Legal Victory for Fair Use

Reports the EFF (Electronic Frontier Foundation):

A judge's ruling today is a major victory for free speech and fair use on the Internet, and will help protect everyone who creates content for the Web. In Lenz v. Universal (aka the "dancing baby" case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act ("DMCA").

Universal Music Corporation ("Universal") had sent a takedown notice targeting a 29-second home movie of a toddler dancing in a kitchen to a Prince song, "Let's Go Crazy," which is heard playing in the background. Because her use of the song was obviously a fair use and, therefore, non-infringing, Lenz sued Universal for misrepresentation under the DMCA. Universal moved to dismiss the case, claiming, among other things, that it had no obligation to consider whether Lenz's use was fair before sending its notice. The judge firmly rejected Universal's theory.

Raucous Imminence Mix

I've got a new 8tracks mix up, Raucous Imminence. This is an idea that I had been throwing around for a Muxtape tape -- music that sounds incredibly urgent, that makes me feel like I need to get up and do something reckless without hesitation. Today's 8tracks mix includes:

1. Iggy Pop & The Stooges - Search and Destroy (Raw Power LP)
2. Homostupids - Wild Weekend (The Intern LP)
3. The Germs - No God (Lexicon Devil 7")
4. Modern Warfare - Nothing's Left for Me (Nothing's Left for Me 7")
5. White Load - Chemicals (Demo 2007 Cass)
6. Violent Ramp - Pay to Skate (Grind the Pigs EP)
7. Black Flag - Nervous Breakdown (Nervous Breakdown 7")
8. Bad Brains - Send You No Flowers (Black Dots LP)

Click the 8 track tape to the right to listen to previously uploaded mixes.

The New Muxtape

While Muxtape sits in legal obscurity, I've been looking for other options. I discovered the website 8tracks this morning and it's looking the best so far. Unlike Mixwit, you can upload your own songs, which is exactly what I need. Mixwit is simply an aggregate of existing links on the internet -- you are not allowed to upload your own music. Most of the music that I own is not available through existing links because of its obscurity, so the ability to upload the music I own is essential. 8tracks also seems to be on more solid legal ground:

At current royalty rates, the hourly cost per user is just over $0.02 per listener per hour in 2008, increasing to nearly $0.03 per listener per hour in 2010. This means that 8tracks must earn a net CPM from advertising of at least $20 in 2008 (i.e., $20 per 1000 ad impressions = $0.02) and nearly $30 in 2010 (i.e., $30 per 1000 ad impressions = $0.03) to cover the cost of streaming sound recordings. In addition, 8tracks pays musical works royalties to ASCAP, BMI and SESAC, which generally comprises 3%-5% of revenues.

8tracks is taking 2 steps to reduce its royalty liability so can sustain itself as a business. First, it is opting into a Small Webcaster license offered by SoundExchange (at the request of Congress). This license provides for royalty payment on the greater of a percentage-of-revenue or percentage-of-expense basis, subject to a minimum fee, which will allow us to grow our user base -- and our potential for advertising -- before having to pay the more onerous compulsory rates owed on a per song, per listener basis.

Second, 8tracks is seeking direct licenses with independent record labels and artists who generally see greater promotional value in internet radio -- given relatively few alternative channels for exposure -- and are thus more willing to consider the percentage-of-revenue terms common to all other forms of radio (traditional, satellite, cable).

My 8tracks page can be found here, and I've created a test mix called The Longest Songs:

1. Public Image LTD - Theme (First Edition LP)
   
2. Pg. 99 - A Sonnet to Both Ugly and Murderous Living in the Skeleton of a Happy Memory (Document #7 LP)
3. City of Caterpillar - A Little Change Could Go A Long Ways (S/T LP)
   
4. Pissed Jeans - My Bed (Hope for Men LP)
   
5. Portraits of Past - Bang Yer Head (S/T LP)
   
6. Lightning Bolt - 2 Towers (Wonderful Rainbow LP)
   
7. Big Business - I'll Give You Something to Cry About (Here Come the Waterworks LP)
8. The White Mice - SEWERcide (BLasssTPhlEgMEICE LP)

The cool thing about 8tracks is that users can upload more than one mix at a time. I also like it's simplicity and minimalist aesthetic; although, Muxtape is still more visually appealing. One thing that 8tracks is lacking is the "stumbling" part of Muxtape -- only recent mixes are shown on 8tracks' home page. There is a search option, but that isn't quite the same to me, as I'm likely to just find music I already listen to. And there doesn't seem to be a "Favorites/Fans" feature like Muxtape has; however, I still haven't figured out how the "Following" feature works, so maybe that is something like Muxtape's "Favorites/Fans."

I'll have an 8tracks link in my side bar while I await the verdict against Muxtape. Click the 8 track tape to the right to listen any of my existing 8tracks mixes.

[EDIT]: So it seems that 8tracks has a 10 minute per song limit, which poses a problem for the Pg. 99 track that I had selected (it's 11 minutes long). I've switched it out with another song on the Document #7 LP, "Living in the Skeleton of a Happy Memory."

Aw Fuck...

Muxtape is down. The website's blog says that no artists or labels complained. I hope that Muxtape can come out of this unscathed.

I really feel that the RIAA is overreaching here. This broadening copyright enforcement nonsense is quickly becoming ridiculous. As I have said before, how is Muxtape really that much different from radio? To make another analogy, isn't a website like Muxtape just the piano roll of our times?

Muxtape is merely a digital version of cassette mixtapes. Muxtape has taken pains to ensure that songs cannot be downloaded, that songs are accompanied with a link to Amazon's mp3 page, and that tapes have a variety of song selections (no tracks from the same artist/release on the same tape).

The fact that it is digital shouldn't make any difference, but the fact that it does means that the RIAA is still living in analog fantasy land.

[UPDATE]: The RIAA has released a statement regarding Muxtape:

For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings.

[UPDATE 2]: Ars Technica reports that Muxtape's future is likely grim:

Actually, it looks like Muxtape may indeed be closed indefinitely. The RIAA says it has been in communication with the site over the past several months over the getting the "illegal content" taken down. In order to get the RIAA's official blessing, Muxtape would likely have to sign a licensing agreement and begin paying royalties à la last.fm and Pandora. An agreement would dissipate the legal gray cloud hanging over Muxtape, but the royalty burden may well prove onerous, as industry stalwarts like Pandora are considering closing up shop due to the high royalty rates demanded by rightsholders.

Damn.

The Jerome Corsi Paradox

Jerome Corsi, of Swiftboat Veterans for Truth fame, is at it again. This time he's written another piece of shit book riddled with factual errors and baseless innuendo targeted at Democratic presidential candidate Barack Obama, entitled, The Obama Nation: Leftist Politics and the Cult of Personality. He's been all over the media pushing his book, and on today's edition of Fox News' Fox & Friends he's made a rather revealing statement:

Here's the relevant bit of the transcript:

DOOCY: You were involved in the writing of the --

CORSI: Correct.

DOOCY: -- Swift Boat book --

CORSI: Absolutely. Right.

DOOCY: -- four years ago, and so a lot of people have suggested, well, the Obama campaign is not going to allow their candidate to get Swift Boated once again by this guy, and do you feel almost as if you yourself are being Swift Boated?

CORSI: Well, in a way, but I also think the Obama campaign is making the identical mistake as the Kerry campaign.

[emphasis mine]

Without a moment's pause, Corsi responds to Doocy's question without the slightest indication of any intention to challenge the use of the term "Swift Boated." In accepting the understood definition of the term, Corsi is essentially admitting that his previous work of fiction, Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry, is exactly what his critics charged -- full of factual errors and baseless smears against Democratic Senator John Kerry. It's clear that that is the opinion he has of his critics now; therefore, it follows that he is using this definition for "Swift Boated."

If, in some twist of crazy, right-wing logic, Corsi believes the term "Swift Boated" is not negative, but an honest, academic analysis of the facts, then we can only conclude that he believes his critics to be correct about The Obama Nation.

This is the Jerome Corsi Paradox -- either way, he's discredited himself in that one statement.

iPatriot Act

Lawrence Lessig warns of a "i-9/11 event" (which doesn't mean an Al Qaeda event, just a catastrophe on the internet that has the scale of the 9/11 terrorist attacks) during Fortune’s Brainstorm Tech conference. This event, suggests Lessig, is what the government is waiting for in order to push through Congress an already drafted "iPartiot Act" to regulate the internet.

Today, CNN reports that there's a major security flaw in the way that the internet operates. The security flaw tricks a computer into visiting a phony dupilcate of a legitimate site, which could be used for various nefarious purposes. One such scam has already taken place:

[C]riminals have pulled off at least one successful attack, directing some AT&T Inc. Internet customers in Texas to a fake Google site. The phony page was accompanied by three programs that automatically clicked on ads, with the profits for those clicks flowing back to the hackers.

Could this "i-9/11" be just around the corner? I fear what an "iPatriot Act" might do to the model of free-flowing information that drives the internet.