Digital Drugs

(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.

ASCAP goes to war with Creative Commons

ASCAP’s HQ, a CC-licensed photo from Flickr user CosmoPolitician

I can’t believe this slipped by me last week: ASCAP has started urging its members to fundraise against Public Knowledge, Creative Commons, and the Electronic Frontier Foundation.  The blog ZeroPaid has two pieces on the initial ASCAP action and CC’s response.

To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP.  As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like.  It doesn’t do our industry any favors.  But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.

Creative Commons is not about destroying copyright or artist rights – quite the opposite.  CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright.  As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works.  The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression.  We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.

Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate.  The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.

Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy.  And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees.  But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living.  When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.

At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works.  What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of).  Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t.  So don’t pass this off as an artist rights issue.  To act in the artists’ interest would be to allow them the choice.  What you’re doing is something else entirely.

Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.

Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again.  In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy.  This present fight is proving his point all too clearly.

I should also note that the contents of this blog, to the extent they are not owned and licensed by another party, are licensed under a Creative Commons Attribution Noncommercial Share-Alkie 3.0 license.

Downfall parodies removed from YouTube

Gosh I wish I had time right now to write about Constantin Films taking down a bunch of the Downfall parodies, but it’s finals season out here. This meta-Downfall parody will have to do:

Update: Here’s another one, purportedly from EFF:

Three Years Ago Today

(care of Flickr user L. Marie)

1/31/07 – Never forget.

In spite of all the great criticism that can come out of a non-crisis-turned-real-crisis-in-confidence like this, three years out I think we can all sit back and laugh at how silly we were back then…

… right?

Watching the news clip again, knowing what we know now, I’d say the most embarrassing thing about this whole endeavor is the failure in truth. The leap made instantly by every media outlet was that these were bombs or deliberate bomb hoaxes. The impression was strong enough for the two responsible to be indicted under a hoax device law, although the charges were later dropped.

How persistent that horrible rumor was that day, despite every college-aged kid running out to tell every adult they knew that (a) these things had been up for over a week and (b) we knew they were just custom-shopped Lite Brites. How tragic times are when our society immediately assumes that any urban art like this has sinister implications.

Let’s think twice before reacting like this again.

Village Voice Headline Win

Care of SoStark and AYCDICM:

Does this mean my supplement is OSX compatible?

Law students share a common ire over the prices and frequent revision cycles of our casebooks and statutory supplements. Underneath a lot of this is the feeling that these things are rushed to market every year or so, and as any student will tell you they are riddled with typos, formatting errors, and other things a respectable national publication would not stand for.

Case in point, the supplement for my corporations class (this thing retails at $40, by the way):

There’s a very strange typo on the very cover of the supplement (at least I think it’s a typo):

Apparently my supplement isn’t for the Tenth Edition of the casebook. It’s for the “Tenth Edition.”

What does that mean? How does that typo even happen? Did the cover designer accidentally type option-shift-K while laying out the text?

The only way this could be better would be if it was a statutory supplement for a trademark class.

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.

DC’s fog advice: “add_protective_actions_here.”

On Monday I poked a little fun at a direct message I received from Boston Police via Twitter. Not to be outdone, DC’s emergency information network AlertDC sent the following warning via email today:

I’m not sure how bad the fog is in DC (apparently it merits a “WARNING”), but I’ll be sure to take_appropriate_actions_vis_à_vis_this_fog_situation when I head out today.

Not Gonna Give You That Satisfaction

Some of you will find this hillarious, and some of you will have no idea what this is about.

DC getting “tough” on snow

(Rock Creek, last Tuesday, from Flickr user Daquella manera)

After getting a trash talking from the 44th President, DC has decided to take substantial steps toward a cohesive snow removal policy. It came not a minute too soon, as we actually had a dusting here today. Combined with last weeks 2 inches of snow, that’s almost 3 inches on record this winter. How are we still alive?

But help is on the way: DCist reports, off a story from DC Wire, that the D.C. Council unanimously approved emergency legislation that requires drivers to remove snow and ice from their vehicles.

Three things strike me about this:

1. The Council removed the $50 fine that used to go with this sort of action. So, the worst thing that can happen is a DC cop will talk real angry at you.
2. This is apparently the first time DC has put together such a bill. What did they do before this if people had snow on their cars?
3. I have to confess, the only criminal citation I have ever received was a citation for “failure to clear snow off window” in 2003. This hits close to home for me. (I think my fine was $25.)

I think my favorite part of this was the concern expressed by Councilor Mendelson (DC at large) – “It seems very, very…subjective on the part of a police officer… If a police officer doesn’t like me, I’ll get a ticket.”

I’ll admit my perspective on these things is far different than many down here. But buddy, it has to snow enough to stick on cars before you can start to worry about arbitrary enforcement.