Sen. Specter’s comments at Sotomayor hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sotomayor on Copyright Law

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

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

What happened in front of the White House today

Because I know Taylor loves it when I do this stuff, I put the press flag back in my fedora and hit the street today. Finding some time between classes, I rolled by the White House to see the Tea Party / Tax Day protests today. As I noted during the election, I’m always curious as to how journalists estimate the sizes of crowds at these things. Here’s what I saw:

By my estimation, there were about 500-750 people when I walked by (around 1PM or so). At most there were maybe 1000. From what I’ve read, apparently the crowd directly in front of the White House was dispersed shortly after this, after one protester threw a box of tea over the fence and on the White House lawn. This might have been as big as it was all day.

I couldn’t glean a coherent message from the crowd. A lot of the signs showed federalism messages, and a few were criticizing the Federal Reserve banking system. Most of the speakers were talking on rather empty platitudes, so I couldn’t get any more from the rally. If you’re curious, there’s a growing Wikipedia page outlining the protests with further details.

I for one reject the whole idea of today’s events. The message of the Boston Tea Party is inapposite to this discussion, and I don’t think the Obama tax policy does what they are accusing it of.  And as I said yesterday, the gall of those to come to DC from neighboring states and start whining about “taxation without representation” is rather offensive.

Or, as Colin put it: Teabagger protesters – ESPECIALLY in Boston – should be rounded up and forced to attend 6th grade math and history classes.

I’ll be curious to see the numbers tomorrow. For now, here’s the best I could do at giving an accurate picture of the size and scope of the protest.

On Tea Parties, and DC

Apparently there’s some sort of coordinated effort to protest government spending or taxation or some such matter going on in DC and elsewhere tomorrow, using the meme of the Boston Tea Party. To mark the event, DCist posted up a short and sweet article keeping this protest in perspective:

The whole idea of using the Boston Tea Party as a rallying cry for people who aren’t happy with how the government is spending their money is a little strange, especially for those of us who qualify as both taxed and unrepresented. Back in late 2007 D.C. voting rights activists had their own tea party, symbolically dumping leaves into the Potomac to make a point that has stood for far too long — District residents pay federal taxes yet have no federal representation. If anyone can yell “No taxation without representation!”, it’s us.

As noted in the DCist article, Matt Yglesias found some humor in hearing a tea-party rally in Nebraska yell the old “taxation without representation” line:

Here in Washington DC, your humble blogger and about 600,000 other people are living and paying taxes to a United States government that does not allow us to elect representatives to congress. Whether you think that’s fair or not, what we’re doing is paying taxes without representation. The 1.8 million Nebraskans are very much represented in congress. There’s Rep. Jeff Fortenberry, Rep. Lee Terry, and Rep. Adrian M. Smith in the House of Represenatives along with Senators Ben Nelson and Mike Johanns. Indeed, with a mere 0.6 percent of the nation’s population, Nebraska gets to elect fully 2 percent of the Senators. If anything, Nebraskans have taxation with overrepresentation.

And so, protestors coming to DC tomorrow, consider the fact that your “taxation without representation” is neither (a) a net increase in taxes, nor (b) done without representation. And don’t forget those in DC that get all the tax, and none of the representation.

Aerosmith gets off of the saddle (again).

Back in October I wrote a little bit about the political licensing of music, following the issues that came up with the McCain campaign’s use of songs both in a live context (likely to be legally sound, based on the unique licensing situation of PRO blanket licenses) and for campaign commercials (not likely to be okay, because commercials generally need an independently negotiated license). The issue has come back to light today (and really, yesterday) when Republican Congressman Eric Cantor posted a video online bragging how no Republicans approved of the stimulus bill in the house. The soundtrack to the video? Aerosmith’s 1977 “Back in the Saddle.”

Turns out, despite the fact that Joe Perry is a known Republican, Aerosmith’s publisher Stage Three Music (which, by the way, also holds the catalogue of The Decemberists, Macy Gray, and The New Radicals) didn’t think the song was appropriate, and had it taken down off YouTube.

From Talking Points Memo:

The GOP’s use of the tune “was something we, as the publishers, didn’t approve and would not have approved without going to the writers,” Connie Ashton, director of copyright and licensing at Stage Three, told me. “Aerosmith did not approve of its use and also wanted to have it taken down,” she added.

Seems like this is more or less and open and shut case. This is much more like licensing a song for a commercial (which the GOP found out the hard way does require an independently negotiated license) than a public performance at a campaign stop (much more likely to be allowed through a blanket PRO license). It will be interesting to see if there is any more fallout as a result of this. This has been a tough week for Cantor’s office; he just got out of the hot water over a different video he distributed.

You can see a glimpse of the campaign video here. It kicks in around the 0:27 mark:

Quick reactions from the Future of Music Policy Day

(left to right: David Beal, National Geographic Entertainment; Peter Jenner, visionary music manager; Alec Ounsworth, of Clap Your Hands Say Yeah; Justin Oullette, Muxtape)

I had the chance today to see the second half of the Future of Music Coalition’s Policy Day conference. They might as well call it “The all-the-things-Andy-cares-about-in-music-and-law Conference.” I’d swear they designed this event for me. To do it real justice would lead to a several-thousand-word post, but I know from experience that you guys don’t read those, so I’ll keep it short and to the point:

Keynote at the address was Mr. Michael Copps, acting Chairman of the Federal Communications Commission. This man is so unlike the previous FCC Chairs it’s downright inspiring. Here’s a real example of how the Obama administration’s “Hope” is spreading through his government. Copp’s 20 minute speech was all about the rebirth of “localism” in broadcast communications. While very careful not to say this debate is entirely along the lines of regulation vs. deregulation, he notes how deregulation and the removal of area monopoly restrictions (which he promised will not happen again under this watch) has nationalized an industry that really should be kept local, for a variety of reasons. He inherited a real nasty situation with the now-famous digital television changeover taking effect next week, and no doubt he will be the target of a variety of bad press as a result of his role. Let it be said now that he is a great speaker with a variety of very good ideas. Let him not be judged by this one (inevitably disastrous) situation alone.

Panel one this afternoon consisted of Rick Carnes, President of the Songwriters Guild of America; David Carson, General Counsel of the US Copyright Office; Zahavah Levine, Chief Counsel at YouTube; Steve Marks, Executive VP and General Counsel of the RIAA; Hal Ponder, Director of Governmental Relations for the American Federation of Musicians; and Gigi Sohn, President of Public Knowledge. These were, without a dobut, the very best and brightest in the field of music and IP today, representing all walks of the professional music life. The panel was moderated by Walter McDonough, General Counsel for the Future of Music Coalition, Bostonian, and all-around great guy.

The discussion focused around when, where, and how IP schemes can be used to address the problems of the music web economy, and how these people (easily the strongest “heads at the table”) plan to address these issues. Naturally, looking over the names, you can tell that the crew did not see eye to eye on many (if any) of these arguments. Discussion went back and forth on how copyright policy would look under the Obama Administration, whether it would be put closer to the “front-and-center” or this administration versus those past, whether and how compulsory licensing should be applied to YouTube, whether or not the compulsory mechanical license which protects performers covering songs should be extended to home-videos on YouTube, whether and how the economic stimulus bill may or may not have had a provision in there permitting ISPs to do copyright filtering, and analysis of Sony v. Universal, Eldred v. Ashcroft, and a few patent and copyright cases working their way up to the Supreme Court right now.

I can’t do the discussion any level of justice, so once FMC posts it I’ll link to it here. A few big takeaways:

• First and foremost, the American Federation of Musicians, the largest musician union in the country, came out in support of network neutrality today. That’s big.
• Keep a sharp eye out for the case of Cartoon Network, LP v. CSC Holdings, Inc. (sometimes being called the “Cablevision DVR Case”). The case concerns, inter alia, an assessment of Cablevisions’ DVR system under the lens of the Betamax “fair use through timeshifting defense.” The US Copyright Office and others are arguing that it’s about much more than that, but the panel kept going back to that.
• In the House version of the stimulus bill, but not in the Senate version, there is $50 million set aside for the National Endowment for the Arts. The one thing this panel did unanimously agree on: we’re hoping that after conferral the $50 million stays in the final version of the bill.
• Interesting statistic from Ms. Levine of YouTube – every minute, 19 hours of footage is uploaded onto YouTube. Hence, all the filtering and content control that is done has to be done either by he community or through an automated system.
• While I disagreed with his whole approach to the “piracy” issue, I have to give Rick Carnes a great deal of credit for opening my eyes to the world of non-performing songwriters, and the unique difficulties of working these people into modern compensation schemes.
• With these people at the table, we are a long ways off from coming to any real consensus. Copyright law, like many other forms of law, is a system that has been layered on, over a great deal of time. In order to solve the problems that these major players have, we have to sort out some major old-fashioned elements of copyright law. Sadly, the issue extends beyond the scope of copyright law into contracts that were made between songwriters, artists, and record companies years ago. You can’t go back and renegotiate all those contracts, so even if the law were to change other efforts would have to be made to help those who negotiated deals years ago.
• I found Mr. Marks a refreshingly smart voice to come out of the RIAA. However, a bone I have to pick with his argument (or, perhaps more precisely, an issue I have with his approach to the argument) is this: he spent a good deal of time talking about empowering ISPs to remove “unlawful content, such as child pornography and internet piracy.” Putting the two in the same sentence is a terribly off-putting and disingenuous argument tactic. Child pornography is a gravely serious and criminal act, conducted by some of the most socially vile people in the world, exploiting the most-private elements of humanity at a time when people are emotionally weakest. It is one of the most serious crimes facing the world today, and is a crime of strict and abosolute nature – you either commit child pornography or you don’t. Copyright, while having serious economic and cultural implications, does not even come close in terms of severity, and is not an absolute crime – copyright violations may or may not be illegal, based on a myriad of factors. To compare the two is insulting, and to try and rationalize the restriction of the latter by mentioning the former is not going to win the RIAA any friends.

While the first panel made me wonder if we’ll ever resolve these issues, the second brought back a lot of hope and confidence in my industry. Sitting at the table were David Beal, president of National Geographic Entertainment (which includes a music label, broadcasts, and a variety of other media); Peter Jenner, former manager of Pink Floyd, The Clash, Ian Dury and the Blockheads, current manager of Billy Bragg, and all around visionary currently working as President Emeritus of the International Music Managers’ Forum; Alec Ounsworth of Clap Your Hands Say Yeah; and Justin Ouellette of Muxtape. All found success approaching the sale of music in new and interesting perspectives. Jenner started the conversation talking about an open music licensing system currently being tested in the Isle of Mann (which I didn’t know, but apparently is treated as an independent political entity ruled by the Crown of England, thus having its own laws, including copyright), where users pay a fee, and then that fee is collected and given to the music industry, and in exchange the residents of the Isle get to download and share music freely. Beal talked of how he tries to negotiate different licenses for different content distribution methods in the hundred-something countries where they film and play National Geographic videos. Ounsworth talked of how CYHSY used the Internet and other simple grass-roots tactics to sell their self-titled record, and how their generous attitude towards sharing online helped build and launch their careers. Ouellette told the story of Muxtape, which needs no description (click on his link above).

All in all, a fascinating exchange of ideas, and the kind of conversations that need to be happening more frequently if we are to change the way in which the public and the law approach music. My only regret is that the two panels couldn’t exchange ideas in tandem. I’d love to hear the VP at the RIAA try to explain why Ouelette’s Muxtape had to close to his face, and see if CYHSY and the musicians’ unions agree with him.

Bush gets jazzed on his final press conference.

This is starting to spread all over the Internet:

I think Bush speeches will always sound better as free jazz. Reminds me of a Burroughs-style “cut-up” I did of his 2005 State of the Union as part of a modern music class.

Now anyone can be your new bicycle!

OhRyanKelley gets credit for the scoop here:

The level of strange stuff that came out of this past election cycle is downright staggering. We had terrorist fist jabs, Obamagirls, nounverb9/11, drill-baby-drill, pant suits, seven houses, Trig, Mike Gravel throwing rocks in a pool… when you think about it,  this is really a helluva way to pick a leader of the free world. I defer the nostalgia to this website.

One of the best things to come out of the strange stew of memes was the website Barack Obama Is Your New Bicycle. This lead to inevitable spinoffs, many of which are now departed. One that did stick around, however, adds the thrill of letting the new bicycle be you!

Try it out – type in your browser “yourname.isyournewbicycle.com“

Let the meta-referential-ism begin!

New Lang Syne (Thank God It’s Over)

Jim Infantino, of seminal un-pop, snark-rock group Jim’s Big Ego, posted this video today on The Facebooks:

I just picked up my copy of their new album, free*, on vinyl. You should consider doing the same. I have a tremendous weak spot for this group.

Yes, You Can

Love the Shepard Fairey Obama “Hope” poster?

Wish you could create your own to use in your Presidential/Congressional/mayoral/school board/student council election?

Dubster says, “Yes, you can!” with the Obamafy plugin for Mac OSX’s Photo Booth (full disclaimer: requires 10.5 Leopard). The potential to do crazy things with this is amazing. I’ve found it works best with a strong light source behind your camera shining on your face, like you’re taking a portrait photo.

Enjoy!