Andy on the Road

Hey everybody - thanks for waiting, and happy Canada Day. Everyone may remember the War of 1812 and the only invasion onto the continental US soil by another nation’s army (Canadians, as a British colony), but did you know we also fought between Maine and New Brunswick in the Aroostook War in 1838? It was a bloodless war, so I guess no harm, no foul - and I’d forgive Canada on behalf of Americans everywhere, but I’m not altogether certain if my family had moved to Massachusetts from Newfoundland yet, so it’s entirely possible it should be me asking forgiveness of my neighbors. Be it as it may, Canada runs deep in my blood and I hope you can take some time to hug-a-Canuck today.

I’m going to do a quick news brain dump for now, and get into some more quality writing a little later today. Here’s some of the stuff I missed while spending time with some of my favorite people up on Mount Desert Island (the land mass with an identity crisis):

• As a followup to what I wrote in early June, the House Subcommittee on the Courts, Internet, and Intellectual Property approved the Performance Rights Act on Thursday. The act requires radio stations to pay royalties on sound recordings as well as compositions, as does webcasting since 2007’s Copyright Board ruling. Reactions abound from the ruling from the two major parties involved, musicFIRST and the National Association of Broadcasters, and analysis from Coolfer and Ars Technica, where Nate Anderson does an excellent job laying out the issues and showing how the merits of the cases are obscured by strange lobbying and PR tactics.
• Alex Leavitt, a young man I met at Berkman@10, delved into ethnomusicology on Friday with an analysis of enka music mixed with hip-hop. Enka was a popular early-20th-century form of pop music, best known in the US for its frequent inclusion in Tarantino films. It’s an interesting case of East mixing with West, then mixing again, such as what you see in Ghanaian Highlife (and more recently, Hiplife) music. Both enka and Highlife are favorites of mine, and on this balmy humid Boston day Nigeria Special! is one of the only things keeping me cool.
• Public Knowledge signals the importance of today (aside from this being Canada Day and all) as the first day in which Copyright claimants can register online, with a reduced fee. PK is well-known for their backing of the current Orphan Works bill, which inverses my opinion of the aforementioned Performance Rights bill - whereas the latter represents an issue I typically oppose but can appreciate the compromise in the details, the current Orphan Works bill represents an issue I usually support (that is, letting unrepresented works pass into the public domain) that loses my support in the details. Be that as it may, Alex Curtis does a great job showing how an online copyright registry can be opened up with a little API love to help users navigate the records easier.
• Copyright guru William Patry put on his Constitutional scholar cap on Friday and drew some fascinating parallels between the DC Handgun decision and Constitutional interpretation of Article I, Section 8, Clause 8 - the sentence that gave us copyright. His point, and I heartily agree with him, is to cast serious doubt in the majority’s opinion of dismissing the first part of the Second Ammendment (”Because a well regulated Militia is necessary to the security of a free State,”) as a mere prefatory clause, and cutting to the second part (“the right of the people to keep and bear Arms shall not be infringed.”) as the actual “right.” It’s dense and referential reading, but shows quite cleanly that if we are to agree with Scalia that this first part was just fluff, it would be the first time we ever regarded any part of the Constitution as prefatory.
• Aquarium Drunkard gives us their take on a curious release from this year that seems to be slipping under the radar: Stax Does the Beatles. Included in their assessment is a curious anecdote: Did you know the Beatles were originally slated to record Revolver at Stax, but for security reasons the band opted to stay at Abbey Road in London?
• I recently reconnected with an old friend and performing buddy Brian Bergeron. He informed me of his blog, which is now added to the blogroll on right. Today’s post is a deeply personal and excellent read about how the slumping economy is impacting street performers like Brian, who you can see frequently up at Faneuil Hall. Brian also fed me a story that I’ll be writing about a little later as well. Stay tuned.

Read and enjoy, and thanks for sticking around.

(image from Flickr user Marshall Astor)

Via Stuff New Zealand, (found off Brooklyn Vegan):

Post-punk pioneers Devo say they are suing McDonald’s in the US over a Happy Meal doll that sports the band’s signature red flower pot hat.

In April the fast food chain released a series of American Idol Happy Meal toys in the US based on a range of music genres, including Disco Dave, Country Clay, Rockin’ Riley and Soulful Selma.

Devo’s complaint relates to New Wave Nigel, a toy kitted out in an orange jumpsuit, pink shades, and Devo’s “energy dome” hat.

The band also allege that the toy plays a “Devo-esque song”.

(thanks to ILoveFastFoodToys for the pic)

My assessment below the cut.

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Digital Media Wire is reporting this afternoon that the Associated Press is attempting to define how blogs can use their content.

DMW:

The Associated Press (AP) newsgathering agency will attempt to define how much attributed borrowing constitutes “fair use” of its news articles and broadcasts for bloggers and other websites.[...]The AP last week asked a blog called the Drudge Retort to remove seven posts that contained quotes from AP articles that ranged from 39 to 79 words.

After receiving criticism for the move, the AP over the weekend retreated a bit, calling its approach “heavy-handed,” and decided to hold meetings both internally and with bloggers to establish a more clear set of guidelines for use of its content online.

While they have all right to defend their work, I question how much they can define “fair use,” given their clear bias to protect their own content. Fair use already has a pretty solid test that copyright students are quite familiar with: the Four Factor test. This is a multi-point test that examines the nature of the original work and the alleged infringer through a variety of angles, to see whether the use is likely to be found fair. Let’s take a look at it as it applies to the AP issue above:

1. The purpose and character of the use, in contrast to the original: Highly transformative works (that is, works that take the original and add substantial new elements to the original versus straight copying) are more likely to be found fair. In the case of a blog adding commentary on top of an AP report this would be more fair, but straight reposting would probably be found less fair.
2. The nature of the original work: Copying of highly creative works and unpublished works usually is far less likely to be found fair. The AP, being highly factual and already published, would have an uphill battle to prove that their works are of a nature warranting restrictive fair use.
3. The amount and substantiality of the portion taken: Here’s where the AP may have more of a case. Copying a large portion of an AP report, or the entirety of that all-important first paragraph or two, is less likely to be found fair than taking a smaller or less-substantial portion. There are exceptions based on the nature of the derivative work, however, as often a large portion work needs to be copied in order to be effectively commented upon (such as copying the melody and form of a song in order to parody it). This is an exception that is not likely to be found in blogs covering AP stories, but worth mentioning.
4. The effect and use upon the market: Depriving the original creator from income or access to another market is typically found as an unfair use. Creating a derivative that is a substitute for the original is far less likely to be found fair. Here the AP may have a case, as blogs that copy extensive amounts of the AP story would deprive the AP of having a chance to exploit their own created content.

Thus we see the tricky balance here. On the one hand, the AP’s work is factual, already published, and the uses in blogs are frequently transformative, all speaking to the uses being found fair. On the other, large and substantive portions taken from the AP combined with the fact that the blog would replace the AP in this case would be found less fair. There is no automatic pass or fail with the fair use test. All of these factors are weighed together in a court situation. The balance of fairness would be difficult to find outside of a case-by-case basis, and while I applaud the AP for reaching out to bloggers in an effort to release their statement, the framework for assessment of fair use is already in place.

To end on an amusing note: I do appreciate the AP’s acknowledgment that they do not seek to become blind lawsuit addicts such as another large aggregate organization. In an interview with the New York Times AP VP Jim Kennedy said: “”We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

(image from bubblecup.etsy.com)

Imagine a road in your town that serves as a convenient workaround from normal traffic. It’s the kind of road that only the locals usually know about; perhaps it links two major thruways, or is a way around a toll booth, or the fastest route between the high school and the local pizza joint. I suspect many of you already have a road or two in mind. This road is narrow and winding but well paved, providing ample support for the residents on the road and most of the neighbors. Maybe you live on a road like this, maybe even purchasing a home here for this very convenience. My parent’s house could certainly be such a road, linking main street in their Massachusetts town with a sizable New Hampshire highway, saving a few minutes and miles.

Let’s say your road has a problem. Your excellent shortcut has been found by the many of the public (as they often are). Many who do not respect the road as a resident might have been speeding on it in order to take advantage of this workaround. Naturally, this creates an unsafe and unpleasant environment for those living there and others who drive. What’s more, they show total disregard for the local neighborhood, cranking their music late at night or throwing trash out the window, or damaging the road. The speeders are a rampant problem, and need addressing right away.

One particularly angry resident, let’s call her Rita, is threatening to sue every speeder she sees. She herself has attempted to pull over people, and seeks assistance from a private company to solve the problem. In walks said company, let’s call it StreetDefender, offering to solve the speeding problem. In addition to giving Rita a radar detector to help her catch any and all speeder StreetDefender offers three other potential solutions:

1. They offer to jam the road with as many cars as possible, highly inconveniencing the culprit speeders and forcing them to slow down or seek an alternate route.
2. They offer to conduct an espionage mission where they block anyone who they deem a speeder from getting into their car in the first place, killing off the problem at its source, in theory.
3. They post up billboards along the road every ten feet at a premium (since so many people see them as they zip by), and then share the revenue of those billboards with the neighbors.

Allow me to make a generalization and assume that you, dear reader, are a sensible human being. You, having sense, determine all of these to be foolish solutions to the problem. You are also somewhat uneasy with the fact that StreetDefender is using radar guns on the street, figuring that role to be better served by the police, though perhaps the police, quite frankly, have better fish to fry. And while two of the three solutions above would most likely work, and the third would give you cash, they come at a great inconvenience to you. After all, you too would like to use the road for your totally legitimate, non-speeding purposes. Still, Rita accepts all three proposals and proceeds to sue speeder after speeder, with little success but much damage.

What would you do about it?

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There’s a lot going on in the world of intellectual property, music, and the law these days. I must admit I have been slacking in this department over the past couple weeks, but I’m on the rebound.

First, a followup to the story I wrote about here back in April. Universal Music Group recently sued a man selling promotional CDs on EBay under the handle “Roast Beef Music.” For those of you unfamiliar with the curious creature that is the promotional CD, allow me to illuminate:

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(Compelling image from Flickr user mercurialn)

In case you haven’t seen this yet, one of the only DJs that’ll get me to dive into the “Club/Dance” section of Newbury Comics, Congress-recognized Girl Talk, has announced that his next release shall go the way of Radiohead and Nine Inch Nails. Paste is reporting his next master work, Feed the Animals, will be released first online where fans can decide how much the pay for it. We should expect to see it in the next couple weeks, with a tangible record following about month or so later.

Major acts have seen success with this, no doubt. Many love to credit that to large quantities of major fans, but that misses a larger point. It should be known that small-size professional acts do quite well with a variant of this model. Look no further than MagnaTune, a website featuring independent artists offering DRM-free MP3s of albums, for which you can pay between $5 and $18 to download in a variety of file formats (including lossless WAVs). To put it in Boston terms, these are TT’s and Great Scott-caliber bands making good money through the system. Despite a $5 minimum, the average payment is right below $9, according to a USA Today interview.

So, the Boston Garden and Great Woods-sized bands do well. The TT’s and Great Scott sized bands seem to do well too. Girl Talk is going to enlighten the world as to how a Paradise or Middle East Downstairs sized band (or for those not fluent in Boston venuespeak, upper-mid-level professional musicians) fare with the model. It’s certainly exciting.

This week is a fairly substantial one for royalties and radio broadcasting. The House Judiciary Committee will hold hearings on Wednesday discussing the “Performance Rights Act,” a law which would require terrestrial radio stations to pay royalties for sound recordings. As it stands, radio only pays royalties for the composition (so, songwriters and publishing companies), and sound recording is compensated by all of the free advertising songs get when broadcasted, which almost certainly translates to higher sales. Whether this is an important balance in the limited rights of copyright or the consequence of the fact that big radio was earlier to the table than the RIAA depends on how much of a cynic you are about the congressional process. I’ll have a detailed assessment early next week, after I read the bill and related opinions.

Regardless of the merits, I’ve always felt that the big pushers on these sorts of legislation have been much more the record companies than the artists. Based on the structure of royalty payments in sound recordings (an oft-screwed area of a contract) artists usually fare better in other revenue streams, such as, say, live performances. For years radio has been quite a gold egg goose for record companies, and the payola scandals certainly suggest that record companies get that. It’s hard to see why they want to kill it now.

On the internet side of things, media search engine / go-to MP3 streamer / lawsuit target Seeqpod seems to get how streaming music can benefit artists, record companies, and the music scene as a whole. As an interesting project they’ve recently created a streaming database of this summer’s festivals. The page provides a list of festivals, and fans click though and listen to acts playing at these events. As an example, here’s the SeeqPod page for last weekend’s Mountain Jam.

The benefits are numerous; the site helps fans make decisions on where to go, lets them learn about other artists performing at their festival of choice, or simply gets them hip to other artists in their favorite genre. It’s a cool experiment, a good resource for fans, and a benefit for artists (not to mention record labels and festival promoters).

The á la carte nature of Seeqpod would make it unlikely to be classified as a digital webcaster, although some would argue it still would be categorized as such. For the sake of argument, let’s say it was. The law as of the mid-1990s states that these sorts of services have had to pay sound recording royalties in addition to composition. This has had a severe silencing effect on these sorts of websites, making SeeqPod a brave exception. And not without consequence, as lawsuits have been filed by Warner against the company. I’m more than a little disappointed that organizations like Warner can’t see past the clear benefit to their own artists, themselves, and the general music scene.

Seeqpod will not be directly impacted either way on the legislation considered Wednesday, but let’s not forget that many broadcasters are trying to help the scene much like SeeqPod. Increased royalties would no doubt have a silencing effect on small broadcasters, silencing databases like this. Right or wrong, this should not be taken lightly, and if the record companies do in fact have the best interests of artists at heart, they should consider this as well.

I spent most of yesterday away from my computer, with good reason. Thursday and Friday’s conference saw me wired in a way I usually reserve for the web prowling I’ll do in some of the more heady market research projects at Hobnox. In addition to the lectures held in Harvard Law’s beautifully equipped facilities (all rooms had outlets at each seat, and many had microphones wired into a room PA, so discussions in a room fit for 100 people were conducted comfortably), we were conversing on IRC, posting questions for discussion on a dynamic question tool, twittering with an agreed set of tags which were aggregated through sites like twemes, and editing the details of the conference, Wiki-style, on a conference wiki. For a center dedicated to understanding the web in a powerful way, they certainly practice what they preach. As my roommate Oscar noted, “it sounded like you were put in the Matrix.”

I met some amazing people, had a chance to put faces to names I’ve been reading about (and reading the works of) for my entire college career. I met amazing people my age and younger working on fantastic projects at MIT, Harvard, and BU (see my YouTomb post from last night), and was left wanting much more. One small piece of that: I really wish I could have heard more from Wendy Seltzer of The Berkman Center, NU Law, Tor, and creator of Chilling Effects, a site working along many of the same lines as YouTomb for years now.

The substance of my reactions can be found on the various liveblogs and reactions I’ve written (and probably will continue to write) tagged with “Berkman@10.” My overall conclusion is as follows:

I don’t know enough yet.

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One thing I wanted to touch base on before moving onto my conclusions from the conference: YouTomb.

On Thursday night I had the opportunity to meet with a group of people over dinner to talk about an effort coming out of MIT’s Free Culture group - their campus’ chapter of a nationwide network of students spending time exploring and acting on the issues of culture, intellectual property, and society, based on the book of the same name by Lawrence Lessig. You can (and should) read it in its entirety here. Representatives from Harvard College’s Free Culture, the founders of ROFLCon, Alex Leavitt, and Jeff Young from Chronicle.com were also at the table, and thanks again to Jeff for picking up the tab.

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For the next two days I’ll be on the Harvard Law campus discussing the past, present and future of the internet as part of the Berkman@10 conference. The conference, as the name suggests, honors the ten year anniversary of the Berkman Center, and features a host of the web/tech/law superstars that played a role in the center’s (and, by extension, the Internet’s) development. I plan to write a recap of each night not only as an exercise in retention, but in the hope that one or more of you, dear readers, will care to see what is on the mind of internet visionaries today.

This may evolve substantially into deep discussions, and in that light I’m adding the tag “Berkman@10″ to this and related posts, for the sake of future navigation.

Enjoy!