PrawfsBlawg

Greetings and Happy December!

Thanks to Howard for inviting me back! For those who don't know me, I teach Civil Procedure, Professional Responsibility, and Secured Transactions at Case Western Reserve School of Law. I look forward to guestblogging this month, which will be a happy distraction for giving (and grading) exams. December also means working hard to win the LDB Challenge--trying to make it to December 26 without ever hearing the Little Drummer Boy. New this year is an added challenge: Whamageddon (avoiding "Last Christmas," which I already lost on the way home from school today).

Anyone have favorite (or not-s0-favorite) holiday songs?  I'm especially fond of Elf's Lament. I don't think Santa's labor practices are entirely legal...

Sound Symbolism, Trademarks, and Consumer Experience

A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.

This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).

Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.

I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.

The Long Journey Home

It's a pleasure to be back for another round of blogging. I'm excited to share some thoughts about copyright and trademark law this month. But right now, I have traveling on my mind - my family is finishing what my ten-year old calls "an epic road trip." We've driven through ten states already, and we'll drive through four more big (mid)western states, and recross several others, before we are done. In honor of the trip, I'll share one of my favorite traveling songs: The Long Journey Home by Rodney Crowell. Feel free to share songs that make you think of or yearn for travel in the comments. More substance to come in subsequent posts.

Thursday Podcast Blog

It's Thursday, so Marc Maron's newest WTF podcast is available. Maron is such a great interviewer, and he really shines when talking about subjects he cares about passionately.  Music is clearly one of his great passions.

His guest is music critic/historian Peter Guralnick. Great stuff.

Listen here. Enjoy.

The Moral Psychology of the Fair Play, Fair Pay Act

Yesterday, four members of Congress introduced the “Fair Pay, Fair Play Act,” a bill that would entitle owners of copyrights in sound recordings to recover royalties for radio airplay of those tracks on terrestrial radio stations. That performers don’t receive such royalties may seem surprising, but it’s just one of many strange outcomes generated by the statutory labyrinth that is the Copyright Act.

At first blush, the rationale for such a revision seems simple and appealing. Performers work hard to create sound recordings, so when radio stations broadcast those recordings, why shouldn’t they get paid? After all, the songwriters who wrote those tunes get a royalty each time they are played. But upon closer examination, this rationale is more puzzling. The purpose of copyright law, expressed in the Constitution, is to promote the progress of science and the useful arts (including creative innovation) by means of financial incentives secured by exclusive rights in authors’ works of authorship.

Copyright’s incentives story may explain the FPFPA going forward (performers may be more likely to create future sound recordings if they can expect more remuneration via performance rights), but this account cannot make sense of the retroactive application of the law to already-created songs. And much of the industry force behind the act comes from performers who recorded older, classic tracks who feel aggrieved that they have not gotten royalties from their hit recordings for decades.

So if incentives cannot explain this sense of entitlement to recover additional royalties for past creation, what does? One account may lie in Mark Lemley’s snappy new essay, Faith-Based IP, discussed by Amy Landers in her earlier post on this site. The musicians and Congresspeople behind FPFPA may simply be relying on the notion that copyright owners have pre-political rights that should be recognized regardless of whether the existence of those rights would drive innovation, or even regardless of whether those rights would generate social welfare. At the surface, this may be a plausible account, but I want to propound a different account, one that draws on a forthcoming paper I co-authored with Chris Buccafusco, The Moral Foundations of Copyright Infringement. I elaborate this alternative theory below the fold.

In our paper, Chris and I show that the FPFPA is hardly unique. There are countless examples in which owners of copyrighted works express outrage over unauthorized use in ways that bear no relationship to the classic IP incentives account, and that may even bear no relationship to their economic interests at all. Sometimes people even seek suppression of unauthorized use that might help them economically, such as when fashion designers sought stronger IP protection despite evidence that design piracy may actually help their brands.

This only shows the depth of the puzzle, though, not its solution. And while some have argued that authors deserve non-economically based rights in their works of authorship for reasons divorced from welfare considerations, Chris and I look instead to contemporary cognitive science for an explanation. In particular, our account invokes moral foundations theory, which posits the existence of at least five different heuristic dyads—harm/care, fairness/cheating, loyalty/subversion, purity/degradation, and authority/subversion—that describe the mental architecture of our experience of transgression.

It’s easy to explain why authors of extant sound recordings would root for the FPFPA. Everyone wants more money. But why would the situation of such authors case strike a chord with unaffected third parties such as the bill’s congressional sponsors, and even the public more broadly? Our moral-psychological account indicates that what is afoot here is instead the intuitive sense shared by many people that formal inequities (such as compensating songwriters but not performers for radio play of the same track) grate on our moral sensibilities, regardless of welfare considerations. Unlike the incentives theory, our account explains the FPFPA in its prospective and retrospective applications, since in both instances performers are equally aggrieved by the fact that songwriters get performance royalties but they do not.

This is different than a mere “rights” account because such accounts often (though not always or necessarily) descend into conclusory circularity. The idea of a right is a legal conclusion about relative entitlements, but is often used instead (and especially in some of the high-flown rhetoric about the FPFPA) as an argument for that conclusion instead (or as well). Hence the dismissals, like Lemley’s, of rights-based arguments about IP as rootless and “faith-based.”

But while Chris and I argue that the moral-psychological account provides a richer sense of non-welfarist approaches to IP (especially the instinctive responses of laypeople, including creators and owners of works of authorship, to unauthorized use) than simply dismissing them as rights-voodoo, this does not mean that copyright law should be determined by moral-psychological considerations. Our moral intuitions may feel righteous but that does not at all mean that acting on those intuitions serves the social good. After all, some of the great evil done in human history has likely been animated by a sense (however wrong) of moral righteousness.

What we end up suggesting is a moral-psychological realist approach to IP law. You can still be committed to the incentivist story of copyright while acknowledging that our moral intuitions operate in tension with those welfarist aims. In fact, you might get better outcomes from the incentivist perspective by basing copyright law on a vision of actors that acknowledges their complex moral psychology rather than assuming that they are simple utility-maximizing homines economici. How to do this, of course, is a harder question, but one suggestion we make in the paper is that copyright law should respect only lawsuits motivated by copyright-relevant harm (i.e., attempts to protect a copyright monopoly, not to seek revenge or vindicate a sense of injustice or grab extra rents).

The Moral Psychology of Copyright Infringement (available on SSRN) is forthcoming later this year in the Minnesota Law Review, but we are still making revisions, so comments are most welcome.

Sunday Music Blog

I'm on sabbatical this semester. Seriously, you have to try it. It's the best. Like for realz.

Getting to step back from the day-to-day aspects of the job, take a needed break from faculty politics, look at your work through a wide angle lens, map out the next five years. Good stuff all around.

What's been especially nice is that I've been able to work on my writing habits. I've made two changes to my writing routine, both of which have proven to be wonderful developments.

First, I started writing in the morning. I used to be a late night writer. 10pm to 1am was my sweet spot. I liked the quiet of the house at night, the stillness. But these days I get tired around 7pm. I'm a wreck by 9pm. So now I wake up and crank it out. And it's been good. I heard someone once say that writing in the morning lets you tap into your dreams. I don't know about that. But the real benefit of writing first thing in the morning has been that, once I'm done, I'm done for the day, and I can go spend my sabbatical on things that really matter--like naps and old episodes of the West Wing. 

Second, ambient music. Frankly, I'm shocked by this. I like jangly guitars. I like tortured artisists. I like music made by humans. I missed the whole techno thing; glow sticks have never been my jam. Ambient music is music by robots for robots. It makes me feel like I'm swimming, which is strange because I don't really like to go swimming, which is also strange because I live in Phoenix and swimming is what people in Phoenix do to stay cool in our post-apocalyptic summers. 

Here's a link to some goodness. It's best enjoyed between 7:30 and 10 in the morning.

Happy writing.

Cease and Desist

For nearly 10 years, scholars, commentators, and disappointed downloaders have criticized the now-abandoned campaign of the Recording Industry Association of America (RIAA) to threaten litigation against, and in some cases, sue downloaders of unauthorized music. The criticisms follow two main themes. First, demand letters, which mention of statutory damages up to and including $150,000 per infringed work (if the infringement is willful), often lead to settlements of $2,000 - $3,000. A back of the envelope cost-benefit analysis would suggest this is a reasonable response from the receipient if $150,000 is a credible threat, but for those who conclude that information is free and someone must challenge these cases, the result is frustrating.

Second, it has been argued that the statutory damage itself is unconstitutional, at least as applied to downloaders, because it is completely divorced from any actual harm suffered by the record labels. The constitutional critique has been advanced by scholars like Pam Samuelson and Tara Wheatland, accepted by a district court judge in the Tenenbaum case, dodged on appeal by the First Circuit, but rejected outright by the Eighth Circuit. My intuition is that the Supreme Court would hold that Congress has the authority to craft statutory damages sufficiently high to deter infringement, and that there's sufficient evidence that Congress thought its last increase in statutory damages would accomplish that goal. 

We could debate that, but I have something much more controversial in mind. I hope to convince you that the typical $3,000 settlement is the right result, at least in file-sharing cases.

The Copy Culture survey indicates that the majority of respondents who support a penalty support fines for unauthorized downloading of a song or movie. Of those who support fines, 32% support a fine of $10 or less, 43% support fines of up to $100, 14% support fines of up to $1,000, 5% support higher fines, 3% think fines should be context sensitive, and 3% are unsure. The average max fine for the top three groups is $209. Let's cut it in half, to $100, because roughly half of survey respondents were opposed to any penalty.

How big is the typical library of "illegally" downloaded files? 10 songs? 100 songs? 1,000? The Copy Culture study reports the following from survey respondents who own digital files, by age group:

18-29: 406 files downloaded for free

30-49: 130 files downloaded for free

50-64: 60 files downloaded for free

65+: 51 files downloaded for free

In the two cases that the RIAA actually took to trial, the labels argued that the defendants had each downloaded over 1,000 songs, but sued over 30 downloads in one case, and 24 downloads in the other. As I see it, if you're downloading enough to catch a cease and desist letter, chances are good that you've got at least 30 "hot" files on your hard drive.

You can see where I'm going here. If the average target of a cease and desist letter has 30 unauthorized files, and public consensus centers around $100 per unauthorized file, then a settlement offer of $3,000 is just about right.

Four caveats. First, maybe the Copy Culture survey is not representative of public opinion and that number should be far lower than $100. Second, misfires happen with cease and desist letters: sometimes, individuals are mistargeted. One off-the-cuff response is to have the RIAA pay $3,000 to every non-computer user and the estate of every dead grandman who gets one of these letters.

Third, this doesn't take fair use into account, and thus might not be a fair proxy for many other cases. For example, the Righthaven litigation seems entirely different to me - reproducing a news story online seems different than illegally downloading a song instead of paying $1, in part because the news story is closer to copyright's idea line, where more of the content is likely unprotectable, and because the redistribution of news is more likely to be fair use.

Fourth, it doesn't really deal with the potentially unconstitutional / arguably stupid possibility that some college student could be ordered to pay $150,000 per download, if a jury determines he downloaded willfully. I'd actually be happy with a rule that tells the record labels they can only threaten a maximum damage award equal to the average from the four jury determinations in the Tenenbaum and Thomas-Rasset cases. That's still $43,562.50 per song. Round it down to the non-willful statutory cap, $30,000, and I still think that a $3,000 settlement is just about perfect.

Now tell me why I'm crazy. 

Copyright's Serenity Prayer

I recently discovered an article by Carissa Hessick, where she argues that the relative ease of tracking child pornography online may lead legislators and law enforcement to err in two ways. First, law enforcement may pursue the more easily detected possession of child pornography at the expense of pursuing actual abuse, which often happens in secret and is diffcult to detect. Second, legislators may be swayed to think that catching child porn possessors is as good as catching abusers, because the former either have abused, or will abuse in the future. Thus, sentences for possession often mirror sentences for abuse, and we see a potential perversion of the structure of enforcement that gives a false sense of security about how much we are doing to combat the problem.

With the caveat that I know preventing child abuse is much^much more important that preventing copyright infringement, I think the ease of detecting unauthorized Internet music traffic may also have troubling perverse effects.

When I was a young man, copying my uncle's LP collection so I could take home a library of David Bowie casette tapes, there was no way Bowie or his record label would ever know. The same is true today, even though they now make turntables that will plug right into my computer and give me digital files that any self-respecting hipster would still disdain, but at least require me to flip a vinyl disc as my cost of copying.

On the other hand, it's much easier to trace free-riding that occurs online. That was part of what lead to the record industry's highly unpopular campaign against individual infringers. Once you can locate the individual infringer, you can pursue infringment that used to be "under the radar." The centralized, searchable nature of the Internet also made plausible Righthaven's disastrous campaign against websites copying news stories, and the attempt by attorney Blake Field to catch Google infringing his copyright in posted material by crawling his website with automated data gathering programs.

What if copyright owners are chasing the wrong harm? For example, one leaked RIAA study suggests that while a noticeable chunk of copyright infringement occurs via p2p sharing, it's not the largest chunk. While the RIAA noted that in 2011, 6% of unauthorized sharing (4% of total consumption) happens in locker services like Megauploads, and 23% (15%) happens via p2p, 42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading. Offline file sharing is apparently more prevalent than the online variety, but it is much more difficult to chase. So it may be that copyright holders chase the infringement they can find, rather than the infringement that most severely affects the bottom line.

In a way, leaning on the infringement they can detect is reminiscent of the oft-repeated "Serenity Prayer," modified here for your contemplation:

God, grant me the serenity to accept the infringement I cannot find,
The courage to crush the infringement I can,
And the wisdom to know the difference.

All this brings me back to the friends and family question. The study on Copy Culture in the U.S. reports that roughly 80% of the adults owning music files think it's okay to share with family, and 60% think it's okay to share with friends. In addition, the Copyright Act specifically insulates friends and family sharing in the context of performing or displaying copyrighted works to family and close friends in a private home (17 USC s. 101, "publicly"). Thus, there is some danger in going after that friends and family sharing. If the family and friends line is the right line, can we at least feel more comfortable that someone to whom I'm willing to grant physical access to my CD library is a "real" friend than my collection of Facebook friends and acquaintances, some of whom will never get their hands on my vinyl phonograph of Blues and Roots?

 

The New Normal

Two news items from across the pond highlight the adaptability of musicians, but also a highlight a shift from music as a good to music as an experience, necessitated by the ubiquity of file sharing.

+, the debut album by British singer and producer Ed Sheeran, has apparently been downloaded illegally more than any album in the U.K this year. Sheeran is sanguine about the whole thing, gushing on Twitter about purchasers and free-riders alike, because he concludes that both types of fans are buying tickets, and as Sheeran puts it, "I'm still selling albums, but I'm selling tickets at the same time. My gig tickets are like £18, and my albums £8, so ... it's all relative."

Venerable British pop stars Squeeze are also moving to a more DIY, performance-based financial model this year. Fans who attend concerts can choose to purchase a download of the show at a "pop-up" shop after each performance, and meet the band as well. To date, this is the only way for fans to get their hands on Squeeze's first new songs in 14 years...at least until they are posted online. Squeeze founder Glenn Tillbrook is also excited about this brave new world. Tillbrook states, "I love the opportunities and surprises thrown up by the digital age and the fading away of the major labels. Being able to innovate and take control of our own destiny is something I could only have dreamt of back then." And for bands like Squeeze, the old label-centric business model may well have passed them by. As Tillbrook notes, “With the traditional record label no longer relevant for us, our relationship with the merchandisers is increasingly important in order to help us deliver quality products for our fans.” 

As I postulated a few months ago, with regard to comic books offered online, I can't help but wonder whether the end result will be less professionally crafted music because the system will support fewer professional craftspeople, or whether we'll just get more artists who are more comfortable with a DIY esthetic, and fewer that rely on big machinery or well-placed intermediaries to make things happen.

It may be that the most important thing a new artist can do is leverage networks and relationships. Here's an example: I'm a huge Josh Ritter fan. Chris Thile's band, Punch Brothers, recently covered a Ritter song, and offered a free download of it for fans that purchased the new Punch Brothers EP. How did I find out? I follow Ritter on Twitter, and he let me know. I wouldn't have otherwise purchased the Punch Brothers EP, but was excited about this opportunity. Once upon a time, you could rely on certain labels for a certain aesthetic in its recorded offerings. Relationships between artists might in the future do some of that same work.

Friends

Hello all. Glad to be back at Prawfsblawg for another round of blogging. I'm looking forward to sharing some thoughts about entertainment contracts, the orphan works problem in copyright, and the new settlement between Google and several publishers over Google Books.

Today, I want to talk a bit about file-sharing and friendship. A recent study asked U.S. and German citizens whether they thought it was "reasonable" to share unauthorized, copyrighted files with family, with friends, and in several different online contexts. Perhaps unsurprisingly, respondents in the 18-29 range responded more favorably to file sharing than older respondents in every context. What interests me is that respondents in every context see a sharp difference between sharing files with friends, and posting a file on Facebook. We call our Facebook contacts "friends," but I'm curious why the respondents to this study made the distinction between sharing with friends and sharing on Facebook. I have a few inchoate thoughts, and I'd love to hear what you think.

Megan Carpenter wrote an interesting article about the expressive and personal dimension of making mix tapes. I grew up in the mix tape era as well, and remember well the emotional sweat that I poured into collections of love songs made for teenage paramours in the hopes of sustaining doomed long-distance romances. Carpenter correctly argues that there is something personal about that act, and it seems reasonable that it would fall outside the reach of the Copyright Act.

I also remember copying my uncle's entire collection of David Bowie LPs onto casette tapes when I was in junior high. In that instance, music moved through family connections, and in my small town in Wyoming, there were no casettes from the Bowie back catalog on the shelves of the local music store. But the only effort involved in making those casettes was turning the LP at the end of a side. Less expressive, but within a fairly tight social network.

A properly functioning copyright system might reasonably allow for these uses, and still sanction a decision to post my entire Bowie collection on Facebook, or through a torrent. I'm skeptical of any definition of "friends and family" so capacious that it would include Facebook friends, and I suspect that many people realize now, if they didn't then, that what constitutes a face-to-face friend is different than what constitutes a Facebook friend, but you may have a different impression. I hope you'll share it here, whatever it is.

The Virtual Honesty Box

As a fan of comic book art, I'm often thrilled to encounter areas where copyright or trademark law and comic books intersect. As is the case in other media, the current business models of comic book publishers and creators has been threatened by the ability of consumers to access their work online without paying for it. Many comic publishers are worried about easy migration of content from paying digital consumers to non-paying digital consumers. Of course, scans of comics have been making their way around the internet on, or sometimes before, a given comic's onsale date for some time now. As in other industries, publishers have dabbled with DRM, and publishers have enbraced different (and somewhat incompatible) methods for providing consumers with authorized content. Publishers' choices sometimes lead to problems with vendors and customers, as I discuss a bit below.

While services like Comixology offer a wide selection of content from most major comics publishers, they are missing chunks of both the DC Comics and Marvel Comics catalogues. DC entered a deal to distribute 100 of its graphic novels (think multi-issue collections of comic books) exclusively via Kindle. Marvel Comics subsequently struck a deal to offer "the largest selection of Marvel graphic novels on any device" to users of the Nook. 

Sometimes exclusive deals leave a bad taste in the mouths of other intermediaries. DCs graphic novels were pulled from Barnes & Noble shelves because the purveyor of the Nook was miffed. Independent publisher Top Shelf is an outlier, offering its books through every interface and intermediary it can. But to date, most publishers are trying to make digital work as a complement to, and not a replacement for, print.

Consumers are sometimes frustrated by a content-owner's choice to restrict access, so much so that they feel justified engaging in "piracy." (Here I define "piracy" as acquiring content through unauthorized channels, which will almost always mean without paying the content owner.) Some comics providers respond with completely open access. Mark Waid, for example, started Thrillbent Comics with the idea of embracing digital as digital, and in a manner similar to Cory Doctorow, embracing "piracy" as something that could drive consumers back to his authorized site, even if they didn't pay for the content originally.

I recently ran across another approach from comic creators Leah Moore and John Reppion. Like Mark Waid, Moore and Reppion have accepted, if not embraced, the fact that they cannot control the flow of their work through unauthorized channels, but they still assert a hope, if not a right, that they can make money from the sales of their work. To that end, they introduced a virtual "honesty box," named after the clever means of collecting cash from customers without monitoring the transaction. In essence, Moore and Reppion invite fans who may have consumed their work without paying for it to even up the karmic scales. This response strikes me as both clever and disheartening.

I'll admit my attraction to perhaps outmoded content-delivery systems -- I also have unduly fond memories of the 8-track cassette -- but I'm disheartened to hear that Moore and Reppion could have made roughly $5,500 more working minimum wage jobs last year. Perhaps this means that they should be doing something else, if they can't figure out a better way to monetize their creativity in this new environment. Eric Johnson, for one, has argued that we likely don't need legal or technological interventions for authors like Moore and Reppion in part because there are enough creative amateurs to fill the gap. The money in comics today may not be in comics at all, but in licensing movies derived from those comics. See, e.g., Avengers, the.

I hope Mark Waid is right, and that "piracy" is simply another form of marketing that will eventually pay greater dividends for authors than fighting piracy. And perhaps Moore and Reppion should embrace "piracy" and hope that the popularity of their work leads to a development deal from a major film studio. Personally, I might miss the days when comics were something other than a transparent attempt to land a movie deal.

As for the honesty box itself? Radiohead abandoned the idea with its most recent release, King of Limbs, after the name-your-price model adopted for the release of In Rainbows had arguably disappointing results: according to one report, 60% of consumers paid nothing for the album. I can't seen Moore and Reppion doing much better, but maybe if 40% of "pirates" kick in a little something into the virtual honesty box, that will be enough to keep Moore and Reppion from taking some minimum wage job where their talents may go to waste.

School of Rock

I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.

First, the Copyright Act grants the exclusive right to publicly perform a musical work, or authorize such a performance, to the author of the work, but there is no right public performance right granted to the author or owner of a sound recording. See 17 U.S.C. § 114. In other words, Rod Temperton, the author of the song "Thriller," has the right to collect money paid to secure permission to publicly perform the song, but neither Michael Jackson's estate nor Epic Records holds any such right, although it's hard to discount the creative choices of Michael Jackson, Quincy Jones and their collaborators in making much of what the public values about that recording. To those who had tried their hands at writing songs, however, the disparity made a lot of sense because "Thriller" should be Temperton's song because of his creative labors.

Second, the Copyright Act makes specific allowance for what I call "faithful" cover tunes, but not beat sampling or mashups. If a song (the musical work) has been commercially released, another artist can make a cover of the song and sell recordings of it without securing the permission of the copyright owner, so long as the cover artist provides notice, pays a compulsory license (currenty $0.091 per physical or digital recording) and doesn't change the song too much. See 17 U.S.C. § 115. If the cover artist makes a change in "the basic melody or fundamental character of the work," then the compulsory license in unavailable, and the cover artist must get permission and pay what the copyright owner asks. In addition, the compulsory license does not cover the sound recording, so there is no compulsory license for a "sampling right." Thus, Van Halen can make a cover of "Oh, Pretty Woman," without Roy Orbison's permission, but Two Live Crew cannot (unless the rap version ends up qualifying for the fair use privilege).  

It was also interesting to me that at least one student in each class was of the opinion that once the owner of a copyrighted work put the work on the Internet, the owner was ceding control of the work, and should expect people to download it for free. It's an observation consistent with my own analysis about why copyright owners should have a strong, if not absolute, right to decide if and when to release a work online. 

On a personal level, I confirmed a suspicion about my own teaching: if I try to teach the same subject six different times on the same day, it is guaranteed to come out six different ways, and indeed, it is likely there will be significant differences in what I cover in each class. This is in part because I have way more material at my fingertips than I can cram into any 45 minute class, and so I can be somewhat flexible about what I present, and in what order. I like that, because it allows me to teach in a manner more responsive to student questions. On the other hand, it may expose a failure to determine what are the 20-30 minutes of critical material I need to cover in an introduction to copyright law.

 

It's the First of May

Glad to be back in the Blogosphere. Liz Phair's "Cinco de Mayo" has been in my mind nonstop today. You may ask yourself whether there is also a "First of May" song. It turns out there are at least two.

One, by the BeeGees, is a song about lost love and lost connections. The other, by geek rocker Jonathan Coulton, is about <ahem> making intimate connections in the great outdoors (and is  explicit about such connections in a way that is probably NSFW).

Could the BeeGees go after JoCo for the use of the same song title? (Answer after the break)

Probably not. Duplicate song titles happen all the time, and are almost never protectable under copyright law because they are too short / not sufficiently expressive. Every once in a while, we do see cases that recognize protectable trademark rights in song titles. See, for example, EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos, Inc.

EMI asserted trademark rights in the title of the Benny Goodman hit "Sing, Sing, Sing (with a Swing)."  The Second Circuit reversed the district court's grant of summary judgment in favor of defendant who used the phrase "Swing, Swing, Swing," in a commercial for golf clubs, accompanied by a swing tune which may or may not have been similar to the plaintiff's song. 

The Second Circuit didn't resolve the defendant's fair use argument, and it's fairly solid, at least at first blush: why shouldn't an advertisement for golf clubs be able to use the phrase "swing, swing, swing"? That's what you do with a golf club. The court reversed because it felt the district court too quickly discounted the defendant's selection of a "Benny Goodman-type song like 'Swing Swing Swing.'" In fact, the advertisement in question was originally going to use the Goodman song, but the client didn't want (or couldn't affort) to pay the licensing fee. Thus, the court concluded "there are sufficient facts upon which a reasonable jury could conclude that defendants intended, in bad faith, to trade on EMI's good will in the title of the song by using the phrase 'Swing Swing Swing' in the final commercial."

The result here reminds me of the Bette Midler and Tom Waits right of publicity cases, where the respective artists turned down an invitation to sing their hit for a commercial jingle, and in both instances, the ad agency went out and hired a soundalike. As I see it, all three cases went against the defendant because of arguably bad faith attempts to either circumvent a licensing fee or circumvent the artists desire not to be associated with the client's product. You may disagree on whether EMI, Midler or Waits should have the right to say "yes but," or "no, never," but once a court is persuaded that such a right exists, the workaround seems troubling at best.

So it's the first of May, and a wonderful time to blog about the intersection of intellectual property and music, among other things. I hope you'll chime in as you have the time.

Breaking the Net

Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.

There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward. 

Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.

Cross-posted at Info/Law.

Six Things Wrong with SOPA

America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)

1. Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve Crocker / Paul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
2. Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
   •  
     • primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
     • with a limited purpose or use other than such infringement
     • that facilitate or enable such infringement
     • that promote their use to engage in infringement
     • that take deliberate actions to avoid confirming high probability of such use

   If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.

3. Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
4. Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
5. Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
6. No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.

The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.

Cross-posted at Info/Law.

Cry Baby Cry

The project to crowdsource a Tighter White Album (hereinafter TWA) is done, and we’ve come up with a list of 15 songs that might have made a better end product than the original. Today I want to discuss whether I've done something wrong, legally or morally. 

I am no expert on European law, or its protection of the moral rights of the author, but I was reminded by Howard Knopf that my hypothetical exercise could generate litigation, as the author has rights against the distortion or mutilation of the work, separate from copyright protection.  The current copyright act in the UK bars derogatory "treatments" of the work. A treatment can include "deletion from" the original, and the TWA is just that -- 15 songs were trimmed from the trimmed White Album, ostensibly to make something "better than" the original. To the extent the remaining Beatles and their heirs can agree on anything, it might be the sanctity of the existing discography in its extant form, at least as it encapsulates the end product stemming from the individual proclivities of the Beatles at the time. But see Free as a Bird. Fans and critics reacted strongly to Danger Mouse's recent splice of Jay-Z's Black Album and the Beatles' White Album, with one critic describing it as "an insult to the legacy of the Beatles (though ironically, probably intended as a tribute)". Could the TWA implicate the moral rights of the Beatles?

 

On one level, I and my (perhaps unwitting) co-conspirators are doing nothing more than music fans have done for generations: debating which songs of an artist's body of work merit approval and which merit approbrium. Coffee houses and bars are often filled with these discussions. Rolling Stones has made a cottage industry of ranking and reranking the top songs and albums of the recent past and in recent memory. This project is no different.

On the other hand, I am suggesting, by having the audacity to conduct this survey and publish the results, that the lads from Liverpool did it wrong, were too indulgent, etc., in releasing the White Album in its official form. That's different from saying "Revolution #9" is "not as good" as "Back in the U.S.S.R." (or vice versa). But to my eyes, it falls short of distortion.

Moral rights in sound recordings and musical compositions are not explicitly protected under the Copyright Act. In one case predating the effective date of the current Act, the Monty Python troupe was granted an injunction against the broadcast of its skits in heavily edited form on U.S. television, but that case was grounded more in contract law (ABC having exceded the scope of its license) and a right not to have the hack job attributed to the Pythons under the Lanham Act.*  The TWA doesn't edit individual songs, and whilte the Monty Python case protected 30 minute Python episodes as a cohesive whole, it is difficult to argue that the copyright owners of the White Album are necessarily committed to the same cohesive view of the White Album, to the extent they sell individual songs online. One can buy individual Beatles songs, even from the White Album. Once you can buy individual tracks, can there really be moral rights implications in posting my preferred version of the album in a format that allows you to go and buy it?

On to the standard rights protected under U.S. copyright law. Yesterday, I talked about the possibility that the list itself might be a compilation, with protectable creativity in the selection. Might the TWA also be an unauthorized derivative work, exposing me to copyright liability? A derivative work is one "based on" a preexisting work, in which the original is "recast, transformed or adapted." That's similar to the language used to describe a treatment under UK law. Owners of sound recordings often release new versions, with songs added, outtakes included, and bonus art, ostensibly to sell copies to consumers who already purchased them. I certainly didn't ask the Beatles (or more precisely, the copyright owner of the White Album) for permission to propose a shortened album, but what I have done looks like an abridgement of the sort that might fall into traditional notions of fair use.

Once upon a time, I might have made a mixtape and distributed it to my dearest friends (although when I was young, the 45 minute tape was optimal, so I might have been forced to cut another song or two). Committing my findings to vinyl, compact disc, or mp3, using the original recordings, technically violate 17 USC 106(1)'s prohibition on unauthorized reproduction. If I give an unauthorized copy to someone else, I violate the exclusive right to distribute under section 106(3). Unlike the public performance and display rights, there is no express carve out for "private" copying and/or distribution, although it was historically hard to detect. The mixtape in its analog form seems like the type of private use that should be permitted under any reasonable interpretation of fair use, if not insulated by statute.

If I send my digital mixtape to all of my Facebook friends, that seems a bridge too far. However, Megan Carpenter has suggested that by failing to make room for the mix tape in the digital environment, copyright law "breeds contempt." 11 Nev. L.J. 44, 79-80 (2010).  Jessica Litman, Joseph Liu, Glynn Lunney and Rebecca Tushnet, among others, have argued that space for personal consumption is as important in the digital realm as it was in the good old days when everything was analog.

If I instead use social networking tools like Spotify Social** to share my playlist, I probably don't infringe the 106(4, 6) public performance right. Because I use authorized channels, any streaming you do to preview my playlist is likely authorized. And if I post the playlist on iTunes, you can go and buy it as constituted. That seems somewhat closer to an unauthorized copy, but it's not actually unauthorized. The Beatles sell individual singles through iTunes, so it seems problematic to conclude that consumers are not authorized to buy only those songs they prefer.

So all in all, given that I'm not running a CD burner in my office, I think I'm in the clear. What do you think?

*A recent Supreme Court decision puts in doubt the Lanham Act portion of the Monty Python holding. 

**The Spotify Social example is complicated by the fact that the Beatles aren't included, although I have found reasonable covers of all the songs included on the TWA. The copyright act explicitly provides for a compulsory license to make cover tunes, so long as the cover doesn't deviate too drastically from the original. 17 USC § 115(a). If the license was paid, and the copyright owner notified, those songs are authorized. My repackaging of them in a virtual mixtape, however, is not. 17 U.S.C. § 114(b).

 

While My (Favorite Beatles Song) Gently Weeps

The voting is done and the world has (or 264 entities voting in unique user sessions have) selected the songs for "The Tighter" White Album (hereinafter TWA). The survey invited voters to make pairwise comparisons between two Beatles songs, under the premise that one could be kept, and one would be cut.

There are several copyright-related implications of my experiment, and I wanted to unpack a few of them. Today, my thoughts on the potential authorship and ownership of the list itself. Tomorrow, a few thoughts on moral rights, whether I’ve done something wrong, and whether what I've done is actionable. [Edited to add hyperlink to Part II]

But first, the results -- An album's worth of music (two sides no longer than 24:25 each, the length of Side Four of the original), ranked from strongest to weakest:

SIDE ONE:

While My Guitar Gently Weeps

Blackbird

Back in the USSR

Happiness is a Warm Gun

Dear Prudence

Revolution 1

Ob-la-di, Ob-la-Da

SIDE TWO:

Helter Skelter

I'm So Tired

I Will

Julia

Rocky Raccoon

Mother Nature's Son

Cry Baby Cry

Sexy Sadie

How did the voters do? Very well, by my estimation. I was pleasantly surprised by the balance. McCartney and Lennon each sang (which by this point in their career was a strong signal of primary authorship) 12 of the 30 tracks, and each had 7 selections on the TWA. (John also wrote "Good Night," which was sung by Ringo and overproduced at Paul's behest, so I think it can be safely cabined.) Only one of George Harrison's four compositions, "While My Guitar Gently Weeps," made the cut, but was the strongest finalist. Ringo's "Don't Pass Me By," no critical darling, did poorly in the final assessment.*

It's possible, although highly unlikely in this instance, that the list of songs is copyrightable expression. As a matter of black letter law, one who compiles other copyrighted works may secure copyright protection in the

collection and assembiling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

Protection only extends to the material contributed by the author. The Second Circuit has found copyrightable expression in the exercise of judgment as expressed in a prediction about the price of used cars over the next six months, even where the prediction was striving to map as close as possible to the actual value of cars in those markets. Other Second Circuit cases recognize copyright protection in the selection of terms of venery -- labels for groups of animals (e.g., a pride of lions) and in the selection of nine pitching statistics from among scores of potential stats. In each of these cases, there was some judgment exercised about what to include or what not to include.

In this case, I proposed the question, put together the survey, monitored the queue, and recruited respondents through various channels. The voting, however, was actually done by multiple individuals selecting between pairs of songs. It's difficult to paint that as a "work of authorship" in any traditional sense of the phrase. I set up the experiment and then cut it loose. I could have made my own list (and have, but I won't bore you with that), and that list would have been my own work of authorship. This seems like something different, because I'm not making any independent judgment (other than the decision to limit the length of the TWA to twice the length of the longest side of the White Album).

Let's assume for a moment that there is protectable expression, even though I crowdsourced the selection process. Could it be that all 246 voters are joint authors with me in this work? It seems unlikely. The black letter test asks (1) whether we all intended our independent, copyrightable contributions to merge into an inseparable whole, and (2) whether we intended everyone to be a co-author. It's hard to call an individual vote between two songs a separately copyrightable contribution, even with the prompt: "The Beatles' White Album might have been stronger with fewer songs. Which song would you keep?" By atomizing the decision, I might be insulated from claims that individual voters are co-authors of the final list, although I suggested that there was something cooperative about this event in my description of the vote:

We’re crowdsourcing a “Tighter White Album.” Some say the White Album would have been better if it was shorter, which requires cutting some songs. Together, we can work it out. For each pair, vote for the song you would keep. Vote early and often, and share this with your friends. The voting will go through the end of November.

Still, to the extent they took seriously my admonitions, the readers were endeavoring to decide which of the two songs presented belonged on the TWA, whatever the factors that played into the decision. Might that choice also be protected in individual opinions sorted in a certain fashion? This really only matters if I make money from the proposed TWA. I would then need to make an accounting to my joint authors. And even if the vote itself was copyrightable expression, the voter likely granted me an implied license to include it in my final tally.

Should I have copyright protection in this list? Copyright protection is arguably granted to give authors (term of art) the incentive to create expressive works. I didn't need copyright protection as an incentive: I ran the survey so that I could talk about the results (and to satify my own curiosity). And my purposes are served if others take the results and run with them (although I would prefer to be attributed). Maybe no one else needs copyright protection, either, as lists ranking Beatles songs abound on the internet. Rolling Stone magazine has built a cottage industry on ranking and reranking the popular music output of the last 60 years, but uses its archives of rankings as an incentive to pay for a subscription. If the rankings didn't sell, magazines would likely do something else.

As an alternative, Rolling Stone might also arguably benefit from common law protection against the misappropriation of hot news, granted by the Supreme Court in INS v. AP, which would provide narrow injunctive relief to allow it to sell its news before others can copy without permission. The magazine might have trouble with recent precedent from the 2d Circuit which held that making the news does not qualify for hot news protection, although reporting the news might. So if I reproduce Rolling Stone's list (breaking news: Rolling Stone prefers Sonic Youth to Brittany Spears), that might fall outside of hot news misappropriation, although perhaps not outside of copyright protection itself.

 

*Two personal reflections: (1) I am astounded that Honey Pie didn't make the cut. Perhaps voters confused it with Wild Honey Pie, which probably deserved its lowest ranking. (2) I sing Good Night to my five-year old each night as a lullaby, and my world would be different without it. That is the inherent danger in a project like mine, and those who criticize the very idea that the White Album would have been the better had it been shorter can marshall my own anecdotal evidence in support of their skepticism.

 

 

 

 

 

Choosing Censorship

Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.

My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game. 

Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.

I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.

Cross-posted at Info/Law.

You Say You Want a Revolution

Two potentially revolutionary "disruptive technologies" were back in the news this week. The first is ReDigi, a marketplace for the sale of used "legally downloaded digital music." For over 100 years, copyright law has included a first sale doctrine, which says I can transfer "lawfully made" copy* (a material object in which a copyrighted work is fixed) by sale or other means, without permission of the copyright owner. The case law is codified at 17 U.S.C. § 109.

ReDigi says its marketplace falls squarely within the first sale limitation on the copyright owner's right to distribute, because it verifies that copies are "from a legitimate source," and it deletes the original from all the seller's devices. The Recording Industry Association of America has objected to ReDigi's characterization of the fair use claim on two primary grounds,** as seen in this cease and desist letter.

First, as ReDigi describes its technology, it makes a copy for the buyer, and deletes the original copy from the computer of the seller. The RIAA finds fault with the copying. Section 109 insulates against liability for unauthorized redistribution of a work, but not for making an unauthorized copy of a work. Second, the RIAA is unpersuaded there are ReDigi can guarantee that sellers are selling "lawfully made" digital files. ReDigi's initial response can be found here. 

At a first cut, ReDigi might find it difficult to ever satisfy the RIAA that it was only allowing the resale of lawfully made digital files. Whether it can satisfy a court is another matter. It might be easier for an authorized vendor, like iTunes or Kindle, to mark legitimate copies going forward, but probably not to detect prior infringement.

Still, verifying legitimate copies may be easier than shoehorning the "copy and delete" business model into the language of § 109. Deleting the original and moving a copy seems in line with the spirit of the law, but not its letter. Should that matter? ReDigi attempts to position itself as close as technologically possible to the framework spelled out in the statute, but that's a framework designed to handle the sale of physical objects that embody copyrightable works.

This is not the only area where complying with statutory requirements can tie businesses in knots. Courts have consistently struggled with how to think about digital files. In London-Sire Records v. Does, the court had to puzzle out whether a digital file can be a material object and thus a copy* distributed in violation of § 106(3). The policy question is easy to articulate, if reasonable minds still differ about the answer: is the sale and distribution of digital files something we want the copyright owner to control or not?

As a statutory matter, the court in London-Sire concluded that material didn't mean material in its sense as "a tangible object with a certain heft," but instead "as a medium in which a copyrighted work can be 'fixed.'" This definition is, of course, driven by the statute: copyright subsists once an original work of authorship is fixed in a tangible medium of expression from which it can be reproduced, and the Second Circuit has recently held in the Cablevision case that a work must also be fixed -- embodied in a copy or phonorecord for a period of more than transitory duration -- for infringement to occur. Policy intuitions may be clear, but fitting the solution in the statutory language sometimes is not. And a business model designed to fit existing statutory safe harbors might do things that appear otherwise nonsensical, like Cablevision's decision to keep individual copies of digital videos recorded by consumers on its servers, to avoid copyright liability.

Potentially even more disruptive is the 3D printer, prototypes of which already exist in the wild, and which I will talk more about tomorrow.

* Technically, a digital audio file is a phonorecord, and not a copy, but that's a distinction without a difference here.

** The RIAA also claims that ReDigi violates the exclusive right of public performance by playing 30 second samples of members' songs on its website, but that's not a first sale issue.

De-lousing E-PARASITE

The House of Representatives is considering the disturbingly-named E-PARASITE Act. The bill, which is intended to curb copyright infringment on-line, is similar to the Senate's PROTECT IP Act, but much much worse. It's as though George Lucas came out with the director's cut of "The Phantom Menace," but added in another half-hour of Jar Jar Binks. 

As with PROTECT IP, the provisions allowing the Attorney General to obtain a court order to block sites that engage in criminal copyright violations are, in theory, less objectionable. But they're quite problematic in their particulars. Let me give three examples.

First, the orders not only block access through ISPs, but also require search engines to de-list objectionable sites. That not only places a burden on Google, Bing, and other search sites, but it "vaporizes" (to use George Orwell's term) the targeted sites until they can prove they're licit. That has things exactly backwards: the government must prove that material is unlawful before restraining it. This aspect of the order is likely constitutionally infirm.

Second, the bill attacks circumvention as well: MAFIAAFire and its ilk become unlawful immediately. Filtering creep is inevitable: you have to target circumvention, and the scope of circumvention targeted widens with time. Proxy services like Anonymizer are likely next.

Finally, commentators have noted that the bill relies on DNS blocking, but they're actually underestimating its impact. The legislation says ISPs must take "technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States" to Web sites targeted under the bill, "including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolvingto that domain name's Internet protocol address." The definitional section of the bill says that "including" does not mean "limited to." In other words, if an ISP can engage in technically feasible, reasonable IP address blocking or URL blocking - which is increasingly possible with providers who employ deep packet inspection - it must do so. The bill, in other words, targets more than the DNS.

On the plus side, the bill does provide notice to users (the AG must specify text to display when users try to access the site), and it allows for amended orders to deal with the whack-a-mole problem of illegal content evading restrictions by changing domain names or Web hosting providers.

The private action section of the bill is extremely problematic. Under its provisions, YouTube is clearly unlawful, and neither advertising or payment providers would be able to transact business with it. The content industry doesn't like YouTube - see the Viacom litigation - but it's plainly a powerful and important innovation. This part of E-PARASITE targets sites "dedicated to the theft of U.S. property." (Side note: sorry, it's not theft. This is a rhetorical trope in the IP wars, but IP infringement simply is not the same as theft. Theft deals with rivalrous goods. In addition, physical property rights do not expire with time. If this is theft, why aren't copyright and patent expirations a regulatory taking? Why not just call it "property terrorism"?)

So, what defines such a site? It is:

1. "primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates" violations of the Copyright Act, Title I of the Digital Millennium Copyright Act, or anti-counterfeiting laws; or,
2. "is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out the acts that constitute a violation" of those laws; or, 
3. the owner "operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation" of those laws.

That is an extraordinarily broad ambit. Would buying keywords, for example, that mention a popular brand constitute a violation? And how do we know what a site is "primarily designed for"? YouTube seems to have limited purpose or use other than facilitating copyright infringement. Heck, if the VCR were a Web site, it'd be unlawful, too. 

The bill purports to establish a DMCA-like regime for such sites: the IP owner provides notice, and the site's owner can challenge via counter-notification. But the defaults matter here, a lot: payment providers and advertisers must cease doing business with such sites unless the site owner counter-notifies, and even then, the IP owner can obtain an injunction to the same effect. Moreover, to counter-notify, a site owner must concede jurisdiction, which foreign sites will undoubtedly be reluctant to do. (Litigating in the U.S. is expensive, and the courts tend to be friendly towards local IP owners. See, for example, Judge Crotty's slipshod opinion in the Rojadirecta case.)

I've argued in a new paper that using direct, open, and transparent methods to censor the Internet is preferable to our current system of "soft" censorship via domain name seizures and backdoor arm-twisting of private firms, but E-PARASITE shows that it's entirely possible for hard censorship to be badly designed. The major problem is that it outsources censorship decisions to private companies. Prior restraint is an incredibly powerful tool, and we need the accountability that derives from having elected officials make these decisions. Private firms have one-sided incentives, as we've seen with DMCA take-downs. 

In short, the private action measures make it remarkably easy for IP owners to cut off funding for sites to which they object. These include Torrent tracker sites, on-line video sites, sites that host mash-ups, and so forth. The procedural provisions tilt the table strongly towards IP owners, including by establishing very short time periods by which advertisers and payment providers have to comply. Money matters: WikiLeaks is going under because of exactly these sort of tactics. 

America is getting into the Internet censorship business. We started down this path to deal with pornographic and obscene content; our focus has shifted to intellectual property. I've argued that this is because IP legislation draws lower First Amendment scrutiny than other speech restrictions, and interest groups are taking advantage of that loophole. It's strange to me that Congress would damage innovation on the Internet - only the most powerful communications medium since words on paper - to protect movies and music, which are relatively small-scale in the U.S. economy. But, as always with IP, the political economy matters. 

I predict that a bill like PROTECT IP or E-PARASITE will become law. Then, we'll fight out again what the First Amendment means on the Internet, and then the myth of America's free speech exceptionalism on-line will likely be dead.

Cross-posted at Info/Law.

Back in the B.L.O.G.

I'm glad for the invitation to return to the friendly confines of the Prawfsblawg to kick around some ideas. I was fascinated by earlier attempts to rank law schools and law journals using pairwise comparisons, but was concerned that the list was guaranteed to be underinclusive, due to the number of pairwise comparisons to be made. So I'll start the month with a question that has fewer items to compare, and where the stakes are much lower.

George Martin, the producer of the Beatles' oeuvre, argued that the eponymous two-disc release we tend to call the White Album would have been a stronger final product if the weaker songs had been culled. I doubt the remaining lads from Liverpool are likely to take a stab at this, but you can have your say on which songs should be included on what I'm calling the "Tighter White Album."  The question will be presented by offering two songs. You vote for the song you think should be kept. Rinse. Repeat. In honor of the old LP format, the highest-ranked 45 minutes of music will be included in the imaginary album after Thanksgiving.

Is this a legal question? Perhaps yes, but I want to get into the details of why I think so at the end of the month, so as not to sway your vote.

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

Policing Copyright Infringement on the Net

Mark Lemley has a smart editorial up at Law.com on the hearings at the Second Circuit Court of Appeals in Viacom v. YouTube. The question is, formally, one of interpreting Title II of the Digital Millennium Copyright Act (17 U.S.C. 512), and determining whether YouTube meets the statutory requirements for immunity from liability. But this is really a fight about how much on-line service providers must do to police, or protect against, copyright infringement. Mark, and the district court in the case, think that Congress answered this question rather clearly: services such as YouTube need to respond promptly to notifications of claimed infringement, and to avoid business models where they profit directly from infringement. The fact that a site attracts infringing content (which YouTube indubitably does) can't wipe out the safe harbor, because then the DMCA would be a nullity. It may be that the burden of policing copyrights should fall more heavily on services such as YouTube than it currently does. But, if that's the case, Viacom should be lobbying Congress, not the Second Circuit. I predict a clean win for YouTube.

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

The Pirates' Code

There have been a number of attempts to alter consumer norms about copyright infringement (especially those of teenagers). The MPAA has its campaigns; the BSA has its ferret; and now New York City has a crowdsourced initiative to design a new public service announcement. At first blush, the plan looks smart: rather than have studio executives try to figure out what will appeal to kids (Sorcerer's Apprentice, anyone?), leave it to the kids themselves.

On further inspection, though, the plan seems a bit shaky. First, it's not actually a NYC campaign: the Bloomberg administration is sockpuppeting for NBC Universal. Second, why is the City even spending scarce taxpayer funds on this? Copyright enforcement is primarily private, although the Obama administration is lending a helping hand. Third, is this the most effective tactic? It seems more efficient to go after the street vendors who sell bootleg DVDs, for example - I can buy a Blockbuster Video store's worth of movies just by walking out the front door of my office. 

Yogi Berra (or was it Niels Bohr?) said that the hardest thing to predict is the future. And the hardest thing about norms is changing them. Larry Lessig's New Chicago framework not only points to the power of norms regulation (along the lines of Bob Ellickson), but suggests that norms are effectively free - no one has to pay to enforce them. This makes them attractive as a means of regulation. The problem, though, is that norms tend to be resistant to overt efforts to shift them. Think of how long it took to change norms around smoking - a practice proven to kill you - and you'll appreciate the scope of the challenge. The Bloomberg administration should save its resources for moving snow this winter...

Back in the saddle, again

I'm glad to return for my second stint as a guest blogger here at Prawfsblawg.

The title of this post might have evoked memories of Gene Autry's signature tune, Aerosmith's single from the Rocks album, or a little known gem from the band Somebody Still Loves You Boris Yeltsin. While the songs are distinctive, the titles are the same. Neverthelsss, Autry would have no cause of action against Aerosmith, and Aerosmith would have none against Somebody Still Loves You Boris Yeltsin. Copyright doesn't protect song titles, and the 2d, 6th and 9th circuits have all embraced a public interest balancing test for potential trademark infringement suits: the use of the same title as an earlier work may only be enjoined if it had no artistic relevance to the underlying work, or was expressly misleading. Nothing about the reuse of "Back in the Saddle" as a song title would likely mislead consumers, and every song includes the phrase in its lyrics.

Here's a slightly more interesting counterfactual  - what if Gene Autry had decided to make a comeback as a live performer in 1984, the same year that Aerosmith reunited with their original guitarists, and both artists hit the road on respective "Back in the Saddle" tours?

It would be hard to confuse Gene Autry with Aerosmith, but perhaps trickier to distinguish the tours one from another. Still, the problem is easily solved if consumers ask for Gene Autry or Aerosmith tickets. "[T]rademark infringement protects only against mistaken purchasing decisions and not against confusion generally." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 583 (2d Cir. 1991). In addition, for both artists, "back in the saddle" would be a fair description of their return to live performances. Thus, there is likely no trademark infringement. (Aerosmith's "Back in the Saddle" tour in 1984 was seen as a triumphant return. Autry had long retired from performing by 1984.)

It might be a closer call if you imagine a counterfactual Led Zepellin reunion in 1984 (pick your favorite drummer to replace the deceased Jon Bonham) for a "Back in the Saddle" tour. There, the styles of the band are closer, and the potential audience crossover much more significant. Tickets will probably still be purchased by consumers looking for the artist, and not the tour, and Led Zepellin is, in the colloquial use of the phrase, in fact "back in the saddle." Again, Aerosmith likely has no claim.

Aerosmith's best hypothectical case might be against an Aerosmith cover band, hitting the same cities on the same dates in 1984 as the original, under a "Back in the Saddle" banner (either tour name or band name).  It's not impossible to imagine a consumer mistakenly purchasing tickets to a smaller venue, in the same city, who thinks she is getting the genuine article when she purchases tickets to see "Back in the Saddle." You might also imagine momentary consumer confusion, which has been enough to support a claim of trademark infringement as initial interest confusion, first articulated by the 9th Circuit in Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999).

More to come, of course, on the intersection of trademark and copyright law, problems with jurisdiction and venue in intellectual property litigation, and thoughts inspired by the recent Rethink Music conference co-sponsored by the Berkman Center for Internet and Society, Harvard Business School, and the Berkelee College of Music.

Wam! Bam! Thank you ma'am!

Michael Robertson, the CEO who brought us MP3.com at the turn of the 21st century, is back again with two services: MP3Tunes and Sideload. MP3.com ostensibly allowed users to listen to CDs stored on MP3.com servers if they could establish to MP3.com's satisfaction that they owned the original CD. MP3.com lost a fight in the Southern District of New York, with the court concluding that MP3.com was not engaging in (arguably) protectable "space shifting" by storing subscribers' CDs, but instead "re-playing for the subscribers converted versions of the recordings it copied, without authorization." Judge Rakoff concluded that this was not fair use, and the legal fallout led to MP3.com's merger with Verizon.

Robertson's new storage service, MP3Tunes, allows customers to store audio files "in the cloud," not unlike Dropbox or other cloud storage services. Digital files uploaded to an MP3Tunes locker can be replayed by the locker owner in a variety of ways. Viewed in isolation, MP3Tunes simply stores subscribers' CDs. The recent decision in Cartoon Network v. Cablevision would suggest that the Second Circuit, at least, is sympathetic to the notion that where a business provides a service and consumers push the buttons that copy protected expression, the service providers are not directly liable. Thus, if online storage by consumers is protectable private use (a possibility the court in MP3.com acknowledged), MP3Tunes is unobjectionable as a service enabling that storage.

Sideload is an associated service that changes the way MP3Tunes works. The Sideload program lists the material available in the lockers of other users of MP3Tunes and allows you to stream those songs and download them into your own locker.  In other words, if I load David Bowie's* "Suffragette City" into my MP3Tunes locker, Sideload will help you find it, and you can make a copy from my copy. As I understand the services, other people can then make a copy of your copy of Suffragette City. If one accepts as a baseline that consumers are taking their personal stock of legally purchased CDs and MP3s, loading digital files into MP3Tunes lockers, and other consumers are locating those files and copying them through Sideload for free, then the service sounds suspiciously like Napster-esque "file sharing," and unlike arguably protectable "space shifting." Robertson makes an interesting factual claim in its motion for summary judgment that, if true, might alter the way we think about this particular case, even if Sideload is part of the package.

Robertson asserts that record lables like EMI distribute music files for free on the internet with the intent (in the words of EMI's Senior VP for Digital Marketing) that the songs should become "viral...giving fans the ability to disseminate to other fans, to spread like a virus." Not every song is marketed as a free (and hopefully viral) release, but many are. EMI and the other labels want to hold MP3Tunes accountable for distinguishing between them. MP3Tunes instead hopes to rely on Section 512(c) of the DMCA, which immunizes online service providers that store material online at the direction of users, so long as the service provider takes down unauthorized content once it is brought to the attention of the service provider by the copyright holder. MP3Tunes argues (reasonably, I think) that if EMI has flooded the market with free content, EMI is the party best positioned to distinguish between viral content and content that wasn't supposed to get out for free. Thus, if MP3Tunes timely removes any content flagged by record labels, then EMI should be able to get what it wants by flagging "traditional" content for removal, allowing MP3Tunes to remove flagged content while enabling the distribution of free content. Thus, even assuming that Sideload lets other MP3Tunes customers copy "Suffragette City" from my locker, the question we should ask is whether EMI authorized its viral release.

I am a skeptical of Robertson's factual claims, because it seems that many artists have use free streaming content "distributed" through social networking systems like Facebook or Twitter, and less on the distribution of actual copies.  Still, to the extent the claim is accurate, it seems entirely within reason for Robertson to offer a service that allows consumers to find and share authorized "viral" downloads.

* Bowie is an EMI artist, whose seminal album, The Rise and Fall of Ziggy Stardust and the Spiders from Mars, was just released in the UK on a commemorative stamp.

Friday Afternoon Jukebox

As always, three plays for $1.  Here are mine:

For that car commercial with the kids playing hockey.

For the new release.

And for the pardon.

And your bird can sing

As of today, the Beatles catalog is available on iTunes. I'm unusually giddy about this, even though I own the majority of the band's catalog in various physical formats, and even though the band is five years late to the party. (If you are listening, Mr. Jobs, I would like to buy mono versions of Revolver and Sgt. Pepper's).

It nevertheless feels appropriate to pause and have a moment of silence for those Beatles tribute bands who might well have made their best sales to frustrated consumers searching in vain for authentic Beatles recordings on iTunes in months past. The market for Beatles look- and soundalikes is sufficiently valuable that one tribute band, the Fab Four, recently sued another Beatles imitator, the Fab 4, for trademark infringement (although the Fab Four subsequently voluntarily dismissed its case).

I occassionally sought out Beatles recordings on iTunes prior to today's release notice, and until today, I primarily found offerings from tribute bands and other artists covering Beatles songs. Some consumers may have even purchased those alternate offerings when they found no authentic Beatles material available. Could iTunes be liable for trademark confusion, specifically, initial interest confusion?

You might recall that "initial interest confusion" can occur when one party intentionally uses another's mark to capture consumer attention, even if the confusion is quickly dispelled. The Second Circuit recently declined to dismiss a claim by Rescuecom against Google that alleged Google recommended "Rescuecom" as a keyword to those AdWords consumers that were also Rescuecom competitors. The Ninth Circuit has held that triggering competitors ads in response to a search for plaintiffs marks might also create initial interest confusion.

Could Apple, knowing as it does that there are no Beatles tracks in its library, be liable for returning search results that include Beatles imitators? One factor cutting against initial interest confusion is that many consumers who followed the Beatles knew they were one of the last iTunes holdouts. On the other hand, iTunes is certainly better placed than many consumers to recognize the difference between authentic and soundalike Beatles. Should Apple be required not to return any results, or offer only the solo works of former Beatles to its customers? Perhaps not - we would be unlikely to grant a request by the Beatles to keep their recording a safe physical distance from the Monkees or any other imitative contemporary in a record store.  And competitors are often allowed to boast, "If you like X, you'll love Y."

As a final thought, should it matter whether the imitators are performing faithful cover tunes, in accordance with Sections 114 & 115 of the Copyright Act, or whether the imitators are creating new works derived* from the original musical compositions and sound recordings? The former do not infringe copyrights in the imitated sound recordings or their underlying musical compositions, while the latter would, subject to fair use.

* The Fab Four's Christmas album, Hark!, includes remakes of traditional Christmas tunes combined with recognizable elements of Beatles hits. For example, the Fab Four remake of Silent Night plays over the Indian sitar drone of Tomorrow Never Knows, while the title tune, a remake of Hark the Herald Angels Sing, closes with three part harmonies and a guitar lick identical to those that close Help!

 

 

Music in the Classroom

Many thanks to Dan and the Prawfs community for allowing me to return for a stint at this blog!

Following a busy May, I will submit my grades this Friday, after which I will receive my student evals. I'm particularly interested in reading student comments on my course this semester--two full sections of criminal law--because I tried something new for me: daily music selections. Each day as students filed into class, I played a song that I thought captured the subject matter in some helpful or interesting way. Criminal law certainly offers lots of music potential, and students contributed a number of great selections during the semester. How had I not heard Hank Williams III?

My hope was that music would open students to thinking dynamically about criminal law and to appreciate it more as a social enterprise, not just a doctrinal exercise. I also hoped it would be a fun way to engage the class each day, and that it even might interest students in reading ahead as they tried to predict or select music options. Some days we spent 5 minutes or so talking about how a song reflected or related to our subject matter. We always at least identified the song and its general topical relevance, even if it offered nothing more than a bit of levity.

Some students definitely seemed engaged by the project. Heat of passion overall may have generated the most music suggestions from students, along with our discussions of punishment and incarceration. But I had about 160 students in the two sections, so I am curious to learn what the majority really thought about it. No doubt some students viewed it as a self-indulgent distraction. And perhaps it was--I quickly discovered that my musical taste is more narrow and dated than I had realized! Do other prawfs out there have experience using music or other non-traditional teaching tools?

If my student evals don't talk me out of this music theme altogether, I thought I might try it again in my summer professional responsibility course. I haven't considered my PR music options in earnest yet, but at first blush, competence, diligence, confidentiality, and the like aren't inspiring the tunes in me quite as naturally as homicide ... Any suggestions?

Friday Afternoon Jukebox

I thought I'd try out a PrawfsBlawg Friday afternoon jukebox.  I know it's not law-related, but hey, music can help the writing muse sometimes.

You get three plays for a dollar, so here are mine:

Dressed up like a car crash
Your wheels are turnin' but you're upside down.

When I look on in your eyes then I'll do better.

What's so amazing about really deep thoughts

Yes, my musical preferences are frozen in amber.  Feel free to make your own selections in the comments.

Dave Matthews Band, Bootlegs, and Network Economics

In honor of the release of the latest Dave Matthews Band album, and my upcoming concert visit, I thought I would blog a bit about an area of interest that I don't often get to write about.  As the title implies, this topic combines three areas of interest: DMB, Bootleg Trading (which prefer to call concert trading, as I don't really view permissive recording of concerts to be a bootleg), and network economics.  The punchline is a critique of the popular argument that record companies should want free distribution of music because it will increase sales.  But first, some background.

Dave Matthews Band, as most people know, makes music.  Despite releasing new albums more slowly than most groups (about every 3 years, and 4 since the last one), the group is extremely "sticky" among its fans.  It is routinely one of the top grossing concert acts in the world, and its fans continue to go to shows.  I've been to at least 25 shows in 5 states (I've lost count), and the only reason the number isn't 50 is that I got married and had kids.  I've been a member of the fan club for 9 years, yet when seats in Pittsburgh were doled out by seniority, I'm still at the back of my section, meaning that there are many fan club members sitting in front of me with 10+ years in the club. 

But here's the thing, they don't have a "lot" of record sales, at least not as compared to many other pop acts.  Few songs hit the charts, and the albums rarely crack the top 5, let alone the top 10, and if they do it's not for very long.

The band's popularily among its fans is largely attributed to its loose concert taping policy. 

 From the beginning, anyone with a tape recorder (and now more sophisticated devices) could record any show, and share it (for free) among friends.  Most are high quality these days - every show will have someone in the first 10 rows setting up three microphones (left, right, center) 15 or 20 feet in the air.  Trading is fun, and because the band changes the setlist nightly and improvises significantly, no two concerts are ever the same.  For example, I have some 200 concerts on CD or hard disk, even though I'll never get to listen to them all. Trading used to be a quid pro quo - I'll send you one show if you send me another. 

Over time, trading has lost some of its steam, as cheap storage and high bandwidth allows new recordings to be released within a couple days via BitTorrent. Thus, there's no need for actual trading - it's all about downloading now.

If what I'm describing sounds familiar, perhaps you heard about it the first time when it was called the Grateful Dead, or maybe the second, when it was called Phish.  GD, Phish, and DMB are all examples of bands with devoted fans, high-activity trading, but relatively weak record sales.

This leads me to the core academic point in this story - the network benefits associated with trading.  The typical economic argument used to argue that record companies should favor music sharing is that the more people that have a song or two, the more likely people are to buy the album. The effect is two-fold:

1.  Sampling: the more people that listen to a song, the more people that will buy the album

2. Status: everyone is listening, I'd better get the CD and listen, too

I don't want to get into whether this is true or not in general, though empirical studies seem to imply that it is not. Instead, I want to comment on a more peculiar aspect of sharing - what happens when there are two markets?

As far as I know, DMB keeps almost all of the money it gets from concerts, but a much smaller portion of the money it makes from record albums (maybe more now than in the past, but the label is still in there). Based on this fact, it stands to reason that if full-sharing is encouraged by the band, then it will make more money, even if that sharing substitutes for record sales. Thus, where you have a band known for great concerts, the dual markets benefit the band, but not the record label. This appears to be the network effect working, but only in one market.

Thus, the band has an incentive to encourage sharing, and record sales may suffer despite popularity.  This implies that the network benefit model fails, but only partially. At least my 3 band sample says so. It may also be the reason why many bands favor sharing even though their labels do not.

This may be why artists that are not known for good concerts, or that do not get to keep most of the concert revenue do not want any kind of bootlegging or other music sharing - where there is a single market, the substitutive effect outweighs the network benefits in general (unless you believe the studies that say otherwise).

These are off-the-cuff thoughts - I haven't studied this much, and probably never will. So, if anyone has some thoughts on the topic that can guide my meanderings, please post!

Tuesday Night Music (and Philosophy) Blog

Law review authors occasionally use rock song lyrics to make a point. Alex Long has written insightfully about their tendency to do so.  (And I am guilty of it in this recent article on First Amendment law and virtual reality).

This led me to wonder what happens when things work in reverse: Which law review articles are cited the most in rock music?  Are the same law reviews that are highest in court and scholarship citation counts – according to the Washington and Lee rankings – also the most frequently cited in angst-ridden rock lyrics? 

Unfortunately, it seems that rock lyricists have so far found little worth quoting in our scholarship.  Or perhaps they are simply too embarrassed to admit to their fan base just how much they love and read law review articles (and thus go to lengths to hide all of their musical footnotes about legal scholarship with hard to decrypt back-masking or subliminal message techniques).

In any event, I was determined not to come up empty in this project and so have hastily broadened my focus beyond the narrow disciplinary boundaries of modern academia – to all references I can think of in rock music to philosophical thinkers, texts, and occasionally to words or phrases I’ve decided to erroneously assume are about philosophical thinkers, texts, or themes.  Below is my list so far.  Please feel free to add to it in the comments section.

------------------------------------------------------------------------

Elliott Smith’s album – Either/Or (title borrowed from the book by Soren Kierkegaard).

Elliott Smith – Miss Misery (also a reference of sorts to the book, Either/Or).

Elliott Smith – Strung Out Again (I wouldn’t be shocked if the imagery of owls flying over a floating body was inspired at least in part by Hegel’s famous Owl of Minerva line.  That seems even more plausible for the alternate lyrics played at some live performances).

R.E.M. – Moral Kiosk.

Dump Truck – Ethics.

Spoon – Utilitarian.

Timeblind  -- Ontological Ground of Being.

The Celibate Rifles’ album – The Turgid Miasma of Existence (Happening Sounds for the Modern Degeneration).

Sheryl Crow – Every Day is a Winding Road (“I’ve been wondering if all the things I’ve seen.  Were ever real.  Were ever really happening”).

Beck – Volcano (“I don’t know what I’ve seen.  Was it all an illusion? All a mirage gone bad?”).

Juluka – Simple Things (“The stars are dead and all you see are shining lies”).

Edie Brickell & The New Bohemians, What I Am (“Philosophy is a walk on the slippery rocks.”).

The Angry Samoans – Unhinged (“Pure consciousness comes to the tuned out mind.  An empty, lucid, self-illuminating ride . . . This world’s illusion.  Get unhinged.”).

We are Scientists – The Nature of Empirical Truth.

The Last Shadow Puppets – Only the Truth.

David Gilmore – Let’s Get Metaphysical.

Phanton Limbs – Dead Language (“You don’t have to get metaphysical baby”).

The Super Furry Animals – Some Things Come From Nothing.

The Able Tasmans – The Big Bang Theory (“The universe’s final hours.”).

The Flaming Lips – Do You Realize?? (“Do You Realize - we're floating in space”) (Despite legislative opposition, this is – by the Governor’s executive order – now Oklahoma’s official state rock song.).

The Buzzcocks – I Believe (“I believe in perpetual motion . . . my relative motion is just an illusion from stopping too fast.”).

Unbunny – Nothing Comes to Rest (“Hey Charlie, nothing comes to rest.  On the chests of those always running.  I’m tired of living from the wrist.  And leaving all decision to coincidence.”).

Pink Floyd – Time (“You run and you run to catch up with the sun.  But it’s sinking.  Racing around to come up behind you again.  The sun is the same in a relative way.  But you’re older.”).

The Buzzcocks – I Believe (“I can’t feel the future and I’m not certain there’s a past.”).

Super Furry Animals – Frisbee (“The past was eagle-eyed.  The future’s pixelized.”).

Elvis Costello & The Attractions – Tokyo Storm Warning (“We’re only living this instant.”).

The Police – Spirits in the Material World.

The Police album – Ghost in the Machine.

The Buzzcocks – Autonomy.

Rush – Freewill (“If you choose not to decide, you still have made a choice”).

Wire – 40 Versions (“I never know which version I’m going to be.  I seem to have so many choices open to me . . . I’ve got 40 versions all dying to get the part.  And so with a change of mind comes a change of heart.”).

The band, Masters of Reality.

The Solipsistics – Any Requests? (“I clasp the crooked handle of my one idea.”).

Robyn Hitchcock – The Man Who Invented Himself (“Well that loneliness is nothing.  Just imagine how he feels.  He’s the only person in the world.  Who still believes he’s real”).

The Beatles – Nowhere Man (“He’s a real nowhere man.  Sitting in his nowhere land.  Making all his nowhere plans for nobody.”).

M. Ward – Epistemology.

The Replacements – I Don’t Know.

Elvis Costello & The Attractions – Beyond Belief.

Rod Stewart – Reason to Believe (originally by Tim Hardin).

Ubiquitous Synergy Seeker (USS) – Laces Out (“Direct your eyes to the obvious proof.   And puppy dog lies won’t sweeten the truth.  I whisper and scream but I can’t refute.  It’s absolute.”).

Coldplay – Proof.

Coldplay – Twisted Logic.

Supertramp – The Logical Song.

Super Furry Animals’ album – Fuzzy Logic.

Patricio Rey y Sus Redonditos de Ricota – Superlogico

Hayley Westenra – Quanta Qualia.

The Forms –  Knowledge in Hand.

George Michael – Faith.

The Tall Dwarfs’ album – Dogma.

Marnie Stern – Plato’s F****d Up Cave.

The Grateful Dead – Terrapin Station (“While the firelight’s aglow.  Strange shadows in the flames will grow.   Till things we’ve never seen.  Will seem familiar.”)  (Possibly about the experience of those in Plato’s cave watching shadows of things they can’t see, but that’s not the interpretation in The Annotated Terrapin Station.).

Leonard Cohen – Heart with No Companion (“For the soul without a king”) (Could conceivably be referring to Plato’s tripartite model of the soul, in this case, minus a competent Charioteer.  But the main reason it’s here is I wanted some Leonard Cohen lyrics on my list and this was the first one that came to mind.).

Kareem Salama – Aristotle and Averroes.

Andrew Bird – The Naming of Things.

The Thirteenth Floor Elevators – She Lives in a Time of Her Own (“She lives.  No Fear.  Doubtless in everything she knows. . . You have always heard her speaking.  She’s been always in your ear . . . She lives in a time of her own.”) (This could easily be about Lady Philosophy as Boethius encountered her in his prison cell).

Band of Horses – St. Augustine.

Roger Miller (The Mission of Burma member, not the country singer) –  The Age of Reason.

The band, Descartes a Kant.

The Tall Dwarfs – Cant.

Propagandhi – Nailing Descartes to the Wall.

The Looking – Spinoza.

The Faintest Ideas – Dear Leibniz.

The Laughing Clowns  -- Law of Nature.

Bikini Kill – In Accordance to Natural Law.

The Vandals – Anarchy Burger (Hold the Government).

John Stuart Mill (= John Schmersal from the band, Brainiac).

Stiff Little Fingers – Suspect Device (“They take away our freedom.  In the name of liberty.”) (As I’ve already said in earlier post, I interpret this line as being about a government doing what Isaiah Berlin warned against and invoking positive freedom to eliminate negative freedom.  There are no footnotes to Berlin in the song.  But that’s my interpretation and I’m sticking with it!).

Belle & Sebastian – Marx & Engels.

Don McLean – American Pie (“And while Lenin read a book on Marx.  The quartet practiced in the park”).

Gang of Four – Capital (It Fails Us Now).

Gang of Four –Contract.

Ivy Green – Slide Machine (“Alienation”).

Philip Boa & The VooDoo Club – For What Bastards (Do They Work) (“Atomize the dreams of economy and output, economy and output”).

Scritti Politti – Hegemony.

The Housemartins – The People Who Grinned Themselves to Death (“The people who grinned themselves to death.  Smiled so much they failed to take a breath.  And even when their kids were starving.  They all thought the queen was charming”).

Gang of Four – Why Theory?

The Dandy Warhols – Nietzsche.

George Elliott – Nietzsche & Me.

Robyn Hitchcock – Nietzsche’s Way.

Paula Cole – Nietzsche’s Eyes.

Richard Strauss – Also Sprach Zarathustra.

Ed Kuepper – Also Sprach, The King of Euro-Disco.

The Jean Paul Sartre Experience – Spaceman (“I try to find a way to be free.  Of anything that’s troubling me.  But freedom’s such a fickle thing.”).

Lloyd Cole and the Commotions – Rattlesnakes (“She reads Simone De Beauvoir.  In her American circumstance.”).

Sufjan Stevens – A Conjunction of Drones Simulating the Way in Which Sufjan Stevens has an Existential Crisis.

The band, Angst.

Scritti Politi – Jacques Derrida. (“I’m in love with Jacques Derrida.  Read a page and know what I need to.  Take apart by baby’s heart.”)

Tracy Chapman – Why? (“Amidst all these questions.  And contradictions. There are some who still seek the truth.”).

The Moody Blues – Question (“Why do we never get an answer. When we’re knocking at the door.”).

Manu Chao – La Vida Tombola (“La vida es una tombola.”= Life is a raffle) (He’s possibly singing about the assumption that John Rawls makes in A Theory of Justice that “the parties are situated behind a veil of ignorance . . . no one knows his class position in society or social status; nor does he know his fortune in the distribution of natural assets or abilities, his intelligence, strength, and the like.”  He’s also singing about, and to, Maradona.)

Pearl Jam – W.M.A. (“He won the lottery. When he was born.”) (same as above, without the Maradona part.)

Richie Havens – 23 Days in September (“On the floor, pages torn from books she reads.  Ancient ones and new magic and philosophy. Hopeful, she tries every one. Soon leaving them undone.  They seem to hold nothing at all she can believe”) (originally by Davie Blue).

Monty Python – The Meaning of Life.

Hair (The Musical) – Where Do I Go?  (“Where is the something?  Where is the someone?  That tells me why I live and die?”).

Andrew Bird –  A Nervous Tic Motion of the Head to the Left (“We had survived to.  Turn on the History Channel.  And ask our esteemed panel.  Why are we alive?  And here’s how they replied.  You’re what happens when two substances collide.”)

Frank Sinatra – The Good Life.

Stanhop –  Seek the Welfare of the City.

Ministry –  I Prefer.

PreFab Sprout – Appetite (“I’m a simple slave of appetite.  I’m a poor slave of appetite.”).

The Rolling Stones – You Can’t Always Get What You Want.

The Rolling Stones – (I Can’t Get No) Satisfaction.

Elvis Costello & The Attractions – I Hope You’re Happy Now.

R.E.M. – Shiny Happy People.

The Celibate Rifles – Compared to What? (“And she’s doing just fine.  (Compared to What?)  Just above the bread line.).

The Celibate Rifles –  Wonderful Life (“I’m upwardly mobile.   My life is truly blessed.  I’m a moderately depressive Gold American Express.   I’m so appropriate, response and reply.  Cholesterol is low.  Expectations are high . . . Got solar heating in my sauna and spa.  I’m into tennis, Zen, and shiatsu. Here I am.  And there you are.”).

The Celibate Rifles – Wild Desire.

The Churchills – Too Much in Love to Hear (Must be a reference to Ulysses and the Sirens.  At least the lyrics are more interesting that way.).

Cream – Tales of Brave Ulysses.

Franz Ferdinand– Ulysses.

No Man is Roger Miller – The Promised Land (“tie me to a boat that’s going to nowhere”)

Styx – Come Sail Away.

Papercuts – Future Primitive (“Well we crossed the river once.  And we’ll do it once again. The valley will open.  And the mountains fall to their knees.”).

Cerberus Shoal – A Head No Bigger Than a Man’s Cloud

Deerhunter – Adorno.

The Shins – Young Pilgrims (“This modern thought can get the best of you.”).

Joy Division – Failures (“He no longer denies.  All the failures of modern man.”).

Morphine  -- You Speak My Language (“Everywhere I go no one understands me.  They look at me when I talk to them.  And they scratch their heads.  And go what’s he trying to say?. . . Kabrula kaysay Brula Amal amala senda Kumahn Brenda. Kabrula kaysay Brula Amal amala senda Kumahn Brenda. Kabrula kaysay Brula Amal amala senda. Kabrula kaysay Brula Amal amala senda. Kumahn Brenda. Kumahn Brenda.  But you.  You speak my language!”).

Laurie Anderson – Language is a Virus (title borrowed from William S. Burroughs).

Ben Folds Five – Philosophy.

And since it's not that far afield from the above list, here are some allusions to heavy Russian novels (or their themes):

The Verlaines, -- New Kind of Hero (“Alexander the Great?  Maybe Fyodor Dostoevsky?  I’m going back to my cell.  I’m sorry I’m neither of those. (And the tension begins to grow).  A new kind of hero.”).

White Skull – Grand Inquisitor

This Kind of Punishment – Ivan Fyodorovitch

Magazine – Song from Under the Floor Boards (“I know the meaning of life.  It doesn’t help me a bit . . . This is a song from under the floor boards.  This is a song from where the wall is cracked.”).

Super Furry Animals – City Scape Sky Baby (“She came in around dawn. Took her coat off.  Burdened down by the Russian winter . . .  Wash away imminent disaster.  Thinking through her today.  And the murder of the bailiff and land owner.”).

Joy Division – Dead Souls

The Police –  Don’t Stand So Close to Me (“Just like the old man.  In that book by Nabakov.”).

Game Theory’s album – Lolita Nation

Signing off

I hate to blog and run, but after weeks of exams and grading, it's time for a vacation before I return to the computer and a new article.  I have thoroughly enjoyed the past month-plus on Prawfs, and I'm grateful to Dan et al. for allowing me to stay on a bit longer than usual. 

My best wishes for an enjoyable, productive and fun summer to all.  And for those of you with some time on your hands and a love of good music,  Sasquatch!, Bonnaroo and Pitchfork all promise excellent lineups!

Sunday Music (Cover) Blog (or Against Novelty Too)

Many thanks to Dan and company for inviting me back. 

I'm planning to spend most of my time here this month blogging about law teaching and technology. But Marc DeGirolami's terrific post below inspired me to join the rebellion against "the ideology of novelty" in a different way -- by opening a thread on favorite cover songs.  A cover, as Wikipedia tells us, is "a new rendition (performance or recording) of a previously recorded, commercially released song." 

So, in the tradition of previous Sunday music blogs here and elsewhere in the legal blogosphere, I thought I'd celebrate the value of "derivative reaction" with a list of places where it has produced interesting and enjoyable music.  Please feel free to add examples and recommendations of your own in the comments (with extra points awarded for comments that take the derivation a step further and identify favorite covers of covers, reviews of review essays, or derivatives of derivatives (second derivatives) in calculus examples).

Here's my own randomly-generated list:

Peter Gabriel’s cover of Vampire Weekend’s “Cape Cod Kwassa Kwassa” (which mentions Peter Gabriel)

Husker Du’s cover of The Byrds’ “Eight Miles High”

The Byrds’ cover of Pete Seeger’s “Turn, Turn, Turn” (with lyrics from The Book of Ecclesiastes)

Pop Will Eat Itself’s cover of Shriekback’s “Everything that Rises (Must Converge)”  (title borrowed from Flannery O’Connor)

Emerson, Lake & Palmer’s cover of Aaron Copeland’s “Fanfare for the Common Man”

Jethro Tull’s cover (of sorts) of Bach’s “Bouree in E minor”

Depeche Mode’s cover of Nat King Cole’s “Route 66” (written by Bobby Troup)

Big Star’s cover of Nat King Cole’s “Nature Boy” (originally by eden ahbez)

Elliott Smith’s cover of Big Star’s ‘Thirteen"

Bad Astronaut’s cover of Elliott Smith’s “Needle in the Hay”

Ed Kuepper’s cover of Johnny Cash’s “Ring of Fire” (originally by June Cash and Merle Kilgore)

Johnny Cash’s cover of Nine Inch Nails’ “Hurt”

Nirvana’s cover of David Bowie’s “The Man Who Sold the World”

Nirvana’s cover (with the Meat Puppets helping) of The Meat Puppets’ “Oh, Me”

Arlo Guthrie’s cover of Steve Goodman’s “City of New Orleans”

Crosby, Stills, and Nash’s cover of Joni Mitchell’s “Woodstock”

Fairport Convention’s version of the traditional song, “Matty Groves”

Traffic’s version of the traditional song, “John Barleycorn Must Die”

The Bangles’ cover of Simon & Garfunkel’s “Hazy Shade of Winter”

Squirrel Bait’s cover of Phil Ochs’s “Tape from California”

Julian Cope’s cover of Thirteenth Floor Elevators’ “I’ve Got Levitation”

David Gilmour’s cover of Unicorn’s “There’s No Way Out of Here”

The Soft Boys’ cover of Syd Barrett’s “Vegetable Man”

The Effervescent Elephants’ cover of Pink Floyd’s “Interstellar Overdrive”

Peter Jefferies’ cover of Barbara Manning’s “Scissors”

The Times’ cover of the Teenage Filmstars’ “I Helped Patrick McGoohan Escape”

Big Dipper’s cover of The Embarrassment’s “Faith Healer”

Dick Gaughan’s cover of Leon Rosselson’s “World Turned Upside Down”

Fall Out Boy’s cover of Bob Hope’s “Thanks for the Memory” (with all the vowels removed)

And last but not least:

Gary Jules and Michael Andrews’ cover of Tears for Fears’ “Mad World” – which has inspired numerous covers of the cover version (including the recent one by Adam Lambert on ‘American Idol’)

OK.  Did I cover everything?  Or have I left anything out?

Legal Scholarship Jams

Let me set the scene for you. It’s Friday night. I am in my office, and no one else is in the building. I am trying to get psyched up and energized to move forward with the law-review article I am writing. So what do I do? Diet Dr. Pepper? Check. Socks pulled up all the way? Check. Now I plug my iPod into my desktop Bose speakers and blast – I mean freaking BLAST – Ozzy Osbourne's “Crazy Train” … OH YEAH!!!!!!!!!!!!!!!!

As law professors, we’ve all got to do our part to fill up the scholarship aquarium outside the dean’s office. For many of us, that means reaching beyond the Red Bull to a fussed-over collection of legal-scholarship-psych-up music.

If you’re staring at a blank document, try a dose of Metallica’s “Enter Sandman,” Guns N’ Roses’ “Welcome to the Jungle,” or Sammy Hagar’s “I Can’t Drive 55.” (Query: Does Hagar’s posited judicial authority assert a predominantly retributivist model of punishment, or are we seeing a wrong turn on the road to restorative justice?)

If hard rock’s not your thing, there’s no better way to get the NRG up! than a little Debbie Gibson, “Electric Youth”:

Zappin' it to ya
The pressure's ev'rywhere
Going right through ya
The fever's in the air
Oh yeah, it's there!
Don't underestimate the power
Of a lifetime ahead
Electric youth!
Feel the power!

Monday Afternoon Music Blog

Yesterday's New York Times had a nice profile of the musician M. Ward.  Ward's new and really cool album is coming out tomorrow (Tuesday).  You can hear bits and pieces here and here.

And I'm a huge fan of She and Him, Ward's collaboration with actress/singer Zooey Deschanel (more tracks here). 

Enjoy!

Conversation for a Sunday morning

Via TNR, JamesBio Magazine presents a complete ranking of every Beatles song, # 185 (Revolution 9, only played forward, I presume) to # 1 (A Day in the Life). I agree with four of the Top 5 (yes on Hey Jude; Golden Slumbers medley; I Am the Walrus; and Day; not so much on She's Leaving Home).

Let the conversation begin . . .

Carol categories

It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways. (I will henceforth use "Xmas" for "Christmas," since it's easier to type. As an aside, why does the "X=Christ" translation only occur here? I'd like to see more references to "Western Xianity," or "Xopher Columbus," or "Jesus X.") I think these songs break down into four meaningfully distinct groups.

Category 1: Winter Songs. Some songs are associated with Xmas and seem to be heard only during "the holidays," but are really about the season of winter, and would be just as appropriate in mid-February as they are in mid-December. These songs include "Jingle Bells," "Jingle Bell Rock," and "Sleigh Ride," all of which are about riding in a sleigh; "Winter Wonderland"; "Frosty the Snowman"; and "Let it Snow, Let it Snow, Let it Snow." None of these have any more relation to Xmas than does, say, "Baby, It's Cold Outside." It's perfectly OK to continue singing or whistling any of these songs for the next two months without feeling odd about it. Really. Go right ahead.

Category 2: "Holiday" Songs. These songs recognize the existence of Xmas, but have no religious content at all. Xmas in these songs has the following features: it's a holiday; it's at the end of the year; and spending it with loved ones is important or desirable. In many cases, "Xmas" could be replaced with Thanksgiving, or a late-year birthday, or Festivus with no real damage to the spirit of the song (though in some cases the song includes certain Xmas-related details, like references to a tree or gifts instead of a pole or the airing of grievances).

These songs don't take any direct positions on matters of faith. They merely note the existence of Xmas (or the "holiday season") and, often, associate it with a positive sentiment we might call "good cheer." Obviously the "holiday season" revolves around a specific holiday which is in fact a religious holiday, but these songs themselves have no religious content. These, then, are the sort of Xmas songs that can most easily be sung by Barbra Streisand, or written by Irving Berlin. Even non-Xians can endorse a day off to spend with your family (though, of course, they might prefer if the day off were not given because of its importance to Xians in particular).

Perhaps the archetypal song in this category is "Home for the Holidays," which doesn't even mention Xmas. But there are lots of others too: "The Most Wonderful Time of the Year"; "Deck the Halls"; "Silver Bells"; "White Xmas" (and, for that matter, "Blue Xmas"); "I'll Be Home for Xmas"; "Have Yourself a Merry Little Xmas," which I find quite moving when sung with the original lyrics, written during WWII (they seem to be making a comeback during the current wartime period). Many of these are among my favorite holiday songs, except "Most Wonderful Time," which is clearly overselling, in my opinion.

Some of the great modern pop songs about Xmas fit into this category too: "Xmas Wrapping" by the Waitresses; "Happy Xmas / War is Over" by John Lennon; "Fairytale of New York" by the Pogues, which is frequently voted the most popular Xmas song in the UK, notwithstanding any controversy about its lyrics.

Category 3: Santa. Too many songs to name, and they're mostly easy to spot, though some are borderline (e.g., I'd put "The Xmas Song" in this category, though its spirit might be more in Category 2). Santa songs are more Xmas-specific than the Category 2 songs, though they're about an independent Xmas mythology of flying reindeer, diligent elves, etc., rather than about the birth of the (alleged) messiah (whose central message, it must be noted, flies in the face of any strict "naughty or nice" accounting scheme). Still, the Santa mythology is quite evidently Xmas-specific and therefore can easily be seen as emitting a pro-Xian, anti-non-Xian vibe -- more so than the Category 2 songs, in my view, though I'd be curious to know what others think. Santa songs might also irritate due to their seeming (or, sometimes, outright) embrace of Xmas-related consumerism, which Xians as well as non-Xians might oppose.

I guess "Father Xmas" by the Kinks, which imagines a department-store Santa getting mugged, would also fall in this category, though it's not exactly pro-consumerism.

Category 4: Baby Jesus. These songs are For Believers Only. Their lyrics contain one or more of the following: a manger; shepherds; three "wise men" and/or "kings" following a star; angels; a baby boy who would grow up to be Our Lord and Savior.

I tend to think Category 4 songs belong in church, or else in the home. Even the ones I like make me feel uncomfortable when they're sung, say, on a usually non-religious TV show. I also tend to think, maybe even more strongly, that only Category 4 songs belong in church. As a child attending Xmas Mass, I always found it inappropriate if Santa showed up at any point, which he sometimes did.

I don't know why I've been thinking about this, except that it's something to do other than grade exams.

Some Vacant Chatter on Deeply Meaningful Melodies

After reading Paul’s post below, I became very concerned that The Volokh Conspiracy might surpass this blog in vacant chatter, so I’ve decided to quickly add some more here so that we (like the Minnesota Twins last night) can once again take a half-game lead.

Here at Oklahoma City University School of Law, one of our great strengths over the past few years has been in law and rock music.  Alex Long, who has blogged about this topic before, published the seminal article on this subject while on the faculty here a few years ago (We’ve now sadly lost him to the Univ. of Tennessee’s Law and Lyrics program, but are committed to rebuilding our strength in this area).  Mike O’Shea has also made some trailblazing contributions to deciphering the mumbled, feedback-smothered words of My Bloody Valentine songs.   

Following the example of others who have started up a “research canons” project here on PrawfsBlawg, I’d like to begin this master compilation of law-related lyrics on various subject areas, along with my tentative hypotheses about their law-related meanings, so that we might – together – create a database on law and rock music that will one day replace the casebooks we currently use in class:

Property is the obvious place to start, since famous rock bands have been kind enough to write songs dedicated to takings clause questions (Joni Mitchell: “they paved paradise and put up a parking lot” and Jethro Tull: “They say they gave me compensation...
That's not what I'm chasing. I was a rich man before yesterday.
 And what do I want with a million dollars and a pickup truck?
 When I left my farm under the freeway”).  Evidence is also a popular subject among rock singers, as is clear from REO Speedwagon’s famous song about hearsay (“heard it from a friend who, heard it from a friend who, heard it from another you been messin’ around”) and from Arlo Guthrie’s song Alice’s Restaurant (that discusses the introduction into evidence of visual diagrams and photographs).

But what I think is of more interest to me are the more subtle legal analyses one often finds in more obscure indie rock pieces, like the following:

ON EMPIRICAL ANALYSIS OF JUDICIAL VOTING

“Cause you go on and off, there ain’t no way of ever finding out.
It’s the law man, you gotta understand,
think about the [impossible to make out: symptoms too much?]. 
Never underestimate a single opportunity.”
(Moving Targets, Faith on the LP Burning in Water (1986))

This has got to be about Justice Kennedy and the impossibility of predicting whether he’ll be with the liberal or conservative bloc.  Note that the lyrics also insinuate – years before the damning New Republic article -- that opportunism may be at the root of this unpredictable behavior.  That's all just a (possibly mistaken) hypothesis.  But what’s remarkable about the song is its prescience:  it was released in 1986, over a year before Justice Kennedy was nominated to the Supreme Court!  Now I’m not saying that the quantitative analysis here is necessarily up to the standards of the best empirical analysis in legal scholarship, but it’s pretty good considering they didn’t yet have any votes from Justice Kennedy to analyze.

ON JURISPRUDENCE AND POLITICAL THEORY

“They take away our freedom
In the name of liberty
Why don’t they all just clear off
Why don’t they let us be.”
(Stiff Little Fingers, Suspect Device, on the LP Inflammable Material (1979)

Isaiah Berlin is the most famous figure to outline the distinction between negative and positive liberty and to explain why it is dangerous to substitute negative liberty (the absence of constraints on, or barriers to, action) with positive liberty (liberty that consists not simply in being let alone, but in some type of human capacity, often one requiring collective action and constraint on individual choice in order to enable the relevant capacity).  But as powerful as Berlin’s essay is, I think that Stiff Little Finger’s restatement of the argument is in some respects more powerful – if only because they had much louder amps and, being a late 1970s punk band, screamed and growled their lyrics rather than simply singing them (over the otherwise irresistibly catchy melody).

“I try to find a way to be free
of everything that’s troubling me
But freedom’s such a fickle thing.”
(The Jean Paul Sarte Experience, Spaceman, on Bleeding Star (1993)).

Same as above.  According to the always correct Wikipedia, the band had to change its name to the "JPS Experience" in response to threats of a lawsuit from the estate of Jean Paul Sartre.  Goes to show that if you’re going to name your band or hit song after a philosopher, you might want to choose one whose heirs won’t take you to court over it (e.g., the Ohio band, “John Stuart Mill,” or The Dandy Warhols’ song “Nietzsche.”)

ON REMEDIES

“There’ll be a calmer time when everything’s organized
Everything’s simplified
No one persuading me to seek some prize
That isn’t found anywhere
There’s karmic injustice here
But who do you sue?
(The Chills, So Long on Soft Bomb (1992))

That’s a really good question from Chills lead singer Martin Phillips.  A student once asked me that in Admin Law and I didn’t know the answer (Is there a Court of Karma? If so, is it an Article III Court or is it an agency tribunal within the Treasury Department?).  Since The Chills are from New Zealand, Phillips’ answer is likely to be quite different from the one we would teach in US law school remedies classes, (as is Culture Club’s “Karma Chameleon,” which comes from England), so I’m hoping an American band will cover this song and change the lyrics to reflect domestic law.

ON CRIMINAL LAW AND PUNISHMENT

“The golden-eyed hypnotist
Who slides down our throats
Will turn us to supermen
We’re stuck in a loop again
And I’m waiting
For the recidivist
To change his ways
Or to reoffend”
(The Bevis Frond, Old School Rock, on Valedictory Songs (2000)).

An illuminating tune, from the always illuminating Bevis Frond, about drug regulation, or recidivism, or maybe the use of forced medication to transform hardened criminals into nicer people and/or trial-ready defendants.  As you can probably tell, I have no idea what this song’s about, but “recidivist” and “reoffend” clearly make it appropriate for criminal law classes.

“Come on babe
Come on set me free
I’ve paid for my crime
Come on babe
Come on rescue me
Just this last time.”
(Dinosaur Jr., Kracked, on Living All Over Me (1987))

Clearly about the Supreme Court’s review of habeas petitions.  Or maybe parole board proceedings.

“Every night it’s gotta be adventure
The way you live your life’s a crime
And if you’re guilty will you serve the sentence
You are already doing time.”
(Husker Du, Friend, You’ve Got to Fall, on Warehouse Songs and Stories (1986))

As far as I can tell, Husker Du is agreeing with Justice Scalia that government should be able to criminalize acts on the basis of public morality even if such acts don’t justify government restriction on the basis of John Stuart Mill’s harm principle.

“His lawyers said, ‘This boy is sick.
Blame the ratings for his crime.’
They said ‘Too much sex and too much violence on the idiot box
Spoiled his idiot mind’
He was a Television Addict!”
(The Victims, Television Addict, which was a single in 1978 and also on the LP “All Loud on the Western Front.”).

This just makes the obvious point that responsibility for violent acts should be that of the television shows that motivate them and not the people who commit them.

ON THE LIFE OF ASSOCIATES IN LARGE LAW FIRMS

“Call me on the line
Call me call me any anytime
Call me . . .  you can call me any day or night”
(Blondie, Call Me – single (1980))

“You just call out my name, and you know where ever I am
I’ll come running to see you again.
Winter, spring, summer, or fall, all you have to do is call and I'll be there, yeah, yeah”
(James Taylor, You’ve Got a Friend, on Mud Slide Slim (1971))

I think these lyrics speak for themselves.

OK.  That’s enough vacant chatter on this incredibly important subject.  If anyone has lyrics that shed light on John McCain’s recent behavior regarding the proposed bailout, or on Sarah Palin’s CBS interview, please let everyone know.

Shakira is Smart

Whoa. Dude. Shakira is smart.

The Columbian-born triple-platinum recording artist tends to be famous for energetic pop music that is arguably too danceable. It is so drivingly rhythmic that even the nearly shameless will grip their chair in fear unless they are already a regular on a celebrity dance show. Last week Shakira did a sit down on National Public Radio to talk about her lobbying efforts on Capitol Hill for the Education for All Act. Not only did she know her stuff, but she delivered it with no ums and almost no ahs during the whole thing.

Hey, I mean no offense if you are a Shakira fan (or Shakira herself)** by pointing out that she's intelligent, but I am always shocked to find out that a celebrity is smart - especially the singer/dancer or actor variety. Alas, news of Shakira's brains is old news to Wikipedia, which reports that she speaks six languages and produces her own records. (She also writes her own music - not that that tells you anything.)

**Because she's nerdy enough to read this blog. On the other hand, it's probably intellectually beneath her.^* Do not flame me on this point. I am still overwhelmed with trying to respond to the accumulated backlog of flames my guest stint on Prawfs has garnered me.^**

Re-Introduction and Late-Sunday Music

Greetings to all, and many thanks to the Prawfs for inviting me back for a second stint. During my last visit, I blogged about topics of professional as well as personal interest--largely IP and religion/politics, respectively. I look forward to covering similar issues this time around, and to broaching a few other subjects as the mood (or opportunity) strikes.

As I write, it is Sunday, just barely (for me, anyway), so I will wrap up with an addition to the music posts. Following is a list of albums that have seen some heavy rotation on my digital turntable recently (leaving off these spot-on recommendations). Some are a bit dated but still great, and many are excellent fodder for writing (or studying) when the Cello Suites aren’t working:

1. Thao – We Brave Bee Stings and All
2. The Helio Sequence—Keep Your Eyes Ahead
3. Peter Bjorn & John—Writer’s Block
4. Nada Surf—Lucky
5. Band of Annuals—Let Me Live
6. Handsome Boy Modeling School—So How’s Your Girl…
7. The Dodos—Beware of the Maniacs (and a new release is just out)
8. Cursive—Happy Hollow

Suggested additions (and quizzical criticisms) welcomed.

From Analog to Digital

Every time my wife and I have moved house over the last nearly 20 years of our marriage, we’ve schlepped with us a huge stack of vinyl LPs.  Having long since switched over to CDs (though not yet to MP3s), we hardly ever listen to them.  Still, the idea of getting rid of these physical remnants of our youth has been too painful to contemplate.  Now that we are about to move again (this time from Baton Rouge, Louisiana to Montclair, New Jersey), we are once more confronted with the question of what to do with all that old vinyl. 

Those of you who are more techno-savvy than I will probably be able to guess the solution: we recently bought a USB turntable that allows you to turn old LPs into digital MP3 files suitable for playing on an iPod or burnable to a CD.  And so I’ve been spending the last couple of weekends playing old records I haven’t listened to in many years (though they once were embedded into my teenage and 20-something brain), and trying to decide which ones are worth converting. 

I was delighted to discover many pop albums I hadn’t listened to or thought about in years, but which still seemed to me fresh and interesting: by Joe Jackson, Van Morrison, John Renbourn and Pentangle, and Richard Digance, to name a few.  I was also struck by how other music that I cherished in my teens and twenties now seemed to me, in my own personal and subjective way, dated (no doubt many will protest): music by Elvis Costello; Crosby, Stills, Nash (though, less so, Young); Steve Forbert; Jackson Browne; and the Byrds.  Mind you, I’m talking about the music these folks produced prior to 1990 or so, and which happened to make it into my modest and not particularly adventuresome record collection.  For all I know, their music has continued to mature and change in the years since (though I doubt it). 

My younger son, 14-year old Jonathan, who has his own giant collection of iTunes, has been helping me with the somewhat tedious task of conversion.   And what does he get out of it?  Well, it always amazes me that he and his siblings and friends actually like so much of the same music that my wife and I like.    Certainly, when I was Jonathan’s age I wouldn’t have been caught dead listening to my parents’ music.   But somehow, in ways that still puzzle me, the music that we listened to in the 70s and 80s has become “classic” to our kids.

Signing Off and Music Bleg

The announcement of the new rotation (which includes my excellent colleague Geoff Rapp) and reference to the Magnetic Fields in posts below prompt me to sign off with my traditional (well, this is the second time) request for suggestions for Cool, New, and/or Really Good music in the alt-rock vein. And since I’m doing this on a blog, that’s what you kids call a "bleg" right?

I'll start.  Here are ten songs from the last couple of years that I would suggest downloading or otherwise buying (in no particular order):

1.  "The Nun’s Litany" – Magnetic Fields;  2.  "Acid Test" – Emma Pollack [saw her open for the New Pornographers earlier this year and she was great];  3. "The Bleeding Heart Show" – The New Pornographers;  4. "The Crane Wife 3" – The Decemberists;  5. "When Romance is Dead" – the Beautiful South (from, sadly, their final album);  6. "Fluorescent Adolescent" – The Arctic Monkeys;  7. "The Underdog" – Spoon;  8. "Dashboard" – Modest Mouse;  9. "Earth Intruders" – Björk (great concert);  and 10. "I’m Slowly Turning Into You" – The White Stripes

I’m also getting into some French music. I would recommend Zebda (Algerian, technically), Louise Attaque, and Les Rita Mitsouko. And my hip colleague Lesa Byrnes even turned me on to some fun German punk.

Your turn, and see you next time.

Sunday Music Recommendation

Kathleen Edwards is a singer-songwriter who writes in something of an alt-country vein.  Her debut, Failer, was tremendous.  She has just released her third album, Asking for Flowers, after a hiatus of a few years.

I'm not sure whether to say of Edwards that she is as good as her best work, or as disappointing as her most blah work.  Failer had very few duds; I'm not sure I can say the same thing about her second album, Back to Me, or the new one.  She is better, in my view, at quiet and slow songs that build beautifully in richness and emotion than she is at straight-ahead rockers; or maybe those songs just interest me less.  The new album contains a couple of political songs, and I am no more interested in her politics than I am in the politics of most singer-songwriters, who can acknowledge the ambiguities of an age-old topic like love but are reduced to hectoring when it comes to war. 

Still, her best work is very fine indeed.  Although I recommend the whole album -- and am old enough to belive for the most part in buying a whole album rather than just the choice cuts -- Itunes types shoud certainly invest in the grand opening song, Buffalo, the song Scared at Night, and especially Alicia Ross.

For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media

A legislative proposal: Congress should set aside, or direct telephone companies to set aside, certain phone numbers that can be used in films and on television without fear of liability.

As you have no doubt noticed, when a line of dialog includes a phone number, the character on screen, often with intense earnestness, spits out a phone number with a “555” prefix. For example:

“Damnit! Get President Palmer on the phone! His direct, private cell phone number is 202-555-4248!”

Fearful that if they use a real phone number they will get complaints or even lawsuits, studios have taken to using the 555 numbers because they are reserved by the phone companies and never assigned to customers.¹ Thus, they will not be unwittingly subjecting hapless folks to scores of midnight crank calls.

The problem? When you are engrossed in the make-believe world created by the film, hearing the fake “555” phone number brings you instantly back to reality – reminding you that you are watching an actor in a film, not, for instance, a heroic government agent trying to disarm a bomb. And if you are a lawyer, hearing the “555” phone number reminds you of the law, which means you are being reminded of your job while watching TV. It’s not good for anyone.

Therefore, I call on Congress, and, while I’m at it, the United Nations and the telecommunications companies of the world, to set aside a large enough slate of random-sounding numbers that movie-goers will not be subjected to instantly recognizable fakes.

The tough question that immediately confronts us: How do we get a slate of numbers that is safe for entertainment usage without screwing over the real customers currently using them. I have two proposals. The first is a bit silly, I admit.²

==More after the jump ...

My first plan would be to provide immunity for certain seven-digit phone numbers where an administrative rule-making body declares such phone numbers to have already been so tarnished through their use in media, that customers have little or no expectation of privacy with regard to them. The most obvious candidate? Why, of course: 867-5309. Those of you who remember the 80s (or have at least seen them on cable TV) will recall that that is Jenny’s number, from Tommy Tutone’s 1982 hit song, “867-5309/Jenny.”³

In fact, I’d say there is a good argument that any producer including 867-5309 in a movie or television show should be availed of an estoppel- or laches-type defense. And, for an analogy to property law, when new phone customers get 867-5309, it’s a lot like coming to the nuisance. Of course, the problem with clearing 867-5309 for producers is that the number is so engrained in pop-culture consciousness, using it in a movie is likely more jarring than using a 555 number.⁴

My second plan is a three-step approach: (1) Use computerized algorithms to comb seven-digit phone numbers to find those that are used by the fewest businesses and that are used in the fewest area codes. Put these phone numbers on a “Level I” list, then freeze the list, prohibiting phone companies from assigning these numbers to new customers. (2) Provide immunity for producers who use Level I phone numbers, so long as they use such numbers only in combination with an area code that does not correspond to a real telephone number. (3) Allow the Level I list to undergo attrition; that is, allow the seven-digit numbers to become progressively cleaner and cleaner as users in different area codes naturally give up those numbers as they move or otherwise discontinue phone service. When a seven-digit number is no longer used in any area code, or when it reaches a certain threshold of disuse, place that number on a “Level II” list. Provide immunity to producers who use seven-digit numbers, sans area code, on the Level II list.⁵

If you agree with my proposals, comment below. If you disagree, please call 867-5309.

NOTES:

FN1: I don’t know if customers with phone numbers featured in films have sued producers, much less been successful in a lawsuit. But it is clear that the fear of such lawsuits, or at least complaints and associated ill will, have held studio standards-and-practices folks to the practice of using the 555 numbers.

FN2: This whole post is a bit silly, since, as you may have noticed, it uses footnotes.

FN3: Snopes.com reviews the real-life ramifications of 867-5309 here.

FN4: But here’s an example of an intermediate case: 362-4350. That’s the number to call for the hit-woman personified by Joan Jett in her re-make of AC/DC’s “Dirty Deeds Done Dirt Cheap.” I’d have to say, though, I doubt 362-4350 has been exploited heavily enough for number holders to be fairly divested.

FN5: This proposal might fairly be called a “seven-point plan,” but I think that’s too many points. Better to keep it to three. Three-point plans are always better. And when you get down to three, for some reason I don’t entirely understand, it is plausible to call it a “three-step plan,” making it sound even easier. (I think part of the problem with saying “seven-step plan” is that if you have too many steps, then you are getting into the realm of dieting and addiction recovery, and that’s not where I’m going with this.)

Friday Music Blog: Recommendations

So goes another guest stint.  Thanks to Dan et al. for having me.

As much as I like to recommend music, I really love to get recommendations.  So I offer a trade: I'll make one more recommendation, and you all can make some recommendations in the comments.

My recommendation is Jesca Hoop.  You can listen to her music here, here, and here.  I saw Jesca ("Don't call her Jessica") Hoop open for Mark Kozelek at the Troubador in West Hollywood, California.  At the time, I remember thinking that her music was odd in a lovely sort of way, similar to Bjork but with a softer, more personal sensibility.  I finally got around to listening to her new full-length album, Kismet, and it's really wonderful.  I really recommend it.  Nic Harcourt, the music director at KCRW and who is , in my mind, perhaps the best source for new music, ranked Kismet number one on his list of the best albums of 2007.  (Surf here for the whole list.)  But my favorite fun fact about Jesca Hoop is that she met her music mentor, Tom Waits (awesome!), while working as a nanny for the Waits clan.  Not a bad job for an up-and-coming muscian.  Enjoy!

So what do you suggest?

Sunday Music Blog

I have a weak spot for sad songwriters.  There's something about their sadness that makes me feel almost happy.  I'm not sure what that says about me.

Bon Iver's new album, For Emma, Forever Ago, makes me really happy.  Bon Iver is Justin Vernon.  And Justin Vernon is very sad.  He was in a band called DeYarmond Edison.  After they broke up, Vernon sought refuge in a cabin in northern Wisconsin.  During his four-month stay there he wrote and recorded For Emma, which will be released on February 19th.  You can listen to it here.

For Emma is a beautiful record, in a sad and intense sort of way. The songs have lots of layers, and Vernon sings in a comforting falsetto throughout the entire record.  Make sure to check out "Lump Sum," "Blindsided," "Creature Fear," and "re: Stacks."  But you should really spend some time with the whole record.  If you're anything like me, it will make you very happy.

Enjoy!

Sunday Music Blog

Last spring I taught a week-long seminar at my alma mater, the University of Illinois College of Law.  At the end of the week, on my drive back to Chicago, I listened to a great episode of Sound Opinions.  The entire show was dedicated to the Elephant 6 music collective--the collective of musicians responsible for such wonderful bands as Olivia Tremor Control, Neutral Milk Hotel, Of Montreal, and Apples in Stereo.

Of those groups, Neutral Milk Hotel has always held a special place in my heart.  NMH's album In the Aeroplane over the Sea is never far from cd player.  But lately I've been listening to a bit more of Apples in Stereo, especially their newest record, New Magnetic Wonder--you can (and should) listen to it here.  New Magnetic Wonder reminds me a lot of one of my all-time favorite records, the Flaming Lips' The Soft Bulletin, but with more of a straightforward pop sensibility.

And while I'm on the subject of Apples in Stereo, do you remember the episode of the Colbert Report with the Stephen Colbert vs. the Decemberists guitar solo challenge?  Apples in Stereo frontman Robert Schneider was the opening act, performing his song "Stephen Stephen".  Here's a link to the performance.

Enjoy!

Sunday Music Blog

Thanks to Dan and the Prawfs for having me back.  I'm glad to be here.

It's Sunday, let's talk music.  I'd like to start things off with two recent obsessions.  The first is Matt Costa, whose second full-length album, Unfamiliar Faces, was released in late January.  I really recommend it.  I fell in love with Costa's melodic hooks after listening to the first seconds of his new single, "Mr. Pitiful"--you can listen to it here.  Costa was training to be a professional skateboarder until he suffered a cereer-ending injury.  Now he's a songwriter, and he's written a really catchy record.  You can read more about Matt Costa here.  Check it out.

The second is Pete Doherty's band Babyshambles, which he formed after he was booted out of the Libertines for the second time.  I realize that Pete Doherty is not the best citizen of the world--he drinks, he drugs, he causes a ruckus wherever he goes.  But the man can really write a song when he wants to (not that that in any way justifies his seemingly endless criminal energies).  And the group's second album, Shotters Nation, is a fascinating record.  There are some songs on it that are truly wonderful (for instance, "Deft Left Hand") and others that just miss the mark.  But I can't help but be amazed by Doherty's abilities as a songwriter.  I didn't much care for the Libertines; their music tended to make me anxious, and not in a good way.  But Babyshambles can be much softer and more purposeful than the Libertines, and it's in those moments where Doherty's songwriting skills shine through.  You can listen to a couple of tracks here.

Enjoy!