U2 v. Negativland v. Apple v. some poor schmoe

Wired has a funny story today about how Apple has forced eBay to remove someone's Negativland vs. U2 iPod from auction. He's now offering it for sale on his own Web site.

For those of you who don't know, U2's label, Island Records sued Negativland and their former label, SST, in 1991 for copyright infringement. At issue was a song they recorded using samples of U2's music along with an irate Casey Kasem throwing an expletive laced temper tantrum. Island also asserted that the artwork was confusing because it had a picture of a U2 airplane and the words U2 Negativland on the cover.

The case settled, but then SST, owned by Black Flag guitarist Greg Ginn, sued Negativland to recover the costs of the settlement.

The whole mess is wonderfully preserved in Fair Use: The Story of the Letter U and the Numeral 2. (Incidentally, it was this lovely story that inspired me to study intellectual property in law school. This makes me just a little different from all the other kids who came here because of Napster). Negativland is now a champion of fair and rational intellectual property laws.

Which brings us back to the Wired article. In honor of the Negativland saga, this guy loaded a U2 Special Edition iPod with a bunch of Negativland music, altered the artwork on the packaging, and offered it up for sale on eBay. Apple apparently requested that eBay remove the item from auction.

The problem is, Apple doesn't really have any intellectual property rights in dispute here. If they had requested eBay to remove the item under the auspices of the DMCA (section 512, which saves ISPs and others from contributory infringement liability if they comply by removing the offending material)--Apple could be liable to him for a bad faith use of the ISP safe harbor provision. It's possible because the likelihood of him suing them is low, and the penalty is also a mere pittance to Apple. If they didn't use 512, it means eBay just removed the stuff because they felt like it. Not a good business practice if this guy gets much publicity.

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My new favorite thing

I posted this on a friend's blog last week, but it's so good it has to see the light of day here as well. As the guy at Stayfree! said, it's better than TiVo because it filters all the pablum out and leaves you with nothing but beautiful smut.

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From a Basement on the Hill

I finally got the guts to buy the posthumous release from Elliott Smith. It's definitely worth it. But it still makes me sad.

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Equinox

Last night I finally tried dinner at Equinox, and it was fantastic. And (relatively) inexpensive too. Next time, we need to remember to make reservations, though.

Their patio and limonata (vodka, fresh lime, and sugar) make me long for some warm summer days.

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Book Club Update

I had a good book club last Thursday, but it's taken me a day to recover. The book we read was The Curious Incident of the Dog in the Night-time by Mark Haddon. It was a much needed contrast to my last selection; it actually qualifies as literature. It's the story of an autistic kid who tries to solve the mystery of who has killed his neighbor's dog, Wellington. He learns quite a bit about the world and himself in the process. While the reading was a bit tedious (it is written in first person perspective of the autistic kid), I think it would make a fabulous choice for a book on tape. But, it did meet our book club's rule: you have to be able to read it in a day.

Because a significant portion of the action takes place in the train station, our meeting place was Wilf's, a piano bar in the train station. It was pretty swank, luckily for us the decor was RED (which is a super good thing in the book), but the piano guy and our waiter were strange indeed. I'm not so sure about Wilf's, especially because they've discontinued their happy hour.

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Kansas AG is a stinking bastard

This is fucked up.

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The FCC cannot regulate washing machines,

But can it go ahead with plans to make it impossible to record TV shows? The DC Circuit heard oral arguments in ALA v. FCC today. The case involves the FCC's plans to require DRM on all digital TV's so that they recognize content provider's "broadcast flags." If you don't know what I'm talking about, click here. And this story gives a recap of today's hearing.

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The Best Book, a good movie?

Those of you who know me, know that I love Philip K. Dick. In fact, those of you who knew me in the late 80's and early 90's know that I once considered him my best friend (even though he was dead).

My very favorite PKD book is A Scanner Darkly. The movie options have been kicked around from one person to the next for about 20 years now (yes, I'm that geeky that I've kept track). It's finally landed in the lap of Richard Linklater (Slacker, Dazed and Confused, Waking Life, etc.) and believe it our not the preview looks more than good.

Thanks to "anonymous" for the link.

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What the hell is double leveraging?

I've been asking myself this for a couple of weeks now (no thanks to my Corporations professor) because it seems to be the root of the big problem folks have with Texas Pacific's takeover of PGE.

Believe it or not, the Sunday Oregonian Business section has an excellent article outlining just what the hell it is, which makes it easy to see why it's so bad.

Basically, the plan calls for Texas Pacific to leverage it's buyout of PGE. This simply means that it is using debt to finance the takeover. In and of itself this is not a bad thing, plenty of mergers are leveraged and corporate debt is sometimes beneficial because it allows people to take risks. However, utilities usually do not have nearly as much debt as the Texas Pacific plans call for. The average is about 50% debt and 50% equity. PGE would end up with over 75% debt. Texas Pacific tries to make this more palatable by masking the debt through "double leveraging." This means it will create a separate holding company that will take on the debt required for the takeover. Meanwhile, PGE will only have the debt it currently already has. This supposedly reduces the risk to PGE customers because PGE is not technically taking on more debt.

So, what's the catch? The holding company's only source of income is the dividends it will supposedly receive from PGE. Since debt is first in line over shareholders, it's only going to get those dividends if PGE is doing strappingly well. Surprisingly enough, Texas Pacific forecasts that PGE is going to be doing swimmingly in the coming years. Funny, but my earlier posts on the weather and Bush's plans for the BPA aren't factored in. This means that if for some strange reason PGE doesn't recover from the recession and its Enron woes, the only way to raise enough money to pay off all this debt is to jack up our electricity bills. Hmmm.

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13375p34k 1o1

thnx 2 bi11 n /\/\ikr050f7 i got m4d 5ki11z

pr0pz 2 5t4yfr33!

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The world is too depressing for me to post anything substantive. Maybe looking at this will cheer me up. 

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You can't have one without the other

So, I just got out of my Corporations class, which I like to call Economics 320. My professor comes from the University of Chicago Law School, which is famous for championing the Law and Economics theory--which basically says, laws are just if they're economically efficient. That is, when the winners win more than the losers lose, all is well. Well, I think it's pretty obvious that when it comes to practice, this theory is a load of caca. In the same way that the ideal gas law might be well and good inside the classroom, but has no basis in reality, so too does the Law and Economics ideal not fit with reality. Just ask anyone in North Portland whose house is next to a brownfield.

That said, I am now happily reading Priceless: On Knowing the Price of Everything and the Value of Nothing, by Frank Ackerman and Lisa Heinzerling. In it they describe the many failings of the cost-benefit analyses that our government utilizes to justify its actions. (All administrative agencies are required to undergo cost-benefit analyses prior to rulemaking). The problem lies in the difficulty of quantifying many intangible costs and beneifts. How much is a human life worth, and why has the price fallen in the last 20 years? How much is skin cancer worth? How about a specie of butterfly? My favorite example is the now infamous cost-benefit analysis done by Ford for its Pinto. When Ford realized that a design flaw made the Pinto blow up on impact, it calculated that the 180 lives it would save annually by redesigning the car was not worth the $11 per car it would cost to make the changes.

I'll let you know when I've finished the book (I've literally just started). Meanwhile, Stay Free! Magazine issue #23 has an interesting interview with Ackerman and Heinzerling. Prof. Heinzerling, incidentally has a lot in common with my Corporations professor. They're both graduates of University of Chicago Law School, and have worked for The Law and Economics King, 7th Circuit Judge Richard Posner.

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Good Fences Make Good Neighbors?

Today my next door neighbor and I had a little chat about the fence he is going to build along our property line. Three years ago I would have said, "That's cool," and gone on my merry way. How law school can change you. For a moment I was panic stricken. I should really make him hire a surveyor. What were those rules for adverse possession we learned first year? Make sure you don't concede anything. If this blows up in 10 years will I be able to reconstruct this discussion? Shit, I should just cut my losses and sell the house now. It doesn't help that the very first "real" case I worked on was a property line dispute concerning a purported partition fence. And these are neighbors I really like. Sheesh. If this is what my world is going to be like, I don't like it one bit.

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Another take on First Sale

The Oregonian reports that the tattoo artist who inked Rasheed Wallace's famous Egyptian sun tattoo is suing because he didn't give permission for it to appear in a Nike ad. The article has a quote from my copyright professor, Lydia Loren.

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The New Napster

The kids at Free Culture have an interesting rant about the new Napster service as seen on ads during the Superbowl last week. Basically, Napster allows you to download thousands of songs onto your MP3 player at just a fraction of the price it would cost to do so on your iPod. What's the catch? That you no longer own your music--you're renting it.

Historically, the public has been the beneficiary of what's called the First Sale Doctrine. That means that once you've bought a book, you can do whatever you want with it--read it, re-read it, use it prop open a window, sell it, or even burn it. The only thing you can't do is copy it. That's what a copy-right is. The First Sale Doctrine is also why we can have things like libraries and used record stores.

With the advent of digital rights management (DRM) technology, and with the help of the Digital Millenium Copyright Act (DMCA), copyright owners have been able to effectively limit your First Sale rights by blocking access and copying through technological means. This is why you can download music onto your iPod, but you can't upload it onto your computer, for example. And with the help of the DMCA, the hacks that let you do so are illegal.

All of this may seem well and good--after all folks do deserve to protect their copyrighted works, but the decline of the First Sale Doctrine is bad news for the dissemination of expressive work and our collective cultural expression. If you doubt this, go rent High Fidelity, and pay close attention to the scene about making mixed tapes.

While even the iPod uses DRM to limit your ability to share your 99 cent songs with your friends, Napster's service pushes DRM to an extreme. Once you stop subscribing, the music is gone.

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Speaking of cheap electricity...

Our President's budget includes a proposal to change the Bonneville Power Administration's structure. Traditionally, the BPA has charged cost-based rates to Northwest utilities. Bush's proposal would have the BPA charge market-based rates, meaning that Northwest residents' electricity bills would sky-rocket. His justification is that he no longer wants to "subsidize" Northwest ratepayers. However, since federal law already requires the BPA to recover all of its expenses through electricity rates, we're not talking about federal appropriations here. So, just as Oregonians begin to emerge from a recession, our President's going to kick us while we're still down by jacking up our electric bills. Read more about it here, then write the President, your Congressmen, and the DOE. Do it.

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So thirsty

Anyone who knows me knows that I am obsessed with the weather. Mostly due to my obsession with skiing. It's the most important thing. That said, it is no wonder that I have started a blog, given that Oregon's snow pack is only at 20% of normal this year. I hear that it's even worse in Washington. I haven't skied for a month, and it's looking pretty dismal for the foreseeable future. Not only that but we can say goodbye to strawberries, hops, grapes, salmon, and cheap electricity this year, too. Oh, and let's not forget the forests. Should be one hell of a fire season. Good grief.

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Eyes on the Screen

This is kind of a follow up to my previous Orphan Works and documentary filmmaking posts. Currently, in honor of Black History Month, Downhill Battle is making Eyes on the Prize available for free download. This film, which is the most important film on the American Civil Rights Movement, has been unavailable for broadcast or on video for the last ten years due to licensing issues (such as when a crowd of people are singing "Happy Birthday" to MLK). It's a tragedy that folks (especially kids) haven't been able to watch this documentary. Downhill Battle is sticking their neck out by relying on Fair Use to make this film available in its entirety. I think it's great.

Update: when I originally posted this, I thought that the film was still available for download. Unfortunately, Downhill Battle has caved under pressure from Blackside, Inc., the copyright owner of Eyes. Sigh.

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Willamette River, Broadway and Steel Bridges as seen from top deck of the Fremont Bridge during last year's Bridge Pedal 

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The Worst Book

3 friends and I recently started a book club. Since three of us four are law students, the rules are that the books have to be mindless and easy to read in a day or two. We meet every two weeks. Our first selection, The Sooterkin, turned out to be quite enjoyable. It actually gave us something to talk about. The book I chose is a whole other ball of wax. It's called Nevermind Nirvana, and it is quite possibly the worst book I've ever read. I picked it because a friend of mine who never reads novels was half way through it on a recent visit to Portland. Thinking this was a sure fire sign that it met the requirements of being able to be read in a day, I figured it was perfect. Because the protagonist was a Gen-X former pseudo-rock star turned deputy prosecuter in Seattle, I thought it at least would be entertaining. Unfortunately, although it met our time constraint requirements, the protagonist was such a complete asshole, it made the book all but impossible to read. Within the first 25 pages he had "accidentally" statutory raped a waitress from McCormick & Schmicks. It only got worse from there. Whatever you do, do not read this book. About the only amusing thing about it is it's filled with references to bars and bands that every Northwesterner has been to and heard. But, this too just makes one furious that such a bastard frequented such places and listened to such music. My friends will no doubt retaliate against me for picking that book. I already know that in the pipeline is a Pirate, by Fabio--and yes, it has a Fabio cover.

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M. Ward

So, I thought I'd tell you about my absolute favorite living musician. He's from Portland and his name is Matt Ward (although he goes by M. Ward). I've only heard him play a couple of times (once him solo at the Tugboat and once at the Roseland during his tour with Bright Eyes and Jim James). Both times he totally blew my mind. Just him on his guitar, with this gravelly voice--it almost tickles, like he's whispering the melody in your ear. Anyway he's great, and he has a new record coming out February, 21. Click here for a sneak preview. And for those of you lucky enough to be in the London area for Valentine's Day, go check him out at Rough Trade.

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So you want to be a filmmaker?

What do documentary filmmakers do when their film contains music, TV, or other copyrighted material in the background? They have to license it from the copyright owner --or risk litigation. Both alternatives are prohibitively costly, and it's crippling the art of documentary filmmaking.


Here's a link to "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers," a report from the Center for Social Media on how our ever-expanding "culture of ownership" is making it more and more difficult to get documentaries distributed. It's worth reading--and even if you don't have time for that, the short movie that summarizes the issues in the report is worth watching.

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Save the Orphans!

The Copyright Office is asking for public comment on its policy concerning Orphan Works. In case you don't know what I'm talking about, basically the problem is this: what do you do if you'd like to incorporate something that may still be copyrighted into a work, but you have no idea how to locate the copyright owner (if it even has one)? The Copyright Office has recently realized that this can be a real problem--especially now that the Sonny Bono Copyright Extension Act was held constitutional. Anyway, this is an important opportunity for artists and scholars to tell the Copyright Office that it has to make it easier to use Orphan works (such as creating an exemption from infringement when the user has made a good faith effort to find the copyright owner to no avail). It's taking submissions until March 25, 2005. This is a great way to get involved in the beautiful world of Administrative Law.

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So here goes

After months of resisting the blogging phenomenon, I have come to surrender to the inevitable. My hopes are that I will have some sort of chance of connecting with friends and family from afar, since I am not always easy to reach.

In time after reading my rants, perhaps you will come to understand how this crazy thing called law school has affected me. Unfortunately, you may come to hate me--who knows. But, at any rate...here goes...

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Sunset in the San Juans 

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