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.

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.

Sen. Specter’s comments at Sotomayor hearing

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

Sotomayor on Copyright Law

As a followup to Monday’s post, head over to the blog Ex(c)lusive Rights to see an impressive list of all of the copyright/soft-IP decisions Judge Sotomayor did while working the Second Circuit and the S.D.N.Y. As Gizmodo puts it, Sotomayor knows stuff about computers. Many thanks attorney Shourin Sen for putting this list together (and promising to update it as more are found).

This might have been my weekend reading material, if my weekend wasn’t already so busy reuniting with my old production/promotion company to help produce one more festival. See you all when I come back.

Welcome Back, Folks

After finals effectively destroyed any chance of keeping up with my feeds, I turned on my RSS reader for the first time in a couple weeks. I was met with over 4000 items. There’s no way I’ll be able to give these a full treatment (and to pile these all together makes for pretty scattered reading), but here are a few highlights:

• Perez Hilton responds to a negative ad by the National Organization for Marriage (of the horrible “Gathering Storm” ad fame) by sending them a near-frivolous DMCA Takedown notice. Sorry, Perez: this isn’t cool even when I agree with your message.
• My buddy Greg Whitney is featured in an Emerson student’s profile of Boston’s own Louie (better known as The Tricycle Man). Seeing this made me miss Boston more than anything else during finals week.
  Thanks to Bostonist and Ms. RDP for the scoop.
• Swineophobia hit close to home this week. My Alma Mater Northeastern opted to forgo with handshakes for commencement. I don’t think the Garden counts as a “small confined space” to avoid under VP Biden’s analysis.
• Early reports from the iTunes Music Store’s new variable pricing system are not favorable. Digital Music News reports that revenues are down, and consumers are increasingly leaving iTunes in favor of other alternatives.
• The Boston Globe did a nice profile of Justice Souter’s hometown of Weare, NH. I was a little surprised to find that Justice Souter lives relatively close to my house. He lives a few dozen miles due north of me, straight up Rt. 13 (which turns into NH Rt. 77 in Milford). To help understand his (and to an extent, my) upbringing: equidistant from our towns is Peterborough, NH, best known as the town credited as the inspiration for Grover’s Corners in Thornton Wilder’s Our Town. I feel a deep affinity for that play, and the towns in the Monadnock region that it celebrates. I have a feeling he does too. While I’ll miss reading Souter’s opinions, I’m sure he’ll enjoy his return to our figurative neighborhood.
• On a related SCOTUS note, Justice Scalia’s opinions on the “privacy right” (which GWU Law Professor Dan Solove characterizes here) were tested when Fordham University Professor asked his legal privacy class to create a dossier on Scalia. Scalia responded with gusto.
• EFF’s Hugh D’Andrade gives the Obama White House partial credit for licensing photos taken by White House photographer Pete Souza under a Creative Commons Attribution license, but suggests the fairly obvious: shouldn’t these, as government works, be in the public domain?
• Japanese designer surgical face masks. Now I’ve seen everything.
• Iron & Wine are (is?) going to release a 2CD/3LP collection of rarities and outtakes called Around The Well on May 19th, spanning the entirety of Sam Beam’s career. This week we have new St. Vincent and Akron/Family for your listening pleasure.
• Wired’s marks for Obama’s first 100 days: Copyright, D; Cyber Security, C; Science, A-; Net Neutrality, B+; Transparency, B-; Privacy, D-. Saddens me to say, but I have to agree on most of these marks. But let’s not forget that he’s getting damn close to an A on virtually everything else.
• Tripod.com co-founder Ethan Zuckerman wrote a lovely and humorous eulogy for Geocities, which officially closed last week.
• Is A&R dead? Music Think Tank poses the question, and the comments are generally in favor of the rarified profession. (I for one still prefer my old sensei Dave’s joke on the subject: “How many A&R guys does it take to screw in a lightbulb?” “I don’t know. What do you think?”)
• A lot of people complained that the  White House photo op of Air Force One over NYC could easily have been done in a matter of an hour or two on Photoshop. Scott Kelby demonstrated, creating a rather lovely shot that could have saved us over $300,000.
• And for the finale: in March of 2007 WFMU posted 79 versions of Gershon Kingsley’s “Popcorn.” Using the EchoNest API Paul Lemere was stitched them all together into a 12 minute anthem. I’m very glad I didn’t find this until after finals, as I would have listened to only this, and that probably would have done my brain in. Paul Lemere – A Big Kettle of Echo Nest Popcorn
  

I hope to be back to more regular schedule now that my 1L year is over and the summer has begun. I make my return to Boston tomorrow; can’t wait to see you all. And to my new DC friends: congrats and thanks on a wonderful year, and I hope to see a lot of you up here or down there soon.

Exams – see you in a few weeks

Con Law, Property, Contracts II, Civ Pro II.

See you all in May.

BC student’s electronic devices seized under curious probable cause

(BC, from Flickr user glemak)

Here’s a strange one care of EFF and Universal Hub:

On March 30th a Boston College student had all of his electronic equipment (including his computers, iPod, hard drives, digital camera, and cell phone) seized by BCPD, under allegations that the gadgets are “evidence of a crime or … of criminal activity” and/or “intended for use or … used in the commission of a crime.” The crime appears to be “unlawful access to a computer system” (MGL Ch. 266 § 120F), to wit, creating a fictitious account for a peer at gay dating/hookup site Adam4Adam.com and sending an email to a listserv “outing” that peer, accessing BC records and changing grades, downloading music and movies, and allegedly jailbreaking a cell phone.

As EFF notes, the peculiar thing about this complaint is the way in which the officer attempts to establish probable cause for the warrant. Not only are the allegations primarily coming from one roommate, who recently got into a fight with the suspect, but the “suspicious behavior” the warrant (PDF) cites includes:

• being a computer science major
• working in the school’s IT department
• fixing friends’ laptops
• writing commands from a terminal prompt on a Linux machine

By that level of cause, I think at least four or five of my friends act with sufficient suspicion to warrant seizure of all their electronic devices.

Now it is entirely possible that the suspect here is using a series of ghost devices and networks of computers to trick the BC network into accessing grades or covering up unlawful activity, and if the allegations are true they demonstrate an outright terrible and crass sense of humor, and profoundly poor judgment. But it’s important to look beyond the crime alleged and see how this warrant came to be executed. Generally, we expect law enforcement to come up with a little more PC than just this. (In all fairness, the detective does also note that he was investigated for a previous computer theft, but never charged, and the same witness accusing the suspect here accused the suspect there.) To issue a warrant on only the use of terminal commands and a statement made by a known enemy of the suspect makes virtually all ill-tempered computer geeks ripe for investigation. The one area where the suspect’s IP was accurately traced was the listserv posting of a faux Adam4Adam.com ad. Lucky for the suspect ignorant, homophobic jokes aren’t against the law.

This also makes one wonder if the RIAA will try and get in on the action here. If the informant is to be believed, the suspect probably has a cache of music and movies on his computer. I’m sure the RIAA would love to pressure the Middlesex DA into making a case out of those files. I’ll need an expert in Criminal Procedure to let me know how possible this scenario is. The search warrant is certainly open enough as to suggest it is looking for any and all illegal digital activity. Or perhaps Apple will try and make a criminal case of the jailbroken phones (if it was, in fact, his iPod Touch that was hacked).

For copies of the warrant and other court documents, visit EFF’s case page. EFF is joined by ace tech & IP law firm Fish & Richardson in filing an emergency motion to quash the warrant (PDF), arguing a failure to establish probable cause, that several of the allegedly unlawful actions are in fact lawful, and the seizure of all of his electronic devices constitutes irreperable harm by denying him of his employment (fixing computers) and cutting off his means of communication. This is going to be an interesting case, and I’ll keep posting updates here as I uncover them.

Facebook updates Terms of Service, at the expense of user control.

Consumerist is breaking an interesting story this evening. Seems Facebook has updated its terms of service, and added further restrictions onto content uploaded onto the site.

In both the old and the new version, these were the terms by which users uploaded content onto Facebook:

You are solely responsible for the User Content that you Post on or through the Facebook Service. You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

The key words here are “irrevocable, perpetual, non-exclusive, transferable, fully-paid worldwide license.”  Irrevocable as in you can’t revoke it, perpetual as in never-ending, non-exclusive meaning Facebook can license this but cannot restrict you from licensing it, and transferable as in Facebook can assign the rights to a third party for their use. This part shouldn’t shock you. These are the terms by which most websites that allow you to post content hold. Take, for example, YouTube:

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.

However, rather logically, these broad licenses have usually been held valid only for as long as the user stays on the site. In other words, take content down and the license expires. The very next sentences of the YouTube terms of service states:

The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Website. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted.

And, indeed, according to Consumerist, citing archive.org, Facebook had similar language until very recently:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

Now, under the current terms those lines are gone, and instead in another section:

The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.

Oh, and Want to bring a claim against Facebook on this issue? Hope you’ve got a good California lawyer:

You agree that all claims and disputes between you and Facebook that arise out of or relate in any way to the Terms or your use of the Facebook Service will be governed by the laws of the State of California (and United States federal laws applicable therein), without regard to principles of conflict of laws. You further agree that you will bring any claims or disputes that are not subject to arbitration (as set forth above) in, and you submit to the exclusive jurisdiction of, the state and federal courts located in Santa Clara County, California.

The Civil Proceudre geeks will have visions of Carnival Cruise Lines v. Shute dancing in their heads tonight. Be sure to also read what Consumerist thinks of that binding arbitration clause.

Now, what does this all mean?  It’s hard to say, exactly. With the exception that the new Facebook license cannot naturally lapse, this is little different than the terms of most content-based websites, and for virtually all this passes under the user radar. The balance between letting people do what they like online and letting the company use the content of its users has never faced a solid challenge, aside from a few Flickr scandals. I predict it will come down to some event where a band on Facebook’s music portal uploads a song, later makes it big, and then Facebook somehow cashes in on their rights to distribute and puts it on a Facebook ad. The band sues because they didn’t read the contract, the court upholds it because not reading a contract is hardly an excuse, and then the public will backlash. Even given this scenario, however, I’m not sure I would advise a band or photographer or other creative artists to not use Facebook. The value of the market exposure may even outweigh this loss of control, based on the value schemes of most artists today. There are those who seek much greater control, and to them they’d be wise to stay off Facebook until this settles.

More than anything, I feel this will impact Facebook’s ability to draw in successful commercial content onto their site. My upstart college band may be okay with this somewhat-Faustian bargain, but most bands with a record deal either will not or contractually cannot enter into any sort of perpetual license scenario. At least with other sites the artist has the power to pull the plug. Here, Facebok would seek to eliminate that option.

Update: Maxwell Kennerly over at Litigation & Trial has an excellent breakdown of whether or not the stealth change is allowed (highlighting some intersting pro-consumer quirks about California law which actually help users in this context),  whether these terms are even enforceable, and what this means for your content (an analysis much like the one above). All three are excellent reads, and come highly recommended.

Fast update on Live Nation / Ticketmaster

Wired reports what my friends in Justice were saying last week – the Justice Department will formally be investigating the proposed Live Nation / Ticketmaster merger.

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: