Archive for June, 2009

New Music 6-27-09

June 28, 2009 Comments off

Michael Jackson RIP

June 26, 2009 Comments off

Not much to add to what has already been said and will be said about Michael. I had the good fortune to do some work for Michael Jackson in the good times and he was kind enough to arrange for me to see a show at Wembley Arena in London when he was at the peak of his adult career.

You forget how many hits that he had until you go to a show, and you really don’t grasp how much creative energy was crammed into that body until you saw him live. I realize this doesn’t count for much in our technology oriented society, but that live performance simply cannot be equalled by any recording.

You get one of these artists in a generation, I think. I’m looking forward to the next one.

Patry calls for government takeover of entertainment industry

June 26, 2009 3 comments

Oxford University Press sales sheet for new book by Google VIP Patry:

“Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected.”

Now just think about that little phrase.

[By the way, this is intended as a bit of humor for those literal thinkers who didn’t catch the joke.]

More Poobahisms from the Pukka Sahib

June 25, 2009 2 comments

For those of you who don’t know him, Fred von Lohmann is the very smart lawyer who gave a stellar performance of the losing argument in the Grokster case before the U.S. 9th Circuit Court of Appeals representing one of the defendants who the U.S. Supreme Court found had an “unmistakable” unlawful objective. (This is the lower court ruling that was overturned by the U.S. Supreme Court in the landmark copyright case MGM Studios, Inc. et al v. Grokster et al, 545 U.S. 913 (2005).)

To give you an idea of how Fred views the creative class, he told me once doing his best “let them eat cake” impression, “Well, artists will just have to learn to get along on less money” given the crippling losses in the music business. (I wish I could convey the tone he used, but the next time you’re at an airport, listen up for the recording that says “the white zone is for the immediate loading and unloading of passengers” and you’ll get the idea.)

Fred is also one of the leading riders of white horses for the Electronic Frontier Foundation, the self-appointed “consumer” group—partly true as they are pretty clearly backed by the “consumer” electronics industry.

I do enjoy reading Fred’s editorializing, because I think he clearly would like to lump all creators under the heading of “Hollywood”, and it’s kind of fun to watch him try to squirm his way through arguments that he wants to make against big companies but which inevitably also apply to small business and independent artists. For there is one copyright law and it applies to all.

And this is where the analysis begins to have all the clarity of Professor Lessig’s conflict of interest statement and the Single Bullet Theory. Fred now is all bunched up about ASCAP getting paid on ringtones and—naturally enough given the source—goes to the same kind of argumentation that would allow one to believe the essential argument of the Grokster defendants–that “sharing” with 60 million of your closest friends doesn’t violate the law (the kind of thinking that got bounced out of the U.S. Supreme Court).

I had the same reaction to Fred’s “deep thoughts” blog about ASCAP as I did about his Grokster argument—of course he’s right, if you believe that the Sun rises in the West or that the Mossad bombed New York and Washington.

It seems that the important thing for Fred is that artists must lose economic rights and tech companies must be able to free ride on their work. This is where he always seems to end up.

“X” use is outside the copyright act, so big tech companies get to profit at the expense of artists. And that is because the benefits to consumers under the Copyright Act also flow to companies. So on the one hand he wants to mask his hostility to artists and songwriters by railing against “Hollywood”, and on the other hand he masks his sympathies to big tech companies by railing for “consumers”. And I mean BIG tech companies, companies whose market cap is bigger than the entire music industry (especially after a decade of assult from people like the Grokster defendants).

This is “false innovation” in bold. (It would also make sense that he would promote Choruss, the songwriter’s roach motel–the money goes in but it does not come out.)

Fred just doesn’t seem to want to admit the obvious–that ASCAP only acts as an agent for its songwriters—if ASCAP loses a licensing stream, it’s the thousands of ASCAP songwriters who lose. Why doesn’t he substitute “songwriters” for every time he uses “ASCAP”?

So instead of reaching a fair resolution of a share of revenues going to songwriters whose song is the reason the whole value chain exists in the first place, Fred does what he always does, not just regarding the ASCAP rate court—argues that a for profit businesses should keep all the money from the sale of copies of songs based on some tortured interpretation of the Copyright Act. Why limit this argument just to songs?

Why would anyone ever pay for video on demand on YouTube? Why would anyone ever pay for a conditional download off of Rhapsody? Are ringtones different because they a short clip of the most recognizable part of a song? What’s the difference, exactly?

So here’s a solution—if it’s all so noncommercial, then don’t sell the music in the first place. Otherwise, it’s like the old restaurant joke—the food was terrible and such small portions.

I heard one of Fred’s colleagues at EFF try to roil up a crowd once by saying “Is Silicon Valley going to let Hollywood tell it what to do?” This is what we call the “flying wedge” or the “outside agitator”. Of course, the statement begs the question–is Silicon Valley going to let San Francisco tell it what to do? Seattle? Austin? Chicago? Bollywood? London? Toronto? Paris? Anyone? For these are all creative capitals, too, and they have all been harmed by the efforts of the EFF in general and Fred in particular.

I guess in the Fred Story, we can all just eat cake.

But very small slices.

Regurgitation Deluxe: The future of writing is creating less of more

June 24, 2009 1 comment

I have had a serious bone to pick with Wired Magazine ever since some writer coined the phrase “law hardening” to describe efforts by Pirate Bay-types to evade prosecution. (And that worked out so well. See “Special Report: The Pirate Kings of Sweden“)

But I find it ironic that two great pillars of the law-hardening community, Chris Anderson and Professor Lessig (aka The Great Regurgitator) are coming out with books of questionable provenance at roughly the same time. Anderson’s Free, which celebrates an economy that may have existed–may–between crashes, and Lessig’s Remix that celebrates regurgitative “art”.

If you want to understand Lessig’s book, find the clip of him explaining it on the Steven Colbert show. Priceless. (It used to be on Hulu.)

But it turns out that maybe the two titles were switched at birth. Maybe Anderson’s book should have been called “Remix” and The Great Regurgitator’s book could have been called “Free”. (Of course, TGR had already used “free” in a title, so maybe not. God knows we can’t have redundancy in our regurgitation.)

No, Anderson, you see, was doing what passes for authorship in TGR’s coterie–he was doing what the New York Times mistakenly referred to as “plagiarism”.

No such thing anymore, dude. Very passe. Luddite, even. Plagiarism implies unauthorized copying, and in the world of the 5 minute copyright (promoted by the “law hardening” Wired Magazine) there really is no such thing. It’s all about “remix culture” don’t you know. Regurgitative art, DJ culture, smells like a mix between Bruno’s Speedos and a 2 am mens room stall at Chateau Marmont.

Valleywag tells us in “The Case Against Chris Anderson“: “[Anderson writes b]ooks counter to the recessionary zeitgeist: Granted, the most useful books often demolish conventional wisdom. And successful authors often face swift backlash from New York’s finicky media elite. But it’s worth noting that Anderson’s book Free is coming out at precisely the time many businesses are finding new ways to charge charge customers, rather than new ways to give things away.

Likewise, the sort of niche Web content one might have invested in after reading Anderson’s last book, the Long Tail, is faltering amid the advertising downturn.” (That’s the book we call “The Wrong Tail”, by the way.)

Hero to goat in the click of a mouse. Ah, don’t be too hard on old Chris Anderson. He’s just trying to find a parade to ride out in front of and pretend he’s been there all along.

I do agree with Professor Lessig, though, publishers really do need to do a better job of fact checking.

Stop, stop–we’re criminalizing our kids

June 23, 2009 Comments off

“I started hacking back in the ’70s and there were basically no laws against it, against phreaking or hacking. In school, my parents and other people actually encouraged it. There were no ethics taught. If you could hack into the school’s computer you were considered a whiz kid. Today if you do it you get expelled or they call the cops. It was like a reward of intellect back when I got started. Then they criminalized it later…..I served five years, and I ended up in solitary confinement for a year….”

Insightful interview with ex-con Kevin Mitnick on

PS They still don’t teach ethics in CS departments as a general rule.

Why Creative Commons is bad for photographers

June 21, 2009 8 comments

Really excellent treatment of the failure of Creative Commons for photographers from Bay Area photographer Dan Heller who has a very thoughtful website about creative techniques and business issues for photographers:

“The reason [that Heller doesn’t use CC licensing for photographs] is because the Creative Commons—and the entire concept of “free access”—simply doesn’t work for photography as it does for other things. In fact, it is such a bad fit, that the deteriorative effects harm everyone it touches, including the objectives (and the credibility of) the Creative Commons itself.”

You can put this on your bookshelf next to other critics of Creative Commons licensing Professor Jane Ginsburg, ASCAP’s Joan McGivern and me.

If you haven’t seen Lessig on the Steven Colbert show promoting his new book, you should find that clip. In it he acknowledges openly that the underpinning of Web 2.0 companies like Flickr (owned by Google competitor Yahoo!) is that they get users to give them “content” for free which they they use to sell advertising against that they don’t have to share with anyone in the case of Flickr. (And–most importantly–bulk up valuations for selling the company.) Lessig doesn’t mention YouTube (owned by Lessig benefactor Google) but that is arguably the most obvious example in the space, although though YouTube does pay at least the major labels and other “big guys”.

He didn’t say this–and he wouldn’t–but ask yourself who does the CC license help to capture that value–creators (whether amateur or professional) or the Web 2.0 company?

If there is a question by the buyer of the company as to what exactly it is that the company owns, ownership can be justified based on actual licenses, or if you don’t have those pesky documents, on terms of service–or with a Creative Commons “license”.

It sounds a lot better to say to a potential acquiror that you have “licenses”–irrevocable, perpetual licenses–tends to keep the selling price up between crashes. Particularly if its one Web 2.0 company selling to another Web 2.0 company–the valuation of one promotes the value of the other, both of which are probably grossly overstated.

Creators in the music industry understand the “irrevocable, perpetual” part–just like a cramdown artist recording agreement. Including the “no royalties” part.

One thing that has always mystified me about the Creative Commons organization–why does it take so much money to give things away for free?

%d bloggers like this: