Five Hours Away and I’m Already Playing Catchup

It’s been a busy day for legal geeks. Over Justice Breyer dissent, the Supreme Court has stayed the simultaneous webcasting of the  the highly anticipated Prop 8 challenge, pending further review (Wired | Above the Law).  You may remember webcasting of trials being an issue in the Tenenbaum trial almost exactly a year ago (which went all the way up to Justice Souter in his capacity as Circuit Justice, and was denied).

Meanwhile, Billboard notes that a the Circuit Court of Appeals for DC on Friday displayed some skepticism over the FCC’s authority to regulate Internet service providers in the name of network neutrality. One of my friends was at the hearing, so I hope to hear more from him on this point. This also is probably a good time to note that the always excellent Future of Music Coalition has come out with a new tool for artists to comment FCC net neutrality regulation. There’s an interesting tension in the music industry here, as Billboard seems to hint at net neutrality being a bad thing (as it hinders the ability of P2P filtering and other ideas record companies and some artists support), while the FMC has come out strongly in support of neutrality as an equalizing force in the industry.

Billboard also has a music-centered rundown of CES for the curious. Billboard notes an increased use of music celebrities (Ms. Gaga, Mr. Dre, Mr. Diddy, Mr. Rock, and Ms. Swift) to promote consumer electronics from Monster Cable, Qualcomm, Sony. Billboard treats this as an indication that consumer products budgets are loosening up, which may be a good sign for the music economy (and the economy in general).

Techdirt is hosting an interesting discussion over the use of the Obamas to sell things and its implications under misappropriation law, after a billboard showing the President wearing a Weatherproof jacket was erected in Times Square and PETA circulated a picture of Michelle Obama as an anti-fur wearer, both without the Obamas’ consent. Long story short, as Paul Alan Levy puts it, the White House probably has no legal ground to complain, but that doesn’t mean the action is without risk: this presents be an opportunity for Michelle to complain about PETA’s more extreme elements, or for the President to comment on whether or not he though Weatherproof actually made a good jacket. So far, this one has been all sound and fury.

Oh, and on the Massachusetts front: a kid from my hometown learned a hard lesson about fire safety the Fourth Amendment, and Councilor Mike Ross (still) doesn’t care about college people. I have to dispute UHub’s tally on the Ross cases of taking hard anti-college student stances, however. I count three: the 2004-05 attempt to force all off campus students to register private information with the BPD as a matter of law, the now-infamous no-more-than-four-students-per-unit regulation, and this new attack on Northeastern for accepting 3.9% more students than anticipated (though it sounds like there may have been some form of agreement on that last one).

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.

RIP: Jay Bennett

(Jay, at TT the Bear’s in 2005, from Flickr user rustedrobot)

So sad to see this story from Muzzle of Bees: Jay Bennett, former member of Wilco member and one of the masterminds behind their epic Yankee Hotel Foxtrot, died in his sleep last night after undergoing hip replacement surgery. He was 45.

Wikipedia points us to this MySpace post just before he went under the knife. After disclosing he had a torn ACL, which he ignored for several years:

Well, it turns out that these types of injuries don’t really heal themselves, as I naively told myself might just magically happen, if I rested that leg, used a cane for a while, and lost a bit of weight. So, major surgery it was to be…the only glitch, I am among our nations under-insured (my previous injury to that leg was listed as a pre-existing condition, and any injury that could be linked to the same root cause, I was told would not be covered). Some time passed as I contemplated my next “move,”—how to come up with the money to pay for the surgery “out of pocket,” and as I brainstormed, my hip finally decided to lock up, and the pain got worse. So I began the arduous, or more accurately, extremely time consuming and endlessly frustrating, process of finding a surgeon and hospital that would perhaps “cut me a deal,” be willing to bargain/barter a bit, or at least allow me to make installment payments. As it turns out, this is possible, but also difficult to arrange, if you can not come up with a sizable down payment as a show good faith, etc. I have been saving as much money as possible ever since I made this new commitment to my health, my future, and my quality of life, and have sold off some vintage recording gear, whose monetary collectors value now far outweighs it’s functional value. As time has passed my mobility has continued to erode, to the extent that, for quite some time now, it has even been difficult to sit at the computer for more than just a few minutes—as I only own an ancient, yet reliable (don’t get mad at me baby), old Dell desk top PC, I can’t lie on the couch with a lap top and leisurely engage in the cyber world as I had so enjoyed since I made the commitment to enter the 21^st century (or at least the late 20^th) and interact with all of the wonderful people who have chosen to be my friends on myspace. And, even if I have said it enough already, I’ll just keep saying it over and over again; what an thoroughly enjoyable experience it has been, it’s like hanging out at a bar talking to folks with similar interests, swapping stories, answering questions, asking questions, getting to know people, reacquainting myself with old cronies, all without having to shout above the music (which I hate, unless of course it is of my choosing)…and I really have missed these interactions on so many levels. I know that I owe many of you mails (my trips to ye olde Dell are painful and now almost non-existent…this note was hand written and transcribed). I also owe some of you input on music that you have sent to me, for these transgressions, I apologize, but trust that you will understand.

I’m not suggesting that Jay’s lack of insurance gave him any less than the best treatment when he did go under the knife for various leg work, but his problem is one that thousands of musicians in America face: ours is an industry which does not provide for health insurance. So, for Jay, may I suggest donating some money over at Rock For Health, a Northeastern-born organization dedicated to raising money to provide artists with health insurance. You can donate on their MySpace here.

Also, earlier this month, Jay sued Wilco frontman Jeff Tweedy for unpaid royalties (see the complaint here). Sad to think Jeff and Jay left on such bad terms, after nearly a decade as bandmates.

Godspeed, Jay.

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.

Beanpot, Beanpot, Beanpot

(The Dog House, from Flickr user NU Husky 91)

My days spent at Northeastern were never dominated by athletics. I spent some time on some intramural broomball teams, went to a few basketball games, and had friends on the baseball team. Aside from that, I never really fell in with the sports crowd. More than anything, I was bothered by how often they’d preempt my radio show at WRBB.

The one exception I made to this was hockey. I love NU Hockey. I was a Dog House regular. I’d take my friends who didn’t care much for sports and make them watch with me. Famously amongst my Husky friends, my buddy Oscar (an Emerson lad himself), perhaps the man least likely to enjoy watching a sporting activity, used to come and root for “violence.” As he puts it, “my team always wins.”

So naturally, I’m quite proud that my Huskies are #3 in the country, and playing tonight in the Beanpot finals. Against our arch rival, BU, no less. We haven’t played in the finals since 2005 and haven’t taken the title since 1988. We have 4 titles in the series, against BU’s 28 titles (half of the 56 tournaments played). This is our best shot at the ‘pot in years, and I have full confidence that NU will take it.

You can listen to the Beanpot finals on WRBB, 104.9FM in Boston, or online here. (And sorry to whomever gets preempted tonight for the show, but it’s for a good cause!) Championship game’s at 8PM.

iTunes goes DRM free and variable pricing

So, as you might have read if you’ve seen Ars Technica, Wired, Lifehacker, or a million other sites today – Apple announced that they are phasing out digital rights management on the files they sell on the iTunes music store. As part of their negotiation to retain the catalogs of some of the more uppity labels, they agreed to allow variable pricing on the service for the first time.

I think this is a good thing. I know Northeastern Music Industry majors have been predicting this for about 3 or 4 years now. I do worry about variable pricing, and wonder how those outside the industry will view this pricing change. Also, while Apple suggests that older tracks will be sold cheaper while “hits” will be more expensive, I wonder if people will do just the opposite to move units during the first week or two of sales, as we see from time to time on Amazon MP3.

My fear is that the industry will squander this. I hope those in power will recognize that selling songs at 69 cents, instead of 99 cents or a $1.29, will help secure people still legally purchase music, and at least some money will trickle back to the artists. As Hitsville so keenly notes, on filesharing sites, the DRM is still gone and the price is still zero when you download off torrents of p2p, and, like it or not (regardless of the law), people are still going to go there if they feel dissuaded from getting music legally.

I also think about labels who already “bury the single” as making the track album only on digital download sites. What if they start varying the price between songs on the same album? That raises some intersting questions about the value of music (e.g. – is song A really 30 cents a better song than song B? Can we say that about music?).

Interesting food for thought, but not part of my law school syllabus, so I’ll leave it at that for now. At times I wish I was still in Northeastern Music Industry seminars, given loads of time to think about these sorts of problems.

B for Beretta’s Holiday Extravaganza

(See? Even Ted Leo loves the ‘RBB.)

Quick post:

In a past life I was a DJ at WRBB – Radio Back Bay, 104.9 FM, in Boston.  ‘RBB is the part of the quad-fecta of excellent freeform college radio stations in Boston – along with WZBC, WECB, and WMBR. Tonight, from 5-6 PM my good buddy and compatriot Bethany (of the Sitcom Moms) is hosting a special edition of her “B for Beretta” hour, entitled “Chrstmas: The Good, The Bad, and The Ugly,” featuring the very best and (probably more importantly) the very worst of holiday music. I’ll be listening in. You should too.

You can listen to WRBB live over the interwebs right here.

Hail, all hail, my alma mater, with its very real cops.

Northeastern’s own The Huntington News (congrats again on the name change) and Universal Hub bring us a humdinger of a story. This comes from the legendary NU Crime Log, whose hallowed “entry-of-the-week” slot was well earned by a few of my colleagues before our time there was over. Today’s story shows us the sin of graduate-school arrogance, and what happens when you bet wrong on whether or not the NUPD has actual police authority.

THN:

Saturday, November 8
2 a.m.
NUPD was called to Hemenway Street near Symphony Road after receiving a report of a fight. Two 20-year-old students reported being attacked and punched by two strangers. While the officers were speaking to them, two men walked out of a nearby building and were pointed out by the students as the men who attacked them. NUPD stopped them for questioning and identified them as a 20- and 21-year-old men with no Northeastern affiliation. They said they had been walking down the street with a female friend when one or both of the students made inappropriate comments directed at the appearance of the female. They said they ignored the students and went to Westland Avenue for pizza.

[editors note: I can clearly see their first mistake, when they attempted to go to Cappy's, when clearly the best pizza at this time of night would have been Little Stevie's on Boylston.]

When they returned, however, the students made comments toward the woman again and started a fight. While the officers were interviewing the group, another person interfered with the officer’s investigation, telling the two non-students that they did not have to talk to the officers because “they weren’t real cops.” NUPD told him to go away several times, but he continued to interfere and was arrested for disorderly conduct. [Name redacted], a 24-year-old graduate student, will be arraigned in Roxbury District Court this week.

We’d call that a bad day at the office. I hope he wasn’t a Law student. For those of you who don’t know, Northeastern, along with most schools in Boston and other major cities, are very proud of the fact that their officers are fully accredited officers of Commonwealth. They’re rather proud of that fact, and are quick to tell you on websites and school tours. AdamG over at UHub was kind enough to point us to the MA statute itself which grants universities, school, and hospitals the right to their own police details.

Tim Fite’s “Ding Dong Ditch”

(Tim Fite, from Flickr user Jalapeño)

I’ll have the Halloween band poll up in a moment (last chance to submit nominations). In the interim, you all have a right to know that Brooklyn weird-man Tim Fite has released his second annual Halloween album, Ding Dong Ditch, free for download today only on his site. In celebration he also posted last years album, It’s Only Ketchup as well. Download both from Tim here.

I still think one of my all-time favorite shows was Tim Fite / Calexico / Iron & Wine / Iron & Wine & Calexico show up at the (now-deceased) Avalon in December 2005. Tim’s awesome to see live, as many Northeastern kids found out at WRBB‘s killer fall concert.

Enjoy!

Kudos to NU’s CUP, Campus Activities, etc.

Permit me to gloat for a minute -

I don’t know what’s more surprising – NU Hockey beat no. 1 BC over the weekend, or I learned about it by watching the Daily Show:

I’m just an alumnus now, but when I was Concert Chair of the Council for University Programs we were bitterly entrenched in a fight with the administration over the canceling of our spring show without out knowledge or consent, costing thousands of dollars and seriously damaging the reputation of NU with agents and promoters. I’m proud that I did my small part to bring CUP and the administration together and now they have a very healthy and active relationship, as evidenced by Jeff’s two fantastic Springfest concerts following the one I produced with Scott, and now being able to wrangle Stewart for an appearance this close to the election. I don’t think students from other campuses realize how hard it is for a college to put on high-magnitude shows in Boston, when acts would rather have bigger exposure playing to a fully public audience up the road from us (that is, without selling out to Live Nation as some schools [i.e. BU] are want to do). This is quite an accomplishment.

I know there are many student groups and the fantastic Campus Activites office that had to come together for this (Erin, I can only imagine the pressure this time around). Take pride; you guys did quite well.

Update: OhRyan points out you can see most of Stewart at NU on the Youtubes.