Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.
- In re J.J., No. D055603 (Cal. Super. Ct. Oct. 15, 2010) (quoting In re Stevens, 119 Cal .App. 4th 1228, 1235 (2004), quoting Lessig, Code and Other Laws of Cyberspace 10 (1999)).
See Eric Goldman’s blog for more.
The Washington Post reports today that the Defense Department is attempting to buy 10,000 copies of the book Operation Dark Heart, by U.S. Army reservist Anthony Shaffer. The book, according to the WaPo article, contains sensitive information regarding eavesdropping technology, purportedly used to spy on Al-Qaeda operatives in Pakistan. While Lt. Col. Shaffer obtained clearance from the Army to publish it, the article (cryptically) says that the Defense Intelligence Agency “obtained” a copy of the manuscript and raised issue with some of its contents.
The publisher and Army have sat down and negotiated a revised manuscript. Of course, prior to this negotiation the publisher has made 10,000 copies of the unedited book, and sent such copies to journalists and organizations. In an effort to take those books out of circulation the Army is now proposing now to buy-out the entire stock – all 10,000 copies – before they are sold to the general public. This is stupid for a wide variety of reasons, but I will attempt to illustrate just a few below.
First, the military most likely does not have the legal right to stop dissemination of the book. That would amount to a prior restraint of speech, the “most serious and the least tolerable infringement on First Amendment rights.“ As made famous in the Pentagon Papers case, any prior restraint comes with a heavy presumption against validity, and cannot be sustained absent a state interest of the highest order. Military secrets may begin to approach that “highest order” standard, but the Supreme Court has never found a case to be so sensitive as to warrant a prior restraint. Having the military attempt to achieve the same ends outside of court, in my mind, is equally repugnant to the principles First Amendment. (Cases do suggest that one may waive the right to speak on a matter by way of contract or a fiduciary duty to the Government, and those waivers can be enforced, but that’s an ancillary matter.)
Another reasoned doctrine comes into play here as well: the Streisand Effect. The effect amounts to a natural law of the Internet: attempts by an entity to use legal threats to silence a person making an uncomfortable statement about that entity will, through curiosity, draw greater attention to that uncomfortable statement, thus having the opposite effect. (The term comes from an attempt by Barbra Streisand to sue aerial photographer Kenneth Adelman for breaches of privacy after Adelman posted photos of the California coastline, including Ms. Streisand’s mansion. This, of course, lead to the photo of Streisand’s mansion appearing all over the Internet.) As scholars before me have noted, this sort of tactic, be it a lawsuit or secretly buying a warehouse-worth of books, is so ineffective it is laughable. All this does is attract greater discussion on the issue that the government is trying to squelch.
Third, this will not stop this information from getting out there. WaPo freely admits in the article that they have an unedited copy of this book. If they’re half the journalistic organization they purport to be they will certainly highlight what’s been edited out of the second edition. If they fail to do so, more principled journalists with their own advance copies will. Spending thousands of dollars to burn several thousand books will not magically draw those disclosed facts out of the public domain. Such a move is as wasteful as it is pointless.
(Thanks to Webster for the tip.)
One big thing that D.C.’s subway has over Boston’s subway is this:
(from Flickr user Greychr)
Estimated arrival times for each train, displayed at the station. What’s even better is that WMATA is now making this data available for developers. Now, having this at a station is cool, and having it on your cell phone is cooler, but you know what would be coolest? Having that data in your living room.
Consider this — I live about a block and a half from the Stadium-Armory Station, so it takes me only a minute or two to get underground. How cool would it be to have an LCD display in my living room that tells my roommate, my guests, and me when to expect the next train? It could be simply a miniature version of what WMATA already provides in the station, combining the data that WMATA makes available with a Arduino chip connected to an LCD display.
Aside from a killer conversation piece, I see business applications for this too. What centrally-located D.C. office wouldn’t love to tell its employees, clients and patrons exactly when the next train is coming to a nearby Metro station, via a simple display in the lobby? How cool would it be to get window installations of arrival times in a commercial establishment, perhaps bundled with advertising for additional revenue? It could be on a personal device like the Ambient Flurry Alarm Clock, but instead of weather, it pulls down the train schedule. And that’s just from my lunchtime brainstorm of potential applications.
So I have no idea how to make a dream like this happen from a technical perspective, but do any of you want to help me make a crack at it?
(an early version of aural drugs)
This has been quite a week for us law nerds, especially those of us that like to talk copyright or the First Amendment. I mean, there’s substantive due process challenges to obscenity doctrine, the Second Circuit striking down FCC regulations on expletives, porn producers arguing fair use against record industry copyright claims (and Warner seemingly confessing to group boycott in the same case), challenges to a a Massachusetts law attempting to regulate online speech targeted to minors, the Tenenbaum opinion on constitutionality of copyright damages — and what, of all these things, gets me worked up enough to post something?
This freakin’ story: kids are listening to music on headphones to get high.
(I was going to call this “The Wind that Shakes the IP” but even I have geek limits.)
Right now, people all over my country are stumbling into bars, drinking some horrible green-food-colored excuse for a beer, and singing the songs of the ol’ country (the population of which seemingly quadruples every March 17th). Some of these songs are time immemoriam, or at least in the public domain (“Foggy Dew,” “When Irish Eyes Are Smiling,” etc.), but a lot of them are not. Usually, when a song that’s still protected under copyright is publicly performed like this a royalty is generated for the songwriter. In the US this means the venue will get a license from ASCAP, BMI, and/or SESAC, which allows the venue to publicly perform most protected music. These organizations will then log performances through a variety of metrics and distribute the license fees amongst all of their member songwriters. (There are cynics who criticize this model for a variety of reasons, but that’s beyond the scope of this humble blog post.)
But this often isn’t the case. American copyright law has some interesting carve-outs for bars and other establishments that routinely play music. Starting in 1975 with the Supreme Court case of Twentieth Century Music v. Aiken, the US has recognized what we nerds call the “homestyle” exception to public performance royalties. In short, the “homestyle” exception provides that a person or establishment that has “a single receiving apparatus of a kind commonly used in private homes” does not have to pay for any music piped in from that receiver. This exception was expanded in 1997 with the Fairness in Music Licensing Act, which exempts an establishment from liability for public performances if, in the case of a restaurant or bar:
(This does indeed exclude a lot of bars, but many are still included.)
The intuitive appeal of such a statute is easy to understand, especially for a Congressman. Small businesses operate on sliver-thin budgets, and anything that can save them money comes as a kindness for their (usually politically active) proprietors. What most people don’t know is that this exception puts the US out of compliance with international obligations, and has cost the United States millions of dollars in royalties. And a lot of that liability traces back to the playing of Irish tunes without paying the Irish songwriters.
Alain Lapter wrote a 45-page treatment of the issue for the Chicago-Kent Journal of Intellectual Property (PDF) which gives a much more thorough analysis, but here’s the synopsis: The US is party to two important international agreements in copyright: (1) the Berne Convention, a long-standing treaty between nations regarding substantive copyright protection (though the US is a very late adopter); and (2) the General Agreements on Tariffs and Trade, which included the Trade Related Aspects of Intellectual Property Rights (“TRIPs”). Berne gives countries a minimum level of protection for member nations, and is very strict in terms of preserving rights for artists. Under Berne, all artists have the exclusive right to to control the public performance and public broadcast of their works. Given this strict language, the Fairness in Music Licensing Act is pretty squarely in violation of the terms of the Berne Convention.
The US does not enter into self-executing treaties in the IP space, so even though Berne would likely stand in conflict with the Fairness in Music Licensing Act it would be of no consequence. TRIPs, however, has a mechanism for enforcement under the World Trade Organization (“WTO”). The treaty further incorporates most of the Berne convention under its Article 13, so now a violation of Berne has some teeth. And in this case, it bit.
When the Fairness in Music Licensing Act came into being, the Irish Music Rights Organization filed a complaint with the European Union, and they in turn brought a complaint under the WTO. After a fairly hearty analysis, the dispute resolution panel found that the Fairness in Music Licensing Act did indeed violate US international obligations. Accordingly, the WTO imposed a deadline of July 2001 for the US to amend the Act to come into compliance with TRIPs. The US failed to meet that deadline. The arbitration panel thus ordered the United States to pay royalties to the tune of $1,219,900 per year. In 2003 the US and the European Community entered into a settlement, whereby the US would pay $3.3 million dollars to a fund for European rights societies, and in turn the US would be given until the end of 2003 to bring its law into compliance with Berne and TRIPs.
This brings us to tonight. Interestingly, nothing has happened since the 2003 agreement. The US has made no motion to amend the Fairness in Music Licensing Act, and has further stopped paying the European songwriter societies as agreed to in the arbitration. Lapter in his excellent article includes a great deal of analysis about proposed revisions to the WTO dispute panel and arguments for better compliance with international agreements, but this discussion remains entirely in the academic realm. Meanwhile, many bars will pipe in Irish music tonight with no money going to Irish songwriters. The government appears wholly indifferent to the international consequences of this.
Copyright duration is always calculated relative to the calendar year, which means that every January 1st a new batch of works enters the public domain. We IP geeks mark the occasion by celebrating Public Domain Day (along with that other January 1st holiday). By entering the public domain third-party creators are now free to join the original author in disseminating, analyzing, selling, remixing, and doing all sorts of interesting things with the work; the work becomes part of our collective cultural identity.
… at least that’s what should happen. But as Ars Technica, Creative Commons, and public domain guru James Boyle all note, no published work in the United States will enter the public domain again for nearly another decade, thanks to recent copyright extensions. So while other countries are enjoying increased access to hundreds of works, we will still be waiting for the works of Robert Frost, George Gershwin, Cole Porter, and Aldous Huxley to come down from their 95 years in copyright. Assuming the work was published in compliance with the formalities the Copyright Act had at the time, no work published after 1923 will enter the public domain until 2018.
You can click those links above to see the sad news about what we can’t use freely thanks to our vastly overreaching copyright laws. I’m here to tell you some good news. In fact, a small class of works did find their way into the public domain this year in the U.S.. But don’t get too excited.
To understand what entered the public domain you need to know a little history. For over a century the law in the US recognized a “common-law” perpetual copyright for unpublished works. While U.S. copyright law kicked in and the duration clock began ticking whenever a work was published, the author forever maintained the exclusive right to publish their work first. When Congress revised the Copyright Act in the 1970s they sought to do away with this (as we were now adopting a new life-of-the-author-plus-some-years system for calculating duration), but didn’t want to immediately inject all these unpublished works into the public domain. So the 1976 act provided a compromise, encouraging holders of unpublished work to publish. That compromise is 17 U.S.C. § 303, which grants copyright protection until 2047 (!!) for any work not published when the 1976 Act went into effect (January 1, 1978), but published between that point and December 31, 2002. After that, the unpublished work would enter the public domain in the regular life-of-the-author-plus-fifty-years cycle (extended to life+70 years in the 1990s).
So, any work whose author died in 1940 and was either published after 2002 or never published, entered the public domain on January 1st. So go make some cool mashups, all you people out there holding onto unreleased drafts by F. Scott Fitzgerald, Emma Goldman, Leon Trotsky, Alfred Ploetz, Paul Klee, Nathanael West, or Philip Francis Nowlan. Happy Public Domain Day.
Born into the most important roots music family this side of the Seegers, Bess Lomax Hawes was an epic anthropologist and musicologist in her own right, a member of the ever-interesting Almanac Singers, and, most significantly for us Bostonians, the co-author (along with Jacqueline Steiner) of the song “M.T.A.,” more popularly known as “Charlie on the M.T.A.”
The Kingston Trio – M.T.A.
As a Dissent Magazine article from 2008 points out, the history of this song is often obscured while we fawn over the Kingston Trio and use our CharlieCards to navigate the M(B)TA. It’s a fascinating history which sets a far better stage for appreciating Ms. Hawes’ classic.
(Mojo, as captured by Flickr user kathyp.)
Digital Music News is reporting today that psychobilly legend Mojo Nixon is going to release his entire catalogue – over 150 songs – online for free download, alongside the debut of his latest album, Whiskey Rebellion (also free).
DMN:
“I’m just the kind of crazy person to do it,” Mojo told Digital Music News in a phone conversation. “What do I have to lose? I’ll make make more money off of this in the long run.” […] The Orchard is now preparing an official release on the matter, pending various executive approvals. “Getting all 150 tracks, that might be like having a bacon sandwich with sausage on it. It’s like chocolate ice cream with chocolate syrup,” Mojo shared. [Link added for reference.]
I don’t put this up here suggesting this is the way to go for everybody. Indeed, Mojo’s 1980s releases on Restless Records might cause The Orchard some trouble during those “executive approvals.” Restless would probably be more into getting their catalogue out there for free before they were bought out by WMG. Nevertheless, it’s a fascinating step, and something to talk about during the Future of Music Coalition Policy Summit over the next few days.
Nothing like a little street art to raise awareness about the Rose Art Museum legal situation. Care of the very excellent Wooster Collective.
Sorry for the unannounced hibernation here over the past few weeks. I was finishing my work, taking a vacation, and moving my life back down to DC for my 2L year. I don’t have much time to write, but I wanted to post this sign up a little memento from my summer in Cambridge:
“Violators will be towed perfunctorily.” Only in Cambridge would you see an SAT word on a parking sign. I’m going to miss the place.
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