Category: Copyright

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This Song is Your Song

There is a little cartoon on www.jibjab.com 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 www.jibjab.com 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.

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Pepsi Poseurs

You can’t get much phonier than this.

Pepsi collects about 15 teenagers who were targeted for lawsuits by the vicious RIAA, for downloading copyrighted music from the Internet. Pepsi put them into an ad with a few labels– “incriminated”, “busted”– over– get this– Green Day’s swipe of the Clash’s cover of “I Fought the Law”. Then one of the girls says that she is still downloading…. at iTunes! She didn’t say “but now I pay for it”. She says “legally”.

Did Green Day think most people have never heard of the Clash? Sounds like they copped the basic arrangement from them.

I Fought the Law? The gist of Pepsi’s smarmy little ad is that you should give your money to Apple and buy Pepsi and listen to your mommy and daddy– except they are probably downloading music too– and respect authority. It’s cool to be a serf.

But even this ad is not as smarmy as the one featuring a kid who is supposed to be a young Jimi Hendrix, trying to choose between a Pepsi and Coke.

I presume that permission was granted by some Twisted Trustees of the Estate of Jimi Hendrix. As I have said before in these pages, it should be illegal for anyone, trustee or not, to be able to sell the image, name, or likeness of someone who is dead. It should be covered by the laws about “rendering an indignity to a dead body”. If someone is long dead, it should be public domain anyway. For someone like Hendrix, it’s too contemptible for words. It is a terrible, terrible dishonor to his memory to suggest that he would sell out like this, that he would so allow his name and image to be tarnished, cheapened, and insulted like this.

This is far, far more disgraceful than anything Janet Jackson did at the Super Bowl. The FCC should look into it. Michael Powell should call his dad and ask him how big of a fine would be enough to compensate the general public for the indecency rendered to the body of Jimi Hendrix.

Next, we go after IBM for what they did to the Little Tramp.

Here’s the biggest irony: the MPAA and Recording Industry always claim that they are protecting their “original” creative works whenever they try to shut down a piracy site. Then they use an absolutely ripped off version of “I Fought the Law” to flog the idea.

Listen to the version by the Clash and then Green Day. Do we need to protect artists who rip off other artists so blatantly? [Added 2012-01-18]

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Wedding Videos

Have you looked at a “cutting-edge” wedding video lately? It looks a bit like Tarantino crossed with Fellini. “My Wedding Day 1/2”.

What might be going on is the same process that happened to “art” at the end of the 19th century. For about 2000 years, the goal of painting seemed to be to replicate, as accurately as possible, the image of something. A lot of technical break-throughs, like the use of perspective, the development of different paints and mediums, were the result of artists struggling to unlock the secrets of making a painting look real. Popularly, art functioned like early photography, as record-keeping, information transmittal: here’s a portrait of the pope– in other words, this is what he looks like.

Once photography began to replace that function, artists began to change their styles, and the meaning of art changed. Van Gogh’s sunflowers don’t tell you about what sunflowers look like, but what he felt like looking at them. Monet’s famous pond got more and more abstract as he immersed himself more and more deeply into his backyard.

Professional artists had to find something new to distinguish themselves from hacks and photographers. The hacks continued to try to paint representational images, or, worse, narrative. They were regarded as uncool (like Norman Rockwell). Same with photography: now that anyone can take decent, well-lit, and auto-focused pictures, what’s cool? Out of focus, blurry, badly coloured prints. I can’t wait ’til they start selling instamatic cameras again– to professionals.

In the same way, now that almost anybody can buy a video camera and can master the basics of using a tripod, the “professionals” have to find something new to distinguish themselves from amateurs and hacks. So they imitate film journalists from war zones, and documentarists and Dogma95.

I’m not saying it can’t be used well. I would say, though, that when it is used “for effect”, when a tripod is perfectly available and appropriate, that it has gotten silly.

When a style gets carried too far, as in, arguably, modern art, it becomes ridiculous and irrelevant. The most absurd thing I saw in the last year was a wedding video that featured a wobbly camera, sepia-toned segments, dust and scratches, fast-cutting action sequences, out-of-focus zooms—– it was hilarious. All of these shots taken not in the heat of action, but in the bride’s backyard, and all the scenes were posed. They were phony. But the guy who made it thought he was a genius, and, if I remember correctly, so did the Association of Wedding Videographers which gave him a prize. Probably, so did the bride, whose friends probably took one look at it and — this is America, folks– promptly demanded that their wedding videos be out-of-focus, black and white, dirty, hairy, and wobbly. Why not just hire a drunk?

Anyone remember the sequence in “The Apprenticeship of Duddy Kravitz” where that is exactly what happens? A film-maker is hired to do a bar mitzvah. He is an alcoholic, and seriously demented. He produces a bizarre montage of scenes from the holocaust, an actual circumcision, and various other weird shots– avant garde film-making at it’s “finest”– intercut with scenes of the actual bar mitzvah. At the end, the crowd of family members sit in stunned silence. Painful seconds tick by…. until a rabbi perks up: “I thought it was edifying”. Then they all leap up and applaud, and Duddy gets all the new customers he can handle.

I happen to think that most– not all, but most– current hand-held camera work is ridiculous and annoying. It’s a bad imitation of artists who might have had a good reason for using that style at the time, but those reasons don’t exist in someone’s backyard on their wedding day. Why not just go handheld, without deliberately shaking all over? In ten years, I think it will look damn silly.

By the way, Stanley Kubrick used it for action sequences in one of the greatest films ever made “Dr. Strangelove” (1963), and rarely used it again. That puts it well ahead of “Hill St. Blues” and “MTV”.

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The Artist is Ripped Off

“In the role-playing activity Starving Artist, for example, groups of students are encouraged to come up with an idea for a musical act, write lyrics and design a CD cover only to be told by a volunteer teacher their work can be downloaded free. According to the lesson, the volunteer would then “ask them how they felt when they realized that their work was stolen and that they would not get anything for their efforts.” NY Times, Sep 25, 2003

What is hilarious about this little scenario, of course, is that it is a complete fantasy. It is a comic fantasy. The most hilarious part is where they convince the students that they would actually have received any of the money that should have been paid for the CDs.

A real world scenario would run thusly: the students come up with an idea for a musical act, write lyrics and music and create a CD cover, and get signed by a major record label.

While in the recording studio, the producer, assigned by the record label, makes some suggestions for the arrangement of their best songs.  Then, of course, he convinces them to give him a co-writing credit.

Their CD sells very well because it is played on the radio– for free– and they perform on television promoting the CD– for free. They have a big advance from the record company and sign a complicated contract they don’t understand. They spend all their money in one year.

The next year, their accountants –played by a volunteer teacher, if you will– tell them they are broke.

They find out that the record company has been deducting all the expenses of recording, packaging, shipping, and promoting their CD against all their royalties. They find out that a whopping bill came from an image consultant hired by the record company on their behalf and at their expense. Then they find out that the image consultant actually works for the record company for a pittance.  They find out that the image consultant, sound engineer, label designer, photographer, and graphic artist all did the same work for several other artists signed to the same record label but who didn’t sell very many CDs at all.

They find out that they owe the record company millions of dollars.  They find out that the producer has collected a huge chunk of their song-writing royalties.

They write and compose a follow-up CD.  This time, the producer brings in a “rhythm consultant” who also takes a co-writing credit.  A record company executive doesn’t like it and demands changes. He wants it to be more pop, less art. The students don’t like the changes at all and demand artistic freedom. The record company tells them that they must change their music or they will not be allowed to release the record. Nor will they be released from their contract and allowed to switch labels to work with a producer who understands what they are trying to do.

Their CD is released on Spotify.  It is downloaded 100,000 times.  They receive a payment from Spotify of $12.53.

They find out that their work was stolen and they would not get anything for their efforts.

Now they know what it feels like to have their hard work stolen from them.

You may now resume downloading.

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Get Your Own #%%!@## Format!

Here it is– another great solution to the movie and music piracy problem!

It’s so mind-numbingly simple, why didn’t George W. Bush think of it?

The music industry and film industry should get together and create new recording medium. It wouldn’t be very hard at all– the technology is there. There are dozens of modifications they can make to existing technologies in order to create a new medium that belongs only to them. A special type of DVD with special coding at the start that prevents it from being played in any existing DVD player. You heard me right– but hang on. I’m not crazy. They can call it the “Super Media Content Diskie” or “SMCD”.

The music and film industries will own this standard and will not license it to anybody but themselves. They will contract out with factories to produce a new SMCD Player. The codes required for playing a SMCD will be hard- coded into a special chip, and thus almost impossible to copy or hack.

Then the music and film industries will start releasing all of their “content” only on these special disks. You won’t be able to buy a SMCD version of “Titanic” or “A Few Good Men” or a CD version of Bruce Springsteen or Britney Spears. You will only be able to buy it on SMCD, for which you will have to buy or lease the SMCD player.

And thus piracy will end. No digital copying will be possible. No digital quality copies of songs or movies on the internet, though, of course, some people might be able to make passable copies by recording, with microphones or video cameras, right off the SMCD player screen. (The music and film industries have made it plain that while they’ve always been concerned about copying in general, from any source, it is really the digital copying that gets their goats.)

Problem solved.

It will never happen.

It will never happen because the music and film industries know damn well that they don’t really want a world in which they have absolute ownership and control over their product because in a world like that they won’t make any money.

The reason is very simple and obvious. The consumer would never accept such a system. And some smart musicians and independent movie makers would immediately realize this and start to offer their products on popular media like DVDs and CD’s. And the music and film industries would lose their power and control over the entertainment market and quickly capitulate and that would be end of that.

No, wait— there’s a better solution! The music and film industries can try to seize control of the existing technologies– VCRs, computers, CD recorders– and try to shove their copy-protection schemes down our throats.

And that is what is happening. No one is required to issue movies or music on DVDs or CDs. They do it because they know damned well that the public adopted those media because they were widely accepted standards. They were widely accepted standards because they were broadly licensed to many manufacturers and PC makers. They were broadly licensed because they were sold to us as media, not content. The music and film industries benefit enormously from those widely accepted standards. And that is why, if they don’t like the consequences of a broad, open standard, they should get the hell off it and start producing their own proprietary media that nobody can copy. If they don’t like the SMCD idea, they can go back to vinyl. If they don’t like the internet, they go back to AM radio.

It would be the best thing that could ever happen to the entertainment industry. You would get loads of Third World bands and movie-makers who would be more than happy to give up some protections of their materials in exchange for wide distribution and exposure. They would issue their stuff on popular media formats and would soon blow Hollywood out of the mass market. You would see Demi Moore and Bruce Willis traveling to Bombay to make a new action flick, in English.

This is why Apple is tiny compared to Microsoft. This is why Betamax never caught on. This is why the Laser Disk never made it. This is why Advantix film by Kodak will never succeed. This is why rock’n’roll succeeded beyond anyone’s wildest expectations (the AM battery-powered radio).

The truth is that music and film industries don’t really compete with each other anymore, and don’t want to have to compete with anyone else. They price their products in lock-step with each other, and hate having to actually produce and develop new talent while they can still pimp off their old established stars.

And when their control starts to diminish, because of computers and the internet, instead of becoming leaner or meaner or more competitive– which requires work and talent– they start stuffing your congressman’s pockets full of cash and get the DMCA passed. Now they want congress to require all electronic recording devices to give control over what and when something can be copied to these pimps at the RIAA and MPAA (Recording Industry Association of America and Motion Pictures Association of America).

This is an outrage. It’s one of the five or six biggest scandals of the last twenty years. The Music Industry has every right to negotiate contracts with radio stations and hardware makers about how and when they can put their content on their media. Why the hell should the government step in and make laws to govern– and penalize offenders– an arrangement that should absolutely be a contractual agreement between the record companies and radio stations?

Their control of the world-wide entertainment industry is threatened by any technology that gives more power and control and choice to the consumer. Most consumers wouldn’t give a damn about Britney Spears if it weren’t for the monopolistic control the music industry has over radio, print, and television, but most consumers don’t know that.

They would find out in a hurry if something prompted them to start looking elsewhere.

Yes, I know it’s a symbiotic relationship. New technologies are often created by content companies (or at least companies that have a content division, like Sony and Phillips) at least partly for the purpose of creating new markets for their products. Sort of what I described here as “SMCD”. But Phillips also licensed their technology to many companies to make recorders, players, and car decks. So it benefitted by the very open standard that most content providers now want to kill.

It doesn’t always work that way– few people buy a minidisc to listen to pre-recorded minidiscs– but Phillips certainly intended the cassette as a mass market music media. But the relationship is ambiguous. For example, the recording industry needs radio and television media exposure in order to sell their products. Yet they now want to charge Internet Radio broadcasters for playing their music! Here we have the RIAA acting like a bullying monopoly. Why, for heaven’s sake, won’t some competing independent producers come along and offer their goods for free play on the internet? They would, but the RIAA of America is doing everything it can to not let them. They want their policy wishes to be the law, instead of a contract between themselves and the radio stations, which is what it should be. Because if it was only a contractual arrangement, then competing music producers could offer a better deal!

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Unenforceable Clauses

Marilyn Shafer of the New York State Supreme Court has just issued a ruling that all of us should celebrate.

Network Associates, a software company that makes anti-virus software, had a little clause in their customer purchase agreement that should sound familiar to most of us, in tone if not exact content.

The clause states that no customer may review the product purchased without the prior consent of Network Associates.

I know from my experience arguing with people on the internet that a lot of people firmly believe that a company can force you to agree to anything as a condition of buying and using their product. These people believe that there is some kind of absolute right of private property out there, that companies have no obligations to society other than to provide the product they promised on the terms they specified to the customer who agrees and pays.

But companies do not exist in a vacuum. Like you and me, they are part of a complex of relationships and obligations that constitute membership in a society. If you live in America, you have to obey the law, pay your taxes, and shoulder your share of the burden of providing roads and schools and policing for everyone– unless, of course, you are a rich person under a Republican administration.

In return for meeting your obligations, you receive enormous benefits. You receive protection from the police, medical care, education, roads, assistance in times of natural disaster, military protection from foes abroad, and so on.

If you don’t like that deal, you can, as they say, go live elsewhere.

Network Associates benefits from all of these and more. Their employees acquired their skills from publicly funded schools and universities. Their products are delivered on our roads and through our airports. They are protected by laws and police, from arbitrary search and seizure (until the Homeland Security Act was passed). They benefit from the enormous structure of laws and procedures that constitute our economic system. As a result, they have an obligation beyond the simple power of setting conditions of sale, to observe generally agreed upon rules of conduct in our society.

The Supreme Court of New York State has struck a blow for freedom of speech and consumer rights, and simultaneously raised the issue of whether these myriad conditions imposed by vendors upon customers are actually “enforceable”.

Not only did Judge Shafer rule that the clause was unenforceable. She indicated that there will be fines in the millions of dollars. She is going to punish Network Associates for trying to trick people into obeying a rule they had no business imposing on people.

I like this judge, and I hope you do too.

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Eula Boola!

A woman, Brenda Avery, in rural New Brunswick, was charged by the police with piracy after Microsoft spies claimed to have found pirated disks of their applications in her computer store.

The RCMP entered her home and arrested her and her husband even though he had no involvement in the computer store. Brenda Avery defended herself in court and won. The article in the Canadian Press does not describe her defense. Was the software not pirated after all, or was she unaware of the illegitimate source of the disk? It doesn’t say.

But the Crown urged her to plead guilty. Why?

Because it’s more efficient that way. The RCMP charged her in the first place at the request of Microsoft. What I want to know is, if I charge Microsoft with marketing defective products and, through their negligence and incompetence, costing me hours and hours and hours of work, and possible job promotions, and money– can I get the RCMP to burst into Microsoft headquarters and seize the relevant documents and arrest Belinda Gates?

Well, maybe if I wear a suit and wave around some documents.

Why is it that the police didn’t investigate the issue? They didn’t– obviously. They simply took Microsoft’s word for it. That’s outrageous.

In any case, I took note of the case because I have said here before that the standard End User License Agreement that we all pretend to assent to when we install software is worthless and unenforceable and this looked, at first, as if it might prove me wrong. It didn’t. First of all, the charges were laid against a store, not an “End User”.

Secondly, the charges failed.

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My Music

You have undoubtedly heard about the injunctions and the motions and lawsuits and all the legal technicalities of the Recording Industry Association of America’s battle with Napster. The lawyers must be advising the RIAA that they can have an impact on music piracy– and their bottom line– by winning a few court battles against the software giant.

What is most interesting is not who is in court today, but who is not in court today. Napster, my friends, is a scapegoat. Why did the RIAA not file the same motions, injunctions, and lawsuits against Microsoft? Why is Creative Labs sitting there untouched? Why is Yamaha unscathed? Who gave a special blessing to Samsung? Winamp? Music Match? Audio Catalyst? Sonique? Creative Labs? Philips? Iomega?

If you read the advertising for Windows ME and XP and whatever other version of Windows Microsoft is promoting these days, you may have noticed that Microsoft thinks you want to play music on your computer. It has incorporated all kinds of features to allow you to easily and conveniently rip, download, store, and play MP3 files. You can even store them in a directory called “My Music”! Microsoft is obviously trying to profit from the consumer’s demonstrated interest in pirated music.

And Microsoft isn’t the only corporation benefiting from the digital revolution in music. Yamaha makes speakers that are designed to be used with computers, and almost certainly used to play illegal music files. There are now players from Rio, Sony, Creative Labs, Iomega. How come all of these companies are off the hook?

Could it be because they have better lawyers than Napster, the tiny little upstart, does? Could it be that the RIAA is being arbitrary and selective about trying to enforce it’s copyrights? Could it be that the law is an ass, and the RIAA are even bigger asses?

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Spam Spam Spam Spam

I am deluged with 10-20 spam a day. I hate spam with a passion. It clutters up my electronic mailbox the way analog spam clutters up my real mail-box– and wastes my time. My first act, when reading my e-mail, is to delete, delete, delete.

The worst thing about spam is that these people are annoying you at your expense. They are quite literally parasites. You pay for your e-mail account, and you pay for the cost of accessing the internet. For some people in Europe, who actually pay by the minute, spam can actually be quite costly.

The solution is real simple– if someone would step in and require it. Every major e-mail program should be required to install a default filter. The filter simply rejects all spam. How will it know what spam is? All companies using email for advertising will be required to clearly mark spam with a couple of bytes in the header of each message.

Now wait a minute– we’re talking about the internet here. The government can’t even stop people from downloading “The Matrix” in DivX;) format from some server in Russia. How is it going to shut down spammers who don’t use the required bytes in their headers?

Well, if they think they can shut down the illegal copying of music files by shutting down Napster, they certainly ought to give it a try.

On the other hand, if they realize that shutting down Napster is a gesture that is utterly devoid of the slightest possible real impact on the downloading of pirated music… they ought to simply admit it and get on with things.

The truth is, they could do it. It would be quite simple. Every ISP in the country would be required to install filters to prevent spam from getting through. Foreign ISPs that allow spam through should be blocked from transmitting to or receiving from North American or European ISPs.

A better solution, a more refined version of this: require all ISP’s to acquire certification from an authoritative body. This body only grants the certification to known, reputable ISP’s who agree to abide by a code of ethics which prohibits, of course, spam.

When a mail is sent by this ISP, it includes code in it’s headers indicating that it is certified: the mail is accepted. It should work like public/private key encryption.

Consumers can be offered the option of signing on with certified ISPs and can then acquire mail programs that filter any mail that does not come from a certified ISP.

If someone really wants to connect to the unfiltered internet, so be it: allow it. But the rest of us can benefit from some controls.

[2011-12-26]

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DivX

If you thought the world’s fat-cat corporate copyright holders had a problem with Napster and MP3’s, you can bet they are about to go into cardiac arrest.

A few years ago, some companies tried to foist a new video standard on a largely unsuspecting, but not entirely stupid, public. It was called DivX. The basic idea was this. Here were all these huge, fat, rich Hollywood companies and here were all these movies that they owned and here were all these consumers– that’s what we are, after all, “consumers”– buying copies of these videos and watching them over and over again after only paying for them once.

Now, if you’re not a lawyer, you probably don’t often think about that situation and think things like, gee, how can we get them to pay for it every time they see it? And why shouldn’t we? Again, you have to be a lawyer…

So these people got together and decided that when the next generation of high quality digital video came out, they would rectify that situation by providing disks to people that would only play once or twice. And then, pffftt! Unless you paid again.

Just what the consumer was demanding at that time, as I recall. Yes, yes, we want to give Viacom and Warner Brothers and Disney Corporation and Bruce Willis and Robin Williams even more of our money!

Anyway, the system was called DivX. And, of course, the hacker community looked upon DivX and just hated it. They hated it for both good and bad reasons. They hated it because like everyone in the world they hate to pay more than they need to to get what they want. But they also hated it for a good reason. The good reason is that these big Hollywood companies and actors already get way more money than they deserve for foisting their disgraceful products upon us. They already annoy us to death with product tie-ins, commercials, outrageous prices for food at the movie theatre, and deceptive advertising.

So the hackers set to work.

It’s not very clear to me (or anybody, apparently) where DivX 😉 (the “;)”, a winking emoticon, is part of the name) came from. It is rumoured to be a hacked Microsoft product. In any case, what DivX 😉 is is a “codec”, a computer process whereby video is compressed into small files so it can be downloaded and copied from computer to computer. It is a very good one, though not necessarily the best, nor the most readily available. But it is good enough to make it reasonable for people to copy movies off of DVD players and distribute them– illegally, of course– through the internet.

The lists of movies available tell you something about the kind of personality involved. You’ll find “The Matrix” and “The Cell” and “Terminator” and “Star Wars” on many sites. You won’t find many copies of “The Sound of Music”… yet.

The only missing piece right now is the equivalent of Napster to really take the whole thing mainstream. But it’s coming. Oh yes, you can bet it is coming.

One browse of the newsgroups devoted to topics like DivX;) and desktop video should be enough to convince anyone that a tidal wave of perverse ingenuity is at work out there and it is bent on completely destroying the entire system of copyright and distribution now in effect.

Is that a bad thing? I don’t know. The problem, as always, is how will artists get paid. On the other hand, the artists don’t get paid now. The lawyers and investors and accountants and manipulators and cheaters and liars get paid. They get paid enormous sums.

I do know a few things though.

In my opinion, all of this underground activity will not destroy either the music or film industries. Most people will continue to buy CD’s and DVD’s. Knowledgeable hackers and aficionados will use the technologies to access every form of recorded entertainment known to man, but most people still want to pop a video into the console and sit back and munch on popcorn and not give a thought to copyright law and fairness and justice for all.

The entertainment monoliths will have to be nimble and quick. They will have to keep coming up with improvements and enhancements that keep them a year or two ahead of the hackers. They will have to begin to offer CD’s and DVD’s at reasonable prices.

The only thing I’m sure they won’t do is take the high road or offer anything of value to anybody unless they really, really have to.