NH Supreme Court hears online journalism case

Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.

We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts –  and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)

Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.

I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.

Naturally, when the Court rules I’ll be sure to pass along that information.

An introduction to sampling

(waveform of the “Amen Break”)

Carleton (and before him James Nord and YouTube user mobius32) brings to my attention this excellent video about the “Amen Break” – one of the most important 6 seconds in recorded music, originally recorded by The Winstons.  Check it out:

This is loosely related to a journal article I am writing on sampling rights.  I don’t think I’ll be getting as abstract as the “cultural public domain” argued here, and my conclusions might cut directly against some of mobius32’s arguments here, but his concern about copyright re-appropriation and the incoming clash between copyright law and digital sampling are certainly right up my article’s alley.  And I’ll certainly be taking up the Bridgeport Music case mentioned in passing towards the end of the clip.  This is a must-watch to understand the foundations of many of our modern discussions on sampling rights.  Check it out.

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:

Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):

Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.

BOYCOTT JAMBA JUICE!

JUICE SUCKS, DRINK WINE

Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.“  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

Thoughts on Capitol v. Thomas-Rasset

The retrial of the first (and only) filesharing case to end in a jury verdict (for the record companies, for many thousands of dollars, but under a faulty “making available” theory) started last Monday.  By the end of the day Thursday, we had a stunning, $1.92 million verdict against Jamie Thomas-Rasset, for sharing the following songs on Kazaa:

• Aerosmith – Cryin’
• Bryan Adams – Somebody
• Def Leppard – Pour Some Sugar On Me
• Destiny’s Child – Bills Bills Bills
• Gloria Estefan – Coming Out in the Dark
• Gloria Estefan – Here and We Are
• Gloria Estefan – The Rhythm is Gonna Get You
• Goo Goo Dolls – Iris
• Green Day – Basket Case
• Guns ‘n’ Roses – November Rain
• Guns ‘n’ Roses – Welcome to the Jungle
• Journey – Don’t Stop Believin’
• Journey – Faithfully
• Linkin Park – One Step Closer
• No Doubt – Bathwater
• No Doubt – Different People
• No Doubt – Hella Good
• Reba McEntire – One Honest Run
• Richard Marx – No and For Ever
• Sarah McLaughlan – Building A Mystery
• Sarah McLaughlan – Possession
• Sheryl Crow – Run Baby Run
• Vanessa Williams – Save the Best for Last

That’s $80,000 per song downloaded.  Her No Doubt adventures alone cost her $240,000: more than the original verdict of the first trial.  (Of course, it would be naive to assume that No Doubt will see any of that money.  If these companies approach the litigation campaign like they approach releasing albums, they’ll use the high profits from the top 5% to pay for the 95% that lose money, leaving none for the artist at the end of the day.)

There has been all sorts of ink spilled on this issue, from Ars Technica, Ray Beckerman’s RIAA vs. The People, P2Pnet, Ben Sheffner’s Copyrights & Campaigns, Wired, and even the Electronic Fronteir Foundation (raising some intriguing constitutional questions regarding the verdict).

The quote that sticks out for me from all of this comes from Ben Sheffner’s article he wrote for Billboard, where he wrote:

But a question arose after the verdict about whether the sheer size of the damages could lead to a backlash against an industry that is already portrayed in some quarters as overreaching.

Why Billiboard – an organization enjoying a place of high regard amongst all industry professionals due to decades of objective analysis of the music industry – would let such a known hard-line copyright figure pen their lead story on this all-important case escapes me, but even more confusing is how they could let such a gross misstatement of the public reaction onto their pages.  “[A]n industry that is already portrayed in some quarters as overreaching”?  Sheffner may be forgetting (and so I’ll remind him) that the RIAA was rated the worst company in the world in 2007 by Consumerist, edging out Halliburton for the dishonor (a website that appeals to a rather wide and large demographic, according to Alexa).  Amongst people aged 15-30 in America, the disdain for this lawsuit tactic is near universal.  In my Music Industry classes at Northeastern I never once met a person who thought this was a good idea.  Even my friends that went on from college to work for the RIAA or its labels agreed that this was a profoundly stupid business decision.  This is not just a handful of nerds, angry that Napster shut down and left to spreading hate speech on slashdot; this is an entire generation.  Sheffner’s comment makes about as much sense as saying “Coca-cola is considered in some quarters as a satisfying refreshment.”

Sheffner is absolutely right that no one expects the RIAA to get $1.92 million out of this, but what remains to be seen is if that’s because Thomas-Rasset goes bankrupt and liquidates her assets to the RIAA or because her attorneys successfully raise a valid appeal.  This case is most certainly not over, and its aftershocks will be felt for some time.  At the end of all of this, let’s not forget that a mother of four’s financial life was ruined on Thursday.  And what did we, or anyone else, get in exchange?

Update: Meanwhile, Pierce Law students have managed to successfuly settle an RIAA case there (against a woman who had no computer), getting the case dismissed with prejudice.

On Tea Parties, and DC

Apparently there’s some sort of coordinated effort to protest government spending or taxation or some such matter going on in DC and elsewhere tomorrow, using the meme of the Boston Tea Party. To mark the event, DCist posted up a short and sweet article keeping this protest in perspective:

The whole idea of using the Boston Tea Party as a rallying cry for people who aren’t happy with how the government is spending their money is a little strange, especially for those of us who qualify as both taxed and unrepresented. Back in late 2007 D.C. voting rights activists had their own tea party, symbolically dumping leaves into the Potomac to make a point that has stood for far too long — District residents pay federal taxes yet have no federal representation. If anyone can yell “No taxation without representation!”, it’s us.

As noted in the DCist article, Matt Yglesias found some humor in hearing a tea-party rally in Nebraska yell the old “taxation without representation” line:

Here in Washington DC, your humble blogger and about 600,000 other people are living and paying taxes to a United States government that does not allow us to elect representatives to congress. Whether you think that’s fair or not, what we’re doing is paying taxes without representation. The 1.8 million Nebraskans are very much represented in congress. There’s Rep. Jeff Fortenberry, Rep. Lee Terry, and Rep. Adrian M. Smith in the House of Represenatives along with Senators Ben Nelson and Mike Johanns. Indeed, with a mere 0.6 percent of the nation’s population, Nebraska gets to elect fully 2 percent of the Senators. If anything, Nebraskans have taxation with overrepresentation.

And so, protestors coming to DC tomorrow, consider the fact that your “taxation without representation” is neither (a) a net increase in taxes, nor (b) done without representation. And don’t forget those in DC that get all the tax, and none of the representation.

Last.fm denies giving up users to the RIAA

This has been quite the week for the web. First we had the whole Facebook fiasco (which seems to have motivated Facebook to do the right thing and revert back the terms of service, leaving unanswered questions about how binding terms of service are in these sorts of circumstances), then our attentions turned to the Pirate Bay trial – where the old “making available” issue has come up again, this time in an international law context – and yesterday TechCrunch dropped this bombshell:

That leaked U2 album is causing all sorts of trouble. The unreleased album, which is due out on March 3, found its way onto BitTorrent and was downloaded hundreds of thousands of times. That, apparently, sent music industry lawyers over at the Recording Industry Association of America into a fit. As a result, word is going around that the RIAA asked social music service Last.fm for data about its user’s listening habits to find people with unreleased tracks on their computers. And Last.fm, which is owned by CBS, actually handed the data over to the RIAA. According to a tip we received:

I heard from an irate friend who works at CBS that last.fm recently provided the RIAA with a giant dump of user data to track down people who are scrobbling unreleased tracks. As word spread numerous employees at last.fm were up in arms because the data collected (a) can be used to identify individuals and (b) will likely be shared with 3rd parties that have relationships with the RIAA.

(The U2 leak they’re referring to, we know now, stems from an accidental posting of the album on Universal Music Group’s Australian website.)

Last.fm, for those unfamiliar, is a service whereby users download a program which synchronizes with your iTunes or other MP3 player on your computer and posts on the website what you’ve been listening to recently. Users visiting my profile, for example, will see that I’ve been listening to the Mountain Goats’ All Hail West Texas for about an hour or so. Here, like Facebook, you can friend users, join groups, and write to each other, building little networks and communities around the music. Last.fm adds the perk (which cost them a fortune in negotiation and legal fees) to stream songs either in full or in brief snippets. So if I see a song on someone’s playlist that I don’t know I can click on it and hear what the song sounds like. This leads to endless music discovery, which Last.fm buttresses by applying its own algorithms to recommend music. It’s also a handy tool to look through my own past and track my own changes in listening habits. I find this especially fascinating, for a variety of reasons.

I’ve been using the service for almost four years (technically, I started on Audioscrobbler, which merged with Last.fm shortly after I joined). I’ve recorded over 40,000 plays. When CBS bought Last.fm in 2007 I worried as to what would happen to the service, but nothing to date shook my loyalty to the service like the announcement yesterday. Naturally, I was relieved when my friend Brian posted this link to a Last.Fm user forum, where website developer Russ Garrett categorically denied the TechCrunch story:

I’d like to issue a full and categorical denial of this. We’ve never had any request for such data by anyone, and if we did we wouldn’t consent to it.

Of course we work with the major labels and provide them with broad statistics, as we would with any other label, but we’d never personally identify our users to a third party – that goes against everything we stand for.

As far as I’m concerned Techcrunch have made this whole story up.

I am inclined to believe this denial over the friend-of-a-tipster story. There’s no feasible way for the RIAA to base a claim on this sort of data alone. The best it provides is some intelligence as to how the leak spread across the world. For one, you simply cannot base a claim against a user for playing an unpublished song in the privacy of his or her own home. This is not a cognizable right under copyright. Last.fm does not stream a song unless the record company uploads it directly to Last.fm, so there’s no way by which the user’s playing it will somehow create a “public performance” of the work. Nor has a claim of “distribution” garnered much success when all the rightsholder is alleging is that the Last.fm user downloaded the song; generally, the holder has to allege that the user distributed the song to others. (This does become a bit easier, in theory, when you can show that the song was downloaded through BitTorrent, which by nature uploads at the same time as it downloads. However, this is much harder, in practice, as the way BitTorrent shares files makes tracking any given user nearly impossible.)

Even if we assumed that Last.fm was going to release IP addresses and names (which they may or may not have), this would require the RIAA to get a search warrant and bring a criminal claim against the user, which would require a showing of probable cause of distribution, which I don’t believe a judge could give in this context. In the alternative, the RIAA can do what they’ve done with the other P2P filesharing lawsuits and sue the user in civil court, and later over the course of discovery try and “discover” that they distributed the song. This seems unlikely for a few reasons. The RIAA has declared that they no longer plan to use lawsuits as an anti-filesharing tactic. Given the nature of BitTorrent, it is almost impossible to track users, much less prove under any burden that the user distributed the U2 album. Nor would this fare any better than the traditional P2P lawsuits to dissuade users. If anything, it will cause users to leave Last.fm – which directly hurts CBS, whose CBS Records is member to the RIAA. This would be directly detrimental to a RIAA member.

I do think this is valuable, and I do think it was smart for the RIAA to look here, if they did, but all they will find or could hope to find is aggregate estimate of the size and the scope of the leak. I’d suspect a breach of contract claim or a firing of an employee at the website that accidentally posted the album long before I expect to see a Last.fm-based lawsuit coming out of this incident.

Update (22 Feb): Paid Content has a few more denials from Last.fm, including comments from Last.fm co-founder Richard Jones, and Jonty Wareing (a developer, though the name is suspect) adding, “you could also expect most of the Last.fm staff to walk out of the office door and never return,” were they to give out the data as alleged.

Update 2 (23 Feb): The Last.fm blog does a thorough, thorough denial. This is all over Digg today, too. Thanks to Ryan for pointing this out.

Update 3 (6 April): To be clear, I don’t doubt the existence or programming skills of one Jonty Wareing. I just think having a programmer named “Ware-ing” is like having a pastry chef named “Johnny Baker” or having a farmer name “Sue Growscropswell.” Sorry if I offended the delicate sensibilities of UK programmers.

FMC Policy Day: watch the whole event.

Thanks to the magic of the Internets and the FMC Blog, you can now watch all of the Future of Music Coalition conference I wrote about yesterday.

Quick reactions from the Future of Music Policy Day

(left to right: David Beal, National Geographic Entertainment; Peter Jenner, visionary music manager; Alec Ounsworth, of Clap Your Hands Say Yeah; Justin Oullette, Muxtape)

I had the chance today to see the second half of the Future of Music Coalition’s Policy Day conference. They might as well call it “The all-the-things-Andy-cares-about-in-music-and-law Conference.” I’d swear they designed this event for me. To do it real justice would lead to a several-thousand-word post, but I know from experience that you guys don’t read those, so I’ll keep it short and to the point:

Keynote at the address was Mr. Michael Copps, acting Chairman of the Federal Communications Commission. This man is so unlike the previous FCC Chairs it’s downright inspiring. Here’s a real example of how the Obama administration’s “Hope” is spreading through his government. Copp’s 20 minute speech was all about the rebirth of “localism” in broadcast communications. While very careful not to say this debate is entirely along the lines of regulation vs. deregulation, he notes how deregulation and the removal of area monopoly restrictions (which he promised will not happen again under this watch) has nationalized an industry that really should be kept local, for a variety of reasons. He inherited a real nasty situation with the now-famous digital television changeover taking effect next week, and no doubt he will be the target of a variety of bad press as a result of his role. Let it be said now that he is a great speaker with a variety of very good ideas. Let him not be judged by this one (inevitably disastrous) situation alone.

Panel one this afternoon consisted of Rick Carnes, President of the Songwriters Guild of America; David Carson, General Counsel of the US Copyright Office; Zahavah Levine, Chief Counsel at YouTube; Steve Marks, Executive VP and General Counsel of the RIAA; Hal Ponder, Director of Governmental Relations for the American Federation of Musicians; and Gigi Sohn, President of Public Knowledge. These were, without a dobut, the very best and brightest in the field of music and IP today, representing all walks of the professional music life. The panel was moderated by Walter McDonough, General Counsel for the Future of Music Coalition, Bostonian, and all-around great guy.

The discussion focused around when, where, and how IP schemes can be used to address the problems of the music web economy, and how these people (easily the strongest “heads at the table”) plan to address these issues. Naturally, looking over the names, you can tell that the crew did not see eye to eye on many (if any) of these arguments. Discussion went back and forth on how copyright policy would look under the Obama Administration, whether it would be put closer to the “front-and-center” or this administration versus those past, whether and how compulsory licensing should be applied to YouTube, whether or not the compulsory mechanical license which protects performers covering songs should be extended to home-videos on YouTube, whether and how the economic stimulus bill may or may not have had a provision in there permitting ISPs to do copyright filtering, and analysis of Sony v. Universal, Eldred v. Ashcroft, and a few patent and copyright cases working their way up to the Supreme Court right now.

I can’t do the discussion any level of justice, so once FMC posts it I’ll link to it here. A few big takeaways:

• First and foremost, the American Federation of Musicians, the largest musician union in the country, came out in support of network neutrality today. That’s big.
• Keep a sharp eye out for the case of Cartoon Network, LP v. CSC Holdings, Inc. (sometimes being called the “Cablevision DVR Case”). The case concerns, inter alia, an assessment of Cablevisions’ DVR system under the lens of the Betamax “fair use through timeshifting defense.” The US Copyright Office and others are arguing that it’s about much more than that, but the panel kept going back to that.
• In the House version of the stimulus bill, but not in the Senate version, there is $50 million set aside for the National Endowment for the Arts. The one thing this panel did unanimously agree on: we’re hoping that after conferral the $50 million stays in the final version of the bill.
• Interesting statistic from Ms. Levine of YouTube – every minute, 19 hours of footage is uploaded onto YouTube. Hence, all the filtering and content control that is done has to be done either by he community or through an automated system.
• While I disagreed with his whole approach to the “piracy” issue, I have to give Rick Carnes a great deal of credit for opening my eyes to the world of non-performing songwriters, and the unique difficulties of working these people into modern compensation schemes.
• With these people at the table, we are a long ways off from coming to any real consensus. Copyright law, like many other forms of law, is a system that has been layered on, over a great deal of time. In order to solve the problems that these major players have, we have to sort out some major old-fashioned elements of copyright law. Sadly, the issue extends beyond the scope of copyright law into contracts that were made between songwriters, artists, and record companies years ago. You can’t go back and renegotiate all those contracts, so even if the law were to change other efforts would have to be made to help those who negotiated deals years ago.
• I found Mr. Marks a refreshingly smart voice to come out of the RIAA. However, a bone I have to pick with his argument (or, perhaps more precisely, an issue I have with his approach to the argument) is this: he spent a good deal of time talking about empowering ISPs to remove “unlawful content, such as child pornography and internet piracy.” Putting the two in the same sentence is a terribly off-putting and disingenuous argument tactic. Child pornography is a gravely serious and criminal act, conducted by some of the most socially vile people in the world, exploiting the most-private elements of humanity at a time when people are emotionally weakest. It is one of the most serious crimes facing the world today, and is a crime of strict and abosolute nature – you either commit child pornography or you don’t. Copyright, while having serious economic and cultural implications, does not even come close in terms of severity, and is not an absolute crime – copyright violations may or may not be illegal, based on a myriad of factors. To compare the two is insulting, and to try and rationalize the restriction of the latter by mentioning the former is not going to win the RIAA any friends.

While the first panel made me wonder if we’ll ever resolve these issues, the second brought back a lot of hope and confidence in my industry. Sitting at the table were David Beal, president of National Geographic Entertainment (which includes a music label, broadcasts, and a variety of other media); Peter Jenner, former manager of Pink Floyd, The Clash, Ian Dury and the Blockheads, current manager of Billy Bragg, and all around visionary currently working as President Emeritus of the International Music Managers’ Forum; Alec Ounsworth of Clap Your Hands Say Yeah; and Justin Ouellette of Muxtape. All found success approaching the sale of music in new and interesting perspectives. Jenner started the conversation talking about an open music licensing system currently being tested in the Isle of Mann (which I didn’t know, but apparently is treated as an independent political entity ruled by the Crown of England, thus having its own laws, including copyright), where users pay a fee, and then that fee is collected and given to the music industry, and in exchange the residents of the Isle get to download and share music freely. Beal talked of how he tries to negotiate different licenses for different content distribution methods in the hundred-something countries where they film and play National Geographic videos. Ounsworth talked of how CYHSY used the Internet and other simple grass-roots tactics to sell their self-titled record, and how their generous attitude towards sharing online helped build and launch their careers. Ouellette told the story of Muxtape, which needs no description (click on his link above).

All in all, a fascinating exchange of ideas, and the kind of conversations that need to be happening more frequently if we are to change the way in which the public and the law approach music. My only regret is that the two panels couldn’t exchange ideas in tandem. I’d love to hear the VP at the RIAA try to explain why Ouelette’s Muxtape had to close to his face, and see if CYHSY and the musicians’ unions agree with him.

Live Nation Ticketmaster megacorp, inc.

The Wall Street Journal reported yesterday that talks are underway for a merger between Live Nation and Ticketmaster.

I don’t need to tell you how bad this would be for the people I deal with in the music industry world. I’ll leave it to the others, as I’ve got a whole lot of other work to do this week.

See:

• Billboard
• Paste
• Wired’s Epicenter
• Coolfer and again
• Brooklyn Vegan
• Hitsville
• Idolator

I have to keep this cut-and-paste journalism today. Here are the critical quotes:

Propaganda, Status Donation, and Cyberwar in Gaza

I am by no means an international affairs or political science expert – I refer that realm to my sister Emily and friend Jared -  but there are three pieces in what’s been happening in Gaza that I find especially interesting. In a sense, these are all ways in which technology is being used to serve military ends, each with increasing intensity (and discomfort).

It’s a bit of a long post, so click “more” for the breakdown.