Update: They Burned The Book.

Following up on a post from a couple weeks back, CNN reports this evening that the Pentagon did indeed burn 9,500 copies of Operation Dark Heart.  They knew they could not sue to stop the book, so they bought it and burned it.  Exactly how is that any better for our free press?

Ways not to save the journalism industry, part 43,954

Copyright trolling and litigious bullying. As a business plan.

Berklee Music Business Journal botches the TM/LN merger

Berklee College of Music runs a music business journal which addresses the problems of our beloved industry with a little more academic vigor than most other outlets.  Usually, I rely on them for some valued in-depth perspective on a lot of issues.  But their coverage of the Live Nation / Ticketmaster merger is simply miserable.

The journal published two articles on the subject for their most recent issue.  The first is a fairly straightforward pros-and-cons piece which, aside from only getting one opinion on either side, serves as a sufficient history piece.  The second is a pro-merger take by someone who I can only assume is a student at Berklee, highlighting the purported efficiencies of the transaction.

The (entirely citation-free) piece offers only conclusory statements about the “efficiency” of a merger, and seems to be confusing a lot of the details of both the settlement and the industry.  The author seems confused, for example, that no mention was made in the DoJ settlement of major record companies, as if the record industry’s role would have any bearing on a live-music merger.  He predicts the end of service charges on tickets, with no evidence to support it.  He suggests TicketsNow (a Ticketmaster affiliate) avoided antitrust investigation for their unsavory ticket resale practices, which is totally wrong.  He says TM/LN will now finally have the market power to engage in pure price discrimination, but does not even mention how that might fall under the criminal liability of the Robinson-Patman Act.  The author seems to also fundamentally misunderstand the nature of Live Nation, talent agencies, and a lot of the structure of the business, and adds this structurally imbalanced suggestion as to the impact on independent actors in the music industry:

But this is not the death of all things independent. To the contrary, independent segments of the industry will survive through strategic partnerships and consolidation.

So the solution for independent businesses is to consolidate, and thus no longer be independent?

There’s substantive issues to address here, but the article takes so many sharp turns I can’t do the merits any justice.  (Paradoxically at the end the author supposes that “Live Nation Entertainment will suffer eventual divestiture at the hands of a Republican administration.”  Don’t look for any reasoning to back up the assertion that Republicans, historically softer on antitrust, will feel compelled to split up Live Nation once they take power.) This was a tremendously disappointing read.  As one of the only academic music business journals out there, I expected a hell of a lot more from Berklee.

Brookline’s Roadhouse: a nuisance?

The law of nuisance, governing a use of one’s land which causes harm to another’s land, was best described by the Supreme Court in the 1920s: “a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  This expression – nuisance being “a pig in the parlor” – has somehow stuck and is in every property textbook, but so rarely is the pig in question literal, much less rubbed in spices and slow cooked, served with a side of cornbread and cole slaw.

But so it is in my former town of Brookline, where, as Beeriety reports today, Washington Square’s Roadhouse has been forced to close its meat smoker after neighbors complained that they did not want their home filled with the awful, awful smell of gourmet slow cooked food.  Losing the smoker has caused the Roadhouse to change its menu entirely.  From Wicked Local:

[Roadhouse owner David Ciccolo] said he’s cut all the smoked items from his menu, and planned to debut a new selection of Creole and Mexican-inspired dishes on Wednesday night. The new menu includes shrimp étouffée, jambalaya, gumbo, blackened salmon, gazpacho, and tacos with either catfish, steak or chicken.

“We were forced to make this come together pretty quickly,” Ciccolo said. “Needless to say, we’re all a little bushwhacked.”

I’m sad to see this happen to the Roadhouse.  The place opened right after I left the neighborhood and moved to DC, and I haven’t had a chance to return.  While the new menu sounds great, I can only imagine how good their cooking must have been with the smoker in use.  If they did to BBQ what (Ciccolo-owned) Publick House did to Belgian food and beer, I’m sure we’re all missing out.

I also would add that there’s not a place I’ve lived in the Boston area where my apartment’s odor wouldn’t have been improved by a perpetual, eminating smell of quality BBQ. This includes the two years I spent on Beacon Street near Washington Square.

This is not the first time Ciccolo has had to deal with the town of Brookline.  As Andy Crouch notes in his BeerScribe, the Publick House Provisions store took ages to secure a liquor license so it could sell bottles of the superb craft beers the Publick House has on tap.  He should consider moving to Cambridge: it only took United States Supreme Court intervention to get Grendel’s Den up and running.

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.

Dark Night of the Soul

(Sparklehorse, from Flickr user broma)

Hello again, folks. My transition into summer has left me with little time for blogging. This is a shame, as always, as there has been a veritable eruption of news in areas about which I love to write. I hope to post up a couple more heady things on current IP affairs over the next few days. In the meantime, I wanted to make sure you all heard the news regarding the new Sparklehorse/Danger Mouse album.

This collaboration is the materialization of a rumor that has been around for years. Danger Mouse helped Sparklehorse on some tracks in 2006′s Dreamt for Light Years in the Belly of a Mountain, and Sparklehorse’s artistic center, Mark Linkous, had cryptically mentioned a more formal collaboration in several interviews since that time. In early April Pichfork noted that the longstanding rumor looked to be true, and what’s more, they were bringing a tour de force of guest artists, including Black Francis (of the Pixies), James Mercer (of the Shins), The Flaming Lips, Scott Spillane (of Neutral Milk Hotel and The Gerbils), Vic Chesnut, and Iggy Pop. Early this month we learned more: the project, called Dark Night of the Soul, is not exactly an album, but rather a multimedia series which you can explore in the link above. The album/book, indeed featuring all of the artists mentioned, was slated for release later this month, with an art installation in LA debuting May 30th to highlight some of the works and showcase some media created by the one and only David Lynch to accompany the music.

As of last week the indie rock world was buzzing in anticipation of this pending, star-studded album. But then, on Friday, Billboard announced that the album was “scrapped” due to “unspecified legal issues with EMI.” This puts the parties involved in a very awkward situation, as on May 7th the album was leaked, and earlier on Friday NPR began streaming the album as part of an exclusive first-listen series. As Idolator and Boing Boing and many others have since reported, also on Friday (and the timing of all of these events is very unclear for those who just got all these news stories in an RSS-feed dump), Danger Mouse and others decided to release the album as a blank CD-R with the full booklet and a label disclaiming “For Legal Reasons, enclosed CD-R contains no music. Use it as you will.” In subtext, it sounds as if Danger Mouse is going to rely on the same filesharing architecture which made him world famous in 2003 to help spread his latest project.

It’s hard to comment on this until details about the legal issues around this album come to light. For what it’s worth, my guess is that it has to do with appearance rights for one of the guest artists. Often times as part of a larger record deal an artist will promise not to appear on other record labels’ albums without prior approval from their record affiliate. This is only a guess, however, and we’ll have to see in time what is the actual problem at issue here. Certainly the blank CD-R move is a pretty clever stunt, and probably helps drum up some publicity for the album, but an album with this lineup needs no large publicity push and Danger Mouse doesn’t exactly need to do anything to prove his anti-RIAA stance and thus earn fans in the college age, tech-driven demographic. However, equally apparent is the fact that people are not going to come out in equal volumes to buy an album containg a blank CD. It’s hard to remember sometimes, but there are many millions of music consumers out there that do not follow the web and its affairs as thoroughly as us, and without knowing the backstory behind this album they aren’t going to buy up the guy from Gnarls Barkley’s latest spinoff project unless the CD actually has the audio on it. Besides, unless this “legal issue” has to do with one’s exposure to further liability from a third party (e.g. EMI is preventing Danger Mouse from releasing this because EMI might then get sued by company X for whatever reason), all involved would probably be better off if they simply allowed the album to be relased. It seems as though those who seek to scrap the album have never heard the old expression about trying to unring a bell. At this point the album will never disappear, any damage is likely done, and whoever is holding this up likely has little to lose and everything to gain going forward.

The NPR stream is still live, and I encourage everybody to listen here. I’ve been listening while writing this, and I love it. Danger Mouse’s influence I clearly felt, and his signature presence does much to unearth the broody layers that have made Sparklehorse one of my favorite bands for years (Good Morning Spider is without a doubt a desert-island record for me). Hearing so many familiar voices, with songs tied together by Sparklehorse’s instrumention, is beautiful accompaniment for this quiet Sunday afternoon. Let’s hope the parties involved can work through whatever’s keeping this from having a full release and give this work the full commercial benefit it is most certainly due.

Billy Corgan’s hellbent on bringing me down

First he did this, then he did this,  then he did this, and now he’d doing this. I don’t think the last one is so bad, but this is the guy that gave us Mellon Collie. I mean, come on, Billy.

Muxtape: Never Forget

Repost from Mr. Ryan Kelley:

Never Forget Muxtape

Muxtape launched one year ago this morning and I thought I’d pay tribute to a service my friends and I all considered to be the future of mixtapes and music discovery. Part of the initial draw with Muxtape was that what Justin was building was strictly a mixtape sharing tool and nothing else. We loved and miss it.

I would very quickly add that most people I know in the industry – people from both sides of the filesharing aisle – loved Muxtape (and by this I mean Muxtape 1.0 – Justin is building a new system that’s worth checking out, too). It was a wonderful tool to share and learn about music. I can recall a meeting I had a year ago with people at one of the Big 4. Telling them about Muxtape got them all sorts of excited. It’s a shame that others in their office didn’t agree, and it caused the death of a beautiful protocol. Exactly as Ryan says – the beauty of it was its simpliciy. It remains the most elegant website I have ever worked with.

Happy anniversary, Muxtape. Here’s hoping the attitude of the industry changes and next time around you can make it to blow out candle number one.

The Southie Parade’s legal past

(the 2005 parade, from Flickr user rcolonna)

While working on a First Amendment paper here in law school I dug up the case of Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. The background of the case is as follows: in 1947 Boston City Council has ceased to directly sponsor the St. Patrick’s Day / Evacuation Day parade (which is going on as I write this), and gave the South Boston Allied War Veterans Council the right to conduct the parade themselves. From 1948 to 1991, they were the only group each year to apply for a permit for the parade route. In 1992 GLIB, the Irish-American Gay Lesbian, and Bisexual Group of Boston, applied to be part of the parade. GLIB cited Massachusetts public accommodation laws which prevent such discrimination, and said their sexual orientation was only incidental to the primary focus of the group: Irish heritage. GLIB marched in the parade that year without incident, and in 1993 the South Boston Allied War Veterans Council filed suit to block their entry for the following year.

Very quick Watchmen reflection

(Still better. From Flickr user dailyinvention.)

*** A few small spoilers follow. Caveat lector. ***

So like many I saw Watchmen this weekend (and by “weekend” I mean “midnight Thursday night with over a dozen friends”). Overall I was pleasantly surprised by how well they handled the story, which readers of the novel will tell you is a very impressive feat. The biggest fear of mine – whether the script would do justice to the ending of the book – was more or less placated; it was not exactly as it is in the book, and I say without hesitation that the book ending is far superior, but the modified ending does justice to the spirit of the book’s ending. Aside from a few groan-worthy love dialog bits, it’s worth the watch (provided you can stomach the content, which is not for the faint of heart).

My single biggest gripe about the movie is the music. Getting the music right in Watchmen should have been easy: nearly every chapter of the book ends with a song quote, and many scenes in the book explicitly state what Alan Moore had envisioned playing in the background. But these were dismissed, for licensing reasons, cross promotion considerations with Warner artists, or otherwise (Wired has a somewhat accusatory read on that subject), and instead we got bad Leonard Cohen covers, bad Leonard Cohen originals, and freakin’ “99 Luftballoons.” So much was missed by not including Iggy Pop, Devo, and Elvis Costello – all of which were in the book.

So, in the spirit of righting a wrong, here’s Elvis Costello’s “The Comedians” off of Goodbye Cruel World. I would have substituted it in place of the scene using “99 Luftballoons” in a heartbeat.

Elvis Costello – The Comedians

Update: seems that my friend Taylor posted a review of Watchmen within seconds of my own. We come to many of the same conclusions on the movie, which is very comforting to me, as the flicks are most certainly Taylor’s domain. In the past this might have sparked a blogagauntlet, but for now it’s just good comparison reading.