Identity Theft

Some notes on property rights and identity, from an article in the New York Times, March 28, 2011

Ownership of a person’s identity after death is regulated by the states. Each one does it differently. In New York all such rights expire upon death. So, because Marilyn Monroe was legally a resident of New York State when she died, any one can use her likeness or identity for any purpose.

You can’t use Einstein’s likeness or identity without permission, and without paying a fee.

There is no legal mechanism by which a person who disdained endorsements in his or her own life can prevent others from selling their name or image after death. Too bad Chaplin, Hendrix, Einstein. If Einstein had expressly declared in his will that he didn’t want his face and name to be used to hock automobiles– too bad. It’s like the courts would have nullified his wish.

Guess what– the right of publicity is taxable. So the heirs of a famous person’s property may have to sell those rights simply to pay the taxes on the value of those rights. That seems very wrong. The law essentially seems to require that a person’s good name and image be despoiled.

In fact, that seems repellent. Are the courts actually insisting the government has the right demand the commercial exploitation of deceased celebrities, because, that, in fact appears to be the case. (Unless the tax only kicks in if the property is sold. That actually makes more sense. The Times article was not clear on the point.)

Did you know that it is accepted tenet of will law that a person cannot demand the destruction of property or assets in his or her will?

Well, he or she can “demand it”, but courts will generally rule against it.


The Wonder Years Without the Music

Here’s my second brilliant idea of the month!

As you may or may not have heard, a well-regarded TV series, “The Wonder Years”, has never been released on DVD. Why not? Lots and lots of people want it. Well, the problem is that “The Wonder Years” used a lot of popular music in the background of many episodes. At the time, the cost of using pop music in a tv show or movie was negligible. Now it is not. Everyone got greedy. Of course, the owners of “The Wonder Years” are also greedy– they are dissatisfied with the amount of money they will make if they have to pay all those royalties.

The funny thing is, you could probably acquire most of the songs used in the show for a very reasonable cost, if you just bought them on iTunes. Maybe you already have copies of those songs. In fact, if you are fan of the “The Wonder Years”, chances are pretty good that you already have a fully licensed, fully paid for copy of the songs used in the show.

So what we need is software.

What we need is for the owners of “The Wonder Years” to release the series on special DVD’s without the expensive already paid-for music. You put the DVD in your computer and this special software scans your hard drive, finds the missing music, and synchronizes it. Then it burns the entire DVD to a new blank. Problem solved.

The only problem is that this would make naked a little-understood fact about copyright: you are paying twice, three, four times for the right to listen to the same song, whether you have the album, the CD, the iTunes version, or a movie or TV show with that song on it, your wedding video (if your videographer paid for and charged you for the rights– not likely.)

And by the way, it’s not the artists who are greedy, of course. It’s people who usually swindled the artists out of their rights in the first place. They’ll be damned if you get to watch “The Wonder Years” or the great documentary on the civil rights movement, “Eye on the Prize” with the music.

Fred Savage, who played “Kevin” on “The Wonder Years” grew up surrounded by some of the most beautiful and, in the case of his co-star Danica McKellar, smart, women in Hollywood.

Who did he end up marrying? Someone he met in kindergarten.

I had stopped watching “The Wonder Years” after a year or so because I thought it was getting too precious, and I began to find the narration annoying. I just read a TV critic who feels that the narration “made the show”. Hey, maybe I was wrong. I don’t know. I won’t be able to re-examine the idea until it does finally get released on DVD. Or not.

Paying the Artist

“The chart linked to the left gives you a rather dramatic picture of the state of the art in terms of artist’s earnings from recorded music. As you can see, the picture is rather dismal. It appears that an artist’s best chance of making any kind of living at all from his own recorded songs is to sell the CD directly to the public, at gigs or online.

Music Industry – the Chart!

You can’t ignore an omission (forgivable– that’s not what the page is about): the chart doesn’t account for the role of publicity and promotion in CD sales. But it does make it clear that the trade-off, for the artist, is absurd. In exchange for access to the “star-making-machinery” of Sony or BMG, you sell a gazillion units, and then get to turn over pretty well all of your earnings to the record company. No– you don’t even “turn over” the profits– you will never even see them, for the music industry skims off almost everything– and I mean that literally– almost everything– before turning over a pittance to the artist. But then, you get to be on TV. You get promoted. You get fame. You get the girls. You get broke.

I have said this before and I’ll say it again: I believe the government should step in and set standards for contracts between musicians and record companies which guarantee that the artist receives a “reasonable” portion of royalties for every unit sold. It also needs to regulate how much the recording industry can deduct from an artists royalties for the cost of “promotion”. To me, those charges have always seemed like General Motors deducting money from the wages of assembly line workers to cover “advertising”. Why the hell should the assembly line workers pay for the cost of doing business? Especially when you find that a lot of these expenses are fees paid to shadow entities that are actually owned by the record company itself– like “image consultants”, market researchers, arrangers, and so on.

The most compelling paradox of the music industry remains this: would any artist be happy to know that his music is not being pirated? Yes, nobody’s stealing your music. You are so lucky.

So what’s a young recording artist/singer/songwriter to do? Would they really want to go back to the pre-internet lottery system: if you get chosen (by a record company) and you’re lucky and you get a contract, you get rich? And everyone else has absolutely no way to reach a potential audience.

I suspect that the current reality is what is going to work as well as anything can work in this world. New artists practice and play when they can, record their own CD’s cheaply with newly accessible technology, and sell them online and at their performances.

The music industry has never, probably, been so democratic: anybody can reach a large potential audience via the internet, post a video on Youtube, post their music at iTunes, and keep their fan base informed via Facebook.

But without the machinery of the music industry establishment, their prospects are dismal.

Information Highway Robbery

Apparently there a lot of orphaned books out there. These poor little documents have no mothers or fathers or other living relatives. They reside in research facilities and libraries. But fear not little books– Google wants you.

Google has cut a deal with an association of publishers and an association of authors: we will take all those books. Thanks. Goodbye.

Google wants to scan in all these books. I don’t think they plan to sell access to them directly– they will profit by having you end up at their websites whenever you do an online search for any text in any of these books.

This is not all bad. In fact, this could be wonderfully useful. What has some people upset is that Google, in order to protect their investment, is demanding exclusive rights to this material. And they must have paid some money to the people in charge at the publishers and authors associations– people in charge– for these rights. Will any individual publishers and authors ever benefit? Almost certainly not as much as the people who negotiated the deal will benefit. This is the same principle behind the government giving away oil and gas and water: we citizens get nothing. They get lavish campaign contributions and parties.

Google would probably argue that if they don’t get exclusive rights, it won’t be in their interests to scan all these books in, so they won’t do it, and nobody else will either.

You also have to understand that this agreement is not the same as legislation. Google has simply paid off the only groups likely to be able to muster a legal battle against them. If you were to start scanning in all these books yourself and then offer them online on your own web page, Google would likely resort to the standard corporate practice of threatening you with their lawyers with no intention of ever actually allowing the case to go to court.

The article in the New York Times.

Need some therapy? Apparently those librarians do. They are angry about this deal. They think it stinks. And they are “mad”, “angry”, “upset”.

A good therapist could provide an effective solution to this problem: they just need to get some therapy. They aren’t “angry”– they have “anger issues” that need to be addressed.

Copyright: Subsidizing Obsolescence

The world has changed. Get over it. I think people still immersed in the old business models see their infrastructure crumbling but can’t see how the new possibilities might be even better– as Apple clearly did with the iPod.

I hope Viacom has their wish: Youtube will delete all their videos– that’s their policy if they receive a complaint. Then Viacom will pay millions of dollars to show clips in ads on regular TV. Duh!

The “principle” of copyright is indeed in trouble. The trouble is that people don’t really understand the original purpose of copyright. The trouble is also that people have this illusion that Walt Disney’s “The Little Mermaid”, for example, is “original” (Disney stole it or bought it, along with “The Lion King” Pinochio, Aladdin, and most of everything else they produce). Most rock’n’roll is derived from long established models of chord progressions and riffs. Art steals from landscapes or objects (Warhol’s Campbell Soup can is only the most obvious example). Ever see a TV episode in which one major character seems to have forgotten another major character’s birthday? Lucy? Mr. Ed? Gilligan? Edith? Maude? Homer?

The sad truth is that most of the current big corporations fighting for stricter copyright enforcement could not themselves have been profitable without outright theft. (Exactly how many “reality” tv shows are there, by the way? Hey, I got an idea: we get a bunch of people on a show, have them do something, then kick one of them off every episode!…)

We have simply entered an era in which definitions of “original” and “copy” and “collage” and “edited” and “found” are rapidly changing. We’ll survive. We’ve never had as much money to spend on diversions as we do now, and the money is madly flowing in all directions. The groaning and creaking we are hearing is the sound of decrepit old business models struggling to re-orient themselves to the new realities. The nimbler minds at Google, and Apple, and YouTube, and Myspace, etc. have already found their way. The older models are not only inefficient — they’re boring.

It would be very, very bad policy for the government to try to artificially prop up those old monsters, the way some governments and unions used to try to require stokers on diesel trains. The DMCA was a clumsy attempt to do just that and I hope it dies slowly, the death of a thousand YouTubes.

Baseball Statistics

Major League Baseball Advanced Media is not making a copyright claim to the statistics themselves; a 1997 decision in the United States Court of Appeals involving the National Basketball Association ruled sports statistics to be public-domain facts that do not belong to the leagues. Ny Times, May 15, 2006

This is very interesting.

I didn’t know this, but several sports websites, including CBS Sports and ESPN, pay Major League Baseball millions of dollars for permission— permission!!– to promote their product. Okay– baseball, sees them as exploiting baseball’s already fabulously valuable product for their own purposes. I see it as asking the customer to pay for the advertising.

The NY Times article wasn’t completely clear about it, but I think it’s reasonable to assume that the payments are for use of the images and names in rotisserie leagues run by those websites, wherein fans can choose a roster of players who then “perform” as they do in real life for the virtual team.

I’ve got an idea for CBS and ABC and FOX and ESPN: go to Major League Baseball and announce to them that you can’t afford to pay them to advertise their game so, from now on, they will not pay and simply never again mention Major League Baseball or Barry Bonds or Ken Griffey or anything else about their product at all.

It would be very helpful if all the sports media outlets did this at the same time.

Does Sports Illustrated pay to write an article about the World Series? Do they pay to interview Barry Bonds?

This is nuts. Just say no. No more publicity for baseball. Promote something else– go to FIFA and ask if they would like it if they devoted all of that space to them instead.

What do you think?

Copyable Media

From the online forums….

“One key fact is that the copyright holder still *does* have the right to decide to expose and sell their product efficiently, inefficiently, or not at all. You, on the other hand, have NO rights to that product or that decision. You have NO right to decide how the product should be exposed or distributed. “

Not quite that simple. I absolutely agree, though, that any musical artist has every right to NOT distribute their music on CD. Go for it, Ashlee! No problem there.

But… the general public, the consumer, made the choices (from among competing technologies) that established vinyl, then cassette, then CD as the format of choice for musical recordings.

The public also has a right to expect that providers of content compete fairly in the market place. If Ashlee wants to issue her recordings on vinyl, she can. That way nobody will steal her work. Some other artists might conclude that they could compete successfully against Ashlee by issuing their work on more popular mediums, but who am I to second guess them! So if you want Ashlee’s work, buy her vinyl album. That’s your choice and you’re free to make it.

But she should not have the right to collude with other recording artists to force Pioneer and Toshiba and Sony to hijack the CD format and impose changes on it that the public didn’t ask for and does not  want.

She and the other artists are absolutely, totally, completely free to go to Toshiba and Sony and Pioneer and offer to pay them to develop a new uncopyable technology that will only be used to distribute her music on.

The public, I’m sure, will adopt it in droves, especially once they understand that they can’t use it to make their own recordings or assemble their own music collections, or play it on the portable players they already own.

Go for it Ashlee! Please!

(Incidentally, I don’t mean to pick on Ashlee. I really don’t know anything about her other than the Saturday Night Live gaffe.)

Bottom line. I have no problem with artists switching to a new medium that prevents copying. As long as other artists have the right to continue using copyable mediums like the CD or Radio or television with a stereo signal if they want to.

Now you’re a young artist. You want to become famous and have people hear your music and sell a few CD’s and tickets to your shows. You gonna join the proprietary, protected gang, or offer your stuff to the public on their medium of choice?

Copyright and Copywrong

(From a discussion on usenet)

Skip this if you don’t want to be bored. But if you think the CD as the medium of distribution for music might soon be obsolete…

Actually, your point is well taken. I have often thought and said that I wish some days that the copyright-holders get exactly what they wish for. Because it would kill them off more quickly. What I believe is happening is that copyright holders want it both ways. They want to benefit from widespread exposure. Then they want to assert the right to not expose their work.

I firmly believe that if the government had required Microsoft to put effective copy protection on all of their products, we wouldn’t have the monopoly we have now. And I firmly believe Microsoft knew that, and that is why, when Word Perfect, for example, removed copy protection from their product, Microsoft almost immediately did the same. It is therefore hypocritical of Microsoft to demand protection from competition, by asserting their copyright. Compete!

And, in fact, you can easily see that Microsoft has been very circumspect on this issue. They know dimly what Google understands completely: there’s a lot of money to be made in giving away your product.

As for music, copyright holders want their music exposed, on radio and tv, in promotional tie-ins, scandalous newspapers, etc., etc. If you truly believe that Ashley Simpson gets her face on my local entertainment section because even a Kitchener, Ontario newspaper believes she is so talented she deserves it, God bless you, but I don’t. She is there because her corporate Svengalis want her “exposed”. They want you to see her face. They have established a very sophisticated and effective system of promotion that ensures that her face will be on magazine covers. They will also want you to hear her music– why else would you buy her CD? Most commercial radio stations only play music by artists they believe will obtain wide exposure through tv and magazines. One hand washing the other. They all profit by selling advertising, not music.

Since I have no intention of spending one red cent on Ashley Simpson products, I would have no problem with her corporate Svengalis being absolutely, totally successful in preventing me from being exposed to her music, her face, or her tantrums, without having paid for permission. Go to it! Please– be absolutely successful. Prevent her music from ever being downloaded to my computer, or played on my radio station, or her face from being on my tv, or in my local newspaper, unless I actually offer you money for it.

I have absolutely no problem with finding my music by reading reviews or hearing personal recommendations from people I know instead. I also like to support local talent.

But that, of course, does not happen. And up until recently, this system worked to the advantage of the big corporations, who could control access to the actual product, the CD. Now the corporations have lost control over the actual product, so the system is becoming unbalanced. But only if you believe that for the rest of all time, we must all consume music by purchasing a discrete material product, and music companies must only profit through the sale of that physical product.

That model has been made obsolete by technology and the music industry (and Hollywood and television) are crying the blues and they refuse to accept it. They are the carriage-makers of our era. They deserve to go out of business because they have failed to adjust to changing market realities. In retrospect, does anybody doubt that if the music companies had moved aggressively to make their entire catalogues available as paid downloads in a high quality format that they would not have made a killing? It took Apple to show them it could be done. But it might well be too late. As with prohibition, individual transgression has been replaced with a transgressive infrastructure that will not be easily suppressed.

Google, iTunes, eBay, and Amazon, and even Microsoft, are the new emblems of astute corporations that understand where the market is going and what it wants. All this wailing and gnashing of teeth is misplaced. The music industry should sit down together, face the fact that the old model of business practice is now obsolete, and move on to something new, or join the other dinosaurs in the museum.

Congress, despicably, in exchange for ready election campaign cash, is doing everything it can to keep an obsolete business model afloat– this from alleged believers in a “free market” (“free” for everyone else). It’s like requiring train companies to keep stokers employed. Or more like when a city in Bolivia tried to make it illegal to save rain water in order to help a private American company make a bigger profit with it’s monopoly on the water supply.

The museum is full of creatures that failed to adapt.

Finally, I absolutely believe that a very profitable music business model can survive downloading. How does Google make money?

The difference is, the Recording industry will have to work hard and use their brains. That might be asking too much….

A recent documentary film producer was asked to pay $10,000 for the rights to use a six-second cell-phone ring tone that was derived from the theme from ROCKY (Gonna Fly Now). Tragically, he couldn’t afford a team of lawyers, so he had to pay a negotiated amount less than that, even though he was not convinced that he had to pay, legally, for it’s use in a documentary.

That is not really farce anymore: it’s tragedy.

Blu-Ray, DRM, and HD-DVD

There is a story in the current issue of Maximum PC that is disturbing to say the least. It’s about the next generation of optical disks. (The first nightmare is that two incompatible standards, Blu-Ray and HD-DVD, have emerged with no sign of convergence– it’s VHS vs. Beta all over again!)

Apparently, these new disks will implement a set of tools that will make it more difficult to copy DVDs. Some of these tools may even require internet access so that content providers can look at your computer and examine your hard drive and mother board before allowing you to look at a video. There will be an encrypted key on the disk, and an encrypted key on the hardware. That can’t work unless you have an internet connection, so it just may be possible that people who choose not to go on the internet will not be able to play Blu-Ray or HD-DVD on their computers. And even if you do have an internet connection, I’ll bet you look forward to waiting, once again, for some content provider to load up your screen with advertising and distractions that you didn’t ask for, while ostensibly registering your transient possession of the goods.

This would not be a problem for anybody if the market place were just and fair and the government genuinely believed in free enterprise. Some vendors and manufacturers would quickly realize something that is readily apparent to anybody: that consumers don’t want digital copy protection schemes because they make it more difficult to enjoy your media, and because advertising and copy protection is annoying, and because it is often done so badly and inefficiently that most consumers are ready to throttle someone, anyone after waiting and waiting and waiting for their devices to finish loading and registering themselves and downloading advertising onto your hard drive.

But “free enterprise” is a myth intended to pin you to the ground while corporations, lawyers, and congressmen pilfer your pockets. The last thing in the world Hollywood wants is competition.

In this case, the myth becomes transparent when you realize that content providers like Warner Brothers and Disney and Viacom are forcing hardware companies to incorporate copy protection schemes into their products even though you don’t want it, the hardware companies don’t want it, and there is no legal justification for it. They are forcing them to do this by threatening them with legal action, and by recruiting their cronies in congress (mostly Republicans) to threaten to pass legislation requiring them to do it.

What if you were a young, independent movie-maker and you decided that, at least early in your career, you would happily trade fame and recognition for royalties on every copy of your movie distributed. What if your movie was too controversial, or idiosyncratic for the Hollywood studios, and you decided to distribute it yourself on Blu-Ray disks? Do you think you are going to be allowed to?

Consumers want large capacity optical drives so they can back up their photos, videos, and data. Undoubtedly, some consumers want large capacity optical drives so they can steal high definition movies. So what? Some people buy guns so they can rob banks, but these same Republicans who prostrate themselves gleefully before the NRA have decided that not only should you be able to buy a gun any time and any place you feel like it– you should even be able to shoot people in public places if they look even mildly threatening to you, at least in Florida.

But you can’t buy Blu-Ray recorders because you might steal a copy of Lord of the Rings.

Or even worse– you might watch a version of a film that has been rated as safe for Europeans to watch, but not for North Americans! Will the perniciousness of video pirates known no bounds!

Or worse yet– you might want to prevent Hollywood from forcing you to watch advertisements or previews when you already paid to watch the movie!

Now– I do not object to Hollywood protecting their investments. Not at all. All they have to do is issue their movies on a proprietary format which can only be played on their own proprietary devices. That’s all. Go for it Sony. Embrace your greed, Warner Brothers!

Ah…. but they don’t want to do that. Because they know that you won’t buy it. They know that their sales will suffer. They know that the consumer doesn’t like nasty, wasteful, inefficient proprietary devices. They know that you will prefer to buy or rent movies on the non-proprietary format, so that you have some control over what and when you watch.

No no no– it’s much more elegant to simply hijack the medium, and then, in cooperation with your fellow-travelers, the hardware vendors, try to ensure that other media formats are not permitted to flourish. They must be stamped out and destroyed. Because consumers have shown over and over again that they don’t want big corporations controlling their media players.

Important Links

Downhill Battle

The Register


This Song is Your Song

There is a little cartoon on that makes fun of both John Kerry and George Bush. It’s pretty funny, really, with it’s pythonesque images, and clever lyrics.

There is a poignant image of an native American standing in front of a beautiful western sunset saying “this land was my land” as the space behind him fills with Burger Kings and Walmarts. Yes, it’s a cliché. But sometimes, something becomes a cliché because it’s true. Because the scandal of relentlessly ugly and tacky American streets and malls has never gone away.

The tune is “This Land” by Woody Guthrie. Woody Guthrie, it turns out, didn’t record it until after 1956. A Canadian group, the Travelers, recorded their own version with Canadian lyrics in 1955 and had a huge hit with it. They were invited to write Canadian lyrics for it by Pete Seeger who was in Toronto at the time, because the song had become black-listed in the U.S.

There is a missing line or two.

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing —
God blessed America for me.

Maybe you never heard those lines before. It’s possible because those lines are usually omitted especially when we teach this charming little song to school children. Guthrie himself sung variations of the “God blessed America for me.” Apparently Guthrie wrote the wrong as a response to “God Bless America” which he hated. Here’s another verse you don’t hear very often:

One bright sunny morning in the shadow of the steeple
By the Relief Office I saw my people —
As they stood hungry, I stood there wondering if
God blessed America for me.

Absurdly, the owners of the copyright are suing for using their song in this little cartoon. My jaw dropped when I heard this. For one thing, Woody Guthrie believe in folk music, and there’s something unnatural about a copyright on a folk song.

Woody Guthrie on Copyright (1933):

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

For another thing, I think Guthrie would have approved of the jibjab parody. If there was one thing he liked to ridicule, it was a dishonest politician.