Andy on the Road

26 February 2009


Filed under: admin,gdublaw,thecommonlaw,theroad — Andy @ 2:29 pm


(insert Myst joke here)

One of the cornerstone secondary sources in our legal system is the law journal. Articles in law journals are frequently cited as persuasive authority in interpretations of the law in both papers and court opinions alike, and can be tremendous catalysts for developing legal thought and policy.

Every major law school has a journal, and it may surprise some to find that these journals are actually run by law students. Naturally, the pressure is tremendous and the stakes are high for law journals to state the law accurately and make persuasive arguments in interpretation, so schools do not let every student who expresses interest to join, as they might a school newspaper. Law schools invite first year students onto the boards of their journals though a rigorous competition held sometime during the 1L year. It just so happens that for my school that competition is this weekend.

Of course, it’s not like editors of law journals ever go on to do good things.

This is why I haven’t been writing here all week, and why you won’t see me here until at least after Monday. So have a good one, and I’ll be back sometime next week (when we get our well-earned spring break).


22 February 2009

NYPD Officer involved in the Critical Mass YouTube incident dismissed

Filed under: followup,seriesoftubes — Andy @ 6:41 pm

Last summer I wrote a piece about this video (after Jared got things started), depicting a NYPD officer checking a rider during a Critical Mass ride:

TheWashCycle reports today that the officer in this incident has been dismissed from the NYPD, after being suspended while facing charges of making false statements.

One naturally wonders how the outcome would differ if this video didn’t exist. One also wonders how many stories like these will come out of the RNC protests.

21 February 2009 denies giving up users to the RIAA

This has been quite the week for the web. First we had the whole Facebook fiasco (which seems to have motivated Facebook to do the right thing and revert back the terms of service, leaving unanswered questions about how binding terms of service are in these sorts of circumstances), then our attentions turned to the Pirate Bay trial – where the old “making available” issue has come up again, this time in an international law context – and yesterday TechCrunch dropped this bombshell:

That leaked U2 album is causing all sorts of trouble. The unreleased album, which is due out on March 3, found its way onto BitTorrent and was downloaded hundreds of thousands of times. That, apparently, sent music industry lawyers over at the Recording Industry Association of America into a fit. As a result, word is going around that the RIAA asked social music service for data about its user’s listening habits to find people with unreleased tracks on their computers. And, which is owned by CBS, actually handed the data over to the RIAA. According to a tip we received:

I heard from an irate friend who works at CBS that recently provided the RIAA with a giant dump of user data to track down people who are scrobbling unreleased tracks. As word spread numerous employees at were up in arms because the data collected (a) can be used to identify individuals and (b) will likely be shared with 3rd parties that have relationships with the RIAA.

(The U2 leak they’re referring to, we know now, stems from an accidental posting of the album on Universal Music Group’s Australian website.), for those unfamiliar, is a service whereby users download a program which synchronizes with your iTunes or other MP3 player on your computer and posts on the website what you’ve been listening to recently. Users visiting my profile, for example, will see that I’ve been listening to the Mountain Goats’ All Hail West Texas for about an hour or so. Here, like Facebook, you can friend users, join groups, and write to each other, building little networks and communities around the music. adds the perk (which cost them a fortune in negotiation and legal fees) to stream songs either in full or in brief snippets. So if I see a song on someone’s playlist that I don’t know I can click on it and hear what the song sounds like. This leads to endless music discovery, which buttresses by applying its own algorithms to recommend music. It’s also a handy tool to look through my own past and track my own changes in listening habits. I find this especially fascinating, for a variety of reasons.

I’ve been using the service for almost four years (technically, I started on Audioscrobbler, which merged with shortly after I joined). I’ve recorded over 40,000 plays. When CBS bought in 2007 I worried as to what would happen to the service, but nothing to date shook my loyalty to the service like the announcement yesterday. Naturally, I was relieved when my friend Brian posted this link to a Last.Fm user forum, where website developer Russ Garrett categorically denied the TechCrunch story:

I’d like to issue a full and categorical denial of this. We’ve never had any request for such data by anyone, and if we did we wouldn’t consent to it.

Of course we work with the major labels and provide them with broad statistics, as we would with any other label, but we’d never personally identify our users to a third party – that goes against everything we stand for.

As far as I’m concerned Techcrunch have made this whole story up.

I am inclined to believe this denial over the friend-of-a-tipster story. There’s no feasible way for the RIAA to base a claim on this sort of data alone. The best it provides is some intelligence as to how the leak spread across the world. For one, you simply cannot base a claim against a user for playing an unpublished song in the privacy of his or her own home. This is not a cognizable right under copyright. does not stream a song unless the record company uploads it directly to, so there’s no way by which the user’s playing it will somehow create a “public performance” of the work. Nor has a claim of “distribution” garnered much success when all the rightsholder is alleging is that the user downloaded the song; generally, the holder has to allege that the user distributed the song to others. (This does become a bit easier, in theory, when you can show that the song was downloaded through BitTorrent, which by nature uploads at the same time as it downloads. However, this is much harder, in practice, as the way BitTorrent shares files makes tracking any given user nearly impossible.)

Even if we assumed that was going to release IP addresses and names (which they may or may not have), this would require the RIAA to get a search warrant and bring a criminal claim against the user, which would require a showing of probable cause of distribution, which I don’t believe a judge could give in this context. In the alternative, the RIAA can do what they’ve done with the other P2P filesharing lawsuits and sue the user in civil court, and later over the course of discovery try and “discover” that they distributed the song. This seems unlikely for a few reasons. The RIAA has declared that they no longer plan to use lawsuits as an anti-filesharing tactic. Given the nature of BitTorrent, it is almost impossible to track users, much less prove under any burden that the user distributed the U2 album. Nor would this fare any better than the traditional P2P lawsuits to dissuade users. If anything, it will cause users to leave – which directly hurts CBS, whose CBS Records is member to the RIAA. This would be directly detrimental to a RIAA member.

I do think this is valuable, and I do think it was smart for the RIAA to look here, if they did, but all they will find or could hope to find is aggregate estimate of the size and the scope of the leak. I’d suspect a breach of contract claim or a firing of an employee at the website that accidentally posted the album long before I expect to see a lawsuit coming out of this incident.

Update (22 Feb): Paid Content has a few more denials from, including comments from co-founder Richard Jones, and Jonty Wareing (a developer, though the name is suspect) adding, “you could also expect most of the staff to walk out of the office door and never return,” were they to give out the data as alleged.

Update 2 (23 Feb): The blog does a thorough, thorough denial. This is all over Digg today, too. Thanks to Ryan for pointing this out.

Update 3 (6 April): To be clear, I don’t doubt the existence or programming skills of one Jonty Wareing. I just think having a programmer named “Ware-ing” is like having a pastry chef named “Johnny Baker” or having a farmer name “Sue Growscropswell.” Sorry if I offended the delicate sensibilities of UK programmers.

19 February 2009

Speaking of birthdays…

Filed under: followup,gdublaw,huh.,intellectual property,music — Andy @ 2:16 pm

My friend Aaron reminded me yesterday of an article by GWU Law Professior Brauneis about the debated copyright status of “Happy Birthday To You.” I wrote about it last May. Long story short: there are at least three good reasons why that song is technically in the public domain – and still, millions of dollars are made annually on the licensing of the song.

Stephen Colbert sang it on the air for Lincoln’s birthday last week. The host at the restaurant I went to last night for my birthday sang it. I wonder if either of them opted to get the license.

If you have time, be sure to read Prof. Brauneis’ article (you can find it here). Hope you enjoy.

18 February 2009

I think this is how Agent Cooper would celebrate birthdays

Filed under: boston,theroad,washingtondc — Andy @ 2:12 pm

Today I turn older. I decided to celebrate by doing something which is beyond mundane up in New England, but a rare treat in my corner of DC:



If you happen to be up in Boston today, celebrate my birthday by going to the Middlesex Lounge (Mass Ave just outside Central Square in Cambridge) tonight and seeing my dear friend Michelle spinning up a storm under the handle DJ Smokestack. I can’t say enough about her music selection and DJ skills. It will be awesome. 9PM is the time.

17 February 2009

Aerosmith gets off of the saddle (again).

Filed under: music,politics — Andy @ 9:59 pm

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:

16 February 2009

Facebook updates Terms of Service, at the expense of user control.

Consumerist is breaking an interesting story this evening. Seems Facebook has updated its terms of service, and added further restrictions onto content uploaded onto the site.

In both the old and the new version, these were the terms by which users uploaded content onto Facebook:

You are solely responsible for the User Content that you Post on or through the Facebook Service. You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

The key words here are “irrevocable, perpetual, non-exclusive, transferable, fully-paid worldwide license.”  Irrevocable as in you can’t revoke it, perpetual as in never-ending, non-exclusive meaning Facebook can license this but cannot restrict you from licensing it, and transferable as in Facebook can assign the rights to a third party for their use. This part shouldn’t shock you. These are the terms by which most websites that allow you to post content hold. Take, for example, YouTube:

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.

However, rather logically, these broad licenses have usually been held valid only for as long as the user stays on the site. In other words, take content down and the license expires. The very next sentences of the YouTube terms of service states:

The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Website. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted.

And, indeed, according to Consumerist, citing, Facebook had similar language until very recently:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

Now, under the current terms those lines are gone, and instead in another section:

The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.

Oh, and Want to bring a claim against Facebook on this issue? Hope you’ve got a good California lawyer:

You agree that all claims and disputes between you and Facebook that arise out of or relate in any way to the Terms or your use of the Facebook Service will be governed by the laws of the State of California (and United States federal laws applicable therein), without regard to principles of conflict of laws. You further agree that you will bring any claims or disputes that are not subject to arbitration (as set forth above) in, and you submit to the exclusive jurisdiction of, the state and federal courts located in Santa Clara County, California.

The Civil Proceudre geeks will have visions of Carnival Cruise Lines v. Shute dancing in their heads tonight. Be sure to also read what Consumerist thinks of that binding arbitration clause.

Now, what does this all mean?  It’s hard to say, exactly. With the exception that the new Facebook license cannot naturally lapse, this is little different than the terms of most content-based websites, and for virtually all this passes under the user radar. The balance between letting people do what they like online and letting the company use the content of its users has never faced a solid challenge, aside from a few Flickr scandals. I predict it will come down to some event where a band on Facebook’s music portal uploads a song, later makes it big, and then Facebook somehow cashes in on their rights to distribute and puts it on a Facebook ad. The band sues because they didn’t read the contract, the court upholds it because not reading a contract is hardly an excuse, and then the public will backlash. Even given this scenario, however, I’m not sure I would advise a band or photographer or other creative artists to not use Facebook. The value of the market exposure may even outweigh this loss of control, based on the value schemes of most artists today. There are those who seek much greater control, and to them they’d be wise to stay off Facebook until this settles.

More than anything, I feel this will impact Facebook’s ability to draw in successful commercial content onto their site. My upstart college band may be okay with this somewhat-Faustian bargain, but most bands with a record deal either will not or contractually cannot enter into any sort of perpetual license scenario. At least with other sites the artist has the power to pull the plug. Here, Facebok would seek to eliminate that option.

Update: Maxwell Kennerly over at Litigation & Trial has an excellent breakdown of whether or not the stealth change is allowed (highlighting some intersting pro-consumer quirks about California law which actually help users in this context),  whether these terms are even enforceable, and what this means for your content (an analysis much like the one above). All three are excellent reads, and come highly recommended.

14 February 2009

Tim Fite has done it again.

Filed under: music,washingtondc — Andy @ 12:35 pm

(Fite, from the 43 Songs for the 43 U.S. Presidencies event during Inauguration Week)

Every Halloween for the past few years, the incredibly awesome Tim Fite has posted an Halloween-themed album to download for free (most recently Ding Dong Ditch). Now he takes that tradition to this Halmarkian holiday with Change of Heart. Today and today only, you can go to his website and download a special Valentine’s Day album made by one of the strangest guys in the business. Be warned – the website servers are currently running very slow, so it’ll take some time to download. Depending on how good this is, this might join My Bloody Valentine’s Loveless and the Magnetic Fields’ 69 Love Songs on my many-years-running annual V-Day playlist.

Tim will be at the Black Cat in DC February 28th. You should go.

12 February 2009

Fast update on Live Nation / Ticketmaster

Filed under: followup,lawsandsausages,music — Andy @ 11:09 pm

Wired reports what my friends in Justice were saying last weekthe Justice Department will formally be investigating the proposed Live Nation / Ticketmaster merger.

FMC Policy Day: watch the whole event.

Filed under: deepthoughts,followup,intellectual property,music,theroad — Andy @ 7:03 pm

Thanks to the magic of the Internets and the FMC Blog, you can now watch all of the Future of Music Coalition conference I wrote about yesterday.

Vodpod videos no longer available.

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