Digital Media Wire is reporting this afternoon that the Associated Press is attempting to define how blogs can use their content.
DMW:
The Associated Press (AP) newsgathering agency will attempt to define how much attributed borrowing constitutes “fair use” of its news articles and broadcasts for bloggers and other websites.[...]The AP last week asked a blog called the Drudge Retort to remove seven posts that contained quotes from AP articles that ranged from 39 to 79 words.
After receiving criticism for the move, the AP over the weekend retreated a bit, calling its approach “heavy-handed,” and decided to hold meetings both internally and with bloggers to establish a more clear set of guidelines for use of its content online.
While they have all right to defend their work, I question how much they can define “fair use,” given their clear bias to protect their own content. Fair use already has a pretty solid test that copyright students are quite familiar with: the Four Factor test. This is a multi-point test that examines the nature of the original work and the alleged infringer through a variety of angles, to see whether the use is likely to be found fair. Let’s take a look at it as it applies to the AP issue above:
The purpose and character of the use, in contrast to the original: Highly transformative works (that is, works that take the original and add substantial new elements to the original versus straight copying) are more likely to be found fair. In the case of a blog adding commentary on top of an AP report this would be more fair, but straight reposting would probably be found less fair.
The nature of the original work: Copying of highly creative works and unpublished works usually is far less likely to be found fair. The AP, being highly factual and already published, would have an uphill battle to prove that their works are of a nature warranting restrictive fair use.
The amount and substantiality of the portion taken: Here’s where the AP may have more of a case. Copying a large portion of an AP report, or the entirety of that all-important first paragraph or two, is less likely to be found fair than taking a smaller or less-substantial portion. There are exceptions based on the nature of the derivative work, however, as often a large portion work needs to be copied in order to be effectively commented upon (such as copying the melody and form of a song in order to parody it). This is an exception that is not likely to be found in blogs covering AP stories, but worth mentioning.
The effect and use upon the market: Depriving the original creator from income or access to another market is typically found as an unfair use. Creating a derivative that is a substitute for the original is far less likely to be found fair. Here the AP may have a case, as blogs that copy extensive amounts of the AP story would deprive the AP of having a chance to exploit their own created content.
Thus we see the tricky balance here. On the one hand, the AP’s work is factual, already published, and the uses in blogs are frequently transformative, all speaking to the uses being found fair. On the other, large and substantive portions taken from the AP combined with the fact that the blog would replace the AP in this case would be found less fair. There is no automatic pass or fail with the fair use test. All of these factors are weighed together in a court situation. The balance of fairness would be difficult to find outside of a case-by-case basis, and while I applaud the AP for reaching out to bloggers in an effort to release their statement, the framework for assessment of fair use is already in place.
To end on an amusing note: I do appreciate the AP’s acknowledgment that they do not seek to become blind lawsuit addicts such as another large aggregate organization. In an interview with the New York Times AP VP Jim Kennedy said: “”We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”
Almost two years ago today I was helping the band I was working for put on a show at the Matt Brewing Company building in Utica, NY. The brewery is home to a plethora of old-school New York beers, including Saranac (a beer so popular in the region that the band I was working for name drops it in one of their early songs) and Utica Club, the first beer to be sold after the lifting of prohibition. I can’t stress how much Indie Rock Cred one gets from drinking Utica Club. If PBR is the choice cheap beer for Spoon fans, this is the cheap beer of kids who still listen to 1980s New York No-Wave bands on 8-tracks in 20″ Levis.
As fads of beer go, Utica Club/Saranac has the strange perspective to see the rise in small brewers in the late 1800s (as best documented through the fantastic Big Book O’ Beer), and the most recent rise of microbreweries seen today. They’re sort of a Rip Van Winkle in the beer world, and on a personal note the staff both at the brewery and putting on the concert were some of the best I met the whole tour.
It saddened me to find out yesterday that the brewery lost their entire canning division and a good deal of bottling to a large fire a couple weeks back. Officials are saying a welding incident lead to the blaze, and as of now the entire facility is shut down pending some serious repair. A current reopen date is set as the 30th of June.
My heart goes out to the wonderful staff at the brewing company, and hope you guys can continue distributing great tasting beer as soon as possible (and Utica Club, while you’re at it).
Dedicated stalkers will know I am part of a neat little project with band/roommates Oscar, Stacey, and Jackie: Endless Feature - where we made a stack of every DVD we own and have not seen (regardless if the others have seen it), and all summer long we watch each one and liveblog the experience. A few weeks back we had the chance to see King of Kong: A Fistful of Quarters, a documentary on two men and their quest to be the best Donkey Kong players in the world. We promptly fell in love with this cast of characters and their truly incredible story, and the movie is currently in our top favorites of the summer, along with Bandé A Part, High School Confidential, and (for all the wrong reasons) The Ice Pirates. Here’s the trailer:
The movie tells the story of 20-year reigning DK champion Bill Mitchell, a scratch-to-the-top, take no prisoners character, and Steve Wiebe, a good guy down on his luck and needing some serious validation. The movie’s thrilling conclusion takes place at the Classic Video Game and Pinball Tournament, which is held annually at Funspot in Weirs Beach, NH. The event is hosted by video game scorekeepers Twin Galaxies, a group so professional at fact-checking and ethics that the Guinness Book of World Records crew consider them the official source on world record high scores. I can do little justice in describing the experience - you really have to see this movie to believe it.
As luck would have it Oscar and I were driving home from a wedding yesterday morning in North Conway, NH. Our route home had us passing right through Weirs Beach, on what happened to be the last day of the same annual tournament. Naturally, we stopped in to check it out, and here’s what we found:
As a followup to yesterday’s ponderings over Tuesday new releases, very heady website Music Think Tank posted the following question a couple days ago: How much is a digital download worth when you resell it? We have yet to see the secondary market develop around digital music, as we see with used CDs and Records. What would that look like? What would that feel like?
This is a long and complex illustration, so reader beware.
I’ve become increasingly outspoken about who I am endorsing for the Presidency. Here’s two pieces of media to that end.
The first, serious. From Lawrence Lessig, and a piece I put up some time back in the midst of the Blogagauntlet, is his “20 minutes or so on why I am for Obama.” It’s timely, salient, and very much matched to my mentality on the whole situation.
And second, courtesy of renegade internet vaquero Colin, is “When Obama wins…“, from the wonderful kottke collective of micro-sites and media. Akin to the BarackObamaIsYourNewBicycle, it finishes the above ponderation with such contributions as:
…your recycling will sort itself and magically appear on the curb.
…Locke, Hurley, and Ben will find Jacob’s cabin.
…everyone will know the difference between ‘it’s’ and ‘its.’
and my favorite:
…we’ll find the map to Candy Mountain.
Enjoy both, and consider giving to Obama, or at least following him on Twitter.
Tonight, very much on a whim, I went to the Coolidge for their 3D Film Festival. Tonight’s feature was the fantastic original House of Wax, featuring the ever-creepy Vincent Price and a young, pre-mustachioed Charles Bronson.
Here’s a video that my senior seminar course took a while dissecting and analyzing. Celemony software, makers of Melodyne, well established pitch correction software, have released a new version of their software late last year, featuring Direct Note Access, a new technology which allows engineers to tweak audio based on individual notes within chords (a real-audio implementation of something engineers have been using for years with MIDI). You really have to see it to believe it:
We debated this at length in class. Is this right? Is this good? Should you have to place a disclaimer when you use it? Are you setting unrealistic expectations of the quality of recordings? Can you really stop this from happening? These are the sorts of questions music industry professionals have to ask themselves. I’ve always considered myself quite a purist, and have yet to use any pitch correction in my recordings, despite having ample access to the technology. But I also have deep feelings for the furtherance of technology and science, and have yet to run up against a “playing God” scenario in my memological homeworld of music. Mix Magazine contributor Blair Jackson has a great article on pitch correction, comparing it to the steroids scandal in baseball.
I for one put faith in the music consuming public, much as those in the art world can only hope that those who go to museums can appreciate why the Guggenheim chose one painting over another. A lot of what we are fed in the music world is very much forced upon us by large media (as I ranted about last week), and as Jackson so eloquently puts it:
…not surprisingly, there have been whisperings and suspicions about this or that singer, mostly in the pop music arena, where slickness rules the day and perfection often trumps genuine passion. Take Britney Spears…[n]ow, I have no idea whether her producers used some pitch correction on her. And the reason I don’t know is because I’m not sure I’ve ever actually heard her sing. If you’ve ever watched any of her cable TV specials, they are so phony-baloney lip-synched it’s laughable…but even more, it’s pathetic. I can’t believe a cable network would pay big money for what is so obviously a pre-taped entertainment.
Someday, one can hope, people will realize that much of their consumption is being fed to them in a way that is forceful and in no way self-sustaining (there’s a reason there hasn’t been a true rock icon act since the 80s). Someday people will wake up to the social and political issues around them surrounding mainstream media and turn to music for enlightenment and empowerment, as well as entertainment. On that day, this will not matter. Until then, and I see this as no contradiction, I support the work of Celemony, and overall I am ok with pitch correction software existing, as long as people are aware that it’s in use. I don’t want to say disclosure will be mandatory, but people should know by now that Avril Lavigne isn’t actually signing.
Live music is an equalizer here, but the larger the production, the easier it is to slip these tools in a live setting. As it stands, you can’t do this on the fly, and you can hear a quanitzed vocal in a song. Hometracked has a brilliant listening exercise that’ll help you pick it out. But as Melodyne is showing us, it’s getting easier and easier to slip this in unknown to us. Eventually, like commercial photography, we’ll only have to assume that things are getting polished without our knowledge, and the true talent will shine through that either in their un-touchedness or general artistic vision.
Until then? My solution, as with most problems, is to listen to more Tom Waits.
One of the most beautiful elements to US Copyright legislation is the Compulsory Mechanical License, a statutory provision that prevents songwriters from prohibiting recreations of their compositions, provided the person or group creating the derivative work pay a set fee. It’s what allows anybody to cover anyone else’s work without fear of lawsuit, and a beautiful example of legislation reaching a negotiated middle ground while protecting interests of both parties.
We’ll play a track, and then we’ll de-construct it all Tarantino-like. Dig it:
My girlfriend Gretchen usually cringes when I mention these guys, but you gotta appreciate what the Raveonettes are doing for music these days. On my company’s exclusive interview on Sly-Fi, we get to hear them talk about dream soundtrack work, playing for the Danish queen, and lots of other good stuff, all filmed with a sweet film-noir aesthetic. Check it out here (but see it big screen at Sly-Fi.com)
So, the loser had to reskin their blog. The first week had to be the theme selected by Ryan, and then after that it can be anything they want. Go see Taylor’s blog. It’s cute. Thanks to Ryan for moderating the debate. Back to regular posts soon.
