The Asshat in the Rye

Fuck You, Old Man Salinger

J.D. Salinger wrote one of the most influential novels in modern history. If you don’t know which book that is, then you’re a moron. That might piss you off, if you are one of those who don’t know which book Salinger wrote, being called a moron and all. All morons hate it when you call them a moron.

Since writing his book, Salinger pretty much didn’t do anything worthwhile. Sure, he wrote a few more books, but nobody read them and nobody much cared. The Catcher in the Rye (fine, morons, there it is) was his magnum opus, and if I ever wrote something that damn good, I probably wouldn’t bother to write anything anymore either. I’d just go off and sit on a beach and drink mojitos with my royalty check money. Of course, then I might get drunk and call the guy a moron, because the guy usually is a moron.

But back to the book. What really knocks me out is a book, when you’re all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it. The Catcher in the Rye knocked me out that way. I think it knocked out this Swedish guy, goes by the name J.D. California, because he wrote a sequel to The Catcher in the Rye where the main character is in his 70s and runs around New York City as a crazy old coot. I’m pretty sure that the book, 60 Years Later: Coming Through the Rye, sucks. I haven’t even read it, but if it was written by a Swedish guy obsessed with America and he can’t come up with a better pen name than “J.D. California?” I’m sure the book is a bunch of lousy recycled crap about what he sees on T.V. and thinks that is anything to do with the crumby America we live in.

Crumby and stupid or not, it was probably about time someone writes a sequel to The Catcher in the Rye. You might figure that Salinger would do it, but until today, I thought the old coot was dead. I guess he is still alive, 90 years old, he probably smells like that old guy smell, writing crap wishing he could write The Catcher in the Rye again.

Well, old man Salinger got right sore at “J.D. California,” for writing his sequel, and he’s suing him for it. I can see him now, old man Salinger and some stick up his ass crumby Ivy League lawyer, maybe even an academic with stupid patches on the elbows of his jacket, in court to stop J.D. California from writing the words “Holden Caufield,” because Old Man Salinger thinks that he owns that. Crazy old bastard. But, phony J.D. California doesn’t even call the guy “Holden Caufield.” He just uses the name “Mr. C.” Here’s Salinger’s lousy complaint full of self-important goddamned junk. God I hate that stuff.

If you really want to hear about the suit, the first thing you’ll probably want to know is what “fair use” is, and what Section 107 of the Copyright Act says and all that Mel Nimmer kind of crap but I don’t feel like going into it, if you want to know the truth. I don’t really write this blog for people who don’t know that kind of stuff already.

And like I said, I haven’t read anything by “Mr. California,” so maybe it is a “rip off,” like Old Man Salinger says, but I doubt it. Among other things, you’ll find that Old Man Salinger is not the first person who was ever confused and frightened and even sickened by human behavior and wrote a book about it. If his book is about a guy right out of high school, and “California Man” writes his about an old bugger, with maybe the same name and all, I can’t see any way that could be “copyright infringement,” at least not the section 106 or 107 version of it they taught us in my crumby law school. And if it pisses you off that there are guys out there who contribute one thing to the collective culture, and then think they have a monopoly on anything related to it, well you’ll be excited and stimulated to know. Many, many men have been just as troubled morally and spiritually as you are right now.

The thing is, anything that pisses you off and sickens you or stimulates you is probably something that another alienated wack job felt. Happily, some of them kept records of their troubles. You’ll learn from them – if you want to. Just as someday, if you have something to offer, someone will learn something from you. It’s a beautiful reciprocal arrangement. And it isn’t education. It’s history. It’s poetry. But, don’t you know, Old Man Salinger’s mind must be so addled by brain rot and the whisperings of his crumby Ivy League lawyer that he doesn’t give a shit and now “Mr. California” will stand trial for more than picking a really queer pen name.

The crappy part of it is that we’re seeing this happen again and again. First crappy Seinfeld and his suit in Castle

Crumby judge

Rock. Then bitchy J.K. Rowling proved that you can take the white trash out of the U.K. ghetto, but it doesn’t change that she’s trash. And we’re supposed to be all nice about it, and say that they are just living off the fruits of their creative labors. But really, they are just putting big “Fuck You” signs on every stupid corner of the culture and they don’t care – because they made their money, and their stupid stick-in-the-ass Ivy League lawyers don’t care either, because they feel entitled. And if you ever wondered reasons why Sonia Sotomayor is a crumby judge, all you need to do is read her Castle Rock opinion – Castle Rock Entertainment v. Carol Publ. Group, 955 F. Supp. 260 (S.D.N.Y. 1997) where, like morons usually do, she stacked the deck for the big guy and crapped on the First Amendment.

In that case, Beth Golub watched too much Seinfeld, so she wrote The Seinfeld Aptitude Test, a bunch of trivia questions testing the reader’s knowledge of the Seinfeld TV Show. It doesn’t get much more “fair” use than that, but Sotomayor decided to apply a quasi-trademark law view mixed with a bizarre and narrow view of the fair use doctrine – and that since Castle Rock might have one day expanded their works into the trivia book realm, that Golub was infringing on Castle Rock’s derivative use rights. Then the crumby Second Circuit upheld her opinion. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).

So with the crazy opinion in Castle Rock, you know that this is why Old Man Salinger filed in the Southern District of New York. After he saw Rowling win her case – even though Ol’ Bill Patry even thought she shouldn’t have – then you know that Old Man Salinger was just drooling on his remote control when Matlock came on and then his Ivy asshole lawyers told him he could win. And you know he will even though there’s no way he can say that he was gonna write the sequel, because he just hides in some cabin in New Hampshire, writing nothing or writing something but not publishing it.

Knowing that is half the way to knowing that copyright law has gotten seriously fucked up. The Copyright Clause says that it is there to promote the progress of science and the useful arts – and they thought that writing books was a useful art, don’t you know, so how is it “progress” to stop this “California Dreamer Guy” from writing his sequel, when all that Salinger should be writing is his stinking tombstone. If you think about it, and read Sotomayor’s anti-speech dribble and drabble and drivel you’ll start to see that she, and Old Man Salinger are the reasons that the whole damn culture is covered with “Fuck You” signs written by Ivy League assholes. And all it proves is that if you had a million years to do it in, you couldn’t rub out even half the ‘Fuck you’ signs in the world. It’s impossible. So I’ll just make one of my own.

Fuck You, Old Man Salinger. Fuck You.

Copyright Office hearings at Stanford will consider DVD clipping

The US Copyright Office will hold hearings at Stanford University this Friday, May 1, to consider possible exemptions to the DMCA’s prohibition on circumventing technological protection measures.  One exemption, proposed by the EFF, would allow artists to copy snippets of DVDs to make new works that would qualify for fair use.

For the uninitiated, the DMCA is a US copyright law that focuses on digital technology.  Among other things, the DMCA prevents individuals from finding ways to get around copyright protection technology — for instance, the technological measures built into DVDs that prevent users from copying them.

It’d be nice if the Copyright Office gave the issue serious consideration.  The movie industry takes the position that ripping DVDs is copyright infringement no matter the purpose.  This can’t be a correct interpretation of copyright law, because if so the DMCA would allow copyright owners to effectively excise fair use by installing strong anti-copying protection.

If there is no legal means of copying copyrighted works then no one can use them to create new works.  As the EFF notes, that would have serious implications for the thriving “remix culture” evidenced by the sheer volume and popularity of works appearing on YouTube and social media sites.

Battle over DVD backup copies

The law hasn’t decided yet whether consumers have a right to make backup copies of DVDs, even though the right to make backup copies of CDs is well established.  That could start to change today, as trial is set to begin in a District of Northern California case involving RealNetworks’ DVD backup software “RealDVD.”

One would think that RealNetworks has a good shot at winning the right to distribute its backup software.  CD owners have long been able to make noncommercial copies of their music for backup purposes.  The CD-copying right comes to some extent from statute — Audio Home Recording Act — but it has survived numerous challenges by the recording industry seeking to supercede the statutory protections.  This is partly because making single backup copies arguably counts as fair use and therefore does not qualify as copyright infringement.

Theoretically the public policy argument in favor of allowing backup copies is the same for both mediums: consumers have a right to protect their investment in movies, just as their have a right to protect their investment in music.  DVDs, like CDs, can be ruined in an instant with no fault from the owner, and the consumer has a right to access the content they paid for.

The other side of the argument is that legal DVD-copying software promotes piracy.  Another is that consumers don’t have a right to protect their investment in DVDs — if they break it they have to buy another one, like they do with most products.

The difference-maker here could be that RealNetworks’ software contains significant anti-piracy protections.  It allows a user to make only one backup copy of a DVD and prevents the user from sharing the copy with others.  Movie companies won’t be satisfied with those protections, given the ease with which they can be circumvented by computer experts, but they could be enough to win the legal battle.

Whatever happened to playing fair?

Matthew C. Sanchez

By Matthew Sanchez

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as “fair use” help to ensure protection of both intellectual property rights while promoting creative expression, they can’t replace a simple concept we all learned in kindergarten:  “treat others the way you’d like them to treat you.”

A couple of days ago, New York TV news station CW 11 convinced YouTube to take down a video from prank group Improv Everywhere that copied part of a CW 11 newscast.  The twist as that the CW 11 newscast itself copied an earlier Improv video to unintentionally hilarious effect.

In the original Improv video, the troupe hijacked a staged funeral as an April Fools Day prank on viewers and passers-by.  CW 11 reported the hijacking as a real prank on real funeral-goers that might have gone too far.  The newscasters missed the fact that the prank wasn’t on the fake funeral-goers but, instead, on those who believed the video was real.

Judged solely on the legal merits, CW 11 might have the (slight) upper hand on the competing questions of infringement.  CW 11 used only snippets of the Improv video and added news commentary, while Improv seems to have simply lifted a portion of CW 11 broadcast and uploaded it as is.  Its arguable whether Improv has a fair use argument:  the group does have in its favor that the use was noncommercial and it put the clip in wildly different context — that is, exposing CW 11’s blunder.

Regardless of the legal merits, there is no reason for copyright law to be involved here.  CW 11 borrowed from Improv, and Improv then borrowed from CW 11.  Both created expression that would not have been possible otherwise.  If not for this needless legal dispute, we would all win.

A even more disappointing recent example comes from “fair use” darling Shepard Fairey.  For those who haven’t been following along, he’s the defendant in the Associated Press’ big copyright flap over the Obama “HOPE” poster.

Last month, Fairey’s company Obey Giant Art Inc. alleged trademark violations in a cease-and-desist letter to Larkin Werner, a Pittsburgh Steelers fan who created a character that plays off of Fairey’s “Obey” images.  Dubbed “Steelerbaby,” Werner’s character is a baby doll in a knit Steelers uniform who appears in images and merchandise, typically accompanied by an admonishment to “Obey” or “Obey Steelerbaby.”

Fairey has built a career and no small amount of celebrity by creating new art from existing material.  The Obama poster, based upon a photo allegedly owned by AP, is a notable example.  Werner’s Steelerbaby, which is more Internet meme than profitmaking venture, is no different.  Like CW 11, Fairey might have the better end of the legal argument, but a little dose of common good sense shows that he (or his company) doesn’t have it “right.”

It’s my humble opinion that our IP system can only function alongside free creative expression if IP-holders — and IP-holder’s lawyers — first ask not whether they can win, but whether they should draw the line in the sandbox at all.

Short Url: http://bit.ly/Tr5IT

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Technorati :  copyright, fair use, trademark

Pirate Bay Crew Guilty – One Year in Jail

I am not terribly surprised at this verdict. All along, the crew of the Pirate Bay has been pretty arrogant about the trial. Their key defense seemed to be “you people are ridiculous.”

I don’t agree that anyone should be in prison over copyright infringement. But, sometimes you gotta play ball. They didn’t. They are going to jail.

Bohannan Pens Brilliant Study on Copyright Harm and the First Amendment

Christina Bohannan, a professor at the University of Iowa College of Law has written an article called Copyright Harm & The First Amendment. Eventually, I’ll get down to reading the whole article, but from the abstract (below) I love what I see.

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Are Tweets Copyrightable?

Mark Cuban, whinebox owner of the Dallas Mavericks, recently got tagged by the NBA with a 25k fine for a courtside tweet complaining about officiating.

On his blog, Maverick posts:

Here is a question for all you legal scholars out there.  Is a tweet copyrightable ?  Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

I got to thinking about this when I tweeted about an NBA game.  I tweeted to the people who follow me.  While I never asked that they not distribute it to other tweeters,  i did not give anyone permission to republish my tweets in a commercial newspaper, magazine or website.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law ?…

While it seems clear to me that Cuban is just being a dickbag, I think there are some legitimate legal issues there.

Are tweets copyrightable?

Like any good law school monkey I inclined to answer “it depends.”  Whether a certain tweet is copyrightable is fact specific.  For example, a recitation of facts is not copyrightable.  Also, the short phrase exemption may prevent these types of posts from being copyrighted.   I can certainly envision certain tweets meeting the originality requirement though — for example an original 140 character poem would likely be copyrightable.

Is a tweet copyrighted by default when its published?

Copyright attaches at fixation.  Tweeting almost certainly meets the fixation requirement.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law?

Probably not.   Applying the four-factor fair use test, it seems pretty clear the ESPN is well within the fair use defense.

1. the purpose and character of your use Even by reproducing the entirety of the message, ESPN is still offering commentary and criticism.
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken

   This is the most interesting factor to me, should the scope of the portion taken be one tweet or the entire tweet stream?  In Cuban’s case, this discussion is entirely academic, but I can envision cases where it would matter.

4. the effect of the use upon the potential market.

   Perhaps if Cuban were compiling his feeds and publishing the “best of Cuban’s twitter feed” we’d have something more substantial, but I don’t see any practical commercial impact on Cuban.

The bottom line is that Cuban is being an asshat and is pissed that his twitter feed has been republished by ESPN.  Cuban should familiarize himself with the unwritten fifth factor of fair use defense:  Which party is an asshole?  See e.g. Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006) (holding that asshole publishing poems on his blog in an attempt to manufacture a claim for copyright infringement in the hopes of making-money from Google’s standard practice of caching blogs is not copyright infringement).

Peter Needed a Jew… Bourne Co Needed a Lesson in Fair Use

Peter needed a Jew, Bourne Co. needed an education in Fair Use

Congress derives its power to enact copyright laws from the copyright clause, U.S. Const. Art. I § 8. which reads:

Congress shall have the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Unfortunately, the music industry is run by twats who believe that the Copyright Clause gives them a complete monopoly over the use of their material. For example – music publishing company, Bourne Co., the owner of the copyright to “When You Wish Upon a Star,” objected to a parody of the song in the Family Guy episode, “When You Wish Upon a Weinstein.” In this episode, Peter Griffin gets scammed into buying volcano insurance on his home in Quahog, Rhode Island. Lois gets fed up with the family’s constant financial problems, so peter decides that he needs a “Jewish money guy” to help him.

The scene at issue in this litigation depicts Peter looking out of a window up at the night sky in a manner similar to that of the toymaker Gepetto in Walt Disney’s Pinocchio when Gepetto is wishing for a “real boy.” (Op. at 4-5)

Peter then sings the now-famous parody, “I Need a Jew” to the tune of “When You Wish Upon a Star.”

Nothing else has worked so far
So I’ll wish upon a star
Wonderous shining speck of light
I need a Jew

Lois makes me take the rap
Cause our checkbook looks like crap
Since I can’t give her a slap
I need a Jew

Where to find
A Baum or Steen or Stein
To teach me how to whine and do
my taaaaaxesss…

Though by many they’re abhored
Hebrew people I’ve adored
Even though they killed my Lord
I need a Jew

While he sings the song, Jews are depicted “as magical creatures that come to Peter in the form of a magical spaceship that turns into a flying dreidel.” (Op. at 5).

Family Guy’s creators initially sought permission from Bourne Co. for a license to use “When You Wish Upon a Star,” but Bourne refused. Therefore, the Family Guy creators decided to commission a song that would be close enough that the average person would recognize it as a parody of the original. When Bourne found out, from seeing a clip on YouTube, they filed a copyright infringement suit.

Any fool knows that parody is “fair use” under Section 107 of the Copyright Act, and constitutes protected speech under Campbell v. Acuff-Rose, 510 U.S. 569, 575 (1994) (2 Live Crew’s parody of “Pretty Woman” not an infringement upon the Roy Orbison original). However, there is a strange wrinkle in copyright law where many courts hold that parody is protected fair use, but satire is not. The difference comes down to whether the later work is criticizing or parodying the original, or if the later work is making a humorous commentary about something else — but using the original work as a tool to do so.

I believe that this distinction is a false one, and I am in good company. However, in Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), the Ninth Circuit held that a book about O.J. Simpson called “The Cat NOT in the Hat,” was merely riding on Dr. Seuss’ work to make fun of Orenthal, not making any kind of commentary about the Dr. Seuss original. The Second Circuit has largely adopted this logic, finding that a Jeff Koons photograph was satire, targeting entire genre but not the original upon which he relied to do so. See Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006). Compare Liebovitz v. Paramount Pictures, 137 F.3d 109 (2d Cir. 1998) (Naked Gun advertisement that mocked the Annie Liebovitz photo of a pregnant Demi Moore was parodical use).

Family Guy’s attorneys argued that their use of “When You Wish,” directly lampooned the original in two ways: 1) By skewering the saccharine nature of the original and by making a “sharp point about Walt Disney’s reputed anti-Semitism. (Op. at 14). Bourne Co., argued that “I Need a Jew” merely “ridicules anti-Semitism and Jewish stereotypes,” (Id.) but makes no criticism of the original Disney tune.

The court found Family Guy’s perspective to be more compelling:

The Court finds that by juxtaposing the “saccharin sweet” song “When You Wish Upon a Star” with “I Need a Jew” the Defendants do more than just comment on racism and bigotry generally, as Plaintiff contends. Rather, Defendants’ use of “When You Wish Upon a Star” calls to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one’s dreams come true. By pairing Peter’s “positive,” though racist, stereotypes of Jewish people with that fairy tale world-view, “I Need a Jew” comments both on the original work’s fantasy of stardust and magic, as well as Peter’s fantasy of the “superiority” of Jews. [I Need a Jew] can be “reasonably perceived” to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star. (Op. at 15-16).

Bourne argued that the parody itself was unclear and unsupported by the evidence in the case. However, parodies are protected by the First Amendment, “even when they fail to speak clearly.” Relying upon Campbell v. Acuff-Rose, the court reminded Bourne that First Amendment protections do not only apply to clear, funny, or successful parodies. Even “inside jokes” and parodic falures are protected if the “parodic character can be reasonably perceived.” (Op. at 19).

“Hot News” Decision

The purpose of copyright is to “promote progress.” We achieve this promotion by giving authors a limited monopoly over their works, but we don’t give copyright protection to mere facts. It makes sense, since the facts rightfully belong to all of us.

Nevertheless, we do all benefit from news organizations hard work in bringing us the facts. If anyone can just free ride off of the Associated Press’ work, then eventually they are going to stop providing them to us. After all, the AP is a business.

I read an excellent law review article on this subject a while back. See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting. Suffice to say that I get Holte’s point, and I agree with the argument that the public is better served if there are news organizations competing to get the hottest news — and they should be incentivized to do so.

It looks like Holte’s theory gained a little traction this week. The Prior Art reports on Associated Press v. All Headline News Corp and the Southern District of New York’s finding that the AP might have a viable case for “hot news appropriation if:”

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (Source)

Goldman analyzes the case here.

Is Jailbreaking the iPhone a DMCA Violation?

The EFF reports:

Apple’s iPhone, now the best-selling cellular phone in the U.S., has been designed with restrictions that prevent owners from running applications obtained from sources other than Apple’s own iTunes App Store. “Jailbreaking” is the term used for removing these restrictions, thereby liberating your phone from Apple’s software “jail.

Apple takes the position that this is a violation of the Digital Millennium Copyright Act. The EFF disagrees. Personally, I agree with the EFF, but I found a better alternative to jailbreaking my iPhone. I returned the piece of crap and got a Blackberry.

Producers of Copyrighted Content – They Just Don’t Get It

by Jason Fischer

I don’t understand why producers of copyrighted content have such a hard time comprehending their customer base. We’re not that difficult to fathom. We only really have a few, simple needs:

• We want to be able to get to desired content, whenever and however we want.
• We don’t want to pay through the nose for it.
• If you make it difficult for us, there are other ways for us to get what we want. Ways you don’t like, because it means you won’t get your cut.

It’s precisely because content producers don’t understand us that we have scenarios like this.

I really thought that everyone was coming closer together, though, producers and consumers, when I discovered a service called Hulu this summer. It just so happened that I found myself, for about six weeks, in a place with Internet access, but limited cable service. I began to fret when I realized that I would not be able to get my weekly Battlestar Galactica fix – right when the last season was beginning to air. Also, with the writers’ strike delaying everything, many of my other favorite programs were still running new episodes into June. I was going to miss the season finales for a handful of shows, which I had been watching religiously at home. I began to panic a little bit.

Facebook Caves to User Pressure

by Jason Fischer

A few days ago, Facebook announced that it would be changing its terms of service. The updated terms made changes with regard to intellectual property ownership of content that users posted to the site. The changes were denounced as oppressive by many blog commentators. Apparently in response to the negative “press,” Facebook has reversed course, posting the following message on the “home” page for all users.

Lux Interior and a Copyright Tale

Rest in Slack, Lux.

Lux Interior, former front man for The Cramps, died on Feb. 4 at age 62. A salute to Dillsnap Cogitations for the news.

From the Rolling Stone obituary:

The Cramps were credited with creating both the term and musical style “psychobilly,” a synthesis of punk rock and rockabilly that was gloriously raw and over the top. Their lyrics examined American culture at its most campy, often citing bad jokes, science fiction films, and sexual fetishes. (source)

Yeah, I guess. If you want to be clinical about it. Jesus Christ, reading Rolling Stone to understand music is like reading a medical journal to find terms to describe great sex with your wife.

The U.K.’s Guardian got it a little better:

The Cramps’ Lux Interior was a twisted Elvis from hell: “It’s hard to think of Lux Interior as dead, despite what reports say. Then again, it was always hard to think of him as alive”

Some 30 years ago, with the King still warm in his casket, Lux rose like a zombie from the primordial swamp as a twisted, grotesquely libidinous, werewolf Elvis from Hell, and the mask – if it was a mask – never came off. The Cramps went one step further than punk rock: they didn’t merely go back to basics, they stripped rock’n'roll naked and flaunted it in its lethal distilled form: as a relentless sex beast, a psychotic release, a nihilist post-apocalyptic celebration, the ultimate in trash culture. (source)

On a more personal note: I was 14 years old and got a job washing dishes at a cruddy restaurant in Gloucester, Massachusetts. My primary interests were getting stoned and punk rock music. One of the cooks at the restaurant sold me a little nugget of some sticky shpata, and the other lent me two VHS tapes: The Decline of Western Civilization and URGH!, A Music War. Add a couple of my closest friends to the mix, some out-of-town parents, a VCR, and you had all the ingredients for a life-altering experience.

Lux Interior on the Cover of the URGH! VHS Tape

We all loved the music on Decline, but halfway through URGH!, we were starting to get impatient. While URGH! had some cool stuff from Chelsea, the Surf Punks, and my personal favorite – The Dead Kennedys, it was also a bit over-burdened with skinny-tie-new-wave bands. As we argued about whether to turn off the movie and put Decline back in, the camera cut to Lux Interior standing shirtless with leather pants that barely covered his genitals. Suffice to say we were confused. This was either going to be ridiculous or awesome — it certainly wasn’t going to be wimpy-poppy Oingo Boingo wannabees.

As Lux busted out “Tear it Up,” and shoved the microphone down his throat, he was the image of pure off his ass I-don’t-give-a-flying-fuck-what-you-think-motherfuckerdom. All the while, his wife, Kristy “Poison Ivy Rorschach” Wallace fixed a blank stare on her face and just did her job – she played guitar – our ears started to bleed. Our eyes fell out of our faces, crawled into our ears, and just sat in our guts. It was bad ass. Was it any surprise that this was the same guy who was known to jerk off on his microphone during live shows?

We stared speechless at the screen. Then we rewound it and watched again, this time slam-dancing with each other. Repeat. Repeat.

That was it. We were Cramps fans.

So where is the copyright tale?

I turns out that URGH!, while released on VHS and the old stylus-based videodisc CES format, can not be released on DVD. From the URGH! (unofficial) fan website:

This is due to an exclusive contract to publish this movie on a now dead format (CED). The word is that the contracts for the individual artists are missing and you can’t renegotiate a contract without the original to amend it.

The film is currently owned by its original producer, Miles Copeland. He has the original film of THREE songs (not one) from each band in storage. And because of the legal land lock, it cannot be released. So on and so forth, BLAH-BLAH-BLAH…(source)

This is one of those stories that could help the music industry understand why very few consumers shed a tear for them as they complain about lost profits and music piracy. I agree that stealing copyrighted material is wrong, at least on some levels. I also think that congress enacting, and the Supreme Court upholding, a “life plus 70″ copyright duration was wrong. C.f. How I Lost the Big One. Accordingly, I agree with any act of civil disobedience that entails ripping off copyrighted materials that are more than 28 years old. That was more than enough for copyright duration, and Disney can kiss my ass.

I also firmly support any act of similar civil disobedience when it comes to “orphan works.”

Orphan works are “copyrighted works whose owners may be impossible to identify and locate.” Because the default response of many is to disregard copyrighted works unless they are definitively in the public domain, orphan works are often not made available to the public due to uncertainty over their ownership. (source)

The Government claims to be working on this problem, but WIRED reports that the legislation died on the vine.

Strictly speaking, URGH! is not an orphan work. Unlike a lot of other music films, URGH! didn’t do any back-stage interviews, no discussions with critics, it was just all music. It was a collection of 36 live “songs” by 35 different different bands. Each “song” consisting of a copyrighted live performance, a copyrighted sound recording, a copyrighted video recording, a copyrighted musical composition, and copyrighted lyrics. You can already imagine how many copyrights had to be licensed for this film to come together in the first place. Of course, at the time, it was probably relatively easy. Now, almost thirty years later, the mess is impossible to unravel.

I suppose that one could cobble together some parts of URGH! and put out a redacted DVD consisting of all the cuts for which the rights can be obtained. However, the whole is greater than the sum of its parts. While it was probably unintentional, the placement of the Cramps “Tear it Up” right smack in the middle of the film, a little while after I rolled my eyes at Oingo Boingo (what a shit ass band they were), really increased the impact.

As a result of the copyright morass, as each VHS tape of URGH! wears out, another piece of history dies. The generation that grew up with punk and new wave is denied the ability to relive their formative years on modern equipment. UB40 and The Police live on in archives put out by major record labels, who promoted the hell out of them in the first place, but had it not been for URGH!, neither I nor a hell of a lot of other people ever would have heard of Athletico Spizz 80 and their kick ass rendition of “Where’s Captain Kirk?” And, while the Cramps were big enough that it was inevitable that we would have encountered them, it wouldn’t have made the same impact without us staring in laughter and horror at Lux Interior, wondering if his pants were going to fall off. We wouldn’t have necessarily become Cramps fans.

And because of the mess that Title 17 has become, a whole new generation of Cramps fans may miss out on the opportunity to let Lux Interior mess up their heads.

Rest in Slack, Lux.

Oh and by the way, remember when I said I supported civil disobedience for reproducing orphan works? It looks like this guy does too. If you too think that URGH! is part of your youth, exercise a little intellectual property eminent domain and get a copy before this guy gets busted.

Pirate Bay Boarded Today

Frederik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmsioppi and Carl Lundstorm begin their trial in Sweden today for operating The Pirate Bay. The record companies call The Pirate Bay an online copyright violation clearinghouse. The four Swedes say it just provides links to other sites.

Two years in prison and a $143,000 fine hang on the outcome of that debate. Source

First Amendment Lawyers Association – Intellectual Property and Free Speech

The First Amendment Lawyers Association

My brothers and sisters in the First Amendment Lawyers’ Association granted me the honor of giving a presentation on Intellectual Property and Free Speech. My presentation slides are available here.

Additional materials are below:

1. The DMCA
2. John McCain letter re DMCA
3. Lenz v. Universal
4. Smith v. Wal-Mart Decision
5. Smith v. Wal-Mart Case Documents
6. Jones Day Post
7. Jones Day v. Blockshopper Case Documents
8. Virgin America v. Adrants Complaint
9. The initial Fuckingmachines brief
10. TTAB appeal on Fuckingmachines