Footwear for Superusers

I took one last stroll up Mass. Ave. before heading back to D.C., and noticed a new store in Porter Square:

Finally, a shoe store for Unix nerds.

The Calm Before the Storm

At 10AM the Supreme Court will issue the final four opinions of the term, and they’re all very big: the patenting of business methods; the constitutionality of Sarbanes-Oxley and the Public Company Accounting Oversight Board; whether citizens have Second Amendment rights against actions of states; and whether public universities can fund some student groups, but not certain religious organizations which require certain faiths and beliefs, consistent with the First Amendment.

Mr. Tom Goldstein over at SCOTUSBlog has put in his predictions: the scope of method patents will be narrowed, the PCAOB will be held unconstitutional, the Second Amendment will apply against the states, and the school’s actions will narrowly be upheld. We’ll see how these hold up in half an hour.

Update 1: SCOTUSBlog will have the live results here, but get ready for a lot of traffic. With gun rights on the list Drudge has taken interest and has linked over there.  The uptick in hit counts are surely going to lag the SCOTUSBlog site.

Update 2: all cases are down, and it looks like Mr. Goldstein was right on all counts.  Both Bilski and the PCAOB opinion sound far narrower than initially suggested here.  More on Bilski in the future.

68 Days ‘Til September

Teddy & the Pandas – Basic Magnetism

One thing I’ve learned about the Boston rock scene is that bands from here are often as locally-conscious as their New York counterparts, constantly name-checking local streets, hangouts, and bands.  The Real Kids are a stellar example (frontman John Felice probably learned it from the master of name-checking himself, Jonathan Richman, when Felice was in an early lineup of the Modern Lovers). Here’s a stanza from their “Better Be Good:”

Everywhere I go I hear kids talking,
“There’s nothing going on. The town ain’t rockin’ Like it did before
Way back in ’64″
When we were rocking with The Ramrods
When we were shaking with The Pandas
You know it don’t seem the same
Without The Remains.

The lyrics stand as a Rosetta Stone, highlighting some of the best of the mid-60s Boston scene.  The Remains are probably our most famous mid-60s export, going down in history as an opening act for the Beatles, a featured part of the Nuggets box set, and even briefly highlighted in the movie Superbad.  “The Ramrods” is probably a reference to the Rockin’ Ramrods, a group which came shortly after the Remains, was featured on a volume of Pebbles and still seem to be somewhat active today.  For a good while, though, I couldn’t figure out who “The Pandas” were.  It wasn’t until after some sophisticated Google searching that I figured Felice is probably referencing Teddy and the Pandas, an all-but forgotten 60s pop band from Beverly, Mass.  With a little more searching I managed to turn up their only album, a 1968 lost gem called Basic Magnetism.

The album is a beautiful artifact of the Sundazed-psych era, with baroque-like numbers including “Shine A Little Light,”  “Childhood Friends,” the goofy “At The Debutanes’ Ball,” and the deliciously fuzzy title track.  “Kona, Idaho” is a surprisingly complicated song, hopping from meter to meter like a peculiar bridge from late-period Beatles and the prog-rock songs to come in the 1970s.  (Speaking of late-period Beatles, “Raspberry Salesman” quite plainly evokes a certain psych-laden song about fields of small red fruit, released around the same time.)  Amidst all of this steady 60s rock gets its due with “Running from Love” and “Crossing Man.”  Clearly drawing more from the Remains than the hard-edged rockers which dominated garage rock going forward (like the Real Kids, for that matter), the Pandas stand like the last of the innocent 60s: not angry, but not bubblegum either, and a wonderful accompaniment to a hot summer day.

So today, 68 days from September, I decided to post up the Panda’s “68 Days ‘Til September.”  Hope you enjoy it.  Find out more about the band here and here, and buy their stuff here.

Teddy & The Pandas – 68 Days ‘Til September

Ireland and America’s interesting copyright relationship

(I was going to call this “The Wind that Shakes the IP” but even I have geek limits.)

Right now, people all over my country are stumbling into bars, drinking some horrible green-food-colored excuse for a beer, and singing the songs of the ol’ country (the population of which seemingly quadruples every March 17th).  Some of these songs are time immemoriam, or at least in the public domain (“Foggy Dew,” “When Irish Eyes Are Smiling,” etc.), but a lot of them are not.  Usually, when a song that’s still protected under copyright is publicly performed like this a royalty is generated for the songwriter.  In the US this means the venue will get a license from ASCAP, BMI, and/or SESAC, which allows the venue to publicly perform most protected music.  These organizations will then log performances through a variety of metrics and distribute the license fees amongst all of their member songwriters.  (There are cynics who criticize this model for a variety of reasons, but that’s beyond the scope of this humble blog post.)

But this often isn’t the case.  American copyright law has some interesting carve-outs for bars and other establishments that routinely play music.  Starting in 1975 with the Supreme Court case of Twentieth Century Music v. Aiken, the US has recognized what we nerds call the “homestyle” exception to public performance royalties.  In short, the “homestyle” exception provides that a person or establishment that has “a single receiving apparatus of a kind commonly used in private homes” does not have to pay for any music piped in from that receiver.  This exception was expanded in 1997 with the Fairness in Music Licensing Act, which exempts an establishment from liability for public performances if, in the case of a restaurant or bar:

• The source of the music comes from a radio station;
• the establishment has 3,750 square feet or less of space;
• the broadcast is to not more than 6 loudspeakers (no more than 4 can be in any given room);
• no charge is made to hear the transmission;
• the transmission is not further transmitted; and
• the original transmission is duly licensed.

(This does indeed exclude a lot of bars, but many are still included.)

The intuitive appeal of such a statute is easy to understand, especially for a Congressman.  Small businesses operate on sliver-thin budgets, and anything that can save them money comes as a kindness for their (usually politically active) proprietors.  What most people don’t know is that this exception puts the US out of compliance with international obligations, and has cost the United States millions of dollars in royalties.  And a lot of that liability traces back to the playing of Irish tunes without paying the Irish songwriters.

Alain Lapter wrote a 45-page treatment of the issue for the Chicago-Kent Journal of Intellectual Property (PDF) which gives a much more thorough analysis, but here’s the synopsis: The US is party to two important international agreements in copyright: (1) the Berne Convention, a long-standing treaty between nations regarding substantive copyright protection (though the US is a very late adopter); and (2) the General Agreements on Tariffs and Trade, which included the Trade Related Aspects of Intellectual Property Rights (“TRIPs”).  Berne gives countries a minimum level of protection for member nations, and is very strict in terms of preserving rights for artists.  Under Berne, all artists have the exclusive right to to control the public performance and public broadcast of their works.  Given this strict language, the Fairness in Music Licensing Act is pretty squarely in violation of the terms of the Berne Convention.

The US does not enter into self-executing treaties in the IP space, so even though Berne would likely stand in conflict with  the Fairness in Music Licensing Act it would be of no consequence.  TRIPs, however, has a mechanism for enforcement under the World Trade Organization (“WTO”).  The treaty further incorporates most of the Berne convention under its Article 13, so now a violation of Berne has some teeth.  And in this case, it bit.

When the Fairness in Music Licensing Act came into being, the Irish Music Rights Organization filed a complaint with the European Union, and they in turn brought a complaint under the WTO.  After a fairly hearty analysis, the dispute resolution panel found that the Fairness in Music Licensing Act did indeed violate US international obligations.  Accordingly, the WTO imposed a deadline of July 2001 for the US to amend the Act to come into compliance with TRIPs.  The US failed to meet that deadline.  The arbitration panel thus ordered the United States to pay royalties to the tune of $1,219,900 per year.  In 2003 the US and the European Community entered into a settlement, whereby the US would pay $3.3 million dollars to a fund for European rights societies, and in turn the US would be given until the end of 2003 to bring its law into compliance with Berne and TRIPs.

This brings us to tonight.  Interestingly, nothing has happened since the 2003 agreement.  The US has made no motion to amend the Fairness in Music Licensing Act, and has further stopped paying the European songwriter societies as agreed to in the arbitration.  Lapter in his excellent article includes a great deal of analysis about proposed revisions to the WTO dispute panel and arguments for better compliance with international agreements, but this discussion remains entirely in the academic realm.  Meanwhile, many bars will pipe in Irish music tonight with no money going to Irish songwriters. The government appears wholly indifferent to the international consequences of this.

Who dat say they gonna own that IP?

(some “Who Dat” graffiti, care of Flickr user “no, i have no idea“)

So it’s Super Bowl Sunday, which for IP nerds means it’s time to air our annual complaints about the NFL’s drastically overreaching intellectual property practice. So as you get ready for the big game be sure to check out the following:

• Ron Coleman over at LIKELIHOOD OF CONFUSION (R) gives a quick overview of the NFL’s trademark practice, including, among other things, attempts to register a trademark in “The Big Game,” to force professionals photographers working at The Big Game to wear Reebok and Canon logos, and to claim that their overzealous enforcement of trademarks is done in the interest of the fans. (Coleman also goes into the “55-inch TV rule” people are writing about, but I find that argument extremely dishonest and unnecessary, especially considering there are legitimate IP things we can use to get angry.)
• Blake Reid at ChillingEffects addresses recent attempts by the NFL to crack down on “unauthorized” uses of the “Who Dat” slogan attributable to the Saints, as well as a recap of other famous NFL IP bullying.
• Kevin Underhill of Lowering the Bar describes the events that lead up to the NFL backing down on their “Who Dat” legal attacks.
• Finally, Martin Schwimmer, normally of The Trademark Blog, wrote an excellent column in the Huffington Post, examining the “Who Dat” question through the lens of other famous team-fan names (Red Sox Nation, the 12th Man, Cheeseheads, etc.). Martin wins for best quote about the whole “Who Dat” scandal, after Sen. Ensign attacked the NFL for going after New Orleans shops selling “Who Dat” shirts:
  

  Practice pointer: try to avoid situations where an alleged patron of prostitutes can take a holier-than-thou stance with regard to your client.

Enjoy the game!

Joe Satriani v. Coldplay ends in settlement.

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.

Bad Call?

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.

Sometimes You Have To Embrace The Pillow

You gotta love Electro-Harmonix. Not only do they make some of the best guitar pedals known to man, they get the music industry and how we can get out of this moral tailspin. As Make reports, when someone made a pillow commemorating the Big Muff Pi (one of the best fuzzboxes ever released) they responded accordingly:

We’re all too familiar with the endless lawsuits suffocating the world of music, and so we decided to do something different. Instead of threats, demands, and legal letters, we contacted Gwendolin, told her we loved her work, and offered a formal license in exchange for an option to purchase them at discount. So, rather than a new enemy we now have a new friend, and a beautiful Big Fluff Pi. Take that as a lesson, music-industrial complex!

Thanks for the tip, Conor. And you can grab one of those pillows here, if you don’t mind parting with 99 Euros.

The Star Wars Holiday Special Turns 30

“If I had time and a hammer, I’d track down every bootleg copy and smash it.”

~ George Lucas, on the Star Wars Holiday Special

On November 17, 1978 George Lucas decided to lease out the entire Star Wars universe for a two-hour holiday special on CBS. The Star Wars Holiday Special included appearances by all of the major cast players, and with the exception a Muppet Show episode in 1980 would be the only time the group got together outside of the original trilogy of movies.

The plot surrounds Chewbacca‘s celebration of “Life Day,” a holiday which seems eerily like Christmas. But naturally, since this happened a long time ago and a galaxy far, far away it couldn’t possibly be the Christian holiday we know and love. If you think that’s convoluted, wait until you see the rest of the plot. Here’s a sample:

This special also holds the strange honor of being the very first time the world meets Boba Fett, a character who plays more prominently in The Empire Strikes Back and Return of the Jedi movies, which would follow in ’81 and ’83. Strangely, Lucas decides to introduce this menace and villain of the later movies via a very silly and painfully 70s cartoon:

I imagine some out there might be asking, “Why haven’t I heard of this? I’m a big Star Wars fan. How did this never get released as a bonus feature on one of the copious releases Lucas has put out to date?”

Well, the answer’s quite simple: this movie is terrible. Not bad in a charming way; This isn’t a Santa Claus Conquers the Martians sort of holiday movie. This is straight up, flat out bad. And worst of all, it’s two hours long. So it’s not like a charming little holiday special which is over before you can say Hallmark. We have to wait two whole hours before the crew of the Millennium Falcon learn the true meaning of Christmas…or rather, Life-Day.

Longtime compadre Oscar actually owns a copy of this movie, and late one night last year we gathered our apartment together to watch it. After being distracted for nearly an hour by the Kenner Star Wars Action figure ads also on his bootleg DVD we finally got around to putting on the feature. When we started there were probably about 8 or 9 of us in the room – several of us had friends over. By the time the movie was over only two of us remained – and I, regrettably, was not one, as I had work in the morning and couldn’t stand to watch another frame of my sacred, dearly loved Star Wars characters foreshadowing the great commercialization of the brand which haunts it to this day.

And it’s too bad I didn’t stick around for the whole thing, as I missed Princess Leia singing the Life Day song:

I think when I get back to Boston on my winter break I’ll try and round up the gang again to try and finish the movie. Until then, Happy Life Day, all you nerds out there. And if you are fortunate enough to have a copy, be sure to put aside some of your Monday night to watch on its 30th birthday.

Are we entering the Bartlet administration?

Quick thought between classes today, with credit owed to Lara for introducing me to this.

By now we know Rahm Emanuel was selected to be Obama’s cheif of staff. But did you know that this isn’t the first time he’s been part of a presidential administration. It’s the third.

Now, wait, I can hear you say. That’s not right, it’s his second. He was a senior adivser for Clinton previously. And between then and now he was a Congressman.

Ah, I say in our hypothetical conversation, you’ve forgotten about his time in the Bartlet Administration, where he served as deputy Cheif of Staff. You see, Rahm Emanuel is the inspiration for Aaron Sorkin’s character Josh Lyman in The West Wing. The incident with his sending of a dead fish was even mirrored in an episode with Josh.

I just hope we get Toby Ziegler for a Communications Director.

[editorial note - the depth of Wikipedia articles for these fictional characters is astounding]

Sketch of Lyman from Flickr user beckyjules. Photo of Emanuel from his website.