Andy on the Road

14 July 2010

Digital Drugs

Filed under: audio,huh.,music,seriesoftubes,snarkbutter — Andy @ 6:35 pm

(an early version of aural drugs)

This has been quite a week for us law nerds, especially those of us that like to talk copyright or the First Amendment. I mean, there’s substantive due process challenges to obscenity doctrine, the Second Circuit striking down FCC regulations on expletives, porn producers arguing fair use against record industry copyright claims (and Warner seemingly confessing to group boycott in the same case), challenges to a a Massachusetts law attempting to regulate online speech targeted to minors, the Tenenbaum opinion on constitutionality of copyright damages — and what, of all these things, gets me worked up enough to post something?

This freakin’ story: kids are listening to music on headphones to get high.

(more…)

6 May 2010

New Hampshire Supreme Court applies free speech rights to online newsgathering

It’s a good day for the First Amendment – or, in this case, the New Hampshire constitutional analogue.

The New Hampshire Supreme Court issued an opinion this morning (PDF) vacating, reversing, and remanding the case of Mortgage Specialists Inc. v. Implode-Explode Heavy Industries, Inc. I worked on an amicus brief in this case with the Citizen Media Law Project and the Reporter’s Committee for Freedom of the Press, advocating for this outcome.

The case surrounds the Mortgage Lender Implode-O-Meter, a website dedicated to chronicling the collapse of the mortgage industry with insider reporting and primary sources (a bit like a Gawker or Smoking Gun for mortgage lenders). In 2008 the website obtained a confidential filing submitted by The Mortgage Specialists, Inc. (“MSI”) to the New Hampshire Banking Department. The chart contained detailed information on lending activity, and was submitted pursuant to an investigation on MSI’s lending activity. After the website posted this material, an anonymous commentator made statements which MSI interpreted as libelous of the company and its president. MSI responded to this publication by filing a complaint in New Hampshire court. Without discussing the First Amendment issues at stake, a New Hampshire Superior Court ordered that the Loan Chart be removed from the website, the source of the Chart be disclosed, and the identity of the anonymous commentator be revealed for possible libel charges.

As I noted in two earlier pieces, the CMLP and RCFP argued that this order violated both state and federal constitutions, as well as a the New Hampshire common law reporters’ privilege. (The amicus brief is here as a PDF.) We argued that the injunction removing content from a website works a prior restraint on speech, as even those who could have accessed the information prior to the court order would no longer be able to do so. As a prior restraint, the court had to demonstrate a government interest of the highest order to overcome the free speech issue at stake. Cases like the famed Pentagon Papers Case demonstrate just how high this burden is. We further argued, even assuming this is not a prior restraint, the government cannot punish this speech consistent with the United States Supreme Court case of Bartnicki v. Vopper and the First Circuit’s Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind words.)

The New Hampshire Supreme Court echoed these concerns in their opinion this morning. The court rejected MSI’s argument that the website was not entitled to a reporter’s privilege, noting that “[t]he fact that Implode operates a website makes it no less a member of the press.” In addressing the alleged crime committed by the source of the Chart, the court adopted the disclosure requirements of the First Circuit case Bruno & Stillman v. Globe Newspaper Co: MSI must demonstrate that the information sought is critical to their claim, cannot be obtained from other sources, and persuade the court that their interest in obtaining the information outweighs Implode-O-Meter’s interest in confidentiality.

Turning to the anonymous commentator’s allegedly libelous comments, the court adopted the test of the New Jersey Superior Court of Appeals in Dendrite International, Inc. v. Does, requiring a plaintiff to render efforts to inform the anonymous commentator, identify the particular allegedly libelous speech, make out a prima facie case for libel, and persuade the court on a balance of the equities.

For me, the most exciting part of this opinion is the Court’s approach to the prior restraint question. After a lengthy section discussing the extreme disfavor of prior restraints on publication, the court said the following:

Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.

Once this was found to be a prior restraint, the Court seemed to have no problem dismissing the interest here as far below that needed to issue an injunction. The court accordingly reversed on the injunction and remanded to consider the qualified reporter’s privilege and the Dendrite test for anonymous commentators.

Finding a reporters’ privilege for online journalists is wonderful news (especially in light of the question coming up in the whole Gizmodo/iPhone situation), but I think the real gold here is in the Court’s approach to prior restraint. The Court adopts congruent but discrete reasoning compared to the CMLP/RCFP amicus brief. Our brief focused a good deal on the constitutional right to make the same speech as that which is enjoined: even those who previously read the content could no longer access that information, so for purposes of public debate it’s as if the speech was never there. The court seems to focus on how the injunction impacts future speech: the injunction prevents new commentary and discussion surrounding the same information. These are complimentary arguments, but embrace an interesting nuance to the prior restraint question. Either way, the First Amendment risk of removing content from the Internet is brought into sharp focus, and receives appropriately high protection. Here’s hoping other states follow New Hampshire’s lead in this area.

(While I worked with a number of folks on the brief, the opinions of this post and blog in general are mine and mine alone.)

9 March 2010

EFF on DMCA, 12 years later

Very quickly between classes here, I want to let you guys know that, as Techdirt notes, EFF has recently released their anual analysis of the Unintended Consequences of the DMCA.  It’s always worth a read.

It’s important to keep in mind as we all try to get inside the minds of those negotiating the much-discussed-but-little-understood ACTA treaty, that (at least for me) the problem is not that the law will directly change American law.  Ben Sheffner makes an excellent case as to why this is unlikely to change American law, and, aside from the three-strikes concern, I have no reason to doubt this claim.  The problem I have with ACTA – aside form the secrecy and the lingering Internet cutoff threat – is that it will lock in DMCA-like provisions in the rest of the world.  It will become harder to act on the advice of organizations like EFF and modify our (admittedly already-codified) law.

This is, in many ways, rescaling one of my favorite arguments in favor of federalism: when states are free to regulate individually, the states can function as “laboratories” experimenting in policy judgments to solve common problems.  States in turn can learn from each other and adopt regulations accordingly, and the greatest policy structures will ideally prevail.  I’m not saying the DMCA is uniformly bad, but I can’t believe that it’s the best we can do to solve the complicated intersections of technology, security, trade, and copyright.  I bet, left to their own devices, other countries can do far better, and we should not be foreclosing this experimentation.

11 January 2010

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).

5 January 2010

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

  • Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
  • Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
  • Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
  • On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
  • My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
  • For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
  • On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
  • My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of glennbeckrapedandmurderedayounggirlin1990.com against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
  • Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
  • And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

3 October 2009

Mojo Nixon to put entire catalogue online, for free

Filed under: copyleft,huh.,intellectual property,music,seriesoftubes — Andy @ 2:40 pm

(Mojo, as captured by Flickr user kathyp.)

Digital Music News is reporting today that psychobilly legend Mojo Nixon is going to release his entire catalogue – over 150 songs – online for free download, alongside the debut of his latest album, Whiskey Rebellion (also free).

DMN:

“I’m just the kind of crazy person to do it,” Mojo told Digital Music News in a phone conversation.  “What do I have to lose?  I’ll make make more money off of this in the long run.” […] The Orchard is now preparing an official release on the matter, pending various executive approvals.  “Getting all 150 tracks, that might be like having a bacon sandwich with sausage on it.  It’s like chocolate ice cream with chocolate syrup,” Mojo shared. [Link added for reference.]

I don’t put this up here suggesting this is the way to go for everybody.  Indeed, Mojo’s 1980s releases on Restless Records might cause The Orchard some trouble during those “executive approvals.” Restless would probably be more into getting their catalogue out there for free before they were bought out by WMG.  Nevertheless, it’s a fascinating step, and something to talk about during the Future of Music Coalition Policy Summit over the next few days.

21 September 2009

Help Gretchen land an internship at Full Sail!

Filed under: friendsromanscountrymen,oyez,seriesoftubes — Andy @ 9:21 pm

Meet Gretchen, and the cause she is fighting for:

Gretchen is participating in a contest put together by TravelOregon.com, which is offering a series of “Cuisinternships” to the candidates with the most convincing pitches via YouTube movie.  Gretchen is participating for a chance to win a week-long brewmaster internship at the very excellent Full Sail brewery in Mt. Hood. While the final candidate will be picked by those running the program, a “people’s choice” pick – selected as the video with the most positive ratings – will win a basket of goodies. Besides, a boost in the rankings may attract that all-important attention from the Full Sail crew that lands her the gig.

Gretchen is a brilliant scientist and brews some mighty tasty beers. (She is also my girlfriend, but I would say that about her even if she weren’t.)  She talks about beer the same way I talk about music and intellectual property. You should really help her land at a spot where she can hone her craft.

So come on all you craft beer lovers out there: click here to go to the YouTube page for the video, and give that movie a good rating. Spread the word!

27 July 2009

The State of Music Reviewing

Filed under: huh.,music,seriesoftubes — Andy @ 10:15 pm

The blog Aritsts Paid posted up a video of Rolling Stone and Village Voice music critic Christopher R. Weingarten, speaking at a web/twitter conference in New York this past June.  He argues that crowdsourcing and amateur music blogging has killed popular music:

(Not suitable for work, or for the kiddies.)

With the obvious grain-of-salt caution that this is a Rolling Stone writer complaining about how amateur reviewing has undercut his professional usefulness, Weingarten raises an interesting point. Before the Internet, music reviewers would dish out opinions from up on high.  Their opinions were respected (if not agreed to).  When the Internet first began to spread, music websites kept up this tradition of, as he puts it, separating wheat from the chaff.  But with the advent of the amateur music blog (*ahem*) we switched from parting the waters in music to opening the firehoses.  As Weingarten puts it, it was like a sprinkler, with opinions and MP3s flying everywhere.

On top of this, the one edge “professional” reviewers had for years was the coveted “advance” copy of records: even if consumers didn’t care what people like Weingarten were saying about bands, at least they could scoop us bloggers out here.  Nowadays record labels seem to run their organizations about as watertight as a swiss-cheese submarine, and albums are leaked well in advance of promotional distribution.

At the meat of his speech – around the 7-minute mark – he argues “crowd sourcing killed music” because “people have terrible taste,” and, “if you let people decide what good music is, nothing different or adventurous gets out.”  Weingarten says this trend lead to professional music critics being forced to review bands that are popular instead of bands that are “good,” and a close-minded online listening world (“I only listen to X music and thus I have no idea about Y”).  His solution: spend less time saying online that “I like this music” and start saying why you like different music.  In other words, don’t get so caught up in consensus.  Advocate for the bands you love, and disagree about it.  Practicing what he preaches, his uses his Twitter account to review albums at a breakneck rate, injecting a great deal of “why” into his reviews and keeping pace with the amateur reviewers.

He spends a while complaining that music is “rising to the middle” and popular interest leads to an overabundance of mediocre, mass-appeal bands (citing the current indie rock world as his major case study), which the music world is compelled to review to feed the “click-economy” and get the all-important hits.  While I agree that there are far too many mediocre bands out there, I don’t think that’s the online music world is as dire as he claims.  While Weingarten spends some time talking about the stratification of music consumption (people getting more narrow and closed-minded about listening), he neglects to mention is a duplet characteristic of online music writing: (1) there are a lot of music blogs/twitters/online sources that write about different music online, and (2) many people are diverse in reading blogs.  It doesn’t follow that because music websites are narrow music listeners are too.  Sure, there are blogs like Detailed Twang which focus heavily on a specific genre (to wit, bluesy garage rock and proto-punk), and I read that Detailed Twang for that purpose, but that’s just one music blog in a personal arsenal that I use to keep up with music. Speaking from anecdotal evidence, people tend to diversify their niche sources.

Some people will be closed-minded about music, but that’s no different than listening to Top-40 radio for one’s entire life.  (And I never subscribed to this axiomatic inquiry the because you don’t listen to weird music you are less of a music. I respect objective music fandom above any subjective taste.)  While Weingarten is right about there being a lot of derivative, Pixies-meets-Death-Cab-at-a-party-for-Pinback bands out there, there are also troves of unique and interesting music blogs talking about quality artists.  Save for maybe the late 1960s, I don’t think fringe music fans like us have ever been happy with what’s in the mainstream, be it on radio or in major music blogs.

There’s a certain degree of “physician, heal thyself” sentiment I feel towards Weingarten, but that’s likely misplaced.  I know that he’s not the one that selects which bands to review in Rolling Stone, and I know that precious few places can afford a good music critic (and he is a good critic).  The belt-tightening and corner-cutting of the industry forces most national music magazines to go for quantity of sales over quality of writing.  What we have here is the cost of national distribution.  If Rolling Stone plans to be a magazine with broad appeal, its writers can’t act surprised when they focus on music with broad appeal, “crowdsourced” from the Internet.  While I wholeheartedly share in his dismay of writers being replaced by blogs, there’s an inherent circularity to Weingarten’s central argument about crowdsourcing.  Crowdsourcing by definition seeks information mass of people; the bands that someone finds from such a search will almost by definition mass-appeal.

Critique aside, I do sympathize with Weingarten and other experienced, professional music reviewers.  Were there a place (online or offline) where we congregated and compiled our Lester Bangs protégés I would certainly open my wallet to it.  For now, I suppose the best we can do is promise to each other that we’ll argue viciously over bands and strive not for consensus, but diversity.

17 July 2009

Twitter Security Breach

Two articles stand out as great reads on the Twitter Security Breach debacle:

  • Sam Bayard from the Citizen Media Law Project discusses the constitutional right to publish hacked documents here. The analysis here draws on many of the same cases Sam and I used in an amicus brief sent by CMLP and the Cyberlaw Clinic to the Supreme Court of New Hampshire about a month ago.
  • Journalism professor and tech pioneer Dan Gilmor takes Sam’s analysis and adds his own spin, coming right to the point on the merits of how Michael Arrington and TechCrunch are handling the breach.

9 July 2009

Thursday morning humor

Filed under: laughs,seriesoftubes — Andy @ 7:12 am

twitter

Care of Dan Piraro’s Bizzaro comic strip and Blondes Not Bombs.

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