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.

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.

(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.

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.

Repost from Mr. Ryan Kelley:

(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.

In 1995, the Supreme Court unanimously held that parades are a form of public expression under First Amendment, and the Commonwealth could not force a private group applying for a public demonstration permit to include members of a group contrary to the private group’s expression (presumably, the Council thought GLIB’s marching was contrary, though this is where many take serious issue with the case). The critical language from the case states:

Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation . . . once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts’ application of the statute had the effect of declaring the sponsors’ speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners’ speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. [515 U.S. 557, 572-73.]

While it’s very easy (for me, anyway) to loathe the application of the decision in this case to ban a group of proud Irish-Americans the right to march in the single largest St. Patrick’s Day parade this side of the Atlantic, the holding does have merit. Say for example, if I were to organize an anti-war demonstration: I wouldn’t want the state to have the power to force a pro-war group onto may parade out of some fairness argument. Nor, for example, would I want the KKK to be in the Southie parade (the Wikipedia page for the case alleges they tried, and the Council denied them).

That said, the direct consequence of the case is deplorable. This parade is so large and such a part of Boston’s observances of the day, it certainly doesn’t feel right at all to allow this quasi-state-sponsored discrimination to continue. Aren’t we supposed to be the beacon of hope and tolerance in gay rights? Where’s the empathetic, egalitarian Massachusetts outrage on this issue? Or do we check our political rage at the door when we drink green Budweiser?

And what exactly is the communicative element of this parade that GLIB’s participation so offends? I hear and read a lot of talk about “Irish family values” come up in defending this action. How does letting Star Wars Stormtroopers march in the parade further that message? It seems as the Council would seek to have it both ways in this one: a sufficiently vague expression to allow every group they think would be fun into the parade, but a sufficiently communicative and specific expression to find GLIB’s participation as offensive to the message and thus have a legally valid reason for exclusion. I’m not saying Stormtroopers shouldn’t be in the parade (they should), I’m saying GLIB should be in there, too.

John Drake at the Globe noted the political implications of Boston mayorial candidates marching in the parade (Menino is doing his usual breakfast-but-not-the-parade, Yoon and Flaherty will march, McCrea will not).  I wonder if someone has a rundown of which City Counselors decided to march as well. I won’t lie; I’ve been to the parade myself several times, but I think it’s sad that the organizers include every single group that has a marginal interst in St. Pat’s into the parade and block these true Irish-Americans simply because being gay somehow means you are contrary to the message of the parade. And until this is fixed, I’m far from inclined to return to the celebrations. Drake notes that longtime parade organizer John “Wacko” Hurley (the Hurley in the case caption above) is retiring this year. Perhaps this will usher in some well-needed change?

(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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Being a nerd about copyright means I’m also a little bit of a nerd about trademark laws. One of my favorite trademark/design sites is Brand New, which dedicates its life to studying companies that redesign their logos from an IP and design perspective. Today they struck solid gold over the redesign of the Pepsi logo. Somehow, somewhere, someone leaked the Arnell Group’s marketing pitch to redesign the Pepsi logo. It’s amazing.

The report puts Pepsi on an equal plane with the advent of the golden ratio, Feng Shui, and the möbius strip. They claim that the new Pepsi logo draws on the same creative steps that DaVinci used when doing his golden ratio analysis. They claim that there’s “natural gravity” that pulls people to Pepsi in a shopping aisle with the new logo by bending light through space and time.

It reminds me of all the things I hated about my business minor (love the analysis, hate the market-speak). Enjoy!