Andy on the Road

30 November 2008

What’s he building in there?

Filed under: huh.,music,washingtondc — Andy @ 2:48 pm

I just got back from a study session at the Starbucks at 22nd and K, and saw a strange scaffold-like structure on two sides of the sidewalk, wrapping around to shelter the entire corner in a strange skeleton fort:


Thing is, this is nowhere near the building, and there’s no evidence of actual construction going on here, unless they plan to put it all between the wood setup and the building itself later. And if this is true, that’s a hell of a lot of space set aside for construction. Maybe this is for the Inauguration? Devoid of any indication as to what it’s here for, we locals are just left with this strange stretch of wooden two-by-fours that defies explanation and interferes with our passage.

What’s fun about living in DC is every piece of construction you see makes you wonder if it was put up for national security purposes. A lot of the time, this close to the White House (1 block South, 5 blocks East) you might be right. Either way, it helps feed the general paranoia, which is cool by me.

Tom Waits – What’s He Building In There? (from Mule Variations)

Sunday Morning Reading: Charles Nesson in Mass High Tech

Filed under: copyleft,followup,music,RIAA-WTF,stickittotheman — Andy @ 11:20 am

(from Geek&Poke)

As part of the ever-increasing attention being given to the RIAA filesharing case of Sony BMG Music v. Tenenbaum (see the witness list post from a few days ago), Harvard Law Professor Charles Nesson wrote a great, quick essay in the Mass High Tech journal, explaining his reasoning for having the case dismissed.


Joel Tenenbaum, who was a teenager at the time of the alleged copyright infringements, is being sued for downloading seven songs seven years ago from KaZaA, a file-sharing network composed of millions of his peers doing likewise. The RIAA will seek to prove that Joel downloaded those songs “willfully” and must therefore pay up to $1,050,000. Joel has already been interrogated by the RIAA for nine hours in a forced deposition; been made to endure the depositions of his mother, father, sister and friends; and may be compelled to submit his current computer, which is not even the machine on which the original copyright infringement was alleged to occur, to a RIAA-retained third party for complete imaging and forensic analysis. All this for the alleged download of seven songs.

We believe, and are asserting legally by counterclaim, that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law.

The center of their argument is quite plain and clear: the RIAA is abusing the statutory penalties in copyright law in order to call each and every download a “willful copyright infringement” worthy of the maximum fine: $150,000. That is what brings Nesson to the >$1M figure above.

The problem with this tactic is multifold; for one, this is nowhere near the actual damage suffered by an artist or the record labels. In fact, very few artists could claim a figure near that for the aggregate of losses suffered by the act filesharing. What’s more, as an oft-cited four-year-old NYT article puts it, you cannot draw a 1:1 ratio between downloaded files and lost sales. Not only are people downloading tracks they would never buy, thanks to the lowered burdens of downloading, many have suggested they will use peer-to-peer as a “try before you buy” method to dictate their musical purchases (though fewer actually practice this method). Given the fact that almost every lawsuit served by the RIAA is followed up with a settlement letter for less than one hundreth of the claimed damages (an offered settlement of $3000 for a claim of over $1,000,000 is frequently reported), it seems almost painfully obvious that the RIAA is using the legal system to terrify college students into having their parents pay up a few thousand dollars, probably a drop in the bucket compared to their kid’s tuition, to make this potential legal hassle go away. The RIAA is preying on the unique nature of college students – being in a new environment already very stress-inducing, having access to high speed Internet for the first time, having slightly more discretionary income than they will have again for years, and dealing with the transition from childhood to adulthood – to milk out money offsetting declining CD sales. They have done this thousands of times, and will likely do it again, and against that Nesson and his crew seem to be directing the brunt of their attack.

Underneath this argument is a much larger policy issue, however. If the purpose of copyright is to encourage creative contributions in the arts and sciences, and the penalties are purportedly in place to give creators protection from abuses of their works, how can one find economic incentive in filesharing lawsuits given the fact that, in the overwhelming majority of professional music contracts, musicians see few royalties from CD sales? Typically, when you sign into a major label deal, you give up all royalty interest in the sound recordings (even if you recorded it yourself without the label’s help), and sometimes the label even takes a sizable stake in the underlying composition, even though they did not write the song (this is done with a controlled composition clause). If the song is a cover, the artist would see none of this money either way. Shadowing above all of this is the terrible advance/recoup method of funding recordings, which makes it so even Gold Record artists are not seeing any money from CD sales.

Artists are okay with this, or at least they do not put up so much of a fight as to deny this Faustian bargain, because of the other perks one gets as a major artist. Far more lucrative than the remaing royalties from sales, there are synchronization licenses with films, TV, commercials, and other deals, not to mention the somehow-still-lucrative world of live performance. One area an artist normally controls most or all of his or her royalties around, interestingly enough, is merchandise, so while buying the CD of an artist helps him or her marginally, buying the T-shirt actually helps rather substantially. So, with that in mind, how can we say that giving statutory damages to filesharing activity helps the artist create, when an artist would see pennies of that revenue were the song purchased or downloaded legally? It’s also worth nothing that, while to date the RIAA has collected thousands upon thousands of dollars from these filesharing lawsuits, not one artist is reporting any money paid out from this pool.

I’ll try and give updates to this story as best as I can, but I have my own legal quagmire (exams) to deal with at the moment. For more head over to Ray Beckerman’s Recording Industry vs. The People.

28 November 2008

Lawyers, Guns ‘n’ Roses

Filed under: followup,missingthepoint,music,thecommonlaw — Andy @ 4:07 pm

1125081529_01(humble promotion poster from the Best Buy on Newbury St.)

And now the story that won’t die. To recap, from the archives:

1993 – Guns ‘N’ Roses begins working on Chinese Democracy.
1993-2008 – The album is in the works; people begin to wonder if it will ever be released.
March 2008 – Dr. Pepper offers free soda cans if Axl finishes the album in 2008.
October 2008 – Chinese Democracy officially gets a release date.
November 2008 – Dr. Pepper agrees to mail coupons to all those who register on the website the day of the release; the company extends the agreement to the day after as well, after people complain of web traffic bringing down the servers.

And now, the twist:

Billboard and Brooklyn Vegan are both reporting today that Alan Gutman (real name), attorney for Guns’N’Roses, filed a letter with the CEO of Dr. Pepper Snapple Group, Inc. demanding that Dr. Pepper issue an apology in several national newspapers after website traffic prevented many from getting onto the website. The promotion, they claim, did not live up to the high standards of clarity and organization that G’N’R  expects when people use their name.


Beverly Hills-based Alan Gutman has written to Dr Pepper Snapple Group Inc. president and CEO Larry Young, accusing the company of operating an online redemption scheme that was an “unmitigated disaster which defrauded customers.” Gutman is demanding that Dr Pepper makes good on its offer by extending the period for the offer; he also wants full-page apologies in The New York Times, Los Angeles Times, USA Today and The Wall Street Journal.

Gutman’s letter makes clear his view that the original campaign was an “exploitation of my clients’ legendary reputation and their eagerly awaited album” and “brazenly violated our clients’ rights.” He is also seeking an “appropriate payment… for the unauthorized use and abuse of their publicity and intellectual property rights,” with the threat of further action if an acceptable offer is not made.

“Now is the time to clean up the mess,” says Gutman.

… a mess, for what it’s worth, that G’N’R never officially sanctioned, and of which Axl had passing, but positive, knowledge.

I wonder if they are trying to compare this to the Taco Bell / MLB promotion, where Taco Bell offered free tacos if a player stole a base during the World Series. Surely this arrangement involved large amounts of money – I imagine going from the Taco Bell to the MLB direction. Taco Bell got an awful lot in exchange for that promotion, however – promotions, signage, on-air name drops, and so forth. I find it hard to believe that this was any form of a consensual agreement between parties with Dr. Pepper and G’N’R.

Or perhaps Mr. Gutman is trying to draw a parallel with what happened between 50 Cent and (again) Taco Bell – when TB asked Fiddy to change his name to “79 cent” or “99 cent” for a day, in order to drum up some sales for their 79-99 cent meal items. 50 claimed TB was using his name and likeness without permission; it is unclear as to the status of that lawsuit.

This all boils down to likeness and trademark rights. From how I see it, if this isn’t fair use, it should be. This is not like Taco Bell or the numerous other cases cited when discussing this issue. No advertisements were used as a promotional spur for the drink. They did not claim that G’N’R endorsed the contest, or that it was the Official Soft Drink of Coke-Addled 80s Metal Bands. The company decided to show support for a cause, much as Jordan’s Furniture decided to offer free furniture when if the Red Sox won the World Series (for what it’s worth, that too is facing its own dubious challenge). Jordan’s does fund the Sox formally, but even if they didn’t I suspect the Sox wouldn’t mind were they simply to do it out of joy.

This is a harmless, blameless challenge – the fact that it didn’t go off well is a bit embarrassing for the company, but should not be the cause of lawsuits from a band which arguably benefited much more than Dr. Pepper did in this relationship. I challenge G’N’R to try and do any form of specific enforcement to this conditional gift and see what the courts make of this promotion. I sense they will be sourly disappointed.

I do not suspect that anyone could reasonably believe the soft drink company had any formal arrangement with the band. If anything, the fact that they now bring the claim only after the promotion went off with a few hitches might undercut the general claim that they used the trademark without consent. Seems G’N’R would like to have their cross-business-promotional soda, and drink it too. I think this G’N’R lawsuit has about the same as every other stunt they have done to try and drum up attention for this album (two words: Best Buy.); it’s a sad day when I feel more sympathy for the major soft drink company than I do for the band.

27 November 2008

Thanksgiving math

Filed under: friendsromanscountrymen,laughs,music — Andy @ 10:06 pm

Care of SoStark

Happy Thanksgiving, everybody.

26 November 2008

“Chad Blue knows how I shoot”

Filed under: huh.,missingthepoint,music,snarkbutter — Andy @ 12:02 pm

File this one under hysterically foolish, from WJBF:

In September 2006, one Chad Blue was shot twice amidst a chase in Dublin, GA. He had reported the incident to police, but the police were unable to conclusively finger a culprit.

That was, of course, until Rico Todriquez Wright confessed to the crime in a song “Hitting Licks for a Living.” The incriminating line, depending on who you ask, was either “Chad Blue knows how I shoot” or “Ask Chad Blue – he knows I can shoot.” Blue heard the song, and naturally reported Wright to the police.

Now Mr. Wright is doing 20 years for two counts of aggravated assault. Just goes to show what a little airplay can do for one’s career.

24 November 2008


Filed under: huh.,laughs,theroad — Andy @ 1:43 pm

Three videos come to mind today as I get ready to head back to New England for my Thanksgiving break. Why these three, it’s hard to say. Chalk it up to my exam-addled brain letting many things in without much filtering.

One: Paul Newman’s incredible take on the Stage Manager’s monologue from Masterpiece Theater’s 2003 interpretation of Our Town:

Two: Care of Lara, and the automatism versus insanity case of People v. Grant:

Vodpod videos no longer available.

Three: from the West Wing (hours before my own DC to Manchester flight):

(well, these and the Grindhouse trailer for “Eli Roth’s Thanksgiving,” but little kids might find their way onto this website…)

Happy Thanksgiving week, everyone. Probably won’t see much of me for the next few days.

23 November 2008

Dr. Pepper owns up to their promise

Filed under: huh.,music — Andy @ 12:13 pm

(photo from Flickr user yumievriwan)

As I wrote about last month, the world finally got its new Guns ‘N’ Roses album today (after years of me and my friends joking that the world would see Chinese democracy before Chinese Democracy). And Dr. Pepper has said they will make good on their promise to give every man, woman, and child in America a free can of Dr. Pepper (except Axl and Buckethead, apparently).

So today only, the day G’N’R decided to release the album (not a Tuesday?), log onto Dr. Pepper‘s site, put in your address, be on their spam list for all eternity, and get a cupon for a free can (actually, according to the contract, a “single serve”) redeemable at most stores.

Be warned, the website is experiencing high traffic, so you may need to try periodically throughout the day to get in.

22 November 2008

Big Guns coming out for Sony BMG Music v. Tenenbaum

Filed under: berkman@10,copyleft,RIAA-WTF,thecommonlaw — Andy @ 5:30 pm

I’ve been meaning to write about the effort put forth by veritable law legend Charlie Nesson and his Harvard Law Evidence class to quash the subpoenas brought by the RIAA in one of the Boston-centered filesharing lawsuits that still fill the courts today. Sometime over the break I hope to put forth his argument in clear terms here, as I find it very compelling, but sadly again work keeps my attention on other fields of law for the time being.

For now, aside from offering you a very interesting and somewhat voyeristic exchange between counsels posted up on eon (the blog of Nesson’s web avitar), I can also provide you with part of the defense witness list put together in the case of Sony BMG Music v. Tenenbaum. The list includes:

John Perry Barlow – lyricist for the Grateful Dead, founding member of the Electronic Frontier Foundation.

Prof. Johan Pouwelse – major P2P expert, and repeated expert witness in filesharing trials

Prof. Lawrence Lessig – see my post from this morning

Matthew Oppenheim – former senior VP of the RIAA, prosecuting attorney in Arista v. Does 1-19 (D.C. Cir.)

Prof. Terry Fisher – Berkman Center director, author of music industry required reading Promises to Keep.

Prof. Wendy Seltzer – Berkman Fellow, ICANN representative, and founder of Chilling Effects

Prof. John Palfrey – Executive Director of the Berkman Center, author, and principal investigator for the OpenNet Initiative

Prof. Jonathan Zittrain – Berkman Co-Founder, author, co-counsel for plaintiffs (with Lessig) in Eldred v. Ashcroft.

Andrew Grant – former antipiracy specialist at Macrovision

The last time I saw these names in one room was the Berkman@10 conference. This is virtually every big gun in the copyright reformist world (save maybe Cory Doctorow, Jessica Litman, and a few others). This will be a landmark case for the RIAA lawsuits. I’ll be keeping an eye out for the trial dates on this one (assuming, of course, the case withstands Nesson’s attacks).

Lessig on Charlie Rose

Filed under: copyleft,deepthoughts,politics — Andy @ 11:55 am

I have big respect for Charlie Rose as an interviewer and Lawrence Lessig as a thinker, and PBS was kind enough to give us the two together last night. You can watch the whole exchange here:

(this is the entirety of the episode – scroll to 18:58 to see the Lessig part)

The discussion touches on Lessig’s relationship with Obama (they both taught at the University of Chicago Law School), his hopes for he new President-elect, talk about Remix and Free Culture, Change Congress, and so much more. There’s an interesting Socratic bend to how the interview is conducted, which I think reflects Lessig’s history as a Stanford law professor, and Rose’s own JD from Duke.

I think my favorite exchange was in the discussion of Creative Commons and the hybrid economy – Lessig’s vision of a future when the professional creative industries and the amateur “read-write” or actively creative remix industries (Flickr, Picasa, Owl, Hobnox, and so forth) cooperate and build off one another. Rose asks the question that goes through a lot of our minds when we think about changing the way we approach intellectual property in the United States:

CR: Do we need or should their be either legislation or some other kind of regulation that imposes… or offers some guidance?

LL: Well, I don’t… well, we’re way far away from the time that Washington begins to understand these issues in any helpful way. I think the thing we have to work on first is attitudes and business. So some businesses, the newer businesses, get it perfectly. But the businesses that tend to be populated with, you know, the people I produce for a living: lawyers – typically Hollywood lawyers – their attitude is very different. So they look at the “sharing economy” and they think, “okay, we’re gonna strike deals where we get as much as we possibly can…”

So I tell the story of George Lucas’ Star Wars mashup site, where they want all these kids to come in and mashup all the Star Wars stuff, but if you read the Terms of Service, Lucas owns all the rights to those mashups. Indeed, even if a kid uploads a song to the Lucas site, Lucas has a world-wide perpetual right to exploit that song for free, without it giving anyting back to the kids. Now, the Hollywood lawyer looks at that and thinks, “that’s a great contract. I’ve gotten everything I want.” But the hybrid lawyer has gotta look at that and say, “this is not a healthy relationship. This is sharecropping in the digital age.”

What we have to do is encourage people – these creators – to think of themselves as rights owners, as people who’ve created and deserve respect, and we do that by at least giving them rights to what they’ve created. Some businesses get that and I think more and more will.

That last paragraph just about sums it up for me, and fundamentally is what brought me here to law school. We have to look at the people creating on the fringes of what our law allows and see their creative industry as one that we can, far more than exploit, laud and praise. We need to see the ingenuity of it as far outweighing the detriment to current rights-holders, and embrace it.

21 November 2008

Thinking about snow.

Filed under: boston,huh.,washingtondc — Andy @ 3:31 pm


(Snowwatch, hour 3. Few flakes. No accumulation.)

A couple weeks ago I passed the three-month anniversary of my move to DC. In fact, with the exception of a few days in Massachusetts, one trip to Bethesda, one trip to Chevy Chase, and spending Election Day in Virginia, I’ve spent the entirety of my last quarter of a year in the District-without-at-state. What can I say? Law school keeps you close to campus.

I’ve learned to love parts of DC and I have to admit the city is growing on me. I discovered U Street. I’m learning of places like Ben’s Chili Bowl, The Guitar Shop on Connecticut and 18th, the Hirshhorn and the Black Cat. I’ve found websites like Creative DC, Metro Music Scene, and The Wash Cycle (get it?). And I do enjoy being at the political epicenter – getting my groceries from the Watergate Safeway, running into Donald Rumsfeld on the street, hearing the Vice Presidential motorcade haul its way up to the Naval Observatory daily, walking by the White House at couple times a week, and so forth.

But, on the other hand, there are the little differences that make me a little nostalgic for Boston*. I miss the dirtiness of the T. I miss streets that have bends in them or are far too narrow for their own good. And, as strange as it sounds, I miss how bitter Boston is when it comes to winter. I keep trying to explain this feeling to people here, but it defies such description. There’s a strange harshness undercut with camaraderie to how people in Boston carry themselves in the winter. A, “Christ, can you believe this weather?” spirit that unifies Bostonians. We may not have it as bad as, say, a Buffalo, but the perpetual slush, dirty snow, and seasonal depression gives Bostonians a Zhivagian-constitution that strangely unifies our city. We carry about our business in direct defiance of Mother Nature’s will, and that brings us closer together. That or the Patriots, anyway.

I contrast this spirit with my first snow expereince here in the District. Alert DC, a government-run emergency notification service to which most people in DC subscribe, decided to issue an alert about the snowfall. If find this peculiar, since Alert DC is usually reserved for fairly substantial emergencies – sudden road closures, major accidents and fires, or extreme weather (case in point – the last alert previous to this one was for a tornado watch last weekend). This is the actual warning I received moments ago on my phone and in my email:

National Weather issued a scattered snow showers for the evening for the Metropolitan Region (District of Columbia).The snow showers are expected to progress south over Maryland, District of Columbia and Virginia during the mid afternoon through evening hours. Local accumulations up to a half inch of snow fall are possible. Accumulations will be mainly on unpaved surfaces. If pavement temperatures fall below freezing more accumulation is expected.

Isn’t that cute? The city felt the need to warn people about snowfall. Not a lot of snowfall. Not epic snowstorms with high winds. Not a rapid-developing Noreaster with whiteout conditions impacting your evening commute. Half an inch on untreated surfaces. I can understand why they would warn us, for sure. I know people here aren’t as used to snow and therefore might forget how to drive when it’s slippery, or something along those lines. But I think about this, and I think about the horrible snowfalls or rain/snow mixes, or the weeks of sub-freezing temperatures we periodically get in Boston. And, strangely enough, I think I’m going to miss it.

Update: DCist this morning brings an interesting nightmare-scenario: a snowstorm on Inauguration Day. Can the District withstand the Snowbamapocalypse?

The Pixies – Winterlong (Neil Young cover)

* – heads up kids. I’ll be in Beantown for one day only next Tuesday, the 25th. Find me.

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