5.31.12 OCCUPY JOURNALS

This article originally appeared in the 5.31.12 of Metroland

OCCUPY JOURNALS

A lot of what we talk about here is about how the internet has brought many traditional companies that trade in copyrights (like in the film, music, and publishing industries) to their knees.  This is largely because a number of functions these companies controlled and charged monopoly prices for (like duplication and distribution) are now uncontrollable and egalitarian.    The industries’ responses have been to sue the bejesus out of people, to lean on the government to cede control of the internet to them, to corrupt the copyright laws, and to pressure the rest of the world to join into their freedom-killing and innovation-stifling agenda designed only to protect business models that could not survive otherwise.

            An interesting side-battle in all this involves academic publishers.  For a significant category of scholar works, the traditional model has gone something like this:  Scholars at universities create works that are submitted to publishers, which engage in some sort of “peer-review” process to determine which works shall be awarded the “prize” of publication.   The scholars aren’t paid, but rather readily submit their works for free to these journals because publication has always been vital to getting academic tenure (“publish or perish”) and to other types of professional advancement.   The publishers then sell these journals, which typically have limited print runs and incredibly high prices, to libraries at academic institutions.  The publishers keep all the money.

            For all sorts of reasons, including not only the alternatives now provided by the internet, but also the eroding economics and public financial support of higher education, a disappearing middle class, etc etc etc, the wheels are falling off this rather strange model.

            Publishers are getting greedy, or shall we say greedier.  Prices for these journals are sky-rocketing, and the prices for e-versions of the books are kept artificially high to avoid “cannibalizing” the market for physical books.  Scholars are finally saying “enough” to simply handing over works that represent years of their lives, their expertise, and their blood, sweat and tears to the academic publishing units of massive multinational corporations.  And the questionable symbiotic link between the publishers and academic institutions is breaking down. And at the front lines of this fight are the most courageous, intrepid, industrious, forward-thinking, brilliant, and, yes, sexy individuals in all of academia: the librarians.

            The librarians are saying no to the absurdly inflated prices of these journals and the particularly heinous publisher practice of bundling multiple journals together so libraries are forced to buy three overpriced journals it doesn’t want or need in order to get the one or two that it does.  University libraries simply can’t afford these obscure titles any more.

            What is happening, and quickly, is that librarians and scholars are creating open-source web-based journals with their own peer review standards.  From the scholars’ perspective, if they are going to be giving their work away anyway, doesn’t it make more sense for the works to be ultimately given away to anyone who wants to read them, rather than sequestered in expensive journals on library shelves and behind insanely expensive digital paywalls?  Of course it does.

            The leadership of academic institutions are starting to take notice, too.  Why should a university pay scholars nice salaries to create content that the university then has to pay for again, in the form of an overpriced journal?  Isn’t paying for the research once more than enough?  And it’s dawning on the powers-that-be that the price of outsourcing criteria central to tenure decisions by supporting the bloated academic publishing industry just ain’t worth it anymore.

           

            And finally, the public is waking up.  There is a movement afloat to require all publically funded research to be made available to the public.  I mean, pretty basic, no?  This includes not just academic research but funded scientific work done by corporations; so much of our government-funded research currently ends up  inaccessible, fenced in by scientific / academic publishers or held in secrecy by private corporations.  This inaccessibility has traditionally been justified by claiming that researchers need some extra incentive to profit from research they’ve already been paid to do, or that publishers need an incentive to “disseminate” the work.  The second argument has been rendered absurd by the internet. And the first has been largely disproven by a pilot public access policy administered by the National Institutes of Health which found that sharing research findings with the public does not stifle research, it actually encourages more research.  Duh!

            You can help push this open access policy to all publically funded research by signing the petition at the White House’s “We The People” page at wh.gov/6TH .  This site’s functionality is surprisingly sucky, but I found I could get in by using a Firefox browser.  Go vote for the future.

5.31.12 GLEN CAMPBELL

This review originally appeared in the 5.31.12 issue of Metroland.

Glen Campbell

The Egg

May 24, 2012

            If you’re of a certain age, Glen Campbell first hit your consciousness with a run of hits in the ‘60’s, polished ear candy written by aces like Jimmy Webb, John Hartford, and Allen Touissant.  Then he was a TV and talk show celebrity, as square and irrelevant as could be; he wound up leaning country, and became a fixture in that little corner of hell known as Branson, Mo.  

            What has always been underappreciated is his pre-fame years as a guitarist with the legendary Wrecking Crew session team and Phil Spector’s LA wall-of-sound orchestra.  The cat is a big part of the DNA of rock and roll, period.

            Thursday’s show was bittersweet, weird, and triumphant.  It was announced late last year that Campbell, who’s 76, was suffering from Alzheimer’s, and would embark on a farewell tour before packing it in.  He’s out there for two more months.

            He looked great for 76.  He sang great, and he unleashed some jaw-dropping guitar solos throughout the show.  He relied heavily on teleprompters, but so does everybody these days.  Between songs he did seem a little out of it, although he told a story or two and got some laughs from some wise cracks.   His band included 3 of his kids, who all played great, and one wonders what was going on in their heads, just how much of a tightrope this tour has been for them...

            The show was the old hits, and touched only slightly on his two recent and rather staggering “comeback” albums (in which he covers the likes of Green Day and Travis with help from Tom Petty’s band and Jellyfish).  Which was fitting, as this was a goodbye tour and I’m sure the vast majority of the decidedly geriatric crowd was unaware that he’d even released two comeback albums and could give a rat’s ass about Travis covers.   Things were fairly Bransony for much of the show, but by the time they got to Wichita Lineman, Campbell was simply singing his ass off, and when he and son Shannon laid into that twangy guitar solo it was pure beauty and bliss.

            Goodbye Mr. Campbell, and thank you.

5.17.12 DAZED, CONFUSED, ETC

This article originally appeared in the 5.17.12 issue of Metroland.

            Trademark law can be a lot of fun. Some of you ancient folk might remember the great QE2 debacle of the late ‘80’s when Dave and Char Shortsleeve got a nastygram from Cunard Lines, telling them that their little punk club on lower Central (now the Fuze Box) was offering many of the same goods and services as Cunard’s luxury liners, so they had to immediately cease and desist use of the name QE2 for the club.   Hey sailor! Ships ahoy!  This was so silly it made national news.  Fact is, the Q had lifted imagery from the Sex Pistols for their logo, but nobody seemed too concerned about that.

            Trademark owners have always been a little over-protective of their stuff, and often shoot first and ask questions later when they see somebody else using their mark.  Thing is, what a trademark owner actually owns is pretty narrow: the sole right to use the mark to identify the source of a good or service in commerce, and the right to stop others if mark is being used in a way that will confuse consumers.  Generally, if somebody else uses your mark in a way that doesn’t confuse consumers, that’s OK.  In other words, your trademark rights can’t be used to stop people from talking about you.

            Now, the nuts and bolts of trademark law are all kinds of messy, because there are grey areas and judgment-call issues all over the place, and so courts have set up various tests and standards to help judges make decisions.  And too often courts, rather than taking a step back and looking at the big picture, apply these tests mechanically and come up with ridiculous results.

            This happened last week at the Trademark Trial and Appeal Board, an administrative court-like branch of the Patent and Trademark Office in Washington DC.  The Ralph Lauren-Polo shirt company was seeking to cancel a mark that parodied the ubiquitous little polo dude on his horse.   Here’s the two competing marks:

            Remarkably, the TTAB found the parody mark to be infringing, that it would confuse consumers.

            Nonsense!  In its analysis the TTAB applied several of those legal tests, including one that said the more famous a mark is, the more protection it gets.  Since the Polo mark is uber-famous, well, it wins.  Huh?

            This turns parody on its head.   In the real world, the more famous something is, the more ripe that thing is for parody.  If something is unknown, a parody of it is akin to one hand clapping in the forest, isn’t it?  A smarter California court recognized this in a case a few years ago where Mattel was trying to ruin the life of a goofy artist who’d had the temerity to market pictures of Barbie after a few spins in a blender.  Barbie's an icon, so let the parodies fly.  The bigger you are, the funnier you fall, baby.

            And even more fundamentally, look at those two images.  If you ran into somebody wearing a shirt with the guy falling off the horse would you (1) laugh and ask him where he got it, or (2) think to your self “oh, my, Polo must be expanding their brand”?

            C’mon, this would not be seen as a parody only by (1) someone who thinks too much and who has absolutely no sense of humor, or (2) the hypothetical “moron in a hurry”. “Moron in a hurry” is a term coined by Techdirt’s Mike Masnick to describe the ever-lowering standard for that inscrutable legal strawman the “reasonable person.”    The “reasonable person” is a sort of everyman, and judges and juries often have to decide what the “reasonable person” would think about things in deciding which way a case goes.

            And that’s freakin’ scary.  What do you base this standard on?  A random survey taken at Wal-Mart on a Saturday night?  Likely voters for president in Alabama?  Fox News viewers?  If you do, you’re likely to get a supreme “moron in a hurry”, the perspective of an uneducated buffoon, or people who voted for W for president (twice) uncurious bigots, or people who believe that humans were created along with dinosaurs when “god” snapped his fingers 6000 years ago.

            Does “reasonable” mean “average” or does it mean something else?  Is it an ideal to strive for?  And if it is, who sets the standard?

            Maybe rather than jump into this metaphysical black hole, the TTAB punted and applied these safe tests, got it supremely wrong, and moved on.  And shame on them.  It was a stupid decision.  And maybe you’re thinking “so, what, it’s just a funny shirt, what’s the big deal?”  The big deal is this: by all but negating parody as an allowable use of another’s trademark, the TTAB is setting a precedent that will chill future parodies.  And the next one probably won’t be a funny shirt.  It could be anything.  It could be political. It could be anti-government.  You see where I’m going.

Paul Rapp is an intellectual property attorney residing in the Berkshires and who has attended one polo match in his life.  He would have been uncomfortable had he not been drinking extremely heavily.

5.3.12 A GOOD KICKSTARTER IN THE ASS

This article originally appeared in the 5.3.12 issue of Metroland.

            By now you all must be familiar with Kickstarter, the crowd-funding site.   It (and similar sites like Indiegogo, Sellaband, etc etc) allows for bands, filmmakers, inventors, almost anybody to raise money for a project from the public.  The drill is like this: you put your pitch on the website, usually with a short video or written description, you set a goal, maybe you establish giving tiers with different gifts or levels of involvement for donors, then you work the bejesus out of your social networking platforms to get people to give you money.

            Crowd-funding is another brilliant example of the internet removing the middle-man and allowing a direct artist-to-fan relationship that was barely possible before.   It also can act as a harsh dose of reality to those whose projects crash and burn.  In the online world where lots of people complain that a “lack of filters” results in good art getting buried under mountains of crap (an observation I don’t agree with), crowd-funding is the ultimate filter: if people don’t vote for you with their wallets, that’s a pretty good indication that you’re doing it wrong, or your art sucks, or both.

            Doing it wrong can be as simple as a bad pitch.   We talking about seilling here, and some folks are good at it and some aren’t.  Plenty of crowd-funded projects have been successful solely on the cuteness of the pitch.  And while cuteness isn’t gonna sustain your career (it doesn’t matter how cute your pitch is, if your art sucks at the end of the day, your second cute pitch is gonna bomb) it can sure move it along.

            Wanna see somebody who does it right?  Go to Kickstarter and look at Ananda Fucking Palmer’s current campaign to raise money for a new album.  A 30-day campaign to raise $100,000.  She raised $250,000 in the first day.  She’s now talking about raising a million!   No record company, no recoupables, nothing but money to make art.

           How does this happen?  Hard work, that’s how.  Palmer has been cultivating her fan base on-line for years.  She tweets, she emails, she Bandcamps, she Facebooks, and she does it constantly, consistently, and she does it herself.  She knows her fans, and she knows what they want.  Look at the array of options she has for donations, starting at one dollar, which will get you a download of the album when it's done, to $10,000, which will get you a visit from Palmer and her band, who, not unlike Grand Funk Railroad, will come to your town and party it down.  In the middle range are passes to exclusive parties that she’s throwing in New York, London, Berlin, etc., signed books, CDs, all kinds of stuff.

            Can you pull that off?  Probably not on that level, not yet.  But you need to do more than just announce you need money and post a picture of yourself.  You need fans that are alert, and you need to be clever.  People like clever.  A couple years ago Ten Year Vamp launched a campaign with a short video featuring Debbie as “Brenda, the world’s #1 TYV fan” that was fall down funny.  Goal met!  Railbird funded their trip to SXSW a few years ago on Kickstarter—I don’t remember their pitch, but I sent them some money and got a CD, a little drawing and a feather.  I still have that feather on my desk, and when Railbird announced last week they were raising money to promote their new music I looked at the feather and said, yeah man, I’m in.

            I’ve seen plenty of pitches go bad.  A friend put up a campaign for a $35,000 film project before she had a team, a film trailer, and a clear vision of where she was going.  Time ran out before she could raise even $3,000.  She’s spent the last year regrouping, doing the real prep work, meeting people, and building support, and I think the next campaign is gonna fly.  There’s buzz. 

            And that’s the trade-off.  In return for autonomy, you have to hustle, you have to sell, you have to do any number of things that aren’t exactly in the same category of skill-sets as making a movie, a record, going on tour.  I’ve heard complaints that artists are now required to spend more time schmoozing than making art.  Hey, that’s nothing new.  Ask Mozart.  What I see with crowd-funding is when an artist truly believes, and really has something to present that people want, and if the artist isn’t an idiot (you don’t post hourly reminders on Facebook about your goddamn Kickstarter campaign, OK?) the sales part of it comes easily and naturally.  And has benefits that extend way beyond the financial part of it.

            And if you get it all right and you still don’t get the money, then maybe the world is trying to tell you something.  Listen closely.

Paul Rapp is a local art & entertainment attorney who thinks the new Rosary Beard album is just swell.  He can be reached at his website www.paulrapp.com.

4.26.11 Graham Parker and the Figgs

Graham Parker and The Figgs
Valentine’s
April 18, 2012

Oh, how I wish I didn’t have to write this one up. Graham Parker and The Figgs, back together for one of their occasional dalliances, which have over the years yielded a number of CDs, a live DVD, and considerable critical acclaim. For reasons I can’t explain, I’d only seen Parker once, and I’m ashamed to say I’d never seen The Figgs. That’s just wrong. 

This was the first night of a mini-tour, and it showed. There was a mention of a “day and a half” of rehearsals, which I think was exaggerated. There was a lot of shucking and jiving by folks who, as wonderful as they are, and they are wonderful, can’t carry a night by shucking and jiving.

Granted, not the most inspiring setting: Valentines, with some kind of metal band playing downstairs and the sound bleeding up, and an audience of, let’s generously say, 100 mostly un-athletic males over the age of 55 (a category of which I include myself). Were I one of the great songwriters of our time or a member of one of the great quintessential American rock and roll bands I might have slacked off a bit myself.

The Figgs opened and played a rather uninspired set, peaking for the tunes from their brand new (and fabulous) double album The Day Gravity Stopped. Even in this less than optimal state, the band was a marvel of instinctive group interplay with the occasional flash of individual brilliance. I’ve always loved the idea of the Figgs. Now I love the Figgs.

Parker came out, looking hale and hearty; but things were loose, and not in a good way. And the song selection left an awful lot to be desired. This didn’t need to be a greatest hits show, but a show of tunes mostly unknown to all but the biggest GP fan got long fast. And the late set trampling of “Fools Gold” was just plain depressing.

Still, there were moments. Few singers know their way around a song—how to build a song—better than Parker. And when Gent mentioned that the night before they’d listened to the soon-to-be-released reunion album from Parker and his old band The Rumour, whatever hair remaining on the collective heads in the room stood up and said howdy. So there’s that.

04.19.12 CLOUDY WITH A CHANCE OF INFRINGEMENT

This article originally appeared in the 4.19.12 issue of Metroland.


I just became aware of a two-part article that ran recently on the business news site Bloomberg.com about what’s wrong with copyright law. It’s by the brilliant copyright scholar (and Google counsel) William Patry, and is excerpted from his new book How To Fix Copyright (Patry’s also the author of the treatises Patry on Copyright and Patry on Fair Use, and 2009’s wonderful Moral Panics and the Copyright Wars.) It’s like a long string of brilliant money quotes, one after another, and if this stuff interests you even slightly, you can Google “Patry Bloomberg” and you’ll land right there. Don’t skip the comments at the end, in which various knuckleheads get all agitato about what they think Patry just said, and then get quietly, politely, and efficiently demolished by a Patry rejoinder.

One of Patry’s many statements that leapt off the screen into my cerebellum was “We are fast approaching an era when there will be copyright laws without copies in the traditional sense of the word.” Hoo boy.

History time. There was no real need or call for copyright laws until copying technology emerged in the form of Guttenberg’s movable-type printing press in the 1500’s. The first laws protected (and restricted) publishers, then after a hundred years or so authors started getting their due. The idea was that giving authors near-monopoly control over what happens with copies of their works would provide authors with an incentive to create more works.

So what happens when there are no copies? It can certainly be argued that a digital file, a mess of tiny 1’s and 0’s sitting on a little disk, are barely copies of anything. And what about streaming? You are looking at someone else’s copy, which is located on a server far, far away. If there is any kind of monetized transaction at all, it’s not for a copy, but for access to somebody else’s copy.

A Cato Institute study a few years back described the difference between having a digital copy and streaming as insignificant, since both result in having the work appear on your screen or in your speakers. And there’s a zillion free and easy to use programs that capture streams so you can have your own digital copy. And watch kids. They grew up on digital; they don’t care if they “own” a copy or not, they just want stuff to happen once they touch a button.

So, it only makes sense that everything is headed to the cloud, right? Spotify, Netflix, IPads, smartphones and feather-light laptops with minimal storage because who needs it? Everything is up there, all the time, waiting for you to come get it.

Which brings us to the MegaUpload debacle. You may have heard that this cloud storage mega company got busted a few months ago, ostensibly for hosting all sorts of pirated movies and music. This was no normal bust. Based on a US warrant, a New Zealand SWAT team stormed the castle of MegaUpload’s founder, an odd, corpulent German guy who’s named himself Kim DotCom. Around the world, other officers of the company where hauled in, and all of MegaUpload’s billions of dollars have been seized. An unrelated internet hosting company that operated the servers holding billions of files for MegaUpload’s estimated 60 million customers, Carpathia Hosting, has been left holding the bag.

The legal issues here are sticky—did MegaUpload actively encourage infringement? Did any infringement even happen in the US? Is the seizing of a guy in New Zealand kosher?

Meantime, the US Department of Justice is acting pretty weird in the preliminary court proceedings. What’s of particular concern is that the prosecutors don’t seem a bit interested in preserving what’s on the servers. And even assuming that there was lots of illegal stuff going on and that MegaUpload is liable (and that’s a big if), it’s undisputed that there is A LOT of totally legitimate, non-infringing stuff that people had stored on MegaUpload. Just a couple of weeks before the bust, the company mounted a big PR campaign featuring a bunch of musicians (including Will.I.Am and Kanye West) singing “I Love MegaUpload”. Truth is, lots of folks, famous or not, used the site to legally store and distribute information.

At this point all of the data is being preserved by Carpathia at considerable expense, and most of the parties are asking that the judge release some of the seized money to facilitate returning non-infringing files to their owners. And the US attorneys are fighting this tooth and nail. At a minimum, you'd think they'd wanna preserve the infringing stuff. It's called evidence. But they don't care.

And this weirdness has the cloud-storage world in paralysis. If the public perception is that any remote server is vulnerable to getting wiped off the face of the earth by an out-of-control government prosecutor, then the lovely and natural future envisioned by William Patry is toast. And who benefits from that? Nobody except the big record and movie companies, who desperately cling to their outdated, anti-consumer, and anti-technology business models, which are threatened by the cloud.

Paul Rapp is a local information and media lawyer who hasn’t read an ebook yet, but hopes to soon. He can be reached through his website www.paulrapp.com.

4.5.12 WOOLY BULLY

This article originally appeared in the 4.5.12 issue of Metroland

The drapes got pulled last week on one of the most absurd aspects of major media culture—the MPAA’s movie rating system. The MPAA’s Film Ratings Board, the people who attach the G-PG-R-NC17 ratings on mass-distributed films, have designated the documentary Bully with an R rating. At least hypothetically, this means that no one under the age of 17 will be allowed to see the movie unaccompanied by an adult in a theater.

Movie ratings have been around for almost as long as there have been movies. In the late 1920’s, civic groups (mostly connected with the Catholic Church) began railing about racy movies, movies that glorified gangsters, and the like. Rather than risk obscenity lawsuits, picketing, or worse, the incursion of the federal government, the movie industry agreed to an “independent” (and Catholic dominated) film code board that “sanitized” movies coming out of Hollywood. Many states and cities also had film boards that predated the "Hollywood Code". These local boards also busily cut, compromised and sometimes banned films deemed to be an affront to public morality. I’m told that the NY State Museum has one of the world’s most comprehensive collections of Hollywood film scripts from the 1920’s-60’s, all the original scripts and the notes of the state film board toadies who butchered them.

A series of free speech court rulings in the 1950’s-60’s pretty much knocked the stuffing out of these boards, but in 1968, the MPAA, citing fear of government intervention and public disapproval, unveiled the current rating system. The ratings board, appointed by the MPAA and a theater owners trade group, consists of purported “ordinary citizens” who operate in secrecy, and make odd and capricious decisions that can affect not only a film’s content, but often its commercial viability. Certain words can only appear so many times, shots of naked bodies can’t linger, some sex is OK, some sex is not OK. Violence, on the other hand, is generally fine and dandy in most any form. We're talking 2012 here.

An NC-17 (formerly X) rating is the designation of death. Time was when X-rated films (not to be confused with XXX, which was a marketing ploy used by the porn industry) were nearly mainstream, played in normal movie theaters and cineplexes, and could reap big profits. Between theater consolidation and the Christianistas, however, an NC-17 rating now means that a film may not be distributed at all, and if it is, it definitely won’t get shown in the vast majority of mainstream theaters. The film dies. Directors are routinely sent back to the editing room to remove a couple of spoken “fucks” or a fleeting glance at genitalia. Our movie culture is micro-edited by a handful of corporate-designated “ordinary citizens” with no training, no discernable standards and bad attitudes. If you want to see a disturbing, revealing, and hysterical look at the MPAA Film Ratings Board (and one filmmaker’s quest to unmask it), get 2005’s This Film Is Not Yet Rated (no rating); I show this to all my art & entertainment law classes, and the students uniformly gasp in astonishment throughout.

So along comes Bully, a new documentary that follows several vulnerable high school kids and documents what happens to them at the hands of their classmates. Bully is, by all reports, wonderful, a must-see for all teen-agers, which appears to be the target audience of the film. And, because the f-word is dropped a few too many times, the Ratings Board demanded some f-words get taken, or else the film gets slapped with an R rating.

Now, we all know that, at least around here, an R rating is rarely enforced. Most of the teensploitation films (you know, the “Another _____ Movie” phenomenon, etc.) tend to have R ratings because they tend to be wall-to-wall boobies, drinking, swearing, sex with apple pies, drugs, etc., and these movies are shown everywhere and make millions from teenage audiences who wouldn’t go to the theater “accompanied by an adult” on a dare.

But the considerations for Bully are different. With an R rating, it won’t ever play in high schools anywhere, and in the depressingly ever-growing Bible Belt regions where the R rating is actually enforced, kids will be totally shut out. So why not just take out some “fucks” and get the PG-13 rating? Because these were words actually spoken, unscripted, by real teenagers. This is the real world, and the notion of shielding that from our nation’s youth is delusional. The filmmakers, god bless them, are taking a stand.

So amid all the rancor (there’s been more written about the ratings system this week than in the previous 5 years), the film’s producer announced that Bully would be released without a rating, and mega-theater owner AMC, ditching its ban on unrated films, has agreed to show it and will admit any teenager who brings a downloadable parental consent form. More theater chains, I’m guessing, will follow.

And the pantloads at Christian “family” advocacy groups and the MPAA are bleating that all this will destroy the ratings system.

Good.

Paul Rapp is an art / entertainment / IP attorney in Housatonic MA who prefers to use his gifts for good, not eeee-villll. He can be reached through his website paulrapp.com.

3.22.12 HERE COME THE PEOPLE IN GREY

I think I've used this title before, and I'm fine with that.

This article originally appeared in the 3.22.12 issue of Metroland.

A number of folks have pointed me to reports that internet companies are about to start some heavy-duty spying on their customers. That’s kind of right, and if you had nothing better to do last summer than pay attention to this column you already know all about it (Six Strikes and You’re, Well, Um... July 13, 2011).

What this is about is a ludicrous and dangerous attempt by Big Media to reign in what it likes to call “piracy”, or what the rest of us like to call downloading things off of the internet. It’s a “voluntary” initiative from an unholy alliance of the large internet companies, the RIAA, the MPAA, and the White House (which reportedly “brokered” the deal). It’s my understanding that the internet companies didn’t want to do it, but caved under threats of lawsuits from the RIAA and MPAA (which would have been completely bogus, but expensive and potentially embarrassing). I suspect that the White House’s “brokering” of the agreement included a thinly-veiled threat of new legislation or Department of Justice “inquiries” if the internet companies didn’t play along. Unfortunately, “playing along” meant the internet companies had to sell out their customers’ privacy and freedom to do what they pleased online.

As I described last July, it’s not as bad as it could have been, but it’s still bad. What is supposed to happen is this: when an internet company is informed by RIAA or MPAA investigators that a customer appears to be downloading infringing stuff, the internet company must lean on the customer to stop. There are six levels of warnings, meaning that you’ll have to get “caught” six times before anything really seriously bad happens, like your service slows down or is interrupted, or you have to attend a hideous copyright re-education program in order to keep your internet.

It’s all ludicrous and cumbersome and you can be sure this “voluntary” program will be used as a reason why your broadband rates will go up by the end of the year. It involves being assumed guilty of something without any kind of real process; if you want to challenge a warning or sanction, you’ll have to pay your internet company something like $35 for the privilege of doing so, and even then your rights will be limited. And it doesn’t address the basic structural problems like the liability of wifi networks where anybody can jack into the web, or fair use of copyrighted materials, or the most basic issue of a customer who makes squeaky-clean but extremely heavy use of the internet.

It will be interesting to see what the public and internet company tolerance will be for this nonsense in the post-SOPA era. We’ll find out, if not when the notices start flying to customers, then when RIAA / MPAA overplays their hand and tries to crush the wrong person. Because you know they will.

Moving on. The Boston Globe this week reported one of the more disgusting 1%-related things I’ve seen: a new trend of employers demanding full password access to an employee’s (or job applicant’s) Facebook page. Not just the stuff you’ve allowed the public to see, but everything. Every post, picture, message, note... As one attorney said in the article, it’s like asking for the keys to your house. Or for heavy FB users like me, it’s like asking to inhabit my brain.

For a number of years, employers have routinely done extensive internet searches of job applicants to see if there’s anything of concern in an applicant’s past. Of course this is perfectly fine...heck, I do that when someone I don’t know leaves a message for me to call them back. And this is why we tell our kids not to post anything online they wouldn’t want Grandma to see, because that pic of you toking on a fat spliffy while holding up a half-empty bottle of Captain Morgan’s, with no shirt on and with “dickface” written in lipstick across your forehead ... well, that could become part of your permanent record, a record that will follow you for the rest of your life. For my generation that kind of warning was bullshit and everybody knew it. With the internet, it’s horrifyingly real.

But an employer demanding access to your Facebook page? Some folks were crying “Orwell,” but that’s not it. It’s private employers who are demanding this stuff. Why? Well, for much the same reason as why a dog licks its privates. These days, with 10%+ unemployment, it’s not unusual for there to be 50 or more applicants for one job, and employers are gonna abuse their employees in ways that were inconceivable 5 years ago. You’ve got a hungry family, a sick kid, crushing debt? Screw your privacy, right?

Occupy, comrades.

Paul Rapp is an art & entertainment attorney in Housatonic MA, where everyone thinks he’s some kind of fancy ex-pat from the law firms of New York City, when in fact he’s just a nudnik who moved across the border from Albany.

3.8.12 FOOLS RUSH IN

This article was originally published in the 3.8.12 issue of Metroland.

Oh my my my. A couple of weeks ago the Obama administration let it drop that it would require contraceptive care to be included in all employers’ health plans, including those in institutions associated with the Catholic Church, like hospitals and schools. Pundits all over the map decried this as, at worst, an “attack on religion” and, at best, a monumental blunder on Obama’s part that put his re-election in jeopardy (MSNBC’s Chris Matthews was particularly shrill on this point).

First of all, it wasn’t an attack on religion. Even most Catholics think the papal ban on contraception is embarrassing nonsense. Second of all, the pundits, particularly the left-leaning ones that generally favor Obama, forgot Obama’s First Law of Political Physics: For every Obama action, there will be a completely out-of-control, disproportionate, and bat-shit crazy Republican reaction.

And, boy, did the weasel-right outdo themselves this time. The apex came when Rush Limbaugh, who for a number of years has been the titular head of the Republican party, went all nutso about a Georgetown Law School student who had the temerity to testify before Congress that she thought that contraceptive care was a good idea.

You’ve heard it; I don’t need to recount it here. Thing is, it’s not exactly an isolated incident on Rush’s part. In response to a predictably sycophantic piece in the National Review that Rush’s disgusting personal attack was “at odds with the personality fans have come to know”, the Crooks and Liars blog took a little trip down memory lane, listing some of Limbaugh’s favorite hits:

Apparently on Planet Wingnut, the man who compared feminists to Nazis, who called Chelsea Clinton "the White House dog," who told an African-American caller to "take the bone out of your nose," who promoted a song titled, "Barack the Magic Negro," called the president a "Halfrican American," said he and the First Lady weren't "decent Americans," compared both President Obama and President Clinton to Hitler, labeled veterans who opposed the Iraq War "phony soldiers," dismissed Danica Patrick as a "woman driver," and suggested that all homosexuals are pedophiles -- eschews ad hominem attacks.

Now, those of us who walk without dragging our knuckles have grown accustomed to ignoring this creep, but the more you know, the scarier it gets. Dick Cheney is a regular guest on Limbaugh’s show, and was even when he was in office. In 2009 Cheney had this to say about his pal Rush:

Rush is a good friend. I love him. I think he does great work and has for years. He has now offered to debate President Obama on his radio show. Hell, I’d pay to see that. … I think Rush is a good man and serves a very important purpose.

Rush was also a frequent guest in the Bush White House; one of George W. Bush’s last events in the White House was a private party in Limbaugh’s honor. Yup.

So, there’s a special kind of glee that comes with watching Rush’s radio advertisers drop him like a rancid turd. The count right now is up to 38. There was an odd moment on Tuesday when it was reported that Netflix was a Rush supporter and would stand by him. The twitterverse blew up, tons of people canceled their subscriptions (I put mine on hold), and this continued all day, until Boing Boing reprinted an email it had received from a Netflix flack that said, no, Netflix wasn’t a Rush advertiser, never had been, and that apparently a couple of spots had aired during his show by mistake.

Now, Netflix could have cleared this up 6 hours earlier with a single tweet or Facebook post. But Netflix let it fester, and it’s festering still. Is Netflix that incompetent? I doubt it. I think it doesn’t want to ruffle the feathers its white-trash, Fox News watching patrons. Which puts Netflix on my expendable list.

WBEC in Pittsfield was one of the two stations in the country to drop his show, and big kudos to them. It’s curious that more haven’t, isn’t it? You might call WGY and ask what’s up with that.

Meantime, there’ve been calls for media behemoth Clear Channel, which owns the show and broadcasts Rush on its talk-radio stations, to dump him. Clear Channel, that soul deadening, money losing, Bob Wolf firing, Bain Capital owned disaster of a corporation, went all proactive in 2004 following the Janet Jackson Superbowl incident, declaring a “zero-tolerance” policy to indecency, rewriting all its jocks’ contracts, dropping Howard Stern and firing a bunch of shock-jocks for doing what shock-jocks do.

Where’s your zero-tolerance policy now, big boy?

Paul Rapp is an intellectual property lawyer who enjoys tearing down without building up. He can be contacted through his website paulrapp.com.

2.23.12 SKY PILOT

This article was originally published in the 2.23.12 issue of Metroland.

Gotta love this. The Wall Street Journal reports this week that one of the fastest growing segments of the electronics industry is sales of.... television antennas! What’s going on is that as people are cutting the cord from their cable companies in favor of watching stuff on the internet, they’re rediscovering the joys (and no doubt the frustrations) of free TV signals in the air.

Cable networks have been racing to the bottom with soul-deadening reality shows and endless syndications of goofy cop shows. And as the quality of programming sinks, cable rates are going up. At the same time, the depth and variety of what’s online is exploding. Netflix just announced a deal with The Weinstein Company to stream their movies (like “The Artist”) even before pay TV. YouTube is launching channels dedicated to original programming. Hulu has all kinds of current TV shows available. And the gizmos available the turn your TV into a big computer screen are getting better and cheaper. And I keep hearing that Apple and Google have TV stuff up their sleeves that will drop soon.

So you ditch cable for the net and what are you missing? Local shows, maybe some sports, and the ability to see network shows as they debut. To the extent these things are important to you, you can get a lot of it by sticking rabbit ears on top of your set or an antenna on your roof (Be careful up there! You could break yer damn neck!). There’s at least 8 broadcast stations in Albany, and many more than that in larger urban areas.

Meantime, cable companies are starting to dramatically beef up on-demand offerings to keep customers off the net and on the grid. Comcast has just announced a new service of recent and high-quality on-demand TV shows and movies that will be available for basic cable customers for free or for cheap. Expect Time Warner to do the same, reversing its dismal practice of charging a la carte premiums even for 20 year old movies you don’t want to watch. It’s pretty remarkable that in the absurdly Byzantine worlds of telecommunications delivery and content licensing, we’re seeing the effects of real, honest-to-god competition in the form of increased consumer choice and value. Yay.

And speaking of what-won’t-they-think-of-next, the New York Times reports that Google will start shipping eyeglasses with little translucent displays in them by the end of the year. The glasses will be hooked to the web like your smartphone, the displays will be viewable by the wearer. Scrolling and pointing and clicking will be enabled by head-movements! And the glasses will have small cameras pointed outward that will allow the glasses to “monitor the world in real time” and even overlay what you’re looking at with an “augmented reality view.”

Holy freakin moley! The cost of these things will supposedly be in the range of a smartphone. The article didn’t mention whether the glasses would include a microphone or some other means of sending messages out. The article didn’t mention whether the glasses would include brain scanning capabilities that would allow the glasses to know what you are going to do before you do it. The article didn’t mention whether there would be a warning device to keep you from walking into walls or driving off a cliff whilst living in your own private translucent cyber-world.

On the downside, the article said the glasses would look sort of like Oakley Thumps. Oakley Thumps? RAY BAN WAYFARERS!!! C’mon Google, get with the program. Oakley Thumps... Sigh.

And I don’t think I believe this, but the article says multiple Google sources are saying there’s no business model being developed for these things yet. Google will just start selling the eyeglasses, and what people actually do with them will dictate the development of revenue streams. That is so counter to traditional corporate thinking it makes me want to juggle cats.

There’s no word on whether the glasses will be available with prescription lenses. Dudes, progressive trifocals, pul-eeze? Then again, if the glasses are so damn smart, shouldn’t they just know what’s in focus and what’s not and fix it? You know, like augment my reality view already, thank you so much?

I guess we should have seen this coming. Everything’s shrinking, your new phone is more powerful than your computer was 5 years ago, and of course that trend is gonna continue. Smart glasses today, smart contact lenses tomorrow.

The future’s so bright and Google’s got your shades.

Paul Rapp is an intellectual property lawyer and musician who likes long walks on the beach and pricy bourbon and hates everything else, except maybe those Google glasses. He can be reached on Facebook or at www.paulrapp.com.

2.9.12 AFTERMATH

This article originally appears in the 2.9.12 issue of Metroland.

The dust is still settling from the epic defeat of SOPA / PIPA last month. Most major media outlets are still mischaracterizing it as a battle of Big Tech versus Big Media, which is a convenient way around the fact that it was The People versus Big Media. A few commentators, though, are gushing about the role of social media and the internet in bringing this about, tying it in with this week’s Susan G. Komen debacle. There’s certainly something to that; internet petitions and click-and-send letters to legislative representatives have been around for years, but it seems as though participation in them has reached some sort of critical mass.

It’s been argued that the importance of these things are over-rated – how seriously are we supposed to take a gesture that involves a few seconds and a click of a mouse? That’s not a bad argument, especially when you add that anti-SOPA / PIPA activity, for one day, was facilitated by the Google and Wikipedia webpages. This is the digital equivalent of having a really-nice looking person showing up at every house and workplace in the country and telling everybody within earshot that Congress is about to kill the internet, and would you like to tell them not to? Yes? Done!

My response is that the internet has made lots of things easier. You can buy a book or CD in seconds by pointing and clicking. You can re-up your driver's license the same way. Why should participatory democracy be any different?

The meaning and import of what just happened will become clear soon. What happens the next time Congress or the White House does something idiotic with regard to the internet will be instructive. This will be especially true if Google and Wikipedia sit out the next round, which I think is likely. Will the “movement”, if that’s what it is, continue without training wheels?

And what’s coming? Lots. Big Media is regrouping for the next round. There are reports that Big Media is blaming the loss on an over-emphasis on closed-door politics at the expense of “educating the public.” There’s talk of pouring millions into school programs that will teach the young ones that “piracy is bad.” Good luck with that. This will have all of the effectiveness of the endless drivel my generation was force-fed about marijuana being a "gateway drug." We were smarter than that, and so are our kids. A new Pew study found that SOPA/PIPA was kid's most-followed news story of the last month. They live on the internet, and they don’t want a bunch of grey-haired grown-ups messing with it.

Nonetheless, if you’ve got kids in school, you might ask them from time to time if the topic has come up in school and if there were any hand-outs. You should know if your school is dishing industry propaganda, and if they are, a furious call to the principal would not be out of order. If you don't wanna do it, call me and I'll do it.

There’ll also be a more general public relations push. Take a look at RIAA toady Cary Sherman’s whiny and delusional op-ed in Tuesday’s New York Times. What a victim! What bullshit! The Hollywood Reporter ran an article last week that implicitly assumed the Big Lie that SOPA / PIPA would have been fine laws, but they were falsely maligned by a massive Big Tech PR campaign. The article featured Hollywood public relations experts suggesting how the next wave of bills should be sold. One great idea was a big social media push under the slogan “Occupy Creativity.” I threw up in my mouth a little bit when I read this.

Also be on the alert for the ACTA (Anti-Counterfeiting Trade Agreement) and TPP (Trans-Pacific Partnership) treaties, that the US Trade Representative is trying to cram down the collective throats of much of the rest of the world. The "agreements" were “negotiated” in secrecy (and TPP is still being worked out) and appear to lock-in every signatory country's intellectual property laws to minimum standards, and include the kinds of vague language that could easily be used to justify legislation that's dangerous to speech, privacy and the internet. Like SOPA / PIPA.

ACTA has been a particularly hot issue in Europe over the last couple of weeks, with the Polish and Czech governments suspending any legislative activity about ACTA pending further study. A few dozen Bulgarian MP’s wore Guy Fawkes Anonymous masks during a legislative session in which ACTA was passed. Following weeks of significant public protests across Europe, February 11 has been designated as an international day of anti-ACTA action. This is gonna be good.

Over here, the Obama administration has taken the position that the US can ratify ACTA without any Congressional action, which is a huge stretch. Congress, informed and awakened by its SOPA / PIPA experience, might well challenge this.

But they might need another push. Speaking of that, Senators Schumer and Gillibrand are still listed as sponsors of SOPA / PIPA. You might want to ask them why.

Paul Rapp is an intellectual property attorney who operates out of a secret lair deep in the forests of the Berkshire Mountains. He can be contact through his website www.paulrapp.com

1.26.12 BOOM

This article originally appeared in the 1.26.12 issue of Metroland


It’s incredibly rare these days when something good happens in Washington. Even more rare when it happens unexpectedly, spontaneously, and for the right reasons.

But last Wednesday something really good happened in Washington. The SOPA/PIPA legislation, which would have given courts broad powers to blacklist websites and encouraged “voluntary” snooping on your online activities by internet service companies, was nuked as a result of a furious outpouring of opposition from millions of people.

One of my predictions for this year (see Metroland 12/29/11) was SOPA/PIPA “going down in flames” and becoming a major campaign issue for the 2012 elections. This was one of those “in a perfect world” predictions; frankly, I almost left it off because it seemed too ridiculous. I’ve been writing about these bills for over a year (Metroland December 2010, June, October, November, and December 2011) and I felt like I was yelling at a tornado. I was sure the fix was in.

What happened? Awareness of the proposed laws’ dangers had been growing steadily for a couple of months, and in December opposition was started to gain traction. But just a little. There were still dozens of bill sponsors; Congressional hearings were a farce; there was absolutely no mainstream media reporting on the bills for the simple reason that the Big Media conglomerates who own the news outlets were staunchly in favor of the bill. The bill had remarkably broad bi-partisan support, something that’s unheard of these days, and the White House had been sending signals that it also supported the bills. The little opposition that was popping up was mostly grassroots, with only one visible cheerleader in all of Congress, Senator Ron Wyden of Oregon. Wyden had placed member’s holds on Senate versions of the bill and issued thoughtful memos about the bill’s dangers, memos that were ignored by his colleagues.

Then two weeks ago, things started turning. A couple of Congressmen, tea party guys, started publically questioning the bill. This gave the grassroots folks (who probably wouldn’t agree with the tea party guys on any other issue) a boost. Chris Hayes, who has a little-watched weekend morning show on MSNBC, came out swinging against the bill. The White House issued an unexpected and unequivocal message that the “blacklist” provisions of the bills were unacceptable. It was reported on a blog that during a pre-show warm up, someone asked John Stewart why he was ignoring SOPA/PIPA, and Stewart said he hadn’t heard anything about it and promised to look into it.

Supporters of the bill, the RIAA, the MPAA, the US Chamber of Commerce, and all of their toadies in Congress, went into overdrive. The lock-step of their public announcements was absolutely Rovian—everybody, industry flaks and lawmakers, stayed “on message”, and everybody was lying. One day it was that online infringement cost the US economy $25 billion each year, a totally made-up and unsupportable number. The next day it was that SOPA/PIPA would create 180,000 new American jobs in its first year, another ludicrous claim. The next day it was that opposition was being orchestrated and financed by Big Tech, specifically Google. This was absurd, as the most vocal opponents were publicly pleading for the mostly-silent Google to take a public stand on the issue; fact is that the Big Media proponents of the bills had spent four times more than the tech sector lobbying Congress on the bills. Finally, the big spin meme was that opponents to SOPA/PIPA were misrepresenting the proposed laws and fear-mongering people into contacting their officials. Positively Orwellian. And fascist.

Last Wednesday was supposed to be some kind of "day of action." Yawn. Tuesday Wikipedia announced it would go dark for the day, which took everyone by surprise. Late Tuesday Google announced it would do "something", too. Rachel Maddow ended her show with a short rant about the dangers of the law. Wednesday morning I saw headlines about Google blacking out its logo and a bunch of sites going dark. I found some code that was supposed to black out my websites, but couldn’t figure out where to stick it. So I just figured ho hum, and started to go about my day. Around 10AM I got a call from WAMC, asking if I could come in at 2 to do a special VoxPop about SOPA/PIPA. I’m like, really? I took a look again at the news and saw that an unprecedented game was on.

By the end of the day, some 13 million people had contacted their representatives. Phone lines were jammed, websites crashed. Sponsors bailed in droves. The next day votes were being canceled and by Friday SOPA/PIPA were dead.

The mainstream media is still reporting that this was a fight between Google and Hollywood. It wasn’t. It was a triumph of democracy. And there will be more. Big Media will continue to attack the internet. This ain’t over.

Paul Rapp is an intellectual property lawyer based in Housatonic MA. He can be reached at paulapp.com.

1.12.12 SWEARING ON THE TEEVEE AND DRINKING AND ROCK AND ROLL

This article originally appeared on the 1.12.12 issue of Metroland.


The Supreme Court is taking another whack at FCC v. Fox , a case that’s been bungeeing around the courts for years. We’ve talked about the case here at least twice before. This time the big question is teed up—whether FCC restrictions on speech on broadcast television are constitutional. Arguments were held before the Court this week, and the various justices’ comments were pretty interesting.

The case involves FCC penalties that have been levied against networks for a couple of spontaneous, unscripted F-bombs dropped by Nicole Ritchie and Cher during broadcasts of the Billboard Awards in 2002 and 2003 and a woman’s bare butt that flashed on NYPD Blue in 2003. I tried to find out whose bare butt is in issue here and failed. Shading everything is the fact that the challenged regulations apply only to over-the-air broadcast networks, which the FCC has always had jurisdiction over, and not cable or satellite networks, over which the FCC has no jurisdicition.

Predictably, and rather sadly, the “conservative” limited-government justices Roberts and Scalia came out in favor of the government regulations over speech, mainly on grounds of “public decency.” Chief Justice Roberts said all the government wanted was a few channels where one can’t see nudity or swearing. Apparently he doesn’t believe in the wisdom of the markets like his fellow indoctrinated neo-cons, nor has he watched the Nickleodeon or Disney cable networks lately. Constitutional originalist Justice Scalia observed that “[t]he government is entitled to insist upon a certain modicum of decency.” Which means that on one hand, he thinks corporations (which, don’t forget, are people) have the unfettered right to “speak” by giving unlimited, untraceable money to political candidates, that’s just perfectly “decent”; but if someone utters a certain word or shows their butt on a teevee with rabbit ears, well that’s indecent, and the government is “entitled” (entitled!!!) to bring out a big can of government-issued whoop-ass. And that’s in Constitution where? Isn’t that the only place we should be looking for guidance?

Fellow conservative Samuel Alito took the most interesting tack of the group, pointing out that over-the-air broadcast television was rapidly going the way of 8-track tapes and vinyl records, so why do anything? Why does it matter? Ummm...because 95% of us watch these channels on cable or satellite and your censorship affects us, too? Because nobody knows when over the air TV will die, if ever? Because freedoms delayed are freedoms denied? Need more? Holla. I got ‘em.

There is supposed to be a decision issued in June.

Moving on. There was an interesting article in the New York Times recently about how rock music, however defined, was treading water, if not drowning. Well, yeah, this has been happening for a long time, it’s evolutionary, and there’s all kinds of reasons one can point to for why rock appears to be withering on the vine. And I’ll talk about one right here.

It hit me when I read the coverage of Van Halen’s recent triumphant re-introduction set at the tiny Café Wha’ in New York City. David Lee Roth gushed that the band played little venues like this 5 days a week for 4 years until they broke in the late 1970’s. That triggered a memory of Cheap Trick’s Rick Neilson’s, who at a talk last Fall said that Cheap Trick played 4 sets a night 5 nights a week for years before they broke.

And I’m thinking, “who the hell does that anymore?” Pretty much nobody! Most local bands are lucky to get two or three gigs a month, and those are usually for a set or two. And they pay crap. If there is a “tour”, it’s usually something the band saves up for, and winds up a grim, money losing, bad food, sleep-on-the-floor disaster. And everybody is playing in 3 or 4 bands at once just to keep busy and interested.

So musicians don’t get the opportunity to develop the chops, instincts, or stagecraft necessary to become rock stars in any classic sense of the term. Bands don’t get to develop as cohesive machines, they don’t develop a distinctive sound or a strong collective personality.

And I’ve rung this bell before but I’ll ring it again: a major contributing factor to this is the absurdity of having a 21-year-old drinking age. Van Halen and Cheap Trick were able to play 4 sets a night 5 nights a week because every town had a couple roadhouses, or gin joints, or converted warehouses that hired bands every night of the week and drew big crowds, made up mostly of 18-21 year olds looking to get wasted, to hook up, and to rock out. We’ll never see that again.

So. Buh-bye, the rock.

12.29.11 PUTTING THE DICT BACK INTO PREDICTION

This article originally appeared in the 12.29.11 issue of Metroland.

Once again, I’m batting around .500 with my predictions for last year. Hank Jr. was bounced from Monday Night Football, but he wasn’t replaced by Kanye. Justins did threaten to stop booking jazz (again), but no populist uprising saved the day. No new local musicians broke nationally, although a couple of them got real close. A Rolling Stone did not croak. Samson Contompasis did not cut his hair off, and I had money on that one, dammit.

So, without further a-doo-doo, here are my predictions for 2012.

OK, THIS year a local daily newspaper will fold, and all of the local mainstream media will run around blaming the internet and saying oh what will we ever do...Meantime, a couple of independent locally-focused internet news sites will pop up and start aggregating local news outlets, local blogs, real-time multi-media reporting, and reader contributions. These sites will attract readers and advertisers.

Madonna will get booed big-time whilst lip-synching at the Superbowl. There’ll also be some major and embarrassing technical glitch, too. Her dismay will be obvious, and this will go down as the most memorable, iconic Madonna moment, like, ever. Her new album will bomb. Meantime Gaga will continue her inexorable march to super-super stardom and immortality.

Some ridiculously massive guest musician will show up at the JB Scotts reunion in May and jam with whoever’s onstage.

Live Nation and other mainstream promoters will try to muscle in on the dubstep scene and the dubstep audience will totally reject them for political reasons and the artists who signed up with them will be branded forevermore as greedy capitalist pariahs.

SOPA / PROTECT IP will go down in flames and the legislators who backed it will have some splainin’ to do on the campaign trail in the fall because it will have become a major and explosive issue.

Mitt Romney will be the Republican nominee for president and the ONLY musical artists that stump for him will be Wayne Newton and Hank Jr., and neither will be particularly helpful. He will lose majorly.

Against every conceivable odd Cohoes will increasingly be the cool place to live, the cool place to hang, the cool place to be.

Carmine’s new Brazilian joint will take Albany by storm. Meat, meat, and more meat! On swords, baby!

A defunct local band that’s not Blotto will get a huge surprise and a big payday when one of its old forgotten recordings is picked up for a national ad campaign.

A tiny regional theater company will score big when it premiers a new play by an unknown playwright and the play blows up and heads to NYC.

Occupy will have a huge impact on virtually every election in the country, while the Teabaggers will quietly crawl back into their doublewides.

The NY federal appeals court will make a bad ruling in the Richard Prince infringement case, a ruling so broad that it eviscerates the fair use doctrine. As the case heads to the Supreme Court, artists will stage big unstoppable high tech public protests on the internet and elsewhere and heat will be put on Congress to clarify the law. Meantime, lots of lawyers will make lots of money.

The Anonymous hacker collective will pull off something so astonishing and that has such a huge positive impact that it will be next year’s Time Magazine person of the year.

Tanglewood will book Bon Iver and The Civil Wars and the show will sell out in hours. Just kidding. They will book the Beach Boys reunion tour, which will be OK only because it’s Brain and his band with those other creeps just along for the ride and the paycheck.

Music service Spotify will grow and expand, and as musicians paychecks increase, the hold-out bands and labels will fall over each other to put their stuff back into Spotify’s catalog. Rhapsody will revamp its streaming site and put some heat on Spotify, and both services will improve dramatically as a result. Another huge player will jump in with a competing service that’s also great. CD sales will collapse, and the growth of download sales will stall.

The FCC will open up new bandwidth for communications. Then under public pressure, it will hold hearings on data restrictions for cellphone users, find that they are a sham, and order all cell carriers to immediately offer only unlimited data plans. Several carriers will be levied massive fines for screwing around with customers’ bandwidth after this.

Have a safe and fun New Years’, and I’ll see you on the other side.

12.15.11 LAWYERS NUNS AND MONEY

This article originally appeared in the 12.15.11 issue of Metroland

There’s a fascinating drama playing out right now in Albany County Supreme Court. The Daughters of Mary, a group of nuns associated with the St. Joseph’s Church and Convent in Roundtop, New York, have sued Albany art dealer Mark LaSalle in connection with the 2006 sale of a painting by late 1800’s French master William Adolphe Bouguereau. It’s alleged that LaSalle advised the Daughters that $450,000 was a fair price for the painting, then unscrupulously arranged the sale to another art dealer who then flipped the painting for over $2 million.

The Daughters and St. Joseph’s have been occasional clients of mine for a couple of years; I’ve given them intellectual property advice mainly regarding various items they sell in their gift shop. I was called to testify briefly at the trial on Tuesday, just to say that I had nothing to do with the sale of the painting, which happened several years prior to the Daughters hiring me.

The trial has been going on for three weeks and while it’s apparently been moving at a snail’s pace, there has also been lots of drama, strange characters, bizarre accusations and theories (even murder plots), and of course, nuns.

There is some incredible reporting of the trial happening over at newyorkcitizenone.com, which picked up the story on Tuesday the 6th and has been posting smart, insightful and funny articles ever since. This is citizen journalism at its finest—a thoroughly intriguing story which is way beneath the radar of traditional news outlets, brought to light with style and attitude to spare. Check it out.

It seems like only yesterday, but it was almost 6 years ago that the Google Books lawsuit started. In a nutshell, the Authors Guild and a bunch of publishers decided to sue the bejesus out of Google for having the temerity to want to digitize all the books in the world. Keep in mind that Google wasn’t going to give away any books (except those in the public domain) but rather create a massive database where we could do keyword searches and find out what books used what words.

The Authors Guild ran around screaming “infringement” and “theft” when the only infringement that was happening was the fairly benign process of scanning of the books into a hard drive. Each book. Once.

As many of us pointed out at the time, this was an absurd lawsuit totally at odds with the Authors Guild’s members’ self-interest. Google wasn’t stealing any books! It was simply making all books, even books out of print and long-forgotten, easier to find and easier to use. All books, like, ever.

After a couple years of posturing and legal hoo-hah, the parties announced a settlement that, strangely, gave Google more rights and revenue opportunities than it had wanted originally.

The settlement was presented to the court; in March 2011 the court rejected the settlement, for a variety of reasons, including that the settlement gave Google almost unlimited market power that was not likely ever to be challenged by any other market player. Market power that it hadn’t originally sought, but that it got in the settlement.

This week, the Authors Guild filed a request for the court to certify as a “class” every author in the United States, a first step in the commencement of a class action lawsuit. The Guild is starting over, right back to where it was in 2005, trying to bring a new asinine legal proceeding to stop what would be one of the greatest advances in scholarship and the distribution of knowledge the world has ever seen. While the vast majority of Google’s digitization effort sits on servers somewhere, unused. Urgh.

OK, what else? Oh yeah, this. From time to time we talk about how your smart phone might be spying on you, to the point of ratting you out. I don’t do it often because a lot if it is way too tech-y for my Luddite brain. But recently some folks discovered that a lot of smartphones, particularly phones sold by Sprint and Verizon, have this sketchy and deliberately hidden software called Carrier IQ, that can track and report a ton of information about the phone user, including location, keystrokes, and browsing behavior.

Techdirt reports that the company responsible for Carrier IQ, after first threatening to sue the researcher who “discovered” it, claimed that the software was used only for diagnostic purposes, to report dropped calls, to track network issues, and the like. The company said that it would never use the software to breach anybody’s privacy. Maybe that’s so, but it looks like somebody else is. Another research decided to FOIA the FBI, seeking documents showing whether and how the FBI was using Carrier IQ derived data. Rather shockingly, the FBI replied this week that it had such documents, but refused to turn them over because doing so “might interfere with ongoing investigtions.”

Uh-oh. We’re all screwed.