You can't give 'em away, sell 'em or throw 'em out!

Record companies and the RIAA have been making some pretty strange arguments over the past couple years, and the courts have even bought some of them. Some courts have recently held that making a copy of a sound recording available - even if no one copies it - is a copyright infringement. But this latest one, really takes the cake, or perhaps as the labels would have you believe, receives the cake on a permanent loan.

Universal Music is involved in a lawsuit with Troy Augusto, a guy who makes his living by selling "promo CDs" on eBay. He buys them in used records stores or at other online sites. These are discs that may contain just a single song, maybe a remixed version of a song, or maybe the whole album. Record companies send these out to DJs and other radio station personnel, writers and critics, and pretty much anyone else they think might help them to sell their product.

According to Universal, they don't keep track of who they've sent them to, have never asked for the return of a single disc, don't expect anyone to return them and have never received a single return. But, like all the record companies, Universal stamps these discs "Promo Only - Not for Sale" or something like that.

Whether that notice is actually binding on anyone is the major question before the court. I tend to agree with those who say that the discs are a gift and the recipient, as the owner, can do anything but copy them. (Read the EFF memorandum here.) But I follow the other side's argument, to a point. But here's where Universal really steps off:

In their memorandum in support of their motion for summary judgment, which I quote, Universal discusses the disposal of promo CDs. (By the way, unauthorized distribution=copyright infringement in lawyer speak.)

Augusto testified that 'a common way to dispose of them' is to give unsold promotional CDs away, or he may throw them away...Both are unauthorized distributions.

In other words, Universal Music has asked the court to believe that throwing out a promo CD is copyright infringement.

Wow! Forget college downloaders! It's time for the RIAA to round up everyone who ever worked in radio. Round up everyone at Rolling Stone, the Village Voice, the New York Times... Round up every hipster and tastemaker on the planet. These people have deep pockets!

Back when I was the program director at my college radio station, we used to routinely throw out stuff like Air Supply and Little River Band. They were vinyl back then, but they were stamped "Promo Only." We joked about a violation of federal law, but we never thought it was the Copyright Act. We just thought it was the unauthorized disposal of hazardous waste.

Silly Seinfeld Slander Suit

Maybe it's kind of dicey when your wife is the defendant and you're a comedian, but I saw nothing wrong with Jerry Seinfeld's appearance on The Late Show with David Letterman back in October 2007. At that time Seinfeld denied that his wife Jessica had plagiarized from Missy Chase Lapine's The Sneaky Chef when she published her own cookbook of kid friendly healthy recipes, Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food.

He also made a few comedic comments, as a comedian is prone to do. Maybe Jessica copied, maybe she didn't. As my brethren at the bar would say, I have insufficient information to confirm or deny that allegation. But I do know this: there's some seriously humorless people out there and a whole lot of them are plaintiffs, lawyers, and plaintiffs' lawyers.

Take plaintiff Missy Chase Lapine for one. In addition to her plagiarism suit against Ms. Seinfeld, she is now suing Mr. Seinfeld for slander, based on his comments on that October evening. Jerry started by complaining about "nutjobs" who bother celebrities, did a lengthy riff on vegetable plagiarism and how his wife must have burglarized Lapine's publisher, and finished up with a punch-line about how Missy Chase Lapine might be a wacko or nutjob, and that he's worried, because many people with three names go on to become assassins. Perhaps not Jerry's A material, but I got a chuckle.

[Fast forward up to 5:50]

Missy claims she's not a public figure, and that Seinfeld's comments were a "malicious, premeditated, and knowingly false and defamatory attack."

Not a public figure? I wonder... If you are a published author, and you file a public lawsuit against a public figure's spouse, and you publicize your lawsuit... aren't you a duck? Don't comedians comment on people in the news - famous or not - all the time? Do the rules change if your spouse is a party to the lawsuit upon which you comment? Aren't you entitled to express opinion?

According to the Washington Post, Lapine's complaint alleges that "a reasonable person watching Seinfeld on Letterman's show would conclude that he had described Lapine as mentally ill with "potentially violent or, at a minimum, hostile, tendencies, proclivities and activities."

Yes, any sentient being would conclude that he had described her as such. I think the proper question is, "Would any reasonable person conclude that Seinfeld was stating any of the above as fact?" It sure sounded like jokes to me, and apparently to the studio audience as well. Yeah, it all depends upon whose ox is being gored, but sometimes it's just bull...

I hope the court dismisses this part of the complaint with just a four word opinion:

No suit for you!

Rock On, Honorable Ones!

Just this afternoon, Judge Nancy Edwards denied the Romantics motion for an injunction. She promises to publish an opinion forthwith. Guitar Hero will continue to fly off the shelves well past Christmas. I would expect the Romantics suit to whither and die in a matter of weeks, because it appears to be a particularly odious piece of work.

What makes the Romantics lawsuit against the makers of Guitar Hero, the wildly popular video game, so egregious is that a reading of the complaint and the facts they allege leaves one with the distinct feeling that none of the people they are suing did anything wrong. In a nutshell, the one-hit wonder Romantics are upset because a video game company -- which is paying a handsome royalty for the use of their one hit -- hired musicians to make a new recording of the song, which the Romantics think sounds too good.

A little background on the arcane issues of music licensing: when you hear a song in a movie, on TV, or in a video game, or just about anywhere besides on the radio, there's probably a whole lot of different people getting paid. The people who wrote it get paid. The people who publish the song (who may or may not be the people who wrote it) get paid. The people who played the instruments and sang get paid. The people who own the recording (usually a record company) get paid. When a song is played on the radio, only the people who wrote and publish the song get paid. Which is why, for instance, when you hear I Don't Want to Miss a Thing on the radio, it's Diane Warren, and not Steven Tyler who says "cha-CHING!" It's also why, for the most part, the guys in the band who don't write ride the bus, while the guys who do write own the bus. Anyways...

Guitar Hero Encore: Rocks the 80's, like all the previous versions, allows the player to simulate playing guitar parts to a variety of popular songs that have been properly licensed and re-recorded by studio musicians. The Romantics seemed to be quite surprised to find out that What I Like About You was included in the game. I'm quite surprised they didn't actually already know, since someone in their camp issued a license or it never would have happened. And, it was probably a synchronization license, which means that it was negotiated with the publisher; this means someone could have said "No!" if they wanted to.

Whoever is in charge at the Romantics World Headquarters would also have to know that they were never asked for a master use license -- permission to use the Romantics version of the song --so they knew that their recording was not going to be used. (What I really want to know is who handles this stuff for the band, and why someone from in the band didn't know all this stuff way ahead of time, or why someone in the band hadn't already seen and approved the game? At least that's the way I do it with groups I represent.) Maybe the boys sold out all their rights to a publishing company long ago; if so, tan pis.

In their law suit, the Romantics claim that they "were informed by fans that the [g]ame contained the [s]ong as performed by..." the Romantics. If were really the group's recording -- used without proper permission -- that would be a problem. But it's not the Romantics, and the Romantics know it! In the same paragraph of their complaint, the Romantics say they "learned that the [s]ong was not the [original recording]..." and that the game maker had been promoting the game with language that said "as made famous by the Romantics."

Doesn't everybody know that as made famous by means it's not the original recording? The Romantics knew. Read this from the complaint: "In the music industry, the phrase 'as made famous by' typically means the song is not the [original recording] but rather an imitation." Um, duh? So isn't the game exactly what it says it is? And properly licensed as well? (Another aside. You know those "Now That's What I Call Music" CDs? All the hits by the original artists? Well, back in the sixties some real smart rip-off artist used to put out albums of hits and advertise that they were the hit songs "Recorded by The Original Artists." Problem was The Original Artists was the name these guys came up with for a bunch of lame studio musicians who were doing crummy re-recordings! You can't do that anymore.)

The Romantics rely on a couple of lawsuits where recording artists were imitated and won big money. But, the facts of this case appear to be completely different from Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). Neither Ford nor Fritos ever said that it wasn't the actual artist. Ford wanted you to believe that Bette Midler was crooning about cars. Lays wanted you to believe that Tom Waits was growling about Fritos.

Ford and Fritos used imitators, and they never did anything to alert anyone to the fact that these famous people were not endorsing their product. Ford actually tried to hire Midler, and imitated her only after she refused and told them that she did not do any commercials. Tom Waits had a "publicly avowed policy against doing commercial endorsements," and his disapproval of artists who did was well known. In fact, the person responsible for recording the faux Waits had previously asked Waits to record a Coca-Cola commercial and stated that "you never heard anybody say 'no' so fast in your life." But, Hey! Romantics! No one asked you! And it's not a commercial endorsement...

So what's the Romantics beef? When you read the complaint, you get the distinct impression that everything would have been OK if the game maker had used a crappy version of the song! They state that "None of the Defendants have permission of Plaintiffs to perform a sound-alike imitation of the Song." Guys, no one needs to get permission unless they are trying to make people believe it's the original, and that's not the deal here; remember the 'as made famous by' bit? They also claim that "A number of fans have reported to them that they believed the [s]ong on the[g]ame was the [original recording] or otherwise performed by Plaintiffs." Uh-huh.

So the game maker should pay because you and your fans are morons? I gotta tell you, there's a lot more people who know that none of the Guitar Hero games have the original recordings, and everybody knows that if they did, the company would be bragging about it, as they are with their newest version of the game.

What's the story behind the story? It's Christmas time. What better time for some washed up one hit wonders to try to hold up the sales of a phenomenally popular game in order to extract a little extra, if not deserved, cash?

It seems Christmas can bring out the worst in some bands. It was Christmas time some 18 years ago when some over-built and under-brained bodybuilders in an unsigned band named Pump tried to stop all sales of Aerosmith's new CD Pump, because it was "confusing their fans." Oddly enough, when we appeared in court to fight the motion for injunction, the muscle heads told us that for a nice cash payout, all confusion would end. We told them to go pound sand and Judge William Young pretty much told them the same thing in a more genteel but no less forceful way.

I expect to see a massive pounding of sand in the Detroit area in the weeks and months to come.

Contracts like these usually promise eternal youth

Attention, All Bands! Geffen Records has a deal for you!

I came upon this link while surfing for music news this morning:



If you click on over, you'll find a brief come-on, and a button down to the right labeled "Click Here." When you click there, you are presented with a contract.

Let's look at what you get: someone at Geffen Records will listen to your music. Period. That's what you get. It says "top A&R execs at Geffen Records" will review your music. They'll do this by visiting your Web site.

Let's look at what they get: your music, to do whatever they would like to do with it for free for all eternity (including but not limited to this world and the hereafter.) It would appear that they get to do this, even if they don't use your music in the movie.

Let's look at what else they promise: They might use your music in a movie. They might sign you to a deal. If your music is in the movie, they might use your name or picture. It doesn't say they have to.

Let's look at what else you promise: You will not offer any of the music that they might look at to anyone else for anything else for 90 days. If they decide to use any of your music for free for all eternity, you promise that for four (4) more months, you won't even negotiate, let alone sign, a record deal with anyone.

Let's look at the deal you might get: "For purposes hereof, Artist's services as a recording artist shall include Artist's services in connection therewith as a performing and video artist and producer." That means they take a share of your touring income too. In addition, if anyone in the band turns out to be a producer, it looks like Geffen takes a piece of that too.

One more thing, if they find that this deal isn't quite to their satisfaction, you promise to sign anything else they put in front of you. No requirement that it be reasonable.

The part I like best is the preamble, where they tell you to have it looked over by "an attorney, manager, or the smartest friend you can think of." Interesting. Deals like this should really be looked over by a priest, rabbi, imam or some other spiritual advisor.

Without a hint of irony, the folks at Geffen have even included the HTML code necessary for you to easily offer this deal to your friends and beloveds.

My advice: if you are really so desperate and hopeless that you would consider this deal, just drink the poison now.

If you decide to click over and look at the contract, make sure there's nothing sharp near your mouse or keyboard. It would be a really bad time to accidentally yield a drop of blood.

An Open Letter To Fred Amoroso, CEO & President of Macrovision Corporation:

Are you insane?

Sincerely yours,
The consumers
---

Background:

The president of Macrovision, Fred Amoroso, has posted an open letter, entitled “To Steve Jobs and the Digital Entertainment Industry” on his company’s web site. In it, Mr. Amoroso, whose company was, and is still, responsible for the failure of many legitimately purchased video cassettes to play in video cassette players, takes the position that more, not less, DRM is what the consumer needs.

As my old boss used to ask, “Is he on crack?”

Amoroso tries to make 4 points:

1. DRM should be on everything, not just music. “…It is critical that as all forms of content move from physical to electronic there is an opportunity for DRM to be an important enabler across all content, including movies, games and software, as well as music.”

Indeed. It will be great when there’s a lock and key between us and everything we own. Fred envisions a day when we can no longer lend a book, video or game that we have purchased to anyone else, unless we pay again. Why stop at content? Maybe Ford and GM would like to “enable” their cars. Future automobiles will be matched to their purchaser by retinal scan. If you want someone else to be able to drive your car, that will cost more money. GE could benefit too. What if each “user” in a kitchen needed a digital key to operate the toaster, microwave or to open the fridge? Ka-ching!

2. DRM increases consumer value. Yeah, he said that with a straight face.
“…Without a reasonable, consistent and transparent DRM we will only delay consumers in receiving premium content in the home, in the way they want it. For example, DRM is uniquely suitable for metering usage rights, so that consumers who don't want to own content, such as a movie, can "rent" it. Similarly, consumers who want to consume content on only a single device can pay less than those who want to use it across all of their entertainment areas – vacation homes, cars, different devices and remotely.”

Yes, sir. That sounds great. It’s sure working out for mobile phones. Let’s see, in order to have the Pussycat Dolls “Button” as a playable song on her cell phone, my daughter was asked to fork over $2.99. Of course, when she wanted hear it on her computer it cost another 99¢. Then she decided she’d like it as a ring tone – on the same phone where it already legally resided as a full song. This time, for a 30 second clip of a song she’d already paid $4.00 for, she was asked to cough up another $2.99.

Back in the day of physical product, that actually cost money to manufacture, we could play our albums and CDs, wherever we wanted. We could lend them to friends. Now that the cost of manufacturing and distribution is down to comparatively nothing, Fred is so bold as to articulate one of the dirty little secrets of DRM: Fred says it’s good that you now need to buy one for your home, one for your car and one for your ski house! Good for who?

3. DRM will increase electronic distribution. “Quite simply, if the owners of high-value video entertainment are asked to enter, or stay in a digital world that is free of DRM, without protection for their content, then there will be no reason for them to enter, or to stay if they've already entered. The risk will be too great.”

This is an out and out material fallacy. Our friend is begging the question. There is a pre-supposed premise that the video entertainment is of “high value.” If Amoroso wants to ignore declining motion picture theater attendance, price resistance at pay-per-view, and a DVD market where new releases barely garner $19.99 and are soon thereafter sold at $9.99 or less, where people can watch all the movies they want for less than $18 per month, perhaps he can convince himself of the high value of this entertainment. On the other hand, many argue that if this material were priced appropriately, there would be little incentive to copy, share or steal.

4. DRM needs to interoperable. “Truly interoperable DRM will … make it easier for consumers to manage and share content in the home.”

Yes, interoperable DRM would be easier than a million incompatible schemes, but again, Amoroso is way out in fallacy- land again. No DRM is what makes it easier to share and manage content in my home. How about you?

Amoroso finishes up by asking Apple to give Fairplay, the Apple DRM, to Macrovision. (He’s got to be smoking something!)and then quietly sounding the alarm: “Already, consumer equipment manufacturers are introducing advancements in wireless connectivity and the interoperability of devices that are opening the door to new ways for consumers to acquire and view content from many sources.” In other words, “Oh my God, there’s more and more ways that people might enjoy entertainment. Please, can’t we lock it all up now?”