digital audio synthesis, or leading environmental revolutions (and not the other kind, I think) in certain peninsular countries in Asia – everyone needs some good study music. So I hope these can help you out, too.

So the first installment, coming your way shortly, is what I’m listening to right now. Stay tuned.

Off the grid for a spell.

(a gray wolf, from Flickr user dobak)

Hey folks,

I’m always amazed how my website activity is reflected in my readership.

It’s a fascinating study – my longer, thought heavy posts receive more comments and greater google-search hits, but random “huh.” posts always trigger more aggregate and individual traffic and more traffic from people emailing my links (yes, I can see that [only as far as your email client, not individual address]. So can every website. You should know that as a consumer.). I had my fourth all-time highest view count on Sunday, but three days letter with no posts I’ve fallen way off the map on traffic.

Sadly, that trend will continue. I’m off radar for a few days, and potentially through the election. I’ll try and put something up for the weekend (more for my own sanity than for yours, I’ll selfishly admit). As of now I’ve got a lot of real-world work to do and of course Halloween to consider. In the interim I think my buddy Oscar is going to do a special Halloween post that will certainly be quality. I’ll link to that when it comes around.

Until then, dig Listening Post’s recap of all of the great derivative music coming from an already-derivative song: M.I.A.’s “Paper Planes.” And I use derivative in the language of copyright law (as in a work that uses the work of others), not as an insult to Ms. Arulpragasm’s abilities.

See you when the memos are done,
- andy

The Clash – Straight To Hell

Thanks, WordPress.

I’m feeling a little proud today. WordPress has me as one of their Top 100 “Growing Blogs” in their Blogs of the Day roundup. I came in at #10, right after this pretty sweet travel blog by a photographer named Mitchell, and right after a blog dedicated to deconstructing all the glitches and cheats in Disney’s Club Penguin MMORPG4kids.

So thanks, everybody. Sorry I won’t be around to write more today, but I’ve got a memo to write on some endangered wolves. Cheers.