Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.

I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.

After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here  (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.

Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys.  From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.

Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.

Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.

(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.

(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.

Whenever Coldplay releases an album these days it starts a small wave of copyright litigation.  Last year’s Viva La Vida or Death and All His Friends was no exception.  Last week, however, that docket got a little bit lighter, as the most prominent infringement case settled.  Joe Satriani, famed rock guitarist and founder of the G3 tours, claimed in a lawsuit back in December that the title track off of Viva La Vida infringed Satriani’s copyright in his 2004 track if “If I Could Fly.”  In essence, Satriani argues “Viva La Vida” copied his song without permission.  Here are both for comparison:

Joe Satriani – If I Could Fly

Coldplay – Viva La Vida

For a really ill-informed discussion of this case, check out the comments on the Satriani YouTube post.  For a more music-theory based discussion of their similarity, check out this excellent YouTube video from a guitar instructor in Canada.

On the music side of this (and largely care of the above posted video) here’s the rundown: Coldplay’s song is in a slightly swung rhythm at about 138 BPM, in the key of F minor doing a VI–VII–III–i (Dbmaj–Ebmaj–Abmaj–Fminor) progression.  Satriani’s song is also at about 138 BPM, roughly the same rhythm, and the chorus goes through a iv–VII-III-i progression in B minor (Em7–Amaj-Dmaj7–Bm).  At this most fundamental level, the only variants between the two are the key and the first chord of the progression – and the two different chords are actually quite similar.  The VI chord in the Coldplay is the relative major of the iv chord in the Satriani (which is to say if they were in the same key they’d share 2 out of the three notes in the chord).  In other words, the meter is the same, the chords are virtually identical, and where the chords vary they still are quite similar harmonically.  Now, this progression is just a progression, and as an old song from my band notes there’s a lot of songs that share the same three or four chords.  Nevertheless, it is a fairly unique progression, a fact which wouldn’t bode well for Coldplay.  There are many other elements to consider, but it does certainly lay a musical foundation for substantial similarity.

As for the legal analysis, it’s important to remember that the substantial similarity between these two would have to be either admitted by Coldplay or found at trial (Coldplay demanded a jury trial in their answer, so it would have gone to a jury to decide unless the evidence was so overwhelming as to lead a judge to direct a verdict on that point).  Absent such a finding or stipulation, I can’t say for sure whether the harmonic structure, meter, and rhythm alone would be legally sufficient.  Satriani would also have to prove that Coldplay had access to the work, but given how broadly Satriani is distributed and how broad Coldplay’s musical arms reach I don’t imagine this would be difficult.  Coldplay seems to have challenged this exact point in their Answer, however, arguing as an affirmative defense that these two songs were independent creations.  In other words, Coldplay did their song without ever hearing the Satriani song.  This was one of nine affirmative defenses in their Answer that Satriani would have had to get around, although some of the defenses look a little dubious. (Including “lack of originality” in the Satriani work, which either suggests that Satriani’s work does not have the requisite creativity, which is preposterous, or that Satriani forfeited copyright through 17 U.S.C. § 103(a) by using other copyrighted material without permission, which is highly unlikely.)

Whatever we think of Satriani, Coldplay, or the case in question, the answers to all these legal problems have left the realm of the courts.  The parties asked to settle the case in front of an arbiter in July, and last Wednesday the parties filed a joint stipulation for dismissal of the lawsuit.  Either Satriani was scared off or (more likely) the parties came to some form of settlement.  The question of whether Satriani would have won at trial is now left to speculation by the copyright nerds of the world.

If you’re still interested in the details of the case and up for some legal digging, this case is captioned Satriani v. Martin et al, and all of the filings are up on Justia.  In May, Cat Stevens (now Yusuf Islam) also claimed “Viva La Vida” infringed his original “Foreigner Suite” and threatened action, but about a month later he dropped the suit.

Update – 15 Sept, 8AM: Justia posted two more filings on the Satriani v. Martin docket yesterday, including an official order to dismiss the case with prejudice (meaning that Satriani may not file the case again).  Not too much to see here; I suspect someone will have to get in touch with the parties to hear the details of the settlement.

I also want to take a second to say hello to the folks over at Techdirt for mentioning my blog yesterday while covering this story. Many thanks!

Update 2 – 23 Sept, 10AM: I realize in the comments I was playing it a little fast and loose with the degree to which expert testimony would be admissible with respect to the infringement, so I want to clarify:

Independent origin is a total defense to copyright infringement.  If I were a monk in Nepal and I came up with a song identical to “Viva La Vida” without ever hearing Coldplay’s song to begin with, I could not be found to infringe Coldplay’s song.  However,  proving this degree of “copying” can be very difficult absent party or witness admission (“Yes, I saw Chris Martin at a Joe Satriani concert where he played ‘If I Could Fly.’  Chris had his tape recorder out.”).  Accordingly, courts allow expert testimony to show how unique elements may be used as circumstantial evidence of direct copying (“Given these unique factors, it’s highly unlikely that Chris Martin would have come up with this on his own were it not for hearing Satriani’s song.” combined with “‘If I Could Fly’ was a #1 on Top of the Pops for two weeks and it’s extremely likely that Chris heard it.”).   This is sometimes called the “access/striking similarity” inference of copying.

Proving “copying” is only half of the battle, however.  Satriani would also have to prove that he copied the elements in such a way as to be unlawful appropriation.  Not all copying is copyright infringement, after all, and his copying would have to go to the protectable elements of the expression, and not just the abstract ideas.  The courts have employed variety of techniques in finding this, but at the heart they all recognize this as being the province of the jury, and not the experts.  In other words, we play both and ask the jury to determine whether the copying done in the secondary work is “too much” of the original.  The term most often tossed around here is “substantial similarity,” which helps to illustrate to a degree.

An example might help illustrate: I really love the guitar work of Marc Ribot in Tom Waits’ Rain Dogs.  Were I to try and create that same over-driven Telecaster flamenco-infused soloing in my own song, I am “copying” Ribot but my copying is not so substantial as to be infringement (I think.).  However, as I start to appropriate more – say the notes of the solo or the lyrics of the song or even the chord changes and tempo – this might start to feel more like infringement.

Were Ribot to sue me, he would first either have to prove that I copied his work (I think this blog post might be a good piece of evidence to start with) or prove through circumstantial evidence that I had access and through expert witnesses that the songs are so strikingly similar that I could not have come up with it without copying, and then persuade the jury that my copying was so substantial that it interferes with his monopoly conferred by copyright.  Market harm or other data may be introduced as evidence here to help draw inferences, but ultimately it is for the jury, and not experts, to decide.

So, to artificially draw up some parameters here as a court might, the evidence above about chord structure and melody would go to the “access/striking similarity” inference of copying, and is best paired with some other evidence as to the popularity of “If I Could Fly.”  (SoundScan has Is There Love in Space?, the album containing this song, as selling around 90,000 copies worldwide, for what it’s worth.)  All of this goes to the question of “copying.”  To take this copying into the realm of infringement, however, requires a juror (say, you) to listen to both and determine whether the copying is so substantial as to constitute infringement.  Naturally, this is subject to dispute.

This is a slightly more whimsical (and short) approach to a topic I spilled a great deal of ink on last week.  I saw this bumper sticker on a traffic pole yesterday:

Clearly, a sticker done in homage to:

Is this good?  Bad?  Acceptable?  Infringement?  Legally fine but artistically dubious?  Artistically clever but legally questionable?  An unfair use of Bad Brains’s design to imply support from Bad Brains or their fans?  A strategically bad decision of iconography, considering how different Bad Rabbits and Bad Brains are?  Totally fine and rather cute or amusing?

I’m torn.  All I know for sure is I checked them out because I thought they may be similar to Bad Brains, but they turned out to be entirely different (and I see very little crossover between these fan bases).  I also think I may know some people in Bad Rabbits – at least a few went to Northeastern – so I should be careful before I rip on them too much.

(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.

(All too perfect, and care of Flickr user motionblur)

The factoid is legend, known to anyone who watches VH1 or has a taste for music industry gossip: Michael Jackson in the 1980s bought out a large slice of the Beatles catalogue, beating out Mr. Paul McCartney himself for it.  A lot of us are wondering, now that Jackson’s deceased, What’s going to happen with the Beatles’ songs?  Where are they going to go?  Who has the rights to them?

To answer that question, one must understand the how Jackson obtained the Beatles catalogue in the first place.  And to understand that, a little British television and music history must be explained (and a major hat tip to Wikipedia for helping me thread this all together).  We start with Associated Television, or ATV: a British television company which decided in the 1960s to create a publishing wing to handle the royalties of theme songs of ATV shows and wholly-owned subsidiary Pye Records.  This was the early 1960s, and around the same time the Beatles, just beginning their world success, formed a publishing company called Northern Songs, owned by the group with Brian Epstein and Dick James.  In 1963 virtually all Beatles songs were owned the publishing company, but by 1965 Ringo Starr and George Harrison each had formed their own publishing company to handle their songs, leaving only the catalog of Lennon and McCartney.  Around 1965 the group decided to take Northern Songs public on the London Stock Exchange, with Lennon and McCartney each owning 15%, Epstein with 7.5%, Dick James with 37.5%, and Harrison and Starr with about 1.6%.  The balance (a little under 25%) was traded publicly.  Following the death of Epstein, attempts were made to renegotiate the split between Lennon, McCartney, and James, but to no avail.  James sold his share to ATV Publishing, and ATV was able to take a majority share out of publicly traded stock and own Northern Songs.  Despite a tough fight from the Beatles, they were unable to stop the sale, and lost control of their catalogue.

After a vibrant 1960s, publishing the likes of the Moody Blues, the Kinks, and Donovan, and managing the UK sales for Chess Records, ATV Publishing was expanding heartily, obtaining the impressive catalogue of Leiber and Stoller (highlights include “Jailhouse Rock,” “Kansas City,” “Hound Dog,” “Yakety Yak,” “On Broadway,” “Stand By Me” (shared with Ben E. King), “There Goes My Baby,” and “Charlie Brown”).  However, bad business decisions and generally bad luck sank ATV, and by the mid 1980s they were looking to be bought out.  After an Australian businessman flipped ATV Publishing and sold a great deal of the assets in the process, the ATV catalogue, Beatles songs and all, went for sale, precipitating the sordid storm between Yoko Ono, Paul McCartney and Michael Jackson we’ve all heard before, ending with Jackson owning the ATV catalog for $47 million.  Most critical to this sale was the exclusive right to license Beatles songs, which Jackson did in a myriad of commercials.  (These were covers of songs, typically, as Apple Corps still owned, and still owns today, the sound recordings themselves.  Apple Corps is considerably more stringent about licensing the recordings.)

About a decade later, in 1995, tech megacorporation Sony decided it wanted to get into the music business, and offered Jackson $90 million for a 50% stake in ATV.  Thus was formed Sony/ATV Music Publishing, a catalogue of publisher’s rights second to none, which later bought up publishing houses Acuff-Rose (with Roy Orbison, Hank Williams, and all of the Grand Ole Opry crowd. As Jeff Tweedy put it, “name me a song that everybody knows / and I’ll bet you it belongs to Acuff-Rose.”) and Famous Music (with soundtracks to a vast number of Paramount / Viacom movies).  Today the catalogue has everyone from Bjork to the Beatles, and 50% of it was Michael Jackson’s.

…

And now what?  What’s going to happen to that massive collection of songs?  Shortly after Michael’s death Product Shop NYC and several other blogs reported that Michael had left his share in the Beatles catalogue to Paul McCartney, a decades-overdue olive branch for the once-close friends.  What would be most interesting, should this be true, is whether his interest included the right (or even more exciting: the sole right) to license Beatles songs.  After all, if the songwriter/publishing deal is anything close to a typical contract, royalties should have been split 50/50 over the past decade between the songwriter and the company.  So, Paul and John (and later, Yoko) were still getting their 50% from royalties, but Michael was keeping the other 50%.  This isn’t really about the money; this is more about the control.  To own the catalogue now would mean that Paul has the power to decide where the Beatles are licensed commercially.

Shortly after the buzz was out that Michael’s will left the songs to Paul, an anonymous source inside Sony/ATV told Bloomberg that Sony/ATV will retain the Beatles catalogue.  Strictly speaking, both Bloomberg and Product Shop NYC could be accurate: Michael had, at most, 50% of the corporation, so he could only give his 50% stake to McCartney, meaning that Sony/ATV would still maintain some degree of control.  The specifics of who can do what with what songs will only be made clear with the scrutiny of the contracts, documents, and agreements (most likely with a trip to the courts in the process).  Meanwhile, there are rumors that have been artfully explored by Bill Wyman (the writer, not the Rolling Stones member) that Jackson accepted a 50% buyout on his 50% ownership from Sony.  Should this be true, then Jackson could only devise 25% interest in Sony/ATV to McCartney.  And on top of all of this, there’s the massive levels of debt we’ve all heard about, over which no one seems to have an accurate handle.  Creditors buying up Jackson’s debt are certainly going to try and get a piece of Sony/ATV in collateral, as Wyman details in the article above.  It’s entirely possible that some large investment bank will wind up with Jackson’s interest in the Beatles catalogue, once all of the dust has settled.  And furthermore, we still haven’t seen the will yet.  It’s entirely possible this fact about the will isn’t true, or it’s from a will which has since been superseded, or there are conflicting wills.

Given the man at the center of all of this, I’m willing to bet we’ll see a lot more drama and show before we find out where those Beatles songs are going to land.  As of this moment, we simply cannot say for sure.

“A system for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface. The shoes have a specially designed heel slot which can be detachably engaged with the hitch member by simply sliding the shoe wearer’s foot forward, thereby engaging the hitch member.”

Better known as the shoes that through this:

let you do this:

so Michael Jackson could do this:

as made famous in this music video (dance starts at 6:40, “the lean” is at 7:15):

And thanks to Google Patents, here’s the original: Method and Means for Creating Anti-Gravity Illusion. Be sure to note who the first named inventor is.

(Thanks to Idolator for the scoop)

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.

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.