This Week In Law 261 (Transcript)


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This Week in Law 261

Denise Howell: (bagandbaggage.com - @dhowell). Next up on This Week in Law, hey, we decided it was time for another Ali Spagnola power hour. So she’s joining us today. Yay. We’re so excited, we were due. We’re going to talk about robots bands, gaming Spotify, stairways to litigation and the hard version of This Week in Law drinking game. Join me, Evan Brown and Allie Spagnola next on This Week in Law.

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This Week in Law, Episode 261 recorded May 30, 2014

More Disney than FIFA

Denise: Hi folks, I’m Denise Howell, thanks for joining us for This Week in Law. We have an awesome show. We lightning things up here today on This Week in Law. We have had a lot of heavy topics recently and we need to have a break, we need to have a power hour is what we need to have. So we brought Ali Spagnola on to help with that. Ali has been on the show before we love to have her on. Hello Ali.

Ali Spagnola: Hi, thanks for having me.

Denise: Great to see you back. How are things going?

Ali: Going well, awesome. How are things with you?

Denise: Good, good still coming off of vacation. Thank you so much Evan. Evan Brown is with us today, as well for helming the ship last week.

Evan Brown: (infolawgroup.com - @internetcases) Well, it was a great time. It was a lot of fun talking about BITCOINS and all that good stuff. But really glad to have you back Denise. Looking forward to this conversation as well. Hi Ali good to see you again.

Ali: Thanks. Good to see you too.

Denise: Yeah. So, you know, since I had a few margaritas in Mexico, I just needed to continue that tradition to bring on our favorite. I think of you as the Ze Frank of inebriation. Ali. (Laughter)

Ali: Honored, honored. (Laughter)

Denise: So for those not familiar with Ali. You need to remedy that. Ali of course has a website and YouTube channel and is well known for her Power Hour performances and also for the legal dispute that she got into about the Power Hour Drinking Game. Which someone asserted a trademark in, this was some time ago and we had you on the show back when that was all sort of unfolding to discuss the nuances and how you fought back and great video in order to fight back against that. You wound up prevailing in that dispute and did a victory tour as a result. Correct?

 

Ali: (alispognola.com - @alispagnola) Yep, heck yeah prevailed. Justice prevails.

Denise: Justice prevailed, you also had a great Indigo Go Campaign that you fully funded and then went out on tour. How did that go?

Ali: It was great, I just partied across the country because, because freedom prevailed. So that’s was really cool.

Denise: Good, I just wanted to follow-up if there was any developments, any further fallouts, any other people coming out of the works contending that your Power Hour Performances are somehow subject to their trademark rights?

Ali: Nope, nothing like that. Thank goodness so I seem to be free and clear at this point, but you never know, I guess.

Evan: Are you kidding me? Who would dare to search out what kind of a show Ali is going to make. It would be foolish.

Denise: That’s a chick you don’t mess with, Ali. And of course you have a patent too. Speaking of you know the various intellectual property assets of your career, Ali. You have a patent on, is it a Power Hour shot glass?

Ali: Well, it is a patent pending so still working on it. There are some subtleties we are working through. By we, I mean my lawyer and I’m doing nothing but waiting about it. But yeah, it is a shot glass for my album comes on it, it’s something that I’m claiming as my own.

Denise: Gotcha, and what is unique about the shot glass that is subject to this patent?

Ali: So it is a shot glass USB, there is a USB drive on the bottom of it, and when you pull it out, you can take my music off of it and basically drink out of my album.

(Website advertisement: Ali’s Power Hour)

Ali: well, there you go.

Evan: Well, it’s a very novel

Denise: (laughter) I love the album.

Evan: I got to ask: so, oh, the USB is separate. So there is not a risk of actually getting the hardware wet? So I guess the instructions would be to remove the storage media for you start drinking out of it, right?

Ali: Well, actually the instructions are to drink and then accidentally to drop the USB into your beer and then have to buy another one for me.

Evan: Oh, is that part of the claims? I wonder, that would be great?

Ali: It’s all a part of, yes.

Evan: Good, good.

Denise: Absolutely. So, with Ali on the show. First of all, we encourage you to engage in the Power Hour drinking game. Which involves, is it a shot a minute Ali?

Ali: Yeah, it’s a shot of beer, or water, or a slider. Hey, I don’t care. It doesn’t have to be every minute, but yes, that’s the goal.

Denise: For an hour, that would be the Power Hour Drinking Game. There are several drinking games you can play along with us today. I have my Kombucha, so that is only trace amounts of alcohol. But there is some in there. so there’s your Power Hour Drinking Game , there’s your conventional TWiL drinking game, which involves drinking when we speak Latin or make Monty Python references, among other things. And then we had a great suggestion from iasraptar on Twitter that if you really want to crank it up a notch and play the hard version of This Week In Law drinking game, you have to drink every time we say LAW. So, it’s just all you know depends on how your Friday is going and of course we encourage you to do this all responsibly and safely and abstaining is certainly an option. We have some entertainment and music related stories in the rundown today. So let’s get to those.

(This Week In Law: entertainment law advertisement, music playing)

Denise: So, Evan, you remember the Walt Disney Company, right?

Evan: I’ve heard of them.

Denise: A company behind the current term that we now are living under in the United States, life +70 years. What else is Disney behind, several DMCA, notorious for DMCA takedown notices for uses of its works on places like YouTube and others not really known for having a laissez-faire attitude towards fan remixes of their works. Until now, there is a great article in Salon reflecting on the fact that in the wake of the wildly successful movie Frozen. Disney seems to be taking a pretty hands off approach to fans that are going along and making their own, sort of collateral income off the fact that they have done parodies or covers or otherwise, let Frozen be their inspiration. So, Evan, what does this mean, can we look to Disney as embracing the, oh by the way they backed SOPPA,  as embracing some kinder, gentler approach to copyright at this point?

Evan: Oh, who knows? It’s hard to look into their minds and see what their decision-making processes are. It is interesting because any time we talk about Disney and copyright. You almost have to mention sort of the paradoxical underpinnings of the way Disney and a lot of its major characters and many of the motifs of its most successful movies originated and that is borrowing from other content creators. We all know that Mickey Mouse was a takeoff of Steamboat Willie, which was a Buster Keaton film, taking off of a character on that. So, Disney much of its creativity has been built on the efforts of other creators. So, it is interesting to continue discussion of that paradox into what Disney is doing now, which is apparently taking a more laid back attitude towards people making derivative works of Disney content online. Part of it could be, perhaps, that there is just so much of the stuff, what is it like 60,000 different works or so of covers or variations of the song from Frozen “Let It Go”, on YouTube or something like that. So, part of it could be Disney isn’t being quite as aggressive, part of it can be that maybe the means of creation and distribution are just so great and the desire to do it are just so great that it would be difficult to enforce it. Here. But nonetheless, it is interesting and, this actually ties in very well with the theme of having Ali on the show. We had a friend of the family who did a version of “Let It Go” called “Let It Pour”. And she was talking about being suburban, stay-at-home mom and talking about the stress of kids. So it fit really well into that motive. So, I have experience some of that creativity as derivative work on this particular theme already in my life directly without having just read about it in preparing for the show today. So who knows, it could be something grander on Disney’s plans, but maybe it’s just something simpler, easier to explain.

Denise: Yes, there’s something about it that really resonates with parents because they have to hear it over and over again. And at some point, they just snap and maybe have to make some kind of commentary about that.  That certainly was the case with the Disney dad, I want to call him the Disney dad, the dad who did a Frozen parody. He has quite a few views over 1,000,000 views going on 2,000,000 on YouTube for his tune. He’s mentioned in this Salon article by Andrew Leonard that I encourage you guys to check out, if you want all the links to what we’re going to talk about today. That’s @delicious.com/this week in law/261. Why don’t we play some of the Disney dad’s video so you get an idea of what we’re talking about?

(YouTube: Scott S Kramer: A Frozen Father (“Let it Go” Dad Parody) (a man playing piano and singing: it’s funny how one kid song can make my skin crawl. And the songs that once annoyed me don’t get to me at all. It’s time to see what I can do to stop this song, find something new. No Hans, no Sven, no trolls for me. I’m free. Let it go, let it go. I’m going to smash the radio, let it go, let it go. No more YouTube video.

Denise: that’s the best part.

(Singing continues: here I stand and I’m proud to say let this song be gone. Olf’s song is better anyway.) (Man walks away)

Evan: Yeah, that’s triumphant.

Denise: The guy’s got some pipes.

Evan: He sounds like Neil Diamond, I thought of

Denise: Yeah.

Evan: You could do some covers there like Sweet Carolina, I thought it was going to be next. Good stuff

Denise: So, Ali have you ever been inspired by Disney in any of your work?

Ali: Yeah, I mean they are phenomenal. That song is killer, what do you mean, like you have to listen to it, and then adore it. That guy is lucky that his kids are listening to such great music. But yeah it is good to hear that they are being more lax, that I have the freedom to maybe make something out of “Let it Go” or something that they put out in the future.

Denise: Yeah, certainly no one from Disney has come out and said “we’re going to take a more hands-off approach to fan remixes, matches of, covers and/or parodies out of our work” but there is a telling quote included in this Salon article that has to do with Disney’s purchase of Maker’s Studios in March. Bob Iger said at the time about Maker, a lot of what gets produced is one step up from pure amateur production, Maker doesn’t control its affiliated channels in the same way that Disney controls the programming on its cable network. All that short form video, whether generated by fans on their own or by Maker approved producers represents an acknowledgment that every last exploitation of Disney intellectual property can’t and almost shouldn’t be micromanaged. So, that’s a pretty, it’s not coming out as a public statement or guidelines, but. It’s not something I would’ve expected to hear from Bob Iger either. You?

Evan: No, and that is sort of, the whole time with Maker Studio. That would seem to embrace an idea of putting creativity in the hands of the public, so if there is anything to be drawn from that that would generalize the sentiment of Disney, you could draw it there. Certainly, expansive and much more of the user experience. Disney, of course has always been about the experience of the enthusiast, the fan, the visitor, what have you, but more, taking on a more creative role as well. It all plays in nicely.

Denise: Right, Ali, parody is definitely something that is near and dear to your heart. What’s the thought process that you go through if you are going to riff on, say, Solange in the elevator or a Disney worker or other copyrighted work, what sort of check box to you go through, or do you?

Ali: Yeah, well, actually I am seen as a parody artist, but what I do is really different than Weird Al. Who strictly will take a song and change the lyrics and make it whatever, a commentary on something. I never not actually done that where I will take a song and take lyrics from something. Generally, it’s my own original material which is actually harder. Like the guy who worked with “Let It Go” and it just moves you immediately, so you already have that piece that people are familiar with. It’s easier to get it out there and get those million reviews.  But I mean, yeah, I did do one cover I guess that you could maybe call a parody, which was Blurred Lines. But that’s because I specifically wanted to comment on this song as a whole and that institution of what they were discussing in that video.

Denise: Tell us more about that. What did you do and what was the comment you were making?

Ali: Yeah, so I mean, there was a lot, I mean in pop culture and a lot of people talking about a rape suggestive kind of song and so I just wanted to do the female take on it. And my version of it, questioned what was going on there.

Denise: Right.  And do you ever worry about, you know, you were using in the Solange elevator video exclusive piece of video from TMZ that they had gotten security system at the hotel. And of course it’s got the TMC logo plastered all over it.

(YouTube: Jay-Z & Solange elevator fight with audio!-Problem 100 song)

Denise: I know that news channels carried it widely because they have their own legal basis for doing that. But for an artist like you, I would think that at least using someone’s copyrighted video in your work at least makes you stop and think for a minute.

Ali: Yeah, definitely. And I mean I did take a risk uploading it to YouTube as soon as it was that it was immediate light as belonging to TMZ and because they are open to letting people use their content. I was able to keep it up. And that’s another thing with this Disney stuff that we’re talking about, they’re just being more lax about finding things online. In an article they also put it in the context that Disney is realizing there is more money to be gained by supporting these things and letting people use it, whether it’s through monetizing it themselves the way that TMZ did

(YouTube: Jay-Z and Solange Fight, May 12, 2014)

Ali: with me. And now TMZ is making money off my video or whether it is subtle or more marketing thing. When it is out there. It’s getting to the public and eventually the money will come back to Disney or TMZ in this case, too.

Denise: Right, I think that’s an economic formula that people are beginning to understand and embrace. It’s certainly taken a while to get there when you think through the fact that the YouTube litigation has been pending for so long and still is up in the air about YouTube’s own responsibility for infringing material that might be uploaded by its fans. Evan any other thoughts on this?

Evan: Well, I think that this totally works because I’m such an enthusiast of Robin Thicke now because of Ali’s work, because I was only lukewarm, I was totally into Miley Cyrus, but I can totally appreciate the big picture now. Ali, I also love the work you do, like appropriating stuff, with Sweet Brown. She is an aunt of mine. With Aint Nobody Got Time For That, that was great. Loved that work, too.

(YouTube: Robin Thicke Blurred Lines (parody)-made in our RV!)

Evan: so, I mean, that’s a nice source of doing two things. And people watching this is the video of Blurred Lines, right?

Ali: There you go.

Denise: Do we have audio?

(YouTube: Robin Thicke Blurred Lines (parody)-made in our RV! Audio: maybe it’s in your nature, just to be liberated you don’t need no papers. That girl is a natural maker. That’s why I’m going to make you a good boy. I know you want it, I know you want it, I know you want it, and you’re a good boy. Can’t let it get past me, just got off busted, and talkin about getting blasted. Talk about blurred line (#seduced by the running man) I know you want it. I know you want it, I know you want it, you’re good boy the way you grab me. I know you want it).

Evan: Is there a real butt coming up here?

Ali: (laughter) plenty of opportune chances

Denise: So, Ali, so this leads me to wonder, so you are riffing often times on what current events are. You have your most Google song, YouTube channel, what is it once a week?

Ali: Yes, and about once a week I also talk about what’s trending on Google.

Denise: So you are getting inspired by what’s out there. To what extent have you ever encountered people becoming inspired by your work, I mean, that’s part of the whole YouTube ecosystem, right? Is you make something, and someone responds. How is that side of the equation work for you?

Ali: Yeah, there have been a few times where people have used my Power Hour, whether it’s like for a podcast, there’s a group of guys that play, what is that cubit building game. Mine craft. I’m the worst nerd ever, I couldn’t think of mind craft. So they will play mine craft and do a power hour. Which is cool. Yeah, I don’t know, but I’m definitely open to all of that, I love it when people are using my content to innovate and recombine and make something new.

Denise: Right, have you ever encountered a situation where you would go, ‘Oh, you know what that’s putting it into a context that I’m just am not cool with’ or have you ever had a situation where you would say, ‘Gee, you know I’m going to have to pull back down or say something.’

Ali: No, it hasn’t happened yet, but I look forward to being upset about something like that. Then I know that I made it.

Denise: That’s true. All rights, another band that is trying to make it.  Is something called Vulpeck?  They did something fairly hysterical. And what they did was, they are trying to go out on tour and they want to raise some money. I don’t know if they had works available on Spotify before, I assume they did. And adding it to their catalog on Spotify, they put up something that was a completely silent track which they titled Sleepify’. And they got the word out to their fans, ‘hey, you know we want to raise money for our tour, so keep streaming this track of ours. There is nothing there. Just keep streaming it and we will give royalties from Spotify.’ How this all unfolded was at first Spotify, the first contact they got from Spotify apparently was kind of like reaching out to the band like,’ hey, do you need any help from us, glad we got you as one of our bands. Then Spotify kind of clued into what was going on here. They pulled down the track and you know

(Webpage: billboardbiz: Spotify Silences Vulpeck’s Silent ‘Sleepify’ album)

Denise: I think there was some humor that Spotify recognized in the whole ploy. The band itself calls it, they said, ‘I don’t see it as a misuse at all, I see it as an art piece or something.’ So it is an interesting question that Spotify may have to contend with, what is an actual piece of work that according to their terms of service qualifies to be on their site. Because there was a follow-up to this. Once the silent track was taken off Spotify; the band released yet another track that had a statement and then a little bit more silence and then I guess just a solo piano track. That was again, something that could be played just to generate royalties. So, I guess there are a number of lessons and questions that this whole episode raises, Evan. First, being just because you are a streaming music service don’t think that you’re not subjected to getting gamed. I guess any kind of technology can be subject to that, especially when there is money involved. And secondly, I think music services who are going to be the intermediaries for delivery of music have some hard decisions to make. As to what they are and are not going to permit on their services. Can you think of anything else?

Evan: Yeah, well, I mean just to sort of flavor that is if you are the platform like Spotify, terms of service. It is often good practice to write your terms of service, I’ve said this before, having a provision in there that allows you to terminate account holders for general asshadery. Things like this, so, pulling this stuff down. I mean, as far as the stunt goes.

Denise: can we just go ahead and call that the Donald Sterling provision?

Evan: (laughter) well, I think it would encompass that

Denise: termination for general asshadery

Evan: it would encompass that, plus many other irritating behaviors that you want to address from time to time. As far as his stunt goes.

(Webpage: billboardbiz: Spotify Silences Vulpeck’s Silent ‘Sleepify’ Album)

Evan: I only sort of impressed. Honestly, I think it is kind of down. Maybe I am just no fun. I’m pushing 40, I’m getting cranky and my middle age here. It’s like, they could have done something better. This was just sort of silly and they could have done something more creative, more clever that would actually generate laughs, it just seems sort of juvenile. It sort of reminds me of click fraud; where you can compare it to having content out there, or having a revenue generating mechanism put in place; you click on a link, listen to a track, and get the royalties for having it streamed and gaming the system sort of, by delegitimizing of revenue model that is put in place here. It just sort of seems like bad faith and takes away some of the humor from it as well. Yeah, I don’t want to overstate my cynicism on this as well, because it does present some interesting questions here. Perhaps, it gives us at least pause for a moment or two to consider whether or not this revenue set up is the right way to compensate artists. I don’t know. I don’t know if it’s that compelling of the situation to really stir a deep conversation about that, but, you know, it is what it is, and Ha ha, whatever.

Denise: I think that’s a really good analogy to click fraud and maybe you can add more legal detail to this, Evan. But my take on click fraud is; it’s hard to cross a legal line on that without getting into doctrines that don’t specifically address click fraud; you know if you’re getting into trespassed chattels or some kind of terms of service violation. But really, what sites are left with to prevent things like click fraud are technological counter measures, correct?

Evan: Well, technological countermeasures and again invoking the provisions that prohibit general asshadery. You know, with the platform being able to have the discretion to terminate the ability to use the platform for whatever reason, maybe upon notice or whatever. I mean, you know, Spotify is a private company and there is no free speech issue, they can allow or disallow whomever they please on this. And so, sure, it’s unclear, and it always does point to the question of, what sort of discretion. Should the platform have, but in this I don’t know in this, if it invokes a deeper discussion on like, what constitutes a song or what constitutes art. Clearly we, a lot of folks are reminded of John Cage, and his famous piece from the 50s-three minutes and 44 seconds just of silence ported silence. And so

Denise: I think that has to be part of TWiL drinking game, to that every time we mentioned that track.

Evan: We mention John Cage.

Denise: it comes up from time to time.

Evan: You know, it doesn’t even get to the level of aesthetic discussion of really what constitutes music. This is just a prank, it is silly. I don’t even think the band is concealing that fact, hey, we just needed to raise money for a tour, I don’t think they’re trying to make a deeper statement than that. But maybe I’m missing something.

Denise: Yeah, I mean, go ahead. Ali.

Ali: Well, I think I read something, too. I might be wrong, but I thought that they also used like demographics where the listening was coming from to decide where the tour was. I think that adds a much more interesting layer to it. If that’s the case.

Denise: Yeah, let me, maybe it’s not the Billboard piece, but the Gawka piece that mentioned something about that.

Evan: well, with that have been in a different then the people who are actually listening to their music than just, you know, listening to silence.

Ali: I mean it’s a way to target, you know, where you should be and where the fans are, right? And as an artist what I’m looking for, and that’s how I sort of made my Indigo Go work, was based on where the donations were coming from, and I’m about to put out an app now, so I’m hoping to use the app demographics based on the downloads and usage to sort of go where I am wanted, so if you could use Spotify, I would do that. It’s cool.

Evan: Yeah, fish where the fish are. What was that story, I think it turned out to be a hoax. Was it Mega Death or Slayer or, it was kind of like a Death Metal Band from the 80s or 90s, who was it? IRC can help us on this, where they were going to do a tour somewhere where there was the most reported piracy or something like that. I think it turned out to be untrue, but sort of plays into this parcel. It’s not a bad idea. Do you know, does that ring a bell? Does that story or did I just, somebody will come up with it in IRC here; will figure it out here. But, sure know where your fans are.

Ali: I do know what you’re talking about.

Denise: Somebody’s good idea, but debunked by Snopes as actually having emanated from the band; kind of thing. One of my favorite bands, and again I frequently date myself on the show, and I’m doing that here. Is Cake. And they got behind this and said,’ artists who adapt and evolve get smacked down permission lists innovation and disruption are only truly excellent when done to artists’. So they definitely thought this was, as the band itself said, maybe some form of art in its own rights. But, of course, if what you want to do is go on a tour and go connect with your fans and have your fans help you raise money. You don’t have to game someone like Spotify you could do what Ali did and go to Indigo Go and say

(Webpage: gawker: An Enterprising Band Made $20,000 Scamming Spotify)

Denise: hey, I really want to go out and see you guys and I will target areas where I get the most donations.

Evan: Iron Maiden

Denise: Iron Maiden

Evan: There’s a story on Boing Boing from December. Iron Maiden touring countries where their music is most pirated, it didn’t happen, it was a hoax.

Denise: What do you think Ali? Are these guys clever or are they jerks?

Ali: I think it’s pretty clever, they’ve got us talking and sure, it can be sort of boiled down to that click bait analogy or that click faking analogy is actually really good, and it had me thinking. But still, we are talking about it, I would call it art.

Denise: Right, do you stream on services at all like Spotify or Pandora or anywhere else?

Ali: I use Pandora occasionally. But no Spotify account or anything.

Denise: So, if I looked up Ali Spagnola on Pandora you’ll be there? Or you’re saying.

Ali: I’m sorry, I thought you meant personally as a music listener. Yeah, all my stuff are on Spotify and like RDO, and all those streaming services, yep.

Denise: Right, and what’s your take on the breakdown for artists and do you feel like you’re there because you have to be there or are you happy that they are there as a distribution channel. A lot of artists are not real thrilled with how the streaming services compensate that.

Ali: Yeah, I mean at this point I’m there for exposure, just glad to be on there because when somebody goes to look for me they can find it. Right? My .00001 cent that I make is not like affecting my brain at this point. Perhaps when I get to a higher volume I will start complaining.

Denise: Yeah. Exactly. All right, well we will stick with you and have you back on the show you have something to complain about. There’s been something DVD CCA. The DVD Copy Control Association has been complaining about. For more than a decade. So this is a really old story, so you had to have been kind of watching the copyright wars for a while to even be interested in this. And it involves technology that is kind of on its way out the door. Some people would say, DVD and Blu-ray’s. But there is a company out there called Kaleidoscape not kaleidoscope, but Kaleidoscape. And I know we have talked about them on the show before because we’ve kind of been following along with this, wondering what the heck is going to happen with this litigation because DVD CCA has been going after them for a very long time. What their machines do, they are these high end jukebox server arrangement, for if you have a vast collection of DVDs or Blu-rays and you want to be able to easily access the content without having to constantly, you know, take a disc, put it in a tray, or in a huge changer of discs. What Kaleidoscape does that is different from a tray or a changer is, it actually does bit for bit copies of the material on the disc.  Which of course, the DVD Copy Control Association is not, wild about. And has, and one of the reasons we have anti-circumvention provision in the digital millennium copyright act is so that DVDs and Blu-rays can’t be ripped. So, ripping the DVD is a central part of this technology and the idea is you could skip over the hard at the beginning that warns you about copyright infringement, which of course, the DVD CCA is not a huge fan of. And you can instant play anywhere in the disc. So, long story short, this litigation has been winding on for an extraordinarily long time, and the parties just entered into a confidential settlement. So we will never know what the terms of the settlement are. Kaleidoscape is staying in business by Mike Masic who wrote this up is not real optimistic that whatever offering they are able to put out there

(Webpage: techdirt: Decade-Long Courtroom Battle between Movie Studios and High-End DVD Jukebox Manufacture Ends in a Draw)

Denise: is going to be real desirable for folks. Because you already, I guess have to, I don’t have a Kaleidoscape machine, but according to Mike you have to go ahead and put a Blu-ray in to confirm that you actually own it so that sort of defeats the purpose of having a jukebox for these things. Anyway, Evan, what do you think about all of this, is it sort of disappointing that it whenever such a fizzle?

Evan: Well, probably the reason that it went out with a fizzle is because it’s like, it’s as if Kaleidoscape was trying to board the ship and he got detained at the port by this litigation and in the meantime the ship sailed.

Denise: That’s very good, yes.

Evan: the journey would have been one of, richer distribution of content, wider distribution of content and a more convenient experience for the user. But Kaleidoscape, like I said, got detained here and now the market has changed, and people’s habits have changed, and DVDs and physical media like that are secondary in the content consuming experience. Now, having been, with more streaming Netflix and all that stuff for this type of content. So, we won’t know what the nuances of the settlement are most likely, that will probably remain confidential. So, you know, since, we don’t have anything, any real substitutive decisions on the merits of this decision. I think on balance, we don’t learn anything at all about those provisions, anti-circumvention provisions of the DMCA. So it is sort of unfortunate that this happened, not only from the things that could have happened had the technology been allowed to be introduced in the marketplace, and introduce for the sake of the consumer, but we don’t learn anything about the legal issues as well. So it’s kind of a wash all around.

Denise: Right, there was a contract issue between the parties, where Kaleidoscape was urging as part of its case that they were actually licensed to do this kind of bit for bit copying so that never got test. And of course, whether this would even qualify as anti-circumvention when you actually own the disc, you are using it for your own personal backup and use, never got tested either. So, that’s kind of a big deal. And I always hear from people after we do shows where we say, the DVD or the CD or the Blu-ray the physical medium of the thing is dead and has given way to streaming. I always hear from people that say no, no, no, I have a vast collection, and it’s very important to me, and it’s far more convenient. So, apparently it’s not as deadly as we think. And there are people who prefer the physical medium for their own use, maybe it’s more reliable, maybe it’s cheaper, maybe they make the investments and are unwilling to let it go. So these issues remain important. And you also face the fact that if you are constantly relying on Netflix or Amazon or whoever may be your streaming service of choice, you’re completely at the whim, you don’t own the content. Even, you know if you have purchased the thing and have the right to watch it over and over again. That’s sort of cold comfort, really, what you have is a license and you are completely at the whim of that third-party service as to how far that license extends and if they are even around apply with what you are after, and of course connectivity issues as well. Ali any thoughts on this?

Ali: Just that, like your boat leaving analogy. It seems that as being exposed to legal aspects of my career recently and how slow litigation is and how fast technology moves, you know, exponentially like and I feel this situation should be happening more often. Where like the law gets in the way of technology moving and by the time you get through all the legal stuff, it’s like irrelevant. I don’t know. Do you have more examples of this? Because it seems like should be running into this often, I think?

Denise: You’re right.

Evan: Well.

Denise: What else Evan?

Evan: I mean, I would say, a lot of it probably, you’d see a lot of the examples of legal requirements and hoops to jump through beforehand slowing down the pace of innovation kind of on a larger scale. Maybe high technologies not necessarily is not the right place to look at it, but I think you could look at it in pharmaceuticals. The whole FDA approval process, and the red tape and all the stuff that goes through their when, we could get real, we could get real, I don’t know what the word for it is, get real touching close to the heart, children are dying of leukemia because the FDA is holding things up, you see that a lot. It’s sort of the same principle of legal regulations in place, slowing down the pace of innovation, keeping it from the market. But I’m sure we could sit and think of situations where there have actually been disputes that slow the release of products on, to the world at large. Certainly, with file sharing, PtoP technology in the early part of the last decade was certainly tied up in litigation. It was happening anyway. But, I’m sure we could think of something, right, Denise?

Ali: Yes, it’s certainly slowing down, but what I have found most interesting is that by the end of it. It was irrelevant. Right? Like it had been, taken so long that it didn’t even matter.

Evan: Right. They were sweeping up the confetti after the party.

Ali: Right.

Denise: Yeah, to some extent the for sale doctrine has this as the feature, as books move more to digital and we continue to litigate over the first sale doctrine except for now we are litigating over in the digital context and whether sites should be able to “sell you something” your clicking a buy button when you buy a movie, but when you read the fine print you are getting a license and is that okay. I mean, we do have ink and paper equivalents of being able to having rights in the media that you purchase. And whether that’s going to translate over into the digital realm is still a moving target and to what extent it will.  So, I think that’s at least one analogy. Ali I’m a little bit concerned about you and other musicians getting, you know the robots are taking over the world. Google has its self-driving car prototype out there and of course there are bots out there that will write poetry for you, so it can’t be any huge surprise to us that there are robots making music. And again over at techdirt there is a great little round up of some of these. And I guess you have got the distinction between software that will just generate music.

(Webpage: ZOOZ: ZOOZbeat and Improvising Robot ‘Shimon’ Jammin”)

Denise: we’ve got a physical robot here, it’s pretty cool here. Let’s take a listen (Music playing). This is working with an app. And I think this fellow at, I think it’s Georgia Institute of technology where this is happening. And he’s doing some programming in the back and the little guy behind him on xylophone, is now going to play and he well, he, ha ha. The robot improvises and you can tell it to play, you know, play like Thelonious Monk or other artists.

Evan: Is the bobbing of the head part of it?

Denise: (laughter) Yeah, I think so. Somebody’s answer for a morphing addition, right? It’s rocking out to its own music. It even looks like it has little cans on like a DJ.

Evan: It’s definitely in a groove.

Denise: It’s pretty cool. I’m certainly not ready to say that, it’s nowhere near as funny as you are Ali.

Ali: You kidding me, that thing’s way cuter and more talented than me. I step down immediately. I’m done with music from this point on.

Denise: Well, one of the cool things it does, is it riffs with other musicians. You can play it a track and then it will first duplicate that and then improvising on it. And, you know, you can kind of go back and forth with it. So it becomes not your old robot overlord, but your fellow band member. I don’t know, I thought the whole notion of technology and music creation was something we could noodle on for a minute. Who owns the copyright in the works created by that robot, Evan?

Evan: Well, we’ve talked about this, this question, in other contexts, and it hasn’t been more than a couple weeks ago when we had James Barrett on the show talking about artificial intelligence and stuff like that. You know, you can have algorithms that are used to generate sports articles, for example. Facts about a sporting event and generate an article and that’s a creative work in the copyright sense in the same way that an improvised or improvised piece of music

(Webpage:ZOOZ: ZOOZbeat And Improvising Robot ‘Shimon’ Jammin)

Evan: is as well. So there is clearly a creative work that has emerged here. Or a work of authorship, let’s say that. The question then really becomes, what is the, who is the author. And, it’s an easy case in the biological human world to say, well, it’s the person whose intellect created that. Here there is not a direct link between a person’s intellect and the resulting work because the intellect of a human being stops at the moment that the algorithm was released to let go. So you could argue that it is the guy who is there setting the parameters and directing where it is going to go. But after that it becomes sort of random, his creativity no longer is directly resulting in the creative work. So, there is that whole question of establishing the fact that there is a division between author and resulting work. I think the interesting question then becomes, does it matter than after a certain point, who owns the copyright, if we start with the premise that the whole purpose of copyright is to give an incentive to the author to create more. If there is no author who cares to get paid in the first place, that robot, although it’s bobbing it’s head, and singularly anthro-morphic and all that stuff does it care if it’s paid royalties if not, then maybe these are just things that immediately go in the public domain upon their creation. But, boy, isn’t that a nuanced issue that parties could litigate over for decades on a case-by-case basis, when is it created by something and when is it created by a person.

Denise: Right, you’ve got the programmers and the person manipulating this technology, who I think would probably take issue with that kind of a scenario and maybe programmers are our next members of the performing rights organizations. They are all joining up with BMI and ASCAP and collecting their mechanical royalties. So, what do you think Ali are we all going to give way to our robot musicians and we won’t, at least they would game Spotify?

Ali: I mean, they might not. I guess, like I said before that robot is pretty darn talented I’m giving into the overlords already.

Denise: Yeah. Okay, I think they’re pretty cool too.

Evan: Ali, there’s no algorithm for what you do.

Ali: (laughter) Not at all.

Denise: All right, well, certainly when humans are involved in making music. They get very proprietary about the things they’ve created and this happened a couple of weeks ago, but I don’t know if we have had the chance to talk about it on this show. I don’t know if it came up with you last week, Evan. But it’s worth mentioning, one of the iconic rock ‘n roll anthems of all times-Stairway to Heaven. May wind up being a stairway to litigation as the result of a band called Spirit. Apparently, the estate of someone named, what is his name, Randy, some crazy name, that was given to him.

Evan: California

Denise: Randy California. Yeah. I think I read in one of this articles that Hendrix or someone gave him that nickname. And Randy California’s estate apparently has the rights to the particular Spirit track in question. Zeppelin even toured with Spirit at some point, played, some Spirit songs while on that tour at least one anyway. And, now the estate is saying, hey, we had this track that sounds a whole lot like that guitar opening of Stairway to Heaven. So, again , adding to the repertoire of things that you can drink about when they come up on TWiL and I know I mentioned before, one of the summer associates assignments that will stay with me for all time that I had in law school, I was clerking for an entertainment law firm in LA and they were doing some, some dispute about video games and what they had summer associates do in their spare time when they weren’t working on anything else; was to head down into the basement of the building where they had two huge arcade games set up and we had to play them both and note the differences and similarities. As part of gathering evidence for that dispute. So, what I would like to do is give you guys the same kind of an assignment and play a bit of this Spirit track and see if you think, give us your law firm summer associate take on whether there’s any good case against Led Zeppelin here. Can we play a bit of Spirit?

Evan: Smoke ‘em if you got ‘em.

(YouTube: Taurus – Spirit - Audio playing music)

Denise: Yeah. So I don’t know, folks in IRC are going back and forth, it sounds like Zeppelin,  doesn’t sound like Zeppelin,  sounds more like Jethro Tol, you can give the similarity right, it’s not identical. I think, you know, there certainly could be an argument that Jimmy Page was inspired by this.

Evan: There’s a couple of measures there that really match up.  Match up pretty closely, over all, it’s a little different but I’m no musicologist. I would ask Ali.

Ali: yeah, I think every song is every other song and it is so easy to make parallels and mix and match and mash other things. I mean, I’m always one to say like, they are separate works just because everything, music is all built on the same sort of structures, you can’t really claim  they are the same.

Denise: Right, Damon in Austin is letting us know that Spirit’s best known songs were ‘I Got a Line on You ‘and ‘Nature’s Way ‘. I always like that ‘Nature’s Way’ song, I think that sounds like Zeppelin. So, it’s no wonder that they toured together. Yeah, that’s one of the, I don’t know if it’s a perk or a curse of getting older, but you have all these decades worth of music rattling around in your head, and when you hear the new tracks you hear, I can sort of overlay a lot of them on older tracks and go. Oh well this sounds just like that.

Evan: Yeah, you put out a tweet a few years ago about Muse and Blondie. Remember that? There is that Muse song that sounds just like Blondie, I would have studied up on it if I knew we were going to talk about this. But there’s. I remember you saying that, I notice you do that from time to time. Denise. It’s a good quality, it’s a good trait.

Denise: There’s a song out now that I just cannot, what’s the song, it’s by a band, it’s called ‘The Line’, and do we know this song? I think it’s called ‘The Line’. Band might be called, Pierre? Let me see if I can find this song, sorry, should have looked this up before the show. Anyway, it will come to me. It has got the bump,bump pa bump, bump bump a bump” Joe Walsh,” somebody’s going to hurt someone”, it’s got that going through it the whole time.

Evan: Oh yeah

Denise: Someone should over lay those and

Ali: Have you guys seen, where those guys played Pachelbel Canon and turned it into 20 different pop songs because it’s the same chord progression. Especially in pop music, everything is sort of reused. So, it all seems the same to me. And there was a drama just recently where Kelly Clarkson has already redone the song by Halo and people were being dramatic about that, it happens often.

Evan: Yeah, you are full of good examples. There was a Garth Brooks performance the other night from, not the other night, a few months ago he was really bringing in some of these influences and you could hear like Bob Sager, I can’t think of the particular tracks, but when the artists is actually explaining the influences, it is like oh yeah, I can see exactly where it plays in. It’s sort of a mystery why it gets people upset these days because my understanding, again I’m no musicologist, but I’ve gathered something by taking a few classes in college and just listening to stuff. That back in the Baroque era, wasn’t it totally acceptable that you really were supposed to take other people’s motifs, whether it be full turns or whatever and bring it in and make something great about it. It’s almost as if the idea of copyright and proprietary sense that it gives people, has sort of twisted that notion of what is appropriate and what is not appropriate, and it could very well be something of a modern phenomenon. It’s sort of a weird byproduct maybe, I don’t know.

Denise: Okay, so the song I was thinking of was called ‘The Wire’ it is by Haim.

(YouTube: the wire haim: music playing two females singing; I know I know I know that you’re going to be okay in the way. Because there is no rhyme or reason for the way he turned out to be. I know that you try to change his mind about it’s hard to,)

Evan: oh yeah, that, percussion sounds like. That’s Joe Walsh?

Denise: yeah, pretty sure.

(YouTube: [music continues] I know I know I know that you’re going to be okay in the way.

Evan: I believe you, you were there.

(YouTube: [music continues] you’re going to be okay. Anyway. It’s going to be a hard, I just couldn’t take it).

Denise: So, you got”somebody is going to hurt someone” thing and then let’s see, can you pull up the Buzzfeed. In the meantime while that’s getting queued up, I got tweeted from Gary Apter who listens to the show and tries to send mojo’s to us every week.

(Webpage: Buzzfeed: Sorry, But This Will Ruin Haim’s ‘The Wire’ For You)

Denise: so that Skype cooperates with us, and I think it has worked pretty well so far, knock wood, Gary this week. He’s going “mechanical royalties for a robot, is that a joke?” I’m not sure if it is a joke, yeah, I think it’s mostly a joke. But let’s make “mechanical royalties for a robot” our first MCLE passphrase for this episode of This Week in Law. If you like to listen to the show for continuing legal education credit in your jurisdiction we put these passphrase is in so that you can demonstrate to somebody that you actually watched or listened. They are like the hidden secret word in the show, so if you need more information about that, go over to wiki.twit.tv, go to the This Week in Law page and we will get you all set up there. Lots of info. So, yeah, the Family Matters song, please can we roll that.

(Webpage: it’s just like the opening line from the theme song for Family Matters; music playing- it’s so rare condition, this day and age to read any good news on the newspaper page. Love and tradition are the grand desire. It’s hard of mine, there must be some magic to inside me against the walls, because all I see is a tower of dreams below bursting out in every seam. As space goes by. Oh, the family)

Evan: I’m hearing a lot of Joe Walsh

Denise: no, these folks

Evan: oh hey I’ve been there,

Denise: I think it was the lyric maybe they were calling out. So whether it was music or the lyrics, yes, I agree with you Ali there’s just one song and we keep playing it over and over again.

Ali: There are 12 notes, that’s it.

Denise: Exactly, but that was something that lots of people were tweeting at me when it happened. Smack down Spirit, Zeppelin, let’s go. And I guess speaking of smack downs the Zeppelin lawyer has already been, not the Zeppelin lawyer, the other guy’s lawyer the Randy California lawyer has already been sanctioned and called unprofessional and offensive. He’s not getting off on a good

(Webpage: Rolling Stones Music: Judge Calls Led Zeppelin Lawsuit Lawyer “Unprofessional, Offensive’)

Denise: with the judge in this case.

Evan: Well that was on another case, in all fairness, right? Led Zeppelin lawsuit hasn’t even been filed yet has it? They are just making threats. I thought those sanctions were in a case that he filed against Usher.

Denise: Oh, yeah, yeah.

Evan: he sort of has a little industry doing these things. There are some plaintiff lawyers out there that file for these musicians and sometimes they were. They were pretty often to extract settlements, pretty often. But of course, go ahead.

Denise: The legal over lay on this is that, there is no real good right line for, you know, how much you can sample and how much you can use recognizable other parts of music in your own works. And I know, I’m back to tracks involving silence, but somewhere in this whole next is the fact that somewhere in a Beatles album there is supposedly a track where there’s dog whistle placed in there, just that human ears cannot hear as a nod to someone’s pet.

Evan: Hmm?

Denise: Just a little non sequitur. They are for you as nothing to do with copyright infringement. What we you going to say, Evan?

Evan: Well, actually I was actually going to talk about, sort of talk about the Beatles. Sort of the lodestar on this is the George Harrison case, comparing the Chiffons ‘He’s So Fine’ with ‘My Sweet Lord’, and in a situation like this. It’s called the ordinary observer test. What a reasonable person listening or comparing the two works would determine in the question of whether or not these two works are substantially similar.  So you get that whole question of access.  Did George Harrison have access to the Chiffon’s “He’s so Fine.”  Well yeah, of course he did.  “He’s so Fine” was the number one song of the nation for a few weeks in like 1965 or something like that.  So with the Led Zeppelin situation there is no question there is access there and there could actually be copying.  So I think there are all kinds of interesting questions to ask as to what would be a good defense to Led Zeppelin in this situation and I think the big one would be the statute of limitations.  I mean, my gosh we’re filling lawsuits now for stuff that happened in the late 60’s early 70’s.  Why wasn’t the lawsuit brought before?  Why wasn’t it brought in Randy California’s life time?  This is his estate, his heirs who are doing it.  I imagine it has nothing to do with money.  What do you think Denise?

Denise:  Yeah nothing at all and I know why I was thinking of the un-hearable dog whistle component.  It’s because of the case against Madonna for something in her vogue song that you actually couldn’t hear.  If you want more on this go Eric Gardner’s site TH Esquire, remember he covered this in depth when it happened.  But Madonna prevailed because it failed that test.  You just mentioned Even because it’s not something you can actually pull out and recognize as part of another tune.  We’ve been talking about some specific instances of copyright and intellectually property as they apply to the music industry.  Of course the people who make the decisions about how the law is going to apply and develop are the folks in Washington.  So I thought it would be a good idea to just check in with some current events there.  So one thing that we’ve been seeing unfold is and it’s sort of been slow and I’m not ready to make any definitive statements against this but a slight turning of the tide politically on the subject of copyright in Washington.  Copyright becoming a bipartisan issue with surprise, surprise I mean this is a little counter intuitive to me with folks on the right hand side of the political spectrum such as Derek Cona who we’ve had on the show and will have again soon being folks thinking hard about whether copyright law needs to be reformed and whether it’s squelching innovation in its current form.  So the story I pulled up along these lines there’s if you’re interested in this there’s a lot of coverage and commentary about it out there.  This one is at Vox by Timothy Lee and saying how goggles lobbying money is helping to convince conservative politicians that copyright perform could be a good platform issue for them.  A good issue to make part of how they are the party that really should come into power, distinguish themselves from the folks who are now the incumbents the Democrats.  So I’ve never really thought about copyright in partisan terms before and I think it’s interesting that it’s kind of beginning to shake out that way.  Evan do you have any thoughts on this?

Evan:  Well it’s an interesting discussion to be had.  I wonder how much you can really base this stuff on actually things happening or whether it just has to be up at the level of speculation because Timothy Lee gives three reasons why he believes we are seeing more sentiment from the right politically toward loosening of copyright.  The pendulum sort of swinging away from extreme copyright protection.  The first he says is recognition of the fact that Hollywood is just a bunch of liberals and these liberal values don’t comport with the right’s views and that’s a reason why they shouldn’t have strong copyright protection.  I don’t see a whole lot of merit in that assertion right there because Hollywood’s always been pretty liberal even back in the McCarthy era it was Hollywood actors that were all accused of being communists to give you an example there.  The second one is as if it was a sudden realization on the part of the right that the founding fathers wouldn’t have wanted this extensive maximalist copyright intellectual property view instead they just viewed it as a limited government monopoly.  I don’t see a whole lot with that either because I think folks on the right have pretty uniformly and traditionally recognized the importance of looking at what the founding father would have thought. So I think it’s kind of a bit odd to think that’s somehow a new revelation. So the big story, and this I what the headline is about, oh goggle is giving money to all these think tanks, like the Kato institute and the Mercadus center and all that. Jerry retail for example I think is from Mecadus. Friends of the show were on that. And that seems to just make a whole lot more since here. And this raises a theme a sort of a red flag for me and I always warn people to be skeptical and very critical in thinking about this. If we got a large corporate interest like google putting money into thinks tanks to sort of influence policy and by extension, influence legislation to alter copyright. Sure that may be a thing that we all feel would be good. There might be a benefit to um I’m going to go ahead and say it, there would be a benefit to losing some of the copyright restrictions, particularly the term of copyright life plus seventy years is just too long to foster creativity, or you know more than what is needed to foster creativity is what I guess I should say here. So look at, I would caution everybody in their care looking at the situation here is if you got google lobbying this way, or at least putting resources this way, remember google would be very well served by the loosing of copyright restrictions. Because it’s not in Google’s interest to have to spend much of its resources to keep infringement of content offline. And you know it has an army of staff to comply with DMCA requests and you know relatively it’s a thorn in their side. So Google would be able to serve you up ads to make money and do what all the other things Google does without strong copyright protection in its way. So be careful in looking at what’s happing here if  this truly is a corporate interest that is causing this change in policy, why is that any less dangerous than it being a corporate interest coming from Hollywood trying to affect what policy is. We just got to look at what the incentives are, look at what the reasons for all of this are. Don’t be swayed by the fact that you know you may think google is a cooler company than what you think Disney or ABC, or a big content producer is, just because you might have that playing into it, don’t be swayed by thinking that’s going to be the basics on what copyright policy should be established here. So to the extent that one does not like corporate influence of policy making and legislation this ought to be a little bit alarming to folks.

Denise: Right! But on the flip side of that too is that folks like google have never really had a huge presence in being able to affect policy and this is kind of a mute thing for them. To be lobbying and urging change. You know the tech industry had been notoriously remiss about flexing its corporate muscle where as other industries have gone in full bore, and I think as a practical matter sad as it is a lot of our law gets impacted and made that way. So it remains to the voters to your right even to be conscious of what money is behind what proposal. And then to assess the proposal on it merits regardless of what interests, what other agendas it’s being proposed to serve. Sue, the writer in IRC asked: what’s wrong with copyright other than the ridiculously long terms. Or is that the only thing that’s wrong? And I think Evan you already mentioned that life plus seventy years is not conducive to creativity. It’s how we have peoples estates coming out of the works long after you think the statute of limitations on something might have run to attempt to get their share of the money that may or may not be owed. But I think there are a lot of things to critic, and a lot of the stories we talked about today are good examples of how if copyright law were different we wouldn’t have to rely on people like Disney to take a hands off approach  if we codified more and clarified more of what actually constitutes fare use. Then people like ALLY would have a lot more solid idea of knowing when they are on solid ground legally for the kinds of works that they are doing. Not always having to feel like they are pressing the envelope and may be receiving envelopes digital or otherwise from lawyers as a result of what they created themselves.  I had another point along those lines about fair use.  Fair use needs to be clarified and content ID, I think, is another to clarify.  The over aggressiveness of content ID is another artifact of the fact that copyright law is too broad and Draconian and so people like here we are back to goggle and its copyright interests but in order for it to continue to function it makes since for goggle to error on the fact of taking down things that may actually be fair use but because we’re not able to have much clarity there they have to take down more than they technically should.  Any other problems with copyright law that you think should be on the reform table Evan?

Evan:  Well no I was going to say that the fair use.  It’s easy to come at it with goggles perspective.  Goggle would like to not have to put so many resources toward an aggressive DMCA enforcement mechanism.  We also talked about how goggle would benefit with weaker copyright protection in the situation with the actress.  The lawsuit that the actress field over the use of her performance innocence of Muslims it was a couple months ago we talked about that where there was the 9th circuit who had held that she actually did have a claim  against goggle for not taking her performance off line.  So that would be, those are shackles, hindrances against goggle and its business model.  So anything that would sort of make it clearer what is fair use, what is an infringement, a weakening of the rights that an individual could assert in copyright you know for example the innocence of Muslim actress she was claiming that it was merely her performance that was copyrightable.  So that was something that we don’t ordinarily think of someone having those rights under copyright.  We think of that more as a right of publicity.  So there is that, I mean just the whole idea of sort of the strangeness sometimes that comes about from the idea that we are focused mainly on making copies of tangible things.  I think there would be some benefit of examining copyright to look at whether or not it should be characterized mostly as a right to access or a right to view rather than a right to receive and make copies.  Sort of an Earnest Miller notion, professor Earnest Miller notion from the early part of the last decade.  So yeah a number of things that could stand to improve with copyright that would benefit goggle but more importantly for the reason of deciding in favor of it is because it would benefit the public interest.

Denise:  Right well I think it’s great that whoever is putting their money behind it I think it’s great that law makers are starting to pay more attention to those issues and realize they have impact on not just the Led Zeppelins of the world and who might see them but the Ali Spagnola’s of the world and what she’s able to do and accomplish.  I know you dropped off there for a minute Ali but we’ve been talking about copyright reform as well as the political agenda and seeing whether this shows up in any 2016 presidential campaigns, or whether we start seeing legislation that does like clarify what fair use actually is, or stat limiting the length of copyright terms.  So I know this is all kind of big picture stuff.  One of our folks in the IRC asked if there is anything wrong with copyright.  Do you ever feel like you wish that copyright law was less a barrier in your way?

Ali:  Yes defiantly a lot of times innovation is recombination and if I don’t have the building blocks where can I go?  So you know the more freedom that you can give with creativity I think the better.  Obviously it’s a very grey area because artists do have to make money but I also think that I would always push more in the direction of giving people the building blocks to create and recreate, combine and build something new.

Denise:  So one cool thing that’s going on in Washington is the copyright office is asking questions and taking comments.  Let’s see comments are due on May 16th or were due on May 16th and they are going to be round table discussions on the really thorny subject of music licensing.  Delving into how mechanical rights should function, whether they should be more a blanket license where music service should pay a flat fee to some collection agency instead of the way it works now.  How AZcap and BMI are working.  Should there be a single stop for licensing both the rights to the reproduction and the public performance, which would certainly simplify things.  Should royalties be paid for the public performance of sound recordings be taken into account in assessing the amount of the royalties paid for the performance of musical works.  Even talking about changing these things is hard because the whole system is so byzantine.  I guess the good news is that the copyright office seems to be looking at the whole thing and trying to decide what kinds of reforms are in order.  As a musician Ali do you find yourself overwhelmed by the people you have to register with and how you manage the rights in your works?

Ali:  Yes absolutely and there are so many different types of royalties.  I need a Lawyer to sort it all out.  It is defiantly confusing from a business aspect of it for me as an artist. 

Denise:  Right so look for more from the copyright office on this.  They are just in info gathering mode at this point but it’s good to just to know they are not looking at the current system saying hey this is all working really well we should just leave it alone, hands off.  Evan, any other thoughts on this?

Evan:  Well just the very fact that those provisions of the copyright act that talk about royalties for streaming music versus royalties for performance.  The fact that those are so complex and so lengthy shows that this is an edifice that has just been built on time and time again and really just needs to be knocked down and viewed with a new perspective based on taking into consideration the technological means that people have to create content means they have to promote that content essentially just to do everything that Ali is doing so well that the means for that wouldn’t have existed 10, 15, certainly 20 years ago.  Those types of things need to animate the process of where movie copyright should go.

Denise:  Yeah and I think you just gave me our second MCLE passphrase for the subset of this week in law.  It’s going to be knocking down the edifice.  So bear that one in mind for future reference if you are listening for continuing legal education or other professional education credit.  Let’s move onto a copyright story that Evan wrote up recently.  I always like that little scratching at the end.  So this is a really interesting case you wrote up.  It involves a software patent correct Evan?

Evan:  It’s a software dispute.  I don’t know that there was a patent involved. 

Denise:  Software copyright issues.

Evan:  Right.  It was a company that split.  It was an LLC that had 4 members or whatever and then as we see so often with business disputes the parties who at first are so warm and fuzzy and get along so well and don’t do a whole lot to memorialize their intellectual property eventual split up and then it became unclear as to who owns what and everybody wants a piece of the pie and what have you here.  So it’s a situation like that and so two of the members left but they had developed some software when they were members of the LLC so they sued their old LLC for copyright infringement and tried to get a preliminary injunction against the use of the software they had developed here and the court said that the plaintiffs that the two guys who had left and sued their old LLC were not entitled to an injunction.  They were not entitled to a court order that prohibited their old LLC from using the software.  You may ask why, well the reason was nobody was infringing anything.  They LLC hadn’t made any new uses of the software.  They were still providing the software to customers who had purchased licenses legitimately so there was no unauthorized use happening here.  So it stands for the very basic principal.  So for all of you 3rd year law students who just graduated from law school and who are starting to study for the bar, if there is anything about injunctions on the bar exam just remember there actually has to be sometimes a threat of, sometimes it’s enough just to have a threat of actual harm but in the case of copyright infringement there actually has to be some infringement taking place here is what this court held and so there was no injunction because there was no infringement to begin with.  So interesting little decision that sheds some light on the appropriate remedies to ask for if your intellectual property is being infringed.

Denise:  Right so it’s not in this case they wouldn’t grant a prospective injunction.  They wouldn’t put the brakes on for some anticipated harm that might happen in the future.  The plaintiffs would have to show that there was an actual infringement going on to meet the standards of getting an injunction.  As you mentioned Evan sometimes the threat is enough can you shed some light on when that might be.

Evan:  Right probably the best way of saying it is that it would be in situations that weren’t present here.  Offering this up for sale or getting ready to ship it or whatever, making it available,  if there were something in the record saying they were about to do some kind of infringement that might help, but just this old notion of as you mentioned it Denise that’s probably the catch the buzz word that you need to write on the bar exam to get the point you know the prospect of injunction here without the showing of irreparable harm and the likely hood of success on the merits as well is an important element in the process of getting an injunction.  So in this situation here everyone was doing business as they were authorized to do under the various licensing agreements that had been entered into earlier when everybody was getting along.  Since there was nothing untoward in that regard there was no basis on which the court would inter the order enjoining any kind of use of the software. 

Denise:  Right so Ali has been having a little dialog in IRC that I would love to kind of  pull out and put on the show because it’s interesting harkening back to our discussion on music rights and the copyright office looking at all of that and deciding what’s working and what’s not.  I think the what’s working part is in very small proportion to the what’s not part.  Someone in IRC wanted to know Ali’s take on ASCAP.  Why don’t you fill us in on what you’ve been telling them in there Ali.

Ali:  I’m signed up with ASCAP.  I have to sign up as my own publisher and as a writer and I have to claim on my own songs and it’s like a really complicated process you have to submit all of your songs as they come out and it takes a long time.  Then you get paid quarterly maybe or something I don’t know and it’s very arbitrary I don’t know and I feel like I don’t know what’s going on.  I’m even unclear on how they are collecting or even recognizing when my songs are getting played.  It is clear whenever things are labeled when some of my songs are on reality shows or television plays those actually get sent directly from the networks to ASCAP I believe.  But I don’t know what about like radio player if it ends up being at or bar or something.  It seems very vague to me and I don’t know why the money comes in when it does or when it doesn’t. 

Denise:  Do you get statements from ASCAP that attempt to shed some light on that or do you just get checks?

Ali:  There are statements kind of like I was saying like you can tell when my stuff has been on TV although I feel like there has been things that don’t go credited and sort of get over looked and I don’t know I just sort of have to take their word for it. 

Denise:  Right and of course since your stuff has sort of is native to the web that complicates things farther because the music right organizations people are well set up to handle things like radio and TV that have been around for decades but things like streaming or things like being featured on somebody’s pod cast would be a little bit far field.  I know when pod casting first broke on the seen ASCAP and BMI attempted to add provisions that dealt with that but I’m curious with what’s your experience with that working out?  Do you feel like if someone is featuring your stuff on their show or using your stuff, say for example they use one of your songs as theme music, in a web based show is that the kind of thing you think you are getting royalties for or no?

Ali:  Yeah no I was under the impression that I wasn’t but I guess I don’t really know.

Denise:  Right so yet another reason why the system is broken as it is and needs to be looked at closely.  Four people who are trying to get their heads around how the performing organizations work earlier this month CD Baby put something up on their DIY musician blog.  Everything you need to know about PRO’s Performing Rights Organizations which attempts to explain what they are.  Which ones collect what and how you have to register. Of course CD Baby has a horse in this race because they have a service where if you sign up with them they then take care of crossing the T’s and dotting the i’s for you.  So you are paying them whatever small royalties you might be getting as an independent musician part of them are going to CD Baby if you pay for their service to help navigate the morass and help navigate some of the headaches for you it’s probably well worth it but it’s probably something in a perfect world musicians shouldn’t have to diminish their royalties simply to manage them.  For our resource I do like this DIY musician post which is a great background on ASCAP, BMI, and CSACK and what they do, what they don’t do, and what they mean for you if you are a performer.  So something to check out there, one more resource for you just because I stumbled across it while prepping for the show, it doesn’t have anything to do at all with what we’ve talked about today but we do talk about this issue from time to time, it’s a very moving target issue.  So having stumbled upon this I wanted to share this with you, it’s a panel from last year’s Defcon and if you’re going this year I understand both Ali and Padre SJ may be joining you there. But last fall there was a great EFF panel featuring Jennifer Granit, Kevin Bingston, Marsha Hoffman and Kirt Upsal all about what is the law of searching your laptop at the border, what sort of things the government can do to get at your encrypted stuff or otherwise.   So again these are all in our discussion points at delicious.com/thisweekinlaw/261 is our episode this week so if you’re curious and people are always curious about what the law is and isn’t and what it provides that you can do to protect the things on your personal devices as you are traveling and crossing borders.  I encourage you to go check out that panel.  Then our tip of the week Evan highlighted on in his twitter feed and the Twit down into don’t be FIFA, the tip down don’t be the federation international de football association, and where you should not be it.

Evan:  That’s impressive.

Denise:  Thank you.  Although I think federation international football association federation and association seem redundant to me in there so FEFA seems a little redundant but moving on for now.  What people are doing because the world cup is coming up in Brazil very shortly in the middle of next month it starts.  In anticipation here are those fans being supportive and getting the word out again much like with the Disney story that we were just discussing earlier.  People are using the official world cup 2014 logo in as their twitter avatar whether they are a soccer sight or just a very excited soccer fan.  They’re using the official logo as their twitter identifying picture and FIFA is not pleased.  They have been sending DMCA take downs to twitter asking that those be removed.  So anything farther to add on this, Evan?

Evan:  Oh my gosh, how on earth could FIFA be encouraged to create a new logo if people are actually using it to show their enthusiasm for soccer.  I’m so glad they are being aggressive on this because they are saving themselves.  I mean no, this is ridiculous, I mean these are just fans so any time the copyright owner goes after its fans like this for something, that is so far afield from what copyright law is intended to protect; it’s really sad!

Denise:  This is more trademark, maybe?

Evan:  Well no, they are DMCA.

Denise:  Well I guess the copyright would be in the design of the logo.

Evan:  Well sure, I mean they are unmistakably copying the work but this is minimal infringement at best and maybe fair use.  I mean they’re not really commenting on the work they’re using it to comment on soccer so I don’t think there would be a real strong fair use claim at the end of the day.  But I mean good grief, leave these people alone, they’re your fans!  They are so excited about the world cup that they want to use the world cup logo as their twitter avatar.  That’s totally something that should be encouraged not discouraged.  So that’s a good tip, don’t be like FIFA don’t engage in general ass hattery like this.

Denise:  Well I guess it’s too full.  Be more Disney than FIFA and also if you are using the FIFA logo careful because they are going to DMCA you.  Alright so I think we have made our way through everything we wanted to talk about today.  Ali Spagnola so great to have you back on TWiL, we are thrilled you could join us and I haven’t exactly been keeping up but I’m taking a sip in your honor.

Ali:  Well yeah, thanks it’s been great talking to you as always great to be on.

Denise:  Tell us aside from your most goggled song playlist which everyone should subscribe to where can folks see you live?  What’s going on with you professionally these days?

Ali:  I’m about to put out an app actually.  Looks like the release date is going to be June 17th so look for that.

Denise:  Perfect we will.  Shortly after the world cup starts.  Soccer and Ali what could be better.  Evan so great chatting with you missed you last week but Thanks again for doing such a great job.

Evan:  Well thank you it was fun last week but even better this week really have enjoyed it.  Ali great to talk with you again your lots of fun, your interesting.

Ali:  Thanks good talking to you to.

Evan:  Denise good to talk with you, see you this same time next week.  Right?

Denise:  Same time next week yes.  We could do a whole movie on that but then we would probably would be tagged for infringing same time next year. Again dating myself. (Laughs) Can’t help it these days, just getting so old and crotchety. If I weren’t getting so old and crotchety I would have remembered to remind you that we do record this show every week on Fridays at 11 PM if memory serves, 11 AM sorry, it didn’t serve. Pacific time and that means 1800 UTC this time of year. And you can watch us live, which is really fun to do. That’s at twit.tv of course and if you can’t watch us live, then head on over to twit.tv/twill, and we post the shows up there and we post them on our youtube channel, we put them in iTunes and various other spots where you can find your best kind of webcast entertainment. We’re on Roku too, which is a great way to go. So pick up the show however you can wherever you can whenever you can. And also between the shows, we love to hear from you. We love to have suggestions, we love to have your questions that came up during the show. You can flag us down at Twitter Evan is internetcases, I’m dhowell there, you can e-mail us, Evan is evan@twit.tv, and I’m denise @twit.tv, you can give us a shout on Facebook or Google plus where we have pages and presence over there. If you need a few more characters than twitter allows and you want to preserve your fifa avatar you know maybe they’re not watching as closely over there. However you get in touch with us please do between the shows, we love chatting with you, hearing you and getting your suggestions. Always need suggestions for guests to have on the show too, so throw those in when you have them. If you are an iTunes listener, it’s always fun to get reviews over there, that lends us a hand. Let us know how we are doing. And that’s about all I can think of before we go ahead, our power hour has gone more than an hour. But it’s Friday so I think that’s a good thing. We’ll let you get going on your weekend and we hope to see you next week on this week in law. Thanks for joining us!