Andy on the Road

31 January 2010

Three Years Ago Today

Filed under: boston,snarkbutter,theroad — Andy @ 12:01 am

(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.

30 January 2010

Howard Zinn: the Anti-Slacktivist

Filed under: deepthoughts,theroad — Andy @ 12:24 pm

(image from Flickr user Douglas Brown)

I don’t have much to add to the outpouring of support for the life and memory of Howard Zinn, but I do want to put his life’s work in a bit of perspective.

A central plank of Zinn’s message always was this: change does not come from a ballot box; change happens when you stand up and do something. And the old adage (which I think came before Zinn, but he used it well) about standing still on a moving train holds true. Not acting these days is as much an affirmation as acting. There is no standing still in these times. I doubt there ever was.

We live in a world where a distortion, when repeated enough, becomes held as true. We have to expend real energy to get to honest truth, and no one will do that for us. At a time in which we need people, real people, up and out and getting peoples’ attention, we find pleasuring comfort in Internet slacktivism. And that simply won’t do. To quote Zinn:

If those in charge of our society – politicians, corporate executives, and owners of press and television – can dominate our ideas, they will be secure in their power. They will not need soldiers patrolling the streets. We will control ourselves.

And I don’t mean get offline, necessarily. The Internet is the best weapon the people have right now. But the gloves are off the corporations in the wake of Citizens United, and it simply is not enough these days to wear a bracelet, or protest via Facebook status, or add a ribbon to the back of a car.

So what would Zinn say about so-called slacktivism? I would guess it would go like this: write, but write to someone; post statuses, but post about ways for people to take real action; symbolic bracelets and ribbons are good, lawn signs and picket lines are better. Your friends and Twitter followers already know how you feel. To make change you need to reach more people, more strangers, and more adversaries. Only then will you change minds.

I saw Howard Zinn speak three times in my life, and each time was inspiring, uplifting, and most importantly, motivating. The world will sorely miss him, I’m sure. Rest in peace.

25 January 2010

US DoJ approves Live Nation / Ticketmaster Merger

Filed under: followup,lawsandsausages,music — Andy @ 5:13 pm

Wired has the scoop.  While this is not dispositive should someone eventually sue under a civil antitrust theory, it means the government won’t block the action directly.

The modified agreement – requiring the licensing of Ticketmaster’s software to AEG and some other “suitable company” for five years – rings a little hollow to me.  Reservations aside, I do hold out hope for the clause strictly prohibiting the retaliation against venues choosing to use another ticketing service or promoter when booking a Live Nation artist.

But there’s an underlying vertical integration concern that seems unanswered by Wired’s piece. After all, Live Nation presently owns about a hundred venues throughout the United States, and holds management arrangements with dozens more.  If the settlement is structured so that venues are left with the choices as the “consumer” in this market, and LN/TM owns the venue, can we really expect the venue to not use their own ticketing agents and concert promoters?  How are promoters expected to compete for venue business with other promoters when the other promoters own the actual venues?

The FTC and DoJ will have to watch this settlement like two hawks to keep the collusion practices out of the business.  I’ll be sure to post a link should I uncover it in my research. I believe it will be published for an open comment period in the Federal Register.

Update: After reading the DoJ press release I was pleased to find the following information:

The settlement also sets up firewalls that protect confidential and valuable competitor data by preventing the merged firm from using information gleaned from its ticketing business in its day-to-day operations of its promotions or artist management business.

That is the principal concern I had with the settlement, as I expressed here.  I know we do this in other industries, but I’m still wary of a practice that allows a conglomerate to conduct both sides of an exchange and rely on ethics and a settlement alone to keep them from using their combined information to an unfair advantage.

Update 2 (1/26): The Future of Music Coalition points to an excellent opinion in the LA Times from yesterday, which adds this about the provisions guarding competitor promoters and ticketing companies:

Those provisions will only be effective, however, if they’re well enforced. There’s no structural protection. Consequently, the reaction to the deal from opponents of the deal was muted praise. John D. Breyault of the National Consumers League, part of the coalition that opposed the merger, said his group would have been happier had the Justice Department sought to block the deal. “The conditions that they have imposed on this merger are not insignificant,” he added, “if DOJ is committed to strong and enduring enforcement of the consent decree.”

The piece also adds a quote from Seth Hurwitz, owner of DC’s beloved 9:30 Club, which is worth posting here:

It seems the DOJ has created a healthier atmosphere for venues to explore other ticketing providers. However, unless any promoter is free to use any ticketing company they wish, at any venue, at any time, then nothing has been solved. In America, no one should be forced to do business with a company. If one ticketing company has a lock on an arena for instance, I could still be forced to have my competitor sell my tickets, which is an issue for a host of reasons including they can gather all my financial information and my customers’ information. We’re waiting to see how the DOJ will address this. The DOJ’s intent to spur competition is there, but it must be backed up with genuine mechanics to ensure independent promoters can try to compete on a level playing field.

21 January 2010

Citizens United v. FEC is in

Filed under: oyez,politics,thecommonlaw — Andy @ 10:31 am

The Supreme Court has issued an opinion on one of the most important campaign finance and First Amendment cases to come to the Court in a good long while: Citizens United v. FEC. A PDF of the opinion is here, but in short it appears to be a 5-4 jumble of opinions (Kennedy for the majority, Stevens for the dissent, with Thomas dissenting in part and Roberts and Scalia with concurring opinions) partial overruling of Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which according to SCOTUSBlog eliminates the distinctions between corporate and personal campaign expenditures, and (from my perspective) will probably eliminate the connected PAC structure.

What this all means outside of the finer points of campaign finance law, of course, remains to be seen. But those worried about overexertion of political influence by corporations are likely taking this as new reason to worry this morning.

Also, this opinion was announced less than half an hour ago. You have to love technology’s ability to disseminate information.

20 January 2010

Village Voice Headline Win

Filed under: friendsromanscountrymen,politics,snarkbutter — Andy @ 9:44 pm

Care of SoStark and AYCDICM:

18 January 2010

Excellent documentary “Copyright Criminals” to air on PBS tomorrow night

Filed under: copyleft,intellectual property,lawsandsausages,music,oyez — Andy @ 3:32 pm

While my friends in MA may have other coverage to keep them glued to the screen, if you find yourself with some free time tomorrow night you should definitely catch Copyright Criminals, a documentary by Kembrew McLeod and Benjamin Franzen. I got a chance to see this as part of the Future of Music Coalition Policy Summit back in October and found it inspiring, entertaining, and thought provoking. (So thought provoking, in fact, that an entire conference panel was dedicated to discussing it the next day, and it lead me to draft a law journal article on this topic.)

From the movie’s website comes this description:

This documentary traces the rise of hip-hop from the urban streets of New York to its current status as a multibillion-dollar industry. For more than thirty years, innovative hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. When lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul, and Digital Underground—while also featuring emerging hip-hop artists from record labels Definitive Jux, Rhymesayers, Ninja Tune, and more.

It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.As artists find ever more inventive ways to insert old influences into new material, this documentary asks a critical question, on behalf of an entire creative community: Can you own a sound?

As I argue in my note (as much of which I will post as I can in the spring), sampling has become an integral part of our musical identity, and extends naturally from earlier traditions of borrowing which go as far back as music itself. The sampling clearance process as a business is plagued with problems which stile creativity. But this is a complicated business with many, many players, and each wants both a say and a cut of the profits. Copyright Criminals does a great job highlighting many of the key players here: the samplers, the sampled, and the various agents and managers involved in the sampling process.

The documentary also has a DVD release slated for 26 Jan, and as Creative Commons points out there will be a release party tomorrow night in Brooklyn (at the Brooklyn Bowl) with the likes of EL-P, Eclectic Method, and DJ Spooky.

Check your local listings for showtimes. (In DC: WVPT and WCVE-TV air at 10PM tomorrow, WETA airs next Sunday a midnight; in MA: MPBN, CPTV at 10PM tomorrow, WGBX World (‘GBH 44.2)  on Wednesday at 9AM, 3PM, and 8PM, NHPTV Saturday at midnight, Sunday at 11PM).

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).

9 January 2010

Does this mean my supplement is OSX compatible?

Filed under: gdublaw,snarkbutter — Andy @ 12:33 am

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.

7 January 2010

Lefsetz Letter on the Live Nation / Ticketmaster merger

Filed under: deepthoughts,music,soapbox — Andy @ 10:46 pm

I mentioned a few days ago that I’d be spending a good slice of this year analyzing the Live Nation / Ticketmaster proposed merger from as many angles as I could manage. (There’s an antitrust law casebook on my lap as I write this.) Anyone following along with me would probably like to know that this evening music industry expert Bob Lefsetz has posted on his very influential Lefsetz Letter his rundown on the merger.

Lefsetz approaches this from the perspective of the largest complaint we’ve heard on this merger: that this is going to impact ticket prices and make it more expensive to see shows. He attacks this in a rather sobering way, noting that not for years has Live Nation or Ticketmaster been about much other than the money. When Don Law and Robert Sillerman were making their bones buying out other promoters they were doing it for profit, and today the market (as much as there still is one) will keep the downward pressure on prices until we find equilibrium. It’s the market that dictates this merger, and the bottom line which is leading these companies to act. He also notes that artists deserve a lot more blame than they are receiving for the perpetually skyward costs in the live concert industry, and perhaps this is the product of the slow commoditization and big business-ification of our once-innocent industry.

I landed my first gig in the music industry in late 2002 (before I could drink, sign a contract, buy a lottery ticket, or even drive after midnight in Massachusetts), and have been working in and out of the business ever since. My first employer has been the one constant source of work throughout my entire career: a small in size but big in results concert promoter of the old guarde, and my longstanding mentors even through my present hiatus in law school. And so, my concern is not about ticket prices. From an industry perspective I do have faith in the free market to settle this somewhat – that there will come a time when U2 realizes they won’t fill Boston Garden at $250 a seat and the prices will sink. From a selfish angle I can still shell out $10 to see the bands I give a damn about at the Black Cat or Middle East, so no harm there.

No, my concern is the independent promoters. It’s something most concert goers do not notice or really care about, but the promoter is the catalyst that makes concerts happen. The promoter gets the venue, artist, labor, and marketing together to actually make a show come to life. The promoter assumes the risk; indeed, the promoter is the one that takes the proverbial and literal risk in the idea. Without independent promoters, my fear is that live performance market will suffer from a rather stagnant imagination. Put it another way: No Micheal Lang and crew, no Woodstock. No Dave Werlin, no Phish festivals. No Marc Geiger and crew, no Lollapalooza. No Kevin Lyman, no Warped Tour. No Barry Horgan, no All Tomorrow’s Parties. No Goldenvoice Concerts, no Coachella. The organic feel of all these festivals (in their early forms) is no happenstance. And that’s just the creativity. The innovations made in better live concert experiences (from more peaceful security to integrated medical support to clever concert swag) were made not out of concern for corporate shareholders, but with genuine desire to give fans the best experience possible. I do not, for a moment, believe that a corporate conglomerate will ever match what the independent and dispersed market has provided.

Throughout all of this ticket sale information is one of the closest guarded secrets a promoter can have. All calculations are made and most expenses flow from the volume of tickets sold at concert. At the really big shows – the festivals especially – you never want your rival promoters to know how many tickets you are selling, because a good promoter can do so much damage with that information. As healthy and strong as my relationship with my old employer was, I know my old bosses would fire me on the spot were I to start leaking that information to rival promoters.

But in America you have to sell your tickets with Ticketmaster, and thus Ticketmaster will always know how you’re doing. And in almost every market in America you are competing with Live Nation in the live promotion market: they own the venues and they have the promotion shops to make these shows happen on their own. My fear is what will happen to the independent promoters once their biggest rivals in the market know exactly how much money they are making. I’m not sure yet if it’s a fear I can characterize under the Sherman Act, but it’s a fear I have as a music lover and fan and what leads me to staunchly oppose this merger.

What the U.S. could have celebrated on Public Domain Day (and what we can celebrate)

Filed under: copyleft,huh.,intellectual property,lawsandsausages — Andy @ 1:03 am

Copyright duration is always calculated relative to the calendar year, which means that every January 1st a new batch of works enters the public domain. We IP geeks mark the occasion by celebrating Public Domain Day (along with that other January 1st holiday). By entering the public domain third-party creators are now free to join the original author in disseminating, analyzing, selling, remixing, and doing all sorts of interesting things with the work; the work becomes part of our collective cultural identity.

… at least that’s what should happen. But as Ars Technica, Creative Commons, and public domain guru James Boyle all note, no published work in the United States will enter the public domain again for nearly another decade, thanks to recent copyright extensions. So while other countries are enjoying increased access to hundreds of works, we will still be waiting for the works of Robert Frost, George Gershwin, Cole Porter, and Aldous Huxley to come down from their 95 years in copyright. Assuming the work was published in compliance with the formalities the Copyright Act had at the time, no work published after 1923 will enter the public domain until 2018.

You can click those links above to see the sad news about what we can’t use freely thanks to our vastly overreaching copyright laws. I’m here to tell you some good news. In fact, a small class of works did find their way into the public domain this year in the U.S.. But don’t get too excited.

To understand what entered the public domain you need to know a little history. For over a century the law in the US recognized a “common-law” perpetual copyright for unpublished works. While U.S. copyright law kicked in and the duration clock began ticking whenever a work was published, the author forever maintained the exclusive right to publish their work first. When Congress revised the Copyright Act in the 1970s they sought to do away with this (as we were now adopting a new life-of-the-author-plus-some-years system for calculating duration), but didn’t want to immediately inject all these unpublished works into the public domain. So the 1976 act provided a compromise, encouraging holders of unpublished work to publish. That compromise is 17 U.S.C. § 303, which grants copyright protection until 2047 (!!) for any work not published when the 1976 Act went into effect (January 1, 1978), but published between that point and December 31, 2002. After that, the unpublished work would enter the public domain in the regular life-of-the-author-plus-fifty-years cycle (extended to life+70 years in the 1990s).

So, any work whose author died in 1940 and was either published after 2002 or never published, entered the public domain on January 1st. So go make some cool mashups, all you people out there holding onto unreleased drafts by F. Scott Fitzgerald, Emma Goldman, Leon Trotsky, Alfred Ploetz, Paul Klee, Nathanael West, or Philip Francis Nowlan. Happy Public Domain Day.

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