Wednesday, August 29, 2007

Sometimes You Can't Help But Laugh

Patry, a very intelligent and always a witty fellow, provides brilliant commentary on a recent decision concerning 50 Cent and his masterpiece, "In Da Club."

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Tuesday, August 21, 2007

New TTAB Rules Announced

A list of revisions to the Trademark Trial and Appeal Board rules have been provided by the TTAB. Here is a direct link to a PDF copy of the table summarizing all the rules.

Thursday, August 09, 2007

AT&T Censors Pearl Jam

It appears that AT&T censored its webcast of Pearl Jam's performance at Lollapalooza on Sunday:

During the performance of "Daughter" the following lyrics were sung to the tune of Pink Floyd's "Another Brick in the Wall" but were cut from the webcast:

- "George Bush, leave this world alone." (the second time it was sung); and

- "George Bush find yourself another home."
PJ expresses concern over this action, both because of the censorship but also because it highlights yet another problem with media consolidation. AT&T claims that it was a mistake by a content monitor but inadvertent or not, the censorship still happened. That it was political speech (the most protected of all under our Constitution) is most troubling. Surely the content gatekeeper hired by AT&T to filter the broadcast of an extremely popular musical event knows the difference between blatant obscenities and a couple of lyrics involving the president. If this person bleeped an F-bomb it would be more understandable. However, I find it hard to believe that an individual would be so oblivious to think political speech should be censored. Common folks know this - shouldn't the person whose job depends on this awareness be as enlightened?

This is just a hunch, admittedly rooted in a mistrust of the close relationship between our current chief executive and big corporations, but I am inclined to think that this snafu was less a mistake by an individual monitor than a directive from higher powers. Even if this person had never monitored a single program, I'm sure the first question asked when sat down to begin his/her duties was, "So what gets in and what gets out?"

There's been no shortage of debate over censorship since the Janet fiasco a few years ago. Networks have been very acutely aware of their limits and exercised great control over what gets broadcast, knowing that huge fines could ensue for their failure to be so diligent. It stands to reason that just as conscious decisions are made to allow content to be broadcast, an equal amount (if not more) consideration goes into what is deleted.

The good news, as I see it, is that PJ's concern over net neutrality is greatly mitigated by this situation - for one major reason. PJ has been able to make noise over the issue, the issue has been picked up by several media outlets and people have been talking about it. PJ was able to post the omitted lyrics and, without censorship or pass-through any major media conglomerate, the entire world has become aware of not only the censorship itself but the underlying concerns surrounding it. AT&T might have done PJ a favor; not only have those lyrics gotten far more attention as a result, it has also given PJ a living example from which to express its opposition to media consolidation.

Wednesday, August 08, 2007

EFF Defense of Selling Promotional CDs

The Electronic Frontier Foundation is an organization that consistently confirms my self-image as one who does not blindly follow the views of any single entity, political or otherwise. While it frequently take righteous positions regarding the true fair use of copyrights and the frequent unjustified, overreaching for control by major media, I respectfully part ways with them on one most recent issue.

The EFF is defending Troy Augusto in an action brought by Universal Music Group. Augusto was selling promo CDs on an eBay auction.

I understand the spirit of the EFF argument - the first sale doctrine enables anyone to sell a CD that he or she has purchased. However, the EFF is arguing that Universal's position could jeopardize the business of libraries, used CD stores, and rental houses. If Universal were challenging the sanctity of the first sale doctrine then the EFF argument would be valid, but this is not the case.

Promotional CDs are just that - they are given away to radio stations and other taste makers in order to promote the band. They are *given away* for this purpose. The person receiving the promo copy has tendered no monetary consideration in exchange for the CD. The only consideration on behalf of the recipient is to agree not to resell it.

The crux of the argument is not based on copyright law but is instead a contract claim, and nothing is more troubling than when otherwise forward-thinkers try to hinge every deed that concerns copyrights on copyright law. The relief sought by Universal does not require dismantling the first sale doctrine, nor does it threaten any of the legitimate uses identified by EFF. Rather, it merely states that a promotional copy is not sold and thus any distribution of a promotional copy does not qualify under the first sale doctrine.

Generally, we always look at issues in copyright through a prism of fairness, which is why the EFF so frequently sounds a sympathetic alarm. However, it is hard to defend those who sell promotional copies. These people are vastly increasing their profit margins by selling products they did not pay for. The artist isn't getting paid, the label isn't getting paid, and the consumer is still (generally) paying full price. Even if the consumer is getting a discount, it is never going to be as deep as the one gotten by the seller, i.e., it will never be free.

The consequence if EFF wins is, of course, that promo copies will be free to sell (despite a contractual, not copyright, commitment to the contrary). The result is that no promotional copies will be distributed. Music writers, DJs, concert promoters, clubs, and all other people who used to get free copies of music will have to pay for them.

So then, what exactly is EFF defending? The right of some individuals to make a lot of extra money off of someone else's work? What's fair about that? The label gets screwed, but more importantly, the artist and consumer also get screwed.