[JackSpratts]

Satan's Little Helper Drinks Diet Coke
Michael Kanellos

Michael Robertson--founder of MP3.com, Linspire and SIPphone, which specializes in Internet telephony--has been embroiled in a lot of controversies.

The music format MP3, which MP3.com helped popularize, gave "the devil a name" for the record labels, musician Thomas Dolby Robertson once said. Others have said that MP3.com engaged in "shoddy" business practices. (Disclosure: My employer, CNET Networks, bought the name and other elements of MP3.com earlier this year from earlier acquirer Vivendi Universal.)

Desktop Linux maker Linspire has also met with controversy. The company earlier this year pulled its initial public offering, but only after revealing in Securities and Exchange Commission documents that it had culled $2 million in revenue and $4 million in losses in 2003. And a deal to put Linspire software on Dell desktop computers turned out to be far less revolutionary than the company's press release indicated.

Next, Robertson may try to popularize downloading movies and video--an idea that makes studio execs reach for their lawyers.

"I'm a big believer in the MPEG-4 format," Robertson said. "The only medium out there that has yet to be exploited is video."

The fireworks aside, Robertson does have a track record for ferreting out, and profiting from, emerging trends

With that kind of background, you'd expect Robertson to be a bit antagonistic, like Howard Dean with a Don King hairdo. Instead, he came across at an early morning meeting recently like a regional sales manager trying to keep his accounts happy. He even drinks Diet Coke in the morning--these days, it's the beverage of choice for many (such as Cisco CEO John Chambers) who spend several hours a day in meetings. He's not interested in trouble, he said. It just happens.

"When you're going to change an industry, you are going to make some enemies," is how Robertson summed up his career. Call it corporate combat casual.

The fireworks aside, Robertson does have a track record for ferreting out, and profiting from, emerging trends. Vivendi Universal bought MP3.com for $372 million. Sony meanwhile, has decided to adopt MP3, cementing the format's primacy. Linux and voice over Internet Protocol (VoIP) are climbing in popularity.

All of this lends credibility to Robertson's view of the business. In our meeting, he shared some of his thoughts.

The customer is always right, and usually surly

Consumer search patterns led to the creation of MP3.com. Back in 1996, Robertson was at Filez.com, a search engine company. One day, the term "MP3" began to appear in the list of top search terms, but no one at Filez.com knew what it meant. Robertson looked it up, downloaded a Dave Brubeck tune and decided to get into music.

"If people are searching for it, there must be an opportunity in it," he recalls thinking.

The Web address for MP3.com was owned at the time by an individual whose initials were M and P. "I bought it for 1,000 bucks," Robertson said. "We got 10,000 hits the first day."

Then the complaints began. The site was initially a news site about MP3s. It didn't offer songs for download. "Customers said, 'You suck because you're a music site and you don't have music,'" he recalled. Later, the company linked to band sites with downloads--usually obscure acts like Swedish jazz bands. Customers said the selection sucked. When they got enough artists, customers said the download times stunk. After downloads began running smoothly, artists and recording companies complained, Robertson said.

Don't be afraid of lawsuits

Once the company had created an avenue for people to download music, publishers and others filed suits against the business. MP3.com went 0 for 37 in the courts, by Robertson's estimation. Still, the company won financially in its sale to Vivendi.

Similarly, before it became Linspire, Lindows drew the wrath of Microsoft over the similarities between its product and Windows. After a few months of hearings and motions in a trademark dispute, Microsoft paid the company $20 million to surrender the name "Lindows."

Lawsuits, however, can be personally draining. Evidence that came up during one of MP3.com's lawsuits showed that recording companies had hired private detectives to follow Robertson around, he asserted.

Desktop Linux could take a while

Substituting Linux for Windows on desktops could shave about $100 of the cost of a PC. While the savings are attractive, it will take time to catch on because of training needs, habit and fears about compatibility.

"You will see a much steeper growth curve on VoIP than Linux," Robertson said. "With Linux, you need to get OEMs (original equipment manufacturers), retailers and customers on board."

Still, a movement toward desktop Linux has begun. About 350 local manufacturers and dealers now carry Linspire's software. Northgate, a tier-two manufacturer in Orange County, has begun to load the software on its PCs, as has Elektra, a large electronics retailer in Mexico.

Robertson expects Microsoft to aggressively campaign against it. "Microsoft is going to do everything in their power to stop this," he said. "Every day they delay desktop Linux, it is $30 million in profit."

Free may work

Robertson correctly asserts that the recording companies that have attacked music downloads aren't exactly saintly. "Artists were getting screwed before MP3.com," he said.

We've moved into an era where the public--or at least a good portion of it--seems to disregard, and even resent, paying for products based on intellectual property. VoIP is attractive simply because it drops the price of phone calls. The MP3 format became popular because it didn't come with digital rights management safeguards. Ditto for Linux.

Some say this will hurt inventors and artists. On the other hand, radio and broadcast TV shows are free, and those companies make money, so free downloads may just be the harbinger of a new, and ultimately profitable, era in entertainment.

"When you make things more accessible, people buy more," Robertson said. "If you put a taco stand in someone's house, chances are they will eat more tacos."
http://news.com.com/Satans+little+he...3-5388801.html


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And Now, a Few Words From the Urinal
Jonathan Miller

RICHARD DEUTSCH, an electrical engineer and former chiropractor, has come up with an invention that looks like a hockey puck with mesh wings, is sensitive to changes in light and has a tendency to go off with even the slightest bit of movement, which can prompt red flashing lights, crunchy guitar chords and a commercial announcement.

The most notable detail, however, is its intended placement: in the urinals of public restrooms.

Dr. Deutsch's marketing creation, the Wizmark, which he calls an "interactive urinal communicator," is one of several new technologies to have intruded into the men's room.

At the National Basketball Association finals in Detroit this year, liquid-activated urinal mats proclaimed "Beat L.A." One Minneapolis-based firm, AllOver Media, has installed 15-inch liquid-crystal-display screens above urinals in Minneapolis and Indianapolis, and plans to do so soon in Manhattan.

In a media-saturated world, advertisers have apparently seized one of the last frontiers. Once the advertising pitch begins, "let's face it, there's no place to go," Dr. Deutsch said in an interview at his house and workshop here. "You literally have a captive audience."

Dr. Deutsch has enlisted two major customers for his creation: Viacom, which plans to deploy the devices in bars in the next few weeks to promote Country Music Television, and Molson, the Canadian brewer, which is using them in several cities in Quebec.

Still, the product leaves potential advertisers with a serious conundrum. "I can't see someone wanting their brand name urinated on," said Tony Jacobson, a pioneer of restroom advertising and the president of AllOver Media, the company behind the L.C.D. screens above urinals. But some companies disagree with that notion.

"The truth of the matter is, you can't take yourself too seriously with this," said James A. Hitchcock, vice president for marketing at Country Music Television. "And we see this as unapologetic and good-humored. It has this wink-and-smile mentality to it."

But still, aren't these things annoying? "Asynchronously, if three or four go off, it's cacophonous," Dr. Deutsch acknowledged. And yet, this talking, flashing, squawking invention will be so insidious, he reasoned, that it cannot be ignored.

As the founder and director of Healthquest Technologies, Dr. Deutsch, 58, has invented products like a battery-powered hand-held massager and a rotating plant hanger (the latter provides "uniform sunlight exposure").

There were several obstacles to overcome before the Wizmark came to market. First, he had manufacturing problems in China, where standards, he said, are slack. Then the speakers were too loud, so he had to create a thicker plastic casing. And then there was the splash factor, an issue better left unexplained.

As for any danger of electrical shock from the device, which is powered by two AA batteries, he said: "At three volts? I don't think so."

Looking ahead, Dr. Deutsch is exploring ways to make his creation read chips on ID badges. "It'll be able to say, 'Good day, John, how are you doing?' "

Dr. Deutsch is also working on a version that will fit inside a toilet bowl. The details aren't all worked out, but he remains confident. "I can promise you, it's coming for women," he said. "Like it or not."
http://www.nytimes.com/2004/09/30/te...ts/30talk.html


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Panel Considers Copyright Bill
Tom Zeller Jr.

Just over a year ago, the recording industry unleashed its first barrage of lawsuits against people who share music online - a move that appeared to curtail illegal file swapping briefly. But in the months since, activity on file-sharing networks has recovered and grown, prompting the music and movie industries to try legislating the file- sharing beast into submission.

The Senate Judiciary Committee is now considering a bill that stands at the center of the file-sharing debate - the Induce Act, or the Inducing Infringement of Copyrights Act of 2004. It joins a torrent of other bills introduced in Congress and in state legislatures to address piracy of copyrighted materials. Negotiations on the bill's language are expected to continue today. A vote could come as early as next week.

Last week, Gov. Arnold Schwarzenegger of California signed a bill that would charge file swappers in the state with a misdemeanor if they fail to include a valid e-mail address with the files they trade. On Tuesday, the United States House of Representatives passed the Piracy Deterrence and Education Act, which would provide stiff penalties for copyright violators, including up to three years in prison. A similar measure passed the Senate in June.

Unlike other bills, however, the Induce Act is aimed at the makers of peer-to-peer file-sharing software, rather than at those who use it. Supporters of the bill say it is needed to curb abuses of intellectual property rights. Opponents contend that its broad language will stifle innovation.

The fight has brought together some unusual alliances. The American Conservative Union, for example, has joined with advocacy groups, like Public Knowledge and the Electronic Frontier Foundation, to challenge the Induce Act. The group has begun running ads, citing what it sees as a potential tsunami of lawsuits that would follow should it be signed into law. "Compromising property rights and encouraging predatory, costly litigation is not a conservative position," the ads say.

In a letter sent to the Senate this month, the National Taxpayers Union called the Induce Act "the legislative equivalent of trying to rid a house of termites by burning it to the ground." And the Heritage Foundation, a conservative group, produced its own study of peer-to-peer file sharing last month, concluding in part that this kind of legislation might well threaten "a huge range of legitimate activities."

Months of haggling have yielded alternate drafts, yet little in the way of middle ground. Still, critics and supporters appear to agree on at least one point: regardless of whether this particular version of the bill is passed, distributors of file-swapping software like Kazaa may not be able to escape legislation for long.

Whether this or any law can ultimately stymie illegal peer-to-peer networking, however, remains an open question. After all, at any given moment, roughly seven million people are exchanging digital content on peer-to-peer networks, according to industry trackers. Much of it is pornography, most of it is music, and nearly all of it is illegally shared.

At its heart, the Induce Act is the music and film industries' response to a court victory won by two peer-to-peer software companies, StreamCast Networks, the maker of Morpheus software, and Grokster. A federal appeals court in August upheld the notion that a technology capable of legal uses cannot be held liable simply because some - or even most - of its users deploy it to violate a copyright. That decision relied heavily on the principles of a 1984 Supreme Court decision popularly known as the Sony- Betamax case, which gave makers of electronic devices crucial legal protection against claims of copyright infringement.

The Induce Act, said Markham Erickson, the director of federal policy for NetCoalition, an Internet policy watchdog group, "would make Sony-Betamax irrelevant."

The language of the bill would hold liable anyone who "intentionally aids, abets, induces or procures" copyright infringement. The bill was introduced by Senator Orrin G. Hatch, Republican of Utah, and is supported by a bipartisan coalition of 10 senators, including Democrats like Patrick J. Leahy of Vermont, Hillary Rodham Clinton of New York and Barbara Boxer of California, as well as Republicans like Bill Frist of Tennessee and Lindsey O. Graham of South Carolina.

Supporters contend that in the absence of tough legislation, commercial enterprises like Kazaa and Grokster will continue to reap profits from rampant illegal behavior on the peer-to-peer networks.

"Music, movies, books and software contribute well over half a trillion dollars to the U.S. economy each year, and support 4.7 million workers," Senator Frist said in remarks supporting the bill's introduction in June. "When our copyright laws are blatantly ignored or threatened, an enormous sector of our economy and creative culture is threatened."

Mitch Bainwol, Senator Frist's former chief of staff and now chairman of the Recording Industry Association of America, which is leading the charge on the Induce Act and the thousands of lawsuits that have been filed against individual users, puts it more plainly.

"Napster was shut down because it had a centralized server," he said, referring to the father of peer-to-peer file sharing that was forced to shut down in 2001, and later reopened as a pay service. Soon after Napster's initial collapse came the decentralized peer-to-peer networks that are now at the center of the debate. "These decentralized systems exploit a loophole. They make money on advertising and their business model is based on theft."

While that may be true, opponents of the Induce Act say that the bill's language is so sweeping that many other technologies may be in danger of being caught in its grasp. They argue that innovations as common as the VCR - or Xerox machines or the iPod - would never have come about if their inventors had toiled under the threat that some users might misuse the technology.

"This is not just closing loopholes," said Susan Crawford, a professor of Internet law at the Cardozo School of Law in New York. "They're creating nooses."

That concern has generated a frenzy of activity among trade groups and Internet advocates on one side, and the recording industry and their supporters in Congress on the other. Several drafts of the bill were generated and discussed by the groups, including versions from the federal copyright office, which has supported the bill, and the Consumer Electronics Association, a trade group that sought to codify the principles of the Sony-Betamax decision and minimize the bill's repercussions by focusing the language squarely on peer-to-peer technologies.

While supporters of the bill have characterized the negotiations and language-tweaking over the last several months as free and open, opponents say the process has done little to address their concerns.

"We said, 'If you're going after the peer-to-peer networks, then you define it that way,' " said Gary Shapiro, president of the Consumer Electronics Association. "So we gave them a piece of legislation and it was totally ignored."

"We're intensely paranoid about this," he added.

Other opponents point out that peer-to-peer technology is not something that can be successfully constrained by new laws. A company can be prevented from making commercial gains with a product that uses peer-to-peer networking, but how would a law stop the tinkerers and programmers who know how to create peer-to-peer software and willingly share their innovations on the Internet?

"You might as well ask yourself, 'Why couldn't the World Wide Web ever just go away?' " said Adam Toll, a co-founder of BigChampagne, a company that tracks peer- to-peer usage. "It would take a totalitarian concentration of resources to make such a thing happen, and you'd have to take away the thinking that resides in millions of brains around the world."

Eric Garland, the chief executive of BigChampagne, predicts this battle will be a blip in the evolution of the music and film industries. "This is really not so different from what happened with radio over 70 years ago," he said.

The current legislative and legal battles, Mr. Garland said, are merely the desperate attempts by the content industries to hold on to an old business model that affords them a remarkable amount of control over how and when their products are consumed. Once they accept the new paradigm, "these types of technologies are eventually going to make people in the creative chain a lot of money," Mr. Garland said.

Perhaps so, but Mr. Bainwol of the recording industry suggests that the illegal file sharers need to be dealt with first. "There's no way to have a vibrant peer-to-peer market place so long as you have a rampant illegal market place," he said.
http://www.nytimes.com/2004/09/30/te...gy/30peer.html


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It’s important to copy

Grants Will Preserve Paperless Bits of History
Katie Hafner

THE Library of Congress is giving $15 million to eight institutions to preserve a range of electronic material, including Web sites relating to the 2003 California gubernatorial recall election, digital maps, sound recordings and decades' worth of social science data.

The grants, to be announced today, are part of a $100 million multiyear program, established by Congress and administered by the library, aimed at archiving resources that are increasingly born digital - that is, as a Web site or an electronic database.

"This is material that is of critical importance to our cultural heritage or public policy," said Laura Campbell, associate librarian for strategic initiatives at the Library of Congress.

Ms. Campbell said the material to be preserved includes not just Web sites but also digitally rendered cartographic data and census material. Public opinion polling data that currently exists only on punch cards will be digitally preserved.

The eight recipients will match the awards with cash, hardware, software or consulting services. The University of Michigan, for example, will work with partners to preserve social science data, including opinion surveys on politics, aging, health care, race relations, women's rights and employment.

Myron P. Gutmann, a history professor at the University of Michigan and director of the Inter-University Consortium for Political and Social Research at the university's Institute for Social Research, said much of this data has not been properly archived. It resides on the computers of individual researchers and research institutions, on Web sites, and even in storage boxes filled with punch cards.

"Without aggressive activities to locate and preserve it, it will disappear for good," Dr. Gutmann said. "Our goal is to assure that the material remains accessible, complete, uncorrupted and usable over time."

For the punch card data, that will mean converting it to an electronic form first.

"We'll be buying a punch card reader," said Amy Pienta, acquisitions director of the consortium.

Emory University in Atlanta, with several partners, will preserve digitized documents and other information relating to the Civil War, the civil rights movement and slavery.

North Carolina State University in Raleigh will collect and preserve digital cartographic material, such as tax assessment and zoning maps, from counties across the nation.

"These are things that we used to have in tangible form, on paper," Ms. Campbell said of the maps. "Now they are generated digitally and we don't have the analog equivalent."

Steve Morris, head of digital library initiatives at North Carolina State, likened the digital map project to the Sanborn Fire Insurance maps, a collection dating to the mid- 19th century and depicting the commercial, industrial and residential sections of some 12,000 cities and towns in the United States, Canada and Mexico.

"We're looking at these as being a current analogue to those," Mr. Morris said. "Someone wanting to do research down the road would want to get to this data to see where things were."

The problem of preserving digital collections is complex. Merely archiving digital material isn't enough; the Library of Congress and its partners are wrestling with the problem of finding an effective means of preserving it.

Digital archives can be more vulnerable than their acid-free-paper counterparts, because computer hardware and software quickly become obsolete, and the durability of magnetic storage media like tapes and disks is limited.

Web-based documents that are filled with links pose yet another preservation problem because keeping a Web site vital means keeping its links accessible.

The University of California, for instance, will preserve Web sites connected to the 2003 gubernatorial election in which Arnold Schwarzenegger was elected.

The University of Illinois at Urbana-Champaign will lead an effort to preserve digitized sound recordings, many of which reside at the National Gallery of the Spoken Word, an online database of spoken word collections that span the 20th century. The collection includes some of Orson Welles's performances, early recordings of John Philip Sousa and Raymond Massey's reading of Lincoln's Gettysburg address.
http://www.nytimes.com/2004/09/30/te...ts/30arch.html


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Desktop Linux A Vehicle For Pirating Windows
Michael Kanellos

PCs running Linux are growing in popularity in part because they can be loaded with a pirated copy of Windows, according to a study from analyst Gartner.

The consulting firm issued a report on Wednesday stating that about 40 percent of Linux PCs will be modified to run an illegal copy of Windows, a bait-and-switch maneuver that lowers the cost of obtaining a Windows PC.

In emerging markets, where desktop Linux enjoys wider popularity, the trend is even starker. Around 80 percent of the time, Linux will be removed for a pirated copy of Windows. Pirated copies sell for around $1 in the streets of Shanghai and other cities in Asia and Eastern Europe, but can also be bought in stores selling brand name PCs.

As a result, the number of desktop Linux PCs that ship will exceed the actual percentage of Linux machines that get installed in the real world. Desktop Linux will account for about 5 percent of desktops shipped in 2004, according to Gartner, with 10.5 percent of the desktops in Asia shipping with Linux this year. However, the installed base of Linux will come to only 1.3 percent.

In 2008, Linux will account for 7.5 percent of PCs shipped, but only 2.6 percent of the installed base, about the same that Apple's installed base will be then.

A comparable lack of drivers, training costs and migration headaches will also retard desktop Linux growth.

"Linux on the desktop may be generating a lot of publicity, but there are very few large-scale dedicated Linux deployments," the firm stated. "Governments in several European countries have announced plans to migrate to Linux, but most of these projects are in the evaluation phase."

Price, of course, is a huge motivator in piracy. All of the components inside PCs have dropped in price in the past several years, except Windows. Windows accounted for around 5 percent to 6 percent of the cost of building a "professional"-level PC in 1996. Now, the operating system accounts for 12 percent to 15 percent of the cost.

Still, the growing acceptance of Linux has prompted Microsoft to hatch plans for releasing an inexpensive version of Windows, called Windows XP Starter Edition in Thailand, Malaysia, Indonesia, Russia and India.

"It is likely that Microsoft would prefer the initial OS on a new PC to be a Windows variant rather than Linux, even if piracy were to continue," the report stated. "This would reduce the amount of interest that Linux is generating because of its increasing presence on new PCs."

Gartner is a tough audience these days. In August, Gartner wrote a report criticizing Windows XP Starter Edition, claiming that it lacked some features and would "likely increase software piracy."
http://news.com.com/Desktop+Linux+a+...3-5388863.html


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Download, Peel and Stick, and All the World's a Gallery
Samantha Storey

TWO years ago, a sticker depicting Che Guevara as a "Star Wars"-style storm trooper began cropping up around Los Angeles, pasted to the backs of mailboxes and street signs. Inspired partly by the popular duotone Che portrait marketed on T-shirts and posters, the image seemed an amalgam of two of the most iconic images of the last half-century.

The sticker's creators, Derek Fridman and Heather Alexander, who run the site www.urbanmedium.com, initially intended the character, called Chetrooper, as "a commentary about how trendy/pop the whole Che concept was," Mr. Fridman said by e-mail. "So many people were wearing his image on a T-shirt without really knowing who he was and what he did." They posted it on the Web for downloading and passed the stickers out at clubs.

Using military colors, they went on to create a multi-hued Chetrooper series styled after Andy Warhol's silk-screen "Marilyn" paintings. Soon they were receiving e-mail messages from people in Japan and Australia who had spotted Chetrooper on telephone poles in Kyoto or Melbourne. A phenomenon was born. "Once we started pasting and sticking the image," Mr. Fridman said, "it took on a life of its own."

Inspired by graffiti, posters and the communal culture of the Web, stickers are gaining wide attention as an artistic phenomenon, academics and practitioners say. Hand- drawn, stenciled or screen-printed, the images float on the Internet, available for downloading, printing and pasting in ways that the creators could only have imagined. And as they make their way around the globe, from one e-mail in-box to the next, one cultural context to another, their meaning tends to morph.

Now that broadband users can send large graphics files in an instant, stickers are a very fast-moving medium. A sticker can be created Monday morning in New York, e- mailed to a stranger in Paris and affixed to the back of a trash receptacle on the Champs-Élysées in the early afternoon.

"It works particularly well in walking cities," said Alice Twemlow, who organizes shows about visual culture as program director at the American Institute of Graphic Arts. "Walking brings intimate encounters with the stickers that could not be experienced while driving. There is also an immediacy with which people can respond."

Scott Rettberg, a scholar in new media, attributes the resurgence of stickers to low-cost inkjet printers and "the ubiquity of the global network." "Cheap printers give artists the ability to mass-produce work intended for public consumption," he said, "and stickers are easier to place than traditional graffiti."

Many sticker artists cite the mainstreaming of skateboard culture as a turning point in their movement. "Kids want to have cool high-quality stickers, especially more subversive ones from underground artists," said Zarathustra James, who runs the sticker site www.bomit.com. "They'll actually fistfight for free stickers at skate demos."

Initially skateboarders used them to decorate the bottoms of their skate decks, but eventually they made their way onto more visible urban signposts. "If there is a graffiti tag or sticker or stencil on that electrical box/pole/sign, it looks more aesthetically pleasing than the plain box," Mr. James said by e-mail. "And it makes you think."

Because the stickers are exposed to the elements as well as to sanitation crews, Web sites have sprung up with the goal of simply documenting a transient art form. In 2002, Marc and Sara Schiller of Manhattan founded www.woostercollective.com, a site dedicated to street art.

"There was a real great need for artists who are putting art on the street to connect with each other," Ms. Schiller said. "The site offers everyone the ability to cross continents, ages, generations."

Many sticker artists trace the origins of the current movement to Shepard Fairey, who created a sticker of Andre the Giant, the professional wrestling star, in the early 1990's and posted it at the Web site www.obeygiant.com. Soon he was shipping the stickers to people all over the world. What began as a prank to market something that had no meaning led many people to rethink the potential of such images.

Colby Woodland, who exhibits street art at www.20mg.com, describes stickering as a form of "visual narcotics." But whereas "the media's bombardment of images is intended to make you feel and act a certain way," he said, "stickering can confront the viewer in situations when they least expect it." Most of his stickers are subversive in that they seek to create an awareness of the dulling effect that the conventional mass media have on the senses.

Paul Burgess of Brighton, England, who photographs stickers on the street and posts them at www.streetstickers.co.uk, agreed that the art could be visually addictive. "You develop a kind of `sticker sense,' " he said, "and you spot more and more."
http://www.nytimes.com/2004/09/26/ar...pagewanted=all


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Does the Patent System Need an Overhaul?
Sabra Chartrand

SINCE 1793, the federal government has issued patents to inventors, giving them exclusive ownership of an idea as well as the right to prevent others from using it. Now some experts argue that achieving those rights stifles innovation.

Two professors conclude in a new book that a couple of unrelated and seemingly innocuous administrative reforms of the patent system have caused a shift away from encouraging innovation in favor of exploiting patents largely for lawsuits.

Josh Lerner and Adam B. Jaffe have written a book with a title: "Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It," to be published in November by Princeton University Press.

Mr. Lerner, a professor of investment banking at the Harvard Business School, and Mr. Jaffe, a professor of economics at Brandeis University, trace this breakdown to the early 1980's, when a single federal appeals court was established to hear patent lawsuits, replacing 12 regional courts of appeal.

Then in the early 1990's, Congress changed the patent office's financing, so the agency could pay for itself with user fees.

From his home outside Boston, Mr. Lerner last week described the patent system, 20 years after the reforms, as mired in "the land of unintended consequences."

"Again and again in the patent system, we see people set out to do reforms with one thing in mind, but that have quite an unintended effect," he said. "The easier it became to get patents, the more people wanted to apply for them, and that led to a situation where examiners grappled with more patents to review, which led to them being pressed to do quicker reviews and a degradation in quality of patents issued."

The patent agency has often struggled to keep up with the times. In recent years, the agency has confronted entirely new areas like biotechnology, software-related inventions, financial and business methods, Internet-based inventions and other information-technology innovations.

Some of the changes designed to deal with these occurred amid extensive public debate. Others got little attention because they seemed like innocuous administrative reforms - like the ones that made patents easier to get, Mr. Lerner said.

But many of those patents caused a secondary reaction, he added.

"The ability to litigate and expect to get substantial award from litigation increased," Mr. Lerner said. "So as a result we've got somewhat of a vicious cycle. Once you get one firm in an industry beginning a strategy of aggressive patent enforcement, it creates an almost inevitable response - an almost arms-race dynamic - where everyone else in the industry says, 'We better be doing the same thing.' "

He suggested that these changes for the worse occurred because "there's a relatively small group of people in the D.C. patent bar, and they have a very powerful influence on how patent policy gets decided. There is a powerful incentive for them to keep a patent system that is complicated, and one that involves protracted, costly litigation."

Also, Mr. Lerner said, businesses often fail to understand the importance of subtle changes in patent law.

"It is perhaps because of the complexity of patent issues, and because there is no long tradition of work by economists in this area, because a lot of corporations see it as second order relative to tax policy changes, for example, which directly affect their bottom line," he explained. "Patent policy has an indirect affect."

The book lays out a strategy. "Our idea is that three things will potentially make a big difference," Mr. Lerner said. "First of all, this idea which may well have made sense in 19th century of a patent examiner being able to sit and in few hours figure out what a relevant technology is, and then go out and make a decision as to whether a patent should be granted or not, that really doesn't make sense in an era like today.

"Second, to see the patent review process as 'one size fits all' is again a mistake. There has to be way to figure out how to devote more resources to those patent applications which are really the important ones, and less to the unimportant ones."

The two professors say one solution is to get more information into the hands of patent examiners.

"Our recommendation is that we create very real incentives to third parties to contribute information to the patent-examining process," Mr. Lerner said. "There should be one level of review before and after the patent is issued, but within the patent office."

The authors' third remedy is to reverse the trend toward jury trials for patent lawsuits.

"Over the last 30 to 40 years, there has been real replacing of judges by juries," Mr. Lerner said. "Patent disputes by and large tend to be highly technical disputes, and in many cases a lay person without much training in the area is hardly an expert."

The Federal Circuit Court has already divided patent cases into two areas: the interpretation of claims and questions of validity. Judges handle the former, while juries can settle the latter.

"Our argument is that there is no difference between the two, so no clear reason why both questions couldn't be decided by judges," Mr. Lerner said.

But even with these remedies, he said "dramatic change is unlikely until corporations start understanding how some features of the patent system today really affect them."

"And not just understanding from an assistant general counsel in charge of intellectual property, but until it really gets to be an issue at the C.E.O. level," Mr. Lerner added.

"Last year, the Federal Trade Commission came out with a report that raised many of these same issues, but as good as the F.T.C. report was, I can't imagine that a lot of C.E.O.'s are going to be plodding through all the footnotes."
http://www.nytimes.com/2004/09/27/te...pagewanted=all


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The Moog Synthesizer Makes a Comeback
David Bernstein


Robert Moog with a modern version of his synthesizer. Chris Keane for The New York Times

Robert Moog, the eccentric electronic pioneer whose name is practically synonymous with the synthesizer - and hence with rock music's psychedelic era - is back in vogue.

In this decidedly digital age, more and more contemporary musicians and rockers are rediscovering the space-age, analog sounds of the Moog synthesizer.

Techno enthusiasts, who generally like to experiment with sounds and manufacture original noises, have reignited interest in the Moog (rhymes with rogue), which can synthesize any sound imaginable. A growing number of hip-hop musicians and producers have also fueled the phenomenon, trying to recapture the rich grooves of Stevie Wonder, Parliament-Funkadelic and other soul and funk masters. Some of today's critically lauded rock bands, like Wilco, are also part of this Moog revival.

"The instrument crosses all kinds of music," said Money Mark, a turntablist who tours with the Beastie Boys. "There's no color boundary or genre boundary with the Moog."

So it is timely that a new documentary, "Moog," opened Friday in New York (at the Cinema Village, 22 East 12th Street, Greenwich Village) and Seattle. A wider release for the documentary, which is distributed by Plexifilm, is scheduled for later this fall, and a soundtrack featuring new songs by Stereolab and They Might Be Giants, among other artists, was issued Sept. 14 by Hollywood Records.

Hans Fjellestad, 36, the film's director, said Mr. Moog helped start a musical revolution. "I'd put him right up there with Les Paul and Leo Fender, definitely," Mr. Fjellestad said, referring to the founding fathers of the electric guitar. "He embodies that sort of visionary, maverick spirit and that inventor mythology."

Mr. Fjellestad, whose first feature-length documentary, "Frontier Life" (2002), explored the cultural identity and electronic dance scene of Tijuana, Mexico, said his new documentary tracks more than the life and work of Mr. Moog.

"It's not really a biography," he said. "I was more interested in focusing on Bob's ideas about creativity, about the interactivity of man and machine, and about his spiritual beliefs, which may or may not be related to music specifically."

Mr. Moog started building electronic instruments at the age of 14. In 1954, Mr. Moog, then 19, and his father, George, formed their own company, R. A. Moog, and sold mail-order kits for theremins, the earliest kind of electronic instruments, out of their bungalow in Flushing, Queens.

"I didn't know what the hell I was doing," Mr. Moog recalled in an interview. "I was doing this thing to have a good time, then all of a sudden someone's saying to me, 'I'll take one of those and two of that.' That's how I got into business."

Mr. Moog introduced his synthesizer in 1964. Though it quickly caught on with experimental and avant-garde musicians and makers of science-fiction movies, it was not until the psychedelic rock movement in the late 1960's that mainstream musicians embraced it. Then, Mr. Moog was building instruments for some of the biggest musical acts of the day, including the Doors, the Grateful Dead, the Rolling Stones and the Beatles.

Artists and experts said that he understood better than other electronics pioneers that musicians make emotional connections with their instruments, and that Mr. Moog sought out the players' feedback and responded to their needs.

"Arguably, before the Moog synthesizer, you'd have to go back to the invention of the saxophone by Adolphe Sax in the 1840's for an instrument of similar impact," said Trevor Pinch, co-author of "Analog Days: The Invention and Impact of the Moog Synthesizer."

"In the psychedelic era, the Moog was just what these musicians were looking for," Mr. Pinch said. "They were searching for new forms of sounds, weird effects. They all had big advances from record companies. They were all stoned. They all said, 'We've got to have one of these.' "

But it was a classical music recording that brought Mr. Moog's synthesizer to the masses. Wendy Carlos's 1968 album "Switched-On Bach," a collection of synthesized interpretations of Bach classics, was the synthesizer's first commercial success, selling more than 1 million copies and spawning a flood of copycat albums.

If Ms. Carlos helped introduce the sounds of circuitry to listeners' record players, Keith Emerson, the former keyboardist for the progressive rock band Emerson, Lake and Palmer, showed musicians and music fans that the synthesizer was more than an odd studio instrument; it could be an exciting performance instrument.

Mr. Emerson's towering, 10-foot-tall, 550-pound "Monster Moog," as he called it, was an indispensable part of the group's concerts, even though it was often unreliable and difficult to play. He said he had to tune it repeatedly as he played and sometimes had to cover it with tinfoil because it picked up police radio traffic during performances.

By the early 1970's, interest in exploring electronic sound waned among mainstream musicians. What's more, a second generation of more user-friendly synthesizers offered by ARP Instruments and Electronic Music Studios came to dominate the market, replacing the classic Moog.

"Suddenly we went from a nine-month or a year backlog to having no backlog and no orders," Mr. Moog said. "I ran out of money at the beginning of 1971."

Mr. Moog sold a controlling interest in his struggling company and, more important, rights to the Moog Music name to a venture capitalist, who sold it a few years later to the now-defunct Norlin Music. In 1978, he moved to Asheville, N.C., and started a new company, Big Briar, building custom instruments and sound-effect boxes. After a lengthy legal battle, Mr. Moog reclaimed the rights to the Moog brand last year and began selling instruments bearing his name for the first time in more than two decades.

Mr. Moog, who turned 70 this year, is still inventing. The company, renamed Moog Music, offers a variety of new products: an anniversary-edition Minimoog Voyager; various types of analog sound-effect boxes, called Moogerfoogers, used with guitars, basses or keyboards; and the Piano Bar, a device that turns ordinary acoustic pianos into electronic keyboards. And he continues to build theremins, his "first love."

Sales are strong, Mr. Moog said, adding that revenues have grown to $3 million from $1 million in the last two years. Pieces of his new and vintage equipment are fetching large sums on eBay.

Mr. Moog has even gone digital, sort of. Last year, Moog Music and Arturia, a French company that specializes in digital sound software, released software that emulates the analog sounds of Mr. Moog's synthesizers on computers.

Meanwhile, Mr. Emerson, the musician, says his son Aaron, 34, now plays a vintage synthesizer. "The wheel has turned full circle," Mr. Emerson said.
http://www.nytimes.com/2004/09/29/ar...ic/29moog.html


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The Technologist Who Has Michael Powell's Ear
Declan McCullagh

The Federal Communications Commission is, for better or worse, at the heart of some of the most important technology disputes of our era.

How strictly the FCC decides to regulate emerging technology promises to have a lasting impact on areas as disparate as voice over Internet Protocol (VoIP), fiber to the home, instant messaging and even digital video recorders.

Robert Pepper is the FCC's chief of policy development, which requires him to be a kind of government futurist, advising Chairman Michael Powell on which regulations are wise and which would be harmful. He's also co-chairman of the FCC's Internet Policy Working Group. Previously, Pepper directed the Annenberg Washington Program in Communications Policy Studies.

CNET News.com spoke with Pepper about topics, including VoIP, broadband over power lines, wiretapping Internet phone calls and what would happen if John Kerry is elected.

Q. Tell me what you do for at the FCC.
A. I'm chief of policy development for the commission, which is analogous to the chief economist. But what I do is focus on issues that are essentially the next set of issues. It's a broad policy perspective looking at the intersection of technology and policy (and) new technologies.

Does that make you a kind of chief futurist for the FCC?
I don't know if I'm the chief futurist, but I try to meld technology and policy and the financial markets, and look a little bit around the corner (at) what's next. I spend a pretty good amount of my time trying to understand what the financial community thinks we're up to, because we want to understand the financial community's perceptions. Right or wrong, their perceptions determine when they open a checkbook and invest.

Last month, the FCC ruled on wiretapping requirements for Internet telephone calls, indicating that VoIP services that did not touch the public switched telephone network would be immune from the Communications Assistance for Law Enforcement Act (CALEA). Is that your interpretation, too?
That is my interpretation; I agree. We had received a petition from the Department of Justice and the FBI that we now put up for comment, and we have a proceeding looking at the CALEA issues more broadly. What we said was, "Until we complete that proceeding, the voice over IP services that do not touch the (public phone network)--other people refer to them as the peer-to-peer services; Free World Dialup and so on--are not subject to CALEA. That might change in some respect, but we have not made a determination.

Didn't the commissioners make statements indicating that their mind has been made up?
It is complicated, because all the commissioners and I think most people agree that in today's world, there is a legitimate role for law enforcement to catch the bad guys...What is complicated when you move into the voice over IP world is that the ability to achieve that goal is more difficult and complicated as a technical matter. And therefore, the question is how you implement the goal without overwhelming the system, or how you do it in a way that is not counterproductive--and that is hard, technically.

You didn't give the Justice Department and the FBI everything that they had proposed. They had wanted at least CALEA to cover peer-to-peer VoIP networks. What made the FCC stop where it did?
We didn't think that actually applied under the statutory definition.

Can you see this opinion changing? Or would it take an act of Congress to alter CALEA for it to extend to peer-to-peer networks?
I am very reluctant to speak for my five bosses, the commissioners. (But given the way the law is written), I think it would be difficult to conclude that peer-to-peer VoIP services are subject to CALEA. If they are, then you would also, I believe, be bringing in things like Xbox Live and Yahoo's instant messaging with voice. There are lots of peer-to-peer communications like services, IM and games that in fact today are not subject to CALEA. Personally, I don't think it makes sense to apply CALEA.

I don't want to prejudge what the commissioners will conclude, but I think that the burden is on those who want to make all of those peer-to-peer services or peer-to-peer activities come under CALEA. By the way, just because these things are not subject to CALEA, it doesn't mean that law enforcement is not capable of getting access under court order to information that they need.

Police have been able to conduct Internet wiretaps for at least a decade. So if the FBI wants to eavesdrop on someone, why don't they just serve a wiretap order on that person's Internet provider instead of lobbying for CALEA regulations?
Where they do it depends upon the particulars of the service and configuration and architecture. But the intent of CALEA, back when Congress passed it, was to essentially enlist the traditional carriers to make it technically easier to get the information that law enforcement needs when it has the court order to do so.

Back in those days, there was far less of the kind of electronic communications than we have today. Going to an ISP and getting an e-mail record is very different than being able to listen in on a conversation where (at) the end of the conversation, there is no record...In the early days, yes, it could be done, but it was difficult. Today, it's even more difficult.

Isn't that why the FBI developed Carnivore? Could it be upgraded to handle VoIP protocols in addition to ones it can already understand, like HTTP, FTP, SMTP and so on?
That could be one of the ways in which you can achieve the goal. But this is one of the issues that people have raised--clearly, the law enforcement community believes that it is not sufficient to be able to do what they need to do for very legitimate law enforcement purposes.

Let's talk about the broadcast flag for a moment, and the FCC's recent ruling saying TiVo could offer its forthcoming service. Do you foresee a world where the FCC becomes the arbiter of what technologies may or may not exist?
Only as it applies to the broadcast world.

We approved about a dozen different technologies, and that's part of our obligation under the statute. The important thing about the TiVo decision is that we (took a very pragmatic approach). We do not want, nor does the TiVo approach permit, indiscriminate distribution of copyrighted material. It defines the limitation in a nongeographic way, which we believe is both consumer-friendly and protective of fundamental intellectual-property rights.

I recall that in the FCC's broadcast flag ruling last fall, the commission didn't answer whether software-defined radio should be covered. Should it?
If you fundamentally believe in copyright protection, and I do, then whether the device is bent iron and wires or hardware combined with software really doesn't make any difference. So, in the future, as more devices incorporate software, you are going to see that as part of the consideration. TiVo and a lot of these other devices that we approved already incorporate a lot of software as part of the device.

Might the FCC ever be in the position of saying a software program that is mirrored on thousands of sites around the world is no longer legal to distribute in the United States because it might violate our broadcast flag rules?
I haven't thought about that, but I think it's hypothetical. I don't see us getting into that. But at the moment, that's not the case.

Let's talk about VoIP again for a moment. There's a lot of action in Congress--what do you think is going to happen?
I leave that to congressional watchers. I think that the important point is that voice over Internet Protocol is a fundamental change in the architecture, the service and the costs underlying traditional telephony. As a result, you have to question whether or not the traditional regulation and regulatory structure applies. So voice over IP really puts a nail in the notion that we have a distance-sensitive network. What does that mean for things like federal jurisdiction or state jurisdiction, interstate versus intrastate? What does that mean (for) the whole superstructure of taxes, fees, subsidies that are built around the old legacy network?

Do the same universal service assumptions make sense today for VoIP?
In a world where your local calling area is the United States, I don't think so. I think that we have to find new mechanisms to support the goal. The goal does not change. We want affordable phone service for everybody.

What might these new mechanisms be?
There are several that already have been proposed here at the FCC...Of the two proposals that are on the table, No. 1 is to base a contribution or a fee based on your connection. So, if you have a dial-up connection, you will pay one fee. If you have a higher-capacity connection such as a T1 or DS3 or whatever, you pay a higher fee. It's not based upon whether it's local or long-distance. It's based upon the size of the pipe.

A second proposal is based upon phone numbers. If you have a phone number, you pay a fee, and the concept there is technology-neutral. So if you are a traditional phone company or you get service from a traditional phone company, you have a phone number, you pay. If you have a voice over IP service from your cable company, you pay. If you have a wireless service, but you have a phone number, you pay.

Is broadband over power lines going to hit regulatory walls from state and local officials?
I don't know, but I have seen a number of the broadband over power line experiments, and the technology appears to work. There are obviously people who are concerned about interference. What people have to understand is that there is already radio interference that comes from existing power lines. The broadband over power line technologies that I have seen actually limit the unwanted emissions from the power line. If there is interference of particular channels, they can be filtered out. Our Office of Engineering and Technology is working to make sure that broadband over power line does not create unacceptable radio interference issues.

I've talked to some state regulators who are very bullish on this, because they see it as a way to reduce the cost of operation, begin to cap cost increases and begin to manage the need for new electric generation plans to meet spikes in demand. When we were in California in July, we took a look at the trial that AT&T and PG&E are running. Some of the PG&E people were talking about possibly doing real-time pricing down to neighborhoods if they have broadband over power line...If your dishwasher had an IP address and you could set it so that when the price of electricity drops--if they have a sale--it drops by 60 percent or 80 percent. That's when you run your dishwasher. Maybe that happens at 3:30 in the morning.

Is there anything that the FCC needs to do to help local wireless neighborhood or regional wireless Internet service providers along?
Wireless ISPs--WISPs--are some of the most exciting companies and developments that I've seen in a long time. You have a lot of little companies--we estimate somewhere between 2,000 and 2,500. They are providing broadband service in urban and also rural areas without subsidy. They are being deployed very rapidly at a low cost. They break even with relatively low penetration rates. They can operate on mountaintops. They can operate in inner cities and neighborhoods. This is very exciting.

What, if anything, can we do to help? We have had several workshops, forums, roundtables. We have a wireless broadband task force that's looking precisely at that question. They are working on a report that I expect is going to be released sometime this fall. A couple of things, however, we already know. First, we do need more spectrum available-- both licensed and unlicensed--for these operators. Second, we already have a proceeding asking the question of whether there is something that we can do, in terms of our power limitations and interference rules in rural areas, that will enable these operators to go longer distances in order to reach even lower-density areas.

Should cable companies offering voice communications be subject to the same rules as traditional telephone companies?
In some ways, they are today. What Cox Communications, Time Warner Cable and CableVision are doing is certifying that when they provide telephone service, they are doing so as competitive local carriers. The question is: If we have a world where you know everybody is migrating to an IP-based voice service and there is a lot more competition, what rules, if any, should apply?

The wireless industry provides a very nice model for a light-touch regulatory regime. They are still subject to certain things: CALEA, disabilities access, Universal Service contribution and 911--the social policies. But they are not subject to the traditional economic regulation, and they are not subject to state certification, and that has worked really well.

Let's say that John Kerry is elected, and the FCC shifts to a Democratic majority with a Democratic chairman. How might that affect the commission's position on technology-related topics?
Well, that's just speculation that I don't really want to (explore). What I will say is that I have been serving essentially as policy adviser to the chairman since the end of 1989, for five chairmen in three administrations. All of the chairmen that I have worked for understand that technology is fundamentally changing the legacy world and that the old rules are no longer sustainable.

Out of the modern chairmen, Michael Powell is the most technologically sophisticated. He absolutely understands the power of technology. He is invested in technology at the FCC--we hired new engineers, we revitalized the technology side of the FCC.

If new technologies might make some of the FCC's regulatory responsibilities less vital, are there good arguments for either radically visiting the idea of the FCC or even abolishing it eventually? You're a smart guy who will always be able to find a job.

Civil servants should not be worried about jobs. We should be worried about what the right thing to do is. In an ideal world, we are going to have a very competitive market and communication services that are going to be over wires, wireless and all kinds of new technologies. If we can reach that point, then I think the need for a traditional regulatory agency is very different than what we have had in the past. So we have to ask not what the role of the FCC is, but rather what an appropriate role for government is, right?

Right.
I think that there will still need to be technical capability or spectrum management, in terms of understanding and identifying the technologies and the bands, and making sure that the rules are compatible with the new technologies. But we shouldn't be in the old command-and-control (style of) spectrum management.
http://news.com.com/The+technologist...3-5388746.html


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Public 'Left Out' As Governments Plot Internet Regulation
Graeme Wearden

Individual Internet users are being frozen out of a key debate on the future governance of the Internet, Web visionary Esther Dyson warned on Friday.

Dyson -- a founder chairman of the Internet Corporation for Assigned Names and Numbers (ICANN) -- told a debate in London that the United Nations is taking the wrong approach to Internet regulation.

"I feel the process is going off the rails," Dyson told the audience at the debate organised by the Oxford Internet Institute and the Internet Society UK.

The UN recently announced that its members had agreed that the Internet was a global 'facility' whose management should be 'multilateral, transparent and democratic'. To this end, the UN has set up the Working Group on Internet Governance (WGIG) to spend 12 months consulting and reporting on the way ahead.

According to Dyson, WGIG is not the right way to address the problems facing the Internet.

"When you concentrate power, whether it's the low-rent, measly power ICANN had, or full-blown global governmental power, that focus of power attracts the wrong people," Dyson said.

"People who are self-appointed to represent other people are there, governments are there, the private sector is there, but the world at large isn't."

Marcus Kummer, who chaired the negotiating group that agreed the UN's text and is now leading the WGIG, defended the UN's work.

"There is room for cooperation, there is room for the exchange of views, and there is a role for the UN," he responded.

But Adam Peake, representing the Centre for Global Communications, a research institute based in Japan, agreed that there is a risk that some members of the global Internet community could be disenfranchised from the WGIG process.

"Not everyone can go to Magnus' meetings in Geneva," Peake pointed out.

"Everyone must be able to participate, if not in person than remotely or through submitted comments, and that should be in their local language," said Peake, pointing out that languages such as Japanese and German were not 'official' UN languages.

Dyson also argued that it was a mistake to seriously consider centralising the global regulation of the Internet.

"The question of how we stop spam is much different from the question of how we allocate domain names," she said. "We need to address these problems separately."

WGIG is planning to produce a report on Internet governance by next July. This process should involve consultation worldwide. Kummer suggested that this would be a mammoth job, when he said that WGIG was "definitely a travelling roadshow, if not a flying circus".
http://news.zdnet.co.uk/business/leg...9167851,00.htm


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Development Needs 'Override Intellectual Property Protection'
Frances Williams

Five hundred scientists, academics, legal experts and consumer advocates, including two Nobel laureates, called yesterday for a change of course at the World Intellectual Property Organisation to put development concerns ahead of stronger intellectual property rights.

The signatories of the so-called Geneva declaration on the future of Wipo include Sir John Sulston, winner of the 2002 Nobel Prize for medicine, and Burton Richter, the 1976 physics laureate. The declaration also has the support of development groups such as Oxfam and ActionAid.

"A 'one size fits all' approach that embraces the highest levels of intellectual property protection for everyone leads to unjust and burdensome outcomes for countries that are struggling to meet the most basic needs of their citizens," it says.

The declaration was launched ahead of a debate today at Wipo's annual assembly on a proposal by Brazil and Argentina for a Wipo "development agenda".

Their proposal includes the negotiation of a Wipo treaty to promote developing-country access to knowledge and technology, and work on how collaborative information- sharing mechanisms - exemplified by the worldwide web and the human genome project - can stimulate innovation.

Although the two members have support from developing countries in Latin America and Africa, the proposal is opposed by industrialised nations, which argue that Wipo is already responding to development needs.

Wipo was established in 1967 to promote intellectual property protection but in 1974, when it became a United Nations agency, the organisation's mission was expanded to include "appropriate action to promote creative intellectual activity" and the facilitation of technology transfer to poor countries.

However, supporters of a "development agenda" claim that, under pressure from industrialised nations, Wipo continues to give undue weight to strengthening intellectual property rights such as patents, trademarks and copyright, at the expense of the public interest and other means of fostering innovation and creativity.

Developing countries complain that excessive intellectual property protection denies them access to new technologies and research findings, while many scientists and researchers argue that stringent intellectual property rights threaten to become a drag on scientific and cultural advance. www.wipo.org
http://news.ft.com/cms/s/87d93e54-12...00e2511c8.html


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Oz

Family First Seeks Net Gag
Simon Hayes

CONSERVATIVE political newcomer Family First wants an annual levy of $7 to $10 on all internet users to fund a $45 million mandatory national internet filtering scheme aimed at blocking pornographic and offensive content at server level.

The party, which holds a state seat in South Australia, is considered a strong candidate for a Senate spot after concluding preference deals with all the major parties except the Greens.

The party locked in a deal with John Howard last week to direct preferences to the Coalition in most lower house seats.

Family First, closely linked with the Pentecostal Assemblies of God movement, backs a range of conservative policies, including joint custody for children of divorced parents and tax deductions for school fees.

The party wants the internet filtered at server level, warning that children exposed to online pornography could exhibit "disturbed, aggressive or sexualised behaviour".

The current system of optional filtering had a poor take-up rate, the party said.

"As a society, we have acknowledged the need to regulate other media and prevent porn peddlers from accessing children and adolescents," the Family First policy reads.

"Why is the internet industry allowed to avoid responsibilities on this?"

Family First admitted the cost of the filtering scheme could be prohibitive for small ISPs, but said the scheme should proceed regardless.

"This may have the result of putting cost pressures on some of the smaller ISPs, but there are arguably too many of these at the moment, and adequate competition could be maintained with 30 ISPs rather than the hundreds in existence now," it said.

"This cost is a small price to pay to protect children."

The policy cites a recent study by the Australia Institute that found many teenagers had been exposed to internet pornography, and questioned the effectiveness of the existing system of internet regulation.

It cited a Newspoll commissioned by the institute, in which 93 per cent of parents of teenagers would support automatic filtering as providing "a clear mandate to go ahead with (the) proposal to implement filtering at the ISP level".
http://aunettaxforfilters.notlong.com/


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Is Suing Your Customers a Good Idea?
Fred von Lohmann

Four thousand two hundred and eighty lawsuits and counting.

That's how many lawsuits have been brought by the major record labels against music fans for using peer-to-peer (P2P) file-sharing software (like Kazaa or Morpheus) to swap music over the Internet. This month marks the one-year anniversary of the recording industry's unprecedented litigation campaign against its own customers. The campaign appears to have hit its stride, with the Recording Industry Association of America announcing roughly 500 new suits each month.

Suing large numbers of "regular folks" is relatively unprecedented in the annals of intellectual property law. But we could be watching the makings of a new trend. DirecTV, for example, has in the last three years sent more than 170,000 demand letters to individuals who are allegedly "stealing" satellite TV. The letters deliver an ultimatum: pay $3,500 or face a lawsuit. So far, DirecTV has filed more than 24,000 suits against people who have called their bluff.

So it looks like the recording industry may be lifting a page from DirecTV's playbook. But have the lawsuits worked for the recording industry?

As a matter of win-loss percentages, the lawsuit campaign has been wildly successful. Record industry lawyers have found that the defendants tend not to defend the suits at all, opting instead to settle for amounts ranging between $3,000 and $11,000. Many other defendants default. After all, hiring counsel to defend costs more than settling, even setting aside the hassles of litigation and chances of losing. Reliable sources tell me that the recording industry is breaking even on the litigation costs, as well, with settlements from each round of suits paying the costs of the next.

Of course, for the recording industry, the lawsuits are not simply about batting average and covering the lawyers' bills. The campaign, coordinated by the RIAA, was a last-resort maneuver by the industry to stem the tide of P2P file-sharing, which had reached mammoth proportions. In fact, some estimates put the number of American music swappers at 60 million -- that's 9 million more than voted for President Bush.

Unfortunately, the evidence thus far suggests that the RIAA litigation campaign has had little, if any, effect on P2P file-sharing. Companies like Big Champagne and BayTSP that track the online P2P population have found that the number of U.S. file-sharers continues to grow. The global file-sharing population, moreover, is skyrocketing. A survey of Internet users undertaken by the Pew Internet and American Life Project did show a marked decline in file-sharing in the months following the highly- publicized first rounds of RIAA lawsuits, but Pew's follow-up reports have documented a rebound in the months since.

In the face of evidence suggesting that the lawsuits have been ineffective at curbing P2P music- swapping, the RIAA responded that "lawsuits are an important part of the larger strategy to educate file- sharers about the law." Well, the "education by lawsuit" of American music fans is also off to a rocky start. Awareness of copyright law is certainly up. For example, an April 2004 survey revealed that 88 percent of children between 8 and 18 years of age understood that P2P music-downloading is illegal. Unfortunately, the survey also discovered that 56 percent of the children surveyed continue to download music anyway. So while many music fans are aware of the "stick" of lawsuits, they seem relatively unintimidated by it.

So what about the "carrot" of authorized music services like Apple's iTunes Music Store? In the words of the RIAA, the lawsuits are also intended to "encourage music fans to turn to these legitimate services." Well, the news there is not terribly encouraging, either. While the authorized music services are attracting a modest number of customers, it is also clear that they together account for a trivial percentage of the total number of digital music files being downloaded today. In fact, it is fair to say that all of the authorized music services together do not yet amount to a drop in the digital music- downloading bucket. Apple, the most successful of all the authorized music services, sold a total of 100 million downloads in its first 15 months of operation. This sounds impressive until it is held up against the 5 billion files that move across the Kazaa network every month.

So if the RIAA lawsuit campaign is not working, what can the music industry do about P2P?

More and more observers are coming to the same conclusion -- the music industry needs to give up its dreams of controlling distribution in favor of collecting fair compensation. In other words, we need a mechanism that collects a pot of money from file-sharers and divides it up among artists and copyright owners. Some (most notably Harvard Law School's Professor William Fisher) advocate a broad levy on Internet access and technologies, with proceeds payable to the copyright industries.

But there is a better way, one that keeps the government out of it. Known as "voluntary collective licensing," the concept is simple: the music industry forms one or more collecting society, which in turn offer file-sharing music fans the opportunity to "get legit" in exchange for a reasonable regular payment, say $5 per month. So long as they pay, the fans are free to keep doing what they are going to do anyway -- share the music they love using whatever software they like on whatever computer platform they prefer -- without fear of lawsuits. The money collected gets divided among rights-holders based on the popularity of their music.

In exchange, file-sharing music fans who pay (or have their ISP or other intermediary pay on their behalf) will be free to download whatever they like, using whatever software works best for them. The more people share, the more money goes to rights-holders. The more competition in file-sharing software, the more rapid the innovation and improvement. The more freedom to fans to share their favorite music, the deeper the global catalog of available music.

This has been successfully done before. Voluntarily creating collecting societies like ASCAP, BMI and SESAC was how songwriters brought broadcast radio in from the copyright cold in the first half of the 20th century. Some lawsuits would still be necessary, the same way that spot checks on the subway are necessary in cities that rely on an "honor system" for mass transit. But the lawsuits will no longer be aimed at singling out music fans for multi-thousand dollar punishments in order to "make an example" of them.

Perhaps most importantly, such a system would reinforce the rule of law -- by giving fans the chance to pay a small monthly fee for P2P file-sharing, it creates a way for them to "do the right thing" in a way that is painless enough that the majority should realistically be able to live up to the letter of the law.
http://www.law.com/jsp/article.jsp?id=1095434496352


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6th Circuit Clamps Down on 'Sampling'
Gary Young

A recent ruling that was meant to bring clarity to the copyright status of digital "sampling" already has some segments of the music industry warning of disaster.

In a case of first impression, a panel of the 6th U.S. Circuit Court of Appeals ruled on Sept. 7 that a musician who copies any part -- even as little as two seconds -- of an existing recording without permission of the person who owns the copyright to the recording is in violation of the law. Bridgeport Music Inc. v. Dimension Films, No. 02- 6521.

While earlier decisions have addressed the copyright implications of sampling, they dealt with copyrights to an underlying song (often held by a songwriter or music publisher), not copyrights to the embodiment of a song in a particular recording (often held by a performer or recording company), according to attorney Robert H. Kohn.

Kohn, the CEO of comedy recording company Laugh.com, is co-author with his father Al Kohn of the treatise "Kohn on Music Licensing," a work quoted at length by the 6th Circuit panel.

DEATH KNELL FOR HIP-HOP?

The panel said that its "bright-line rule" was dictated by federal statute and predicted that it would not "stifl[e] creativity in any significant way" and would reduce disputes over sampling.

Others see it differently.

"The decision will kill off the art form of hip-hop," asserted Lawrence E. Feldman of Jenkintown, Pa.'s Feldman & Associates, who represents hip-hop musician Jazzy Jeff and other recording artists.

"[T]he panel's 'solution' will cause difficulties far more substantial than any problem it is purportedly addressing," wrote the Recording Industry Association of America in a Sept. 21 amicus brief filed on its behalf by Paul M. Smith of the Washington office of Jenner & Block.

The brief, which asks the 6th Circuit to reconsider the issue en banc, warns of a torrent of lawsuits: "For more than a decade, the music industry has conformed its conduct to the existing rules-obtaining licenses for sampling when appropriate, and relying on de minimus and fair use principles if and where they apply. The panel's abrupt and dramatic change in the law ... creates retroactive liability for anyone who may have properly relied on the previously existing rules."

While the industry may have long assumed that minor or "de minimus" sampling was acceptable, it is debatable whether there were any "previously existing rules" to that effect. What is clear is that de minimus borrowing does not violate the copyright to an underlying song. But it has been an open question whether the same is true of sound recording copyrights, according to Kohn.

Kohn said that record companies have probably been reluctant to litigate the issue because they realize that their own artists make extensive use of sampling.

Kohn said there are good reasons for the 6th Circuit's interpretation, both in the text of the Copyright Act and in considerations of policy. The sound recording copyright is so weak that it would be a virtual nullity without control over de minimus sampling, he said. To illustrate its weakness, he noted that the holder of such a copyright can't prevent a copycat from making an identical-sounding recording as long as it is a re-creation and not a direct copy.

The RIAA, on the other hand, argued that another copyright expert supported its position. Its brief quoted David Nimmer, author of Nimmer on Copyright, as saying that the "practice of digitally sampling prior music to use in a new composition should not be subject to any special analysis."

Nimmer, of counsel at Los Angeles' Irell & Manella, declined to comment.

Richard S. Busch of Nashville, Tenn.'s King & Ballow dismissed the warnings of disaster, noting that "each of the major record companies have clearance departments" and that licensing has become common.

Busch represents plaintiff Westbound Records Inc., which claimed that defendant No Limit Films violated its sound recording copyright in the version of Get Off Your Ass and Jam recorded by George Clinton and the Funkadelics. A two-second guitar riff from that song was used on a No Limit Films soundtrack.

No Limit's attorney, Robert L. Sullivan of the Nashville office of Loeb & Loeb, filed a petition for rehearing on Sept. 20. He declined to comment.
http://www.law.com/jsp/article.jsp?id=1096473910640


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MP3 Creator Warns Tech Impasse Dooming Downloads

Rival technologies that baffle consumers will run more companies out of business in the nascent music download market than will head-to-head competition, one of the lead creators of MP3 playback technology warned Wednesday.

"It has slowed the download business for sure, and it's doing the same for the gadget makers," said Karlheinz Brandenburg, director of electronic media technologies at the Fraunhofer Institute in Ilemenau, Germany.

Consumers nowadays can store thousands of songs in a pocket-size device, play music and videos on their mobile phones, and buy albums at the click of a button.

But to their chagrin, a bewildering number of competing playback compression technologies and antipiracy software options determine which songs play on which devices.

Apple Computer, RealNetworks and Sony each have developed proprietary playback and DRM (digital rights management) antipiracy technologies. Songs bought on Apple's iTunes music store can play only on Apple iPods. Ditto for Sony.

The alphabet soup of technologies is meant to prevent fans from rampantly duplicating and transferring songs to others.

Brandenburg said he twice warned manufacturers and music labels that they risk alienating fans and driving them to unsanctioned file-sharing networks, where the songs are free and encoded in the unprotected MP3 format.

"They didn't listen. Maybe they thought it made commercial sense not to have a standard. It's very strange," he said.

Brandenburg was granted a lucrative patent in 1986 for developing the MP3. He and the Fraunhofer Institute collect royalties on the sale of MP3 players including the iPod.

"Blank MP3s is the only standard. It is supported by all," he said. "This has been good news for Fraunhofer. And, I consider myself a wealthy man as well."
http://news.com.com/MP3+creator+warn...3-5388724.html


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Senate Panel Delays Induce Act Vote Again
Roy Mark

For the third time in three weeks, the U.S. Senate Judiciary Committee decided to take no action on the controversial Induce Act aimed at illegal file swapping on peer-to-peer (define) networks.

Written by Judiciary Committee Chairman Orrin Hatch (R-Utah) and the committee's ranking Democrat, Patrick Leahy (D-Vt.), the Inducing Infringement of Copyrights Act of 2004 (S. 2560) would permit individuals or corporations to be held liable for infringing acts that "they intend to induce."

Critics of the legislation contend the Induce Act goes far beyond the intended P2P network targets to include consumer electronics manufacturers and Internet service providers (ISPs). Opponents claim the bill would allow content owners to sue makers of digital media players on the grounds that the players encourage copyright infringement. ISPs could possibly face litigation under the provisions of the bill for allowing P2P networks to operate on their systems.

The legislation has gone through four rewrites since Hatch introduced the bill in July and promised "to get something done" about the widespread copyright infringement on P2P networks. The bill was scheduled for a markup in Thursday's Judiciary Committee meeting.

"While I do not contemplate action on this bill at today's markup, negotiations will continue this afternoon to perfect language that will bring an end to the rampant abuse of copyrighted material, for example, by some file sharing programs," Hatch said. "At the same time, we must protect the rights of legitimate technology firms to develop faster and better products."

Hatch said he hoped to bring the bill up again at next week's judiciary markup, which will likely be the committee's last meeting before Congress adjourns for the national elections on Oct. 8.

"If I have to, I will lock up all of the key parties in a room until they come out with an acceptable bill that stops the bad actors and preserves technological innovation," Hatch said.

As currently drafted, the bill states, "Whoever intentionally induces [copyright violation], by manufacturing, offering to the public, providing, or otherwise trafficking in any product or service, any violation ... shall be liable as an infringer."

The legislation says the inducement must be "intentional" and defines that as "conscious and deliberate affirmative acts which a reasonable person would expect to result in widespread violations."

The Competitive Enterprise Institute recently argued in an article that, "While the bill requires an actual copyright violation for an 'inducer' to be held liable, one cannot prove a copyright violation without going to court. That opens wide the door to legal actions designed to chill technological and economic activities a court might construe as inducing a copyright violation."

Yahoo (Quote, Chart), Google (Quote, Chart), SBC (Quote, Chart) and Verizon (Quote, Chart), as well as a number of other organizations including the Consumer Electronics Association, TechNet and the U.S. Internet Industry Association, have also aligned themselves against the latest working draft of the bill.
http://www.internetnews.com/xSP/article.php/3415551


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Local news

Bands Will Play To Save Online File-Sharing
Kym Reinstadler

Music that rocks can shrivel and die if there is no way to share it.

That's why a Kris Sosa, a sophomore at West Ottawa High School, is organizing a concert to raise money for the nonprofit organization Downhill Battle that's fighting to keep peer-to-peer online file sharing legal.

Fifteen Michigan and Ohio bands are lined up to perform Oct. 9 in the "Fight the RIAA Benefit Concert" at a banquet center between Holland and Grand Haven.

The RIAA is the Record Industry Association of America.

Sosa, a guitarist with the recently disbanded pop-punk group Sweet Something Else, says that as a musician, he understands both sides of the file-sharing controversy.

"Producing our one CD was a ton of work," Sosa said. "I'd be mad if someone stole it and sold it to make money for themselves.

"But there's another side to file-sharing," he said. "It's about the only way that an independent band can get national exposure. This promotion is essential to groups that aren't signed by a major record label."

Sweet Something Else posted cuts from their CD on a Web site where up- and-coming bands can share files.

Sosa said the band developed the beginnings of a worldwide following among surfers of that site, selling their CD, stickers and T-shirts to fans on both U.S. coasts and in Europe.

Without peer-to-peer file sharing, Sweet Something Else would have remained unknown outside of West Michigan, Sosa said.

He supports Downhill Battle's position that the RIAA has created an environment that stifles diversity of musical expression by allowing major labels to pay radio stations to play their songs.

The practice is illegal, but the organization contends the practice continues through third-party independent promoters.

Pay-for-play radio makes it next to impossible for independent labels to get mainstream air time.

The result, Sosa says, is that some of the most creative music being recorded is being marginalized by a monopoly on distribution.

"File-sharing helps level the playing field between bands that have recording contracts and those who don't," Sosa said.

"Success is all about being heard."

He knows of no one else who has organized a benefit concert to support the work of Downhill Battle, but thinks a lot of young people who like music that doesn't crack Billboard's Top 40 appreciate the organization's efforts.

Downhill Battle advises how to share files safely, advocates politically to keep the RIAA from stomping out file-sharing, and helps people who have been sued by major record labels for file-sharing to pay their fines.

This is the second benefit concert Sosa has helped organize.

Last February, Sosa pulled several local bands together for a concert to benefit the family of Sweet Something Else drummer Zach Harthun. His mother, Linda, was receiving out-of-state treatments for stomach cancer and her illness forced a hardship on the family, because Linda was the primary caregiver for a severely disabled daughter, Keri.

The concert raised about $2,000 to help the Harthuns hire help. Teens also brought sizable donations of food.

Linda Harthun died Aug. 31 at age 44.
http://www.mlive.com/news/grpress/in...5501286560.xml


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Burn this disc

Edmonton Station Spinning Bootleg Idol Song
Jacob Hoggard

Canadian Idol Kalan Porter's first single hits stores next week, and is already being played on radio stations across the country. But an Edmonton radio station is playing another version of the song -- not Porter's.

The song, Awake in a Dream, was written in advance for the winner of this year's Canadian Idol competition. Porter, of Medicine Hat, Alta., won the contest a couple of weeks ago.

In order to ensure the song could be released as soon as possible, BMG Canada had the top three finalists record the song.

So, in addition to Porter's version, there were recordings of Awake in a Dream put to disc by Theresa Sokyrka of Saskatoon and Jacob Hoggard of Abbotsford, B.C.

The version done by Hoggard, who was wildly popular on the CTV show over the summer, somehow made it onto the Internet. An Edmonton radio station downloaded the song and has been playing it for listeners.

The station's deejay, known as B.J., defends airing of the bootleg.

"People who are Kalan fans are absolutely vehement that we shouldn't be playing Jacob's version of the song because Kalan is the Idol, it's his song don't play the Jacob version," B.J. told CFCN's Kirk Heuser. "And of course there are thousands of Jacob fans who are saying, thank you very much."

Because Hoggard's version was never supposed to be made public, BMG Canada is warning anyone who comes across it to destroy their copy. Canadian law forbids the distribution or broadcast of the song in any manner.

Hoggard issued a statement asking his fans to respect his wishes and stop distributing the song.
http://www.ctv.ca/servlet/ArticleNew...96222927319_60


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Green Day Offers New Option To File-Sharing Fans

Five pre-printed CD-Rs give fans chance to burn more attractive CDs

The band Green Day has come up with a novel idea for making a bit more money off of its back catalog of music.

The band, in association with music label Warner Brothers, is selling pre-printed CD-Rs with the artwork of its last 4 major-label releases.

The $7.99 package includes five CD-Rs featuring artwork from Green Day albums "Dookie," "Nimrod," "Warning" and a new album, "American Idiot," as well one with a rare photo of the band. A coordinated color slimline case is included with each CD-R. The band's Web site says that fans should "burn responsibly. Download music legally and burn your own Green Day compilations." But fans who already have the music in digital form (legally or not) will appreciate the opportunity to own their own CDs, without being stuck with a handmade look. The Green Day CD-Rs are available at the band's website, GreenDayMusic.com.
http://www.channel3000.com/money/3766329/detail.html


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Now playing

Can't Wait Too Long

The Americana myth of Brian Wilson's Smile
Brian Doherty

Today, a pop album is released that was 38 years in the making. Some devotees—I'm one of them—will tell you that its quality and heft make it worth every minute of waiting.

The album is called Smile. In 1966-67 it was in the works as the Beach Boys' follow-up to their now- acknowledged classic Pet Sounds, and a further step into the abstract from their surf- and cars- and girls-rooted early successes. Beach Boys auteur Brian Wilson, who composed the album and worked with Van Dyke Parks on the lyrics, eventually decided to abandon the ambitious project, even though it was already widely praised in the burgeoning pop press at the time.

Some of the songs meant for Smile appeared on what became Pet Sounds' follow-up, the low-key and charmingly addled, but still beautiful and joyous, Smiley Smile. Other tracks appeared on later Beach Boys records or box sets, but much of Smile's wreckage was searchable only through hours of bootlegged session tapes that fed a stream of fanatical underground devotees, who in turn fed Smile's legend and awaited its return to claim its glory (usurped by the British Beatles' Sgt. Peppers) like clandestine squadrons of sixties-pop Jacobites.

Smile as a concept has been one of the most argued about works in popular music history, with entire books and reams of fanzine articles and Internet postings speculating endlessly on the mysterious song titles in the vault tapes, on the "link tracks," on what really constituted "the elements suite" (a part of the original Smile myth completely elided in this finished version), on what overarching concept ties together songs as disparate as the endlessly charming goof "Vegetables" and the almost disturbingly lilting "Cabinessence," and on what was the real reason Brian abandoned it. Was it that he really hated the music (as he sometimes asserted over the years), that he feared he'd never be able to top it, that the philistine objections of his reputedly art-hating, cash-hungry colleagues sapped his will, or that the decision was just made out of neurotic fear and then doggedly stuck to for decades. (That a Beach Boys band craving formulaic success released Smiley Smile, an even more uncommercial record than Smile would have been, to me has always put the lie to the notion that their perfidy killed the original work.)

Every once in a while for decades rumors would spread that either the Beach Boys, or the suits at Capitol who bankrolled Brian's months-long obsession with this project (and even printed up hundreds of thousands of record sleeves for the album he never delivered), would finally pick up all these glistening shards of melody and construct the album that would blow the world away and show, as patriotic lyricist Van Dyke Parks wanted, that even in the wake of a British invasion, American music and American voices and the spiritual history of America still mattered.

Now the myth is over and Smile exists, as a Brian Wilson solo project, not a Beach Boys album. And while the saga of Smile has its own fascinations even beyond the music—I've probably spent as much time over the years reading and talking about it as I have listening to its existing fragments, as have many fans—you'll forget the lore upon hearing the songs as presented here.

There are quibbles that any obsessive will have. For example, it wasn't the greatest idea to re-record "Good Vibrations" with its original, inferior lyrics. (The only thing they seem to have going for them, to some people, is that they aren't by Mike Love—now an estranged villain in the Smile saga for questioning Parks' avant-garde lyrics, although he gamely sang them, and very well, in the original sessions.) And a "Cabinessence" without Carl Wilson on lead seems a leaden thing indeed after years of being awed by the original Beach Boys version.

But tracks like "Wonderful" seem even more a thick swirl of pure love in the new version. Newly completed tracks like "Barnyard" and "Song for Children" brought this old fan to tears, and I believe it could do so even to those for whom the phrase "George Fell into his French Horn" is meaningless, not argument-starting. As someone who believes that the arranged voices of Brian, Carl, Dennis, Mike, and Al are about the most beautiful sounds imaginable, I do miss the Beach Boys' voices on this. But Brian and his current gang have done an impeccable job of making this sound glorious even without them.

How this was all able to happen is an interesting saga in how the machineries of pop production, both legal and illegal, work to create magic despite being bogged down, as an endless string of laments launched by the Byrds "So You Wanna Be A Rock n' Roll Star" attest, by motives sleazy and venal. Brian, as the fabulously successful leader of the Beach Boys, got money and support from Capitol Records—even while he was suing them for back royalties—to record the basics of his extreme vision in Smile. Then waves of bootleggers, profiteering off work the artists didn't want us to hear, kept afloat the Smile legend, and helped create Brian Wilson superfan Darian Sahanaja of the quirky L.A. pop revivalists Wondermints, who have formed the nucleus of Brian's touring band since 1999.

Upon first witnessing the Wondermints play his music at a Beach Boys cover charity show in 1995—I was there that night as well, and was as amazed as Mr. Wilson—Wilson famously declared that, if he'd had them at his disposal in 1967, he could have taken Smile on the road. In 2003 he did, and he did. He added final touch-ups and some material, some remembered by Wilson and Parks and some freshly conceived. With the supervision of Sahanaja, who knew more about this project then either of its creators at this far remove (he spent more time listening to and loving the bootleg tapes over the years than they did), they took that road show into the studio. The Time Warner imprint Nonesuch—famous for rescuing Wilco's Yankee Hotel Foxtrot, another piece of pop art unwisely dismissed by studio suits at the band's label, Reprise—released it today.

The saga of Smile turned out as mythic-American as its music, an interesting side note and another part of the often fascinating webs with which modern plentitude embraces art. We can have endless fun fun fun, as Beach Boys fans have, not just with base works of culture, but with the equally endless discussions they engender.

But listening to this heartwarmingly gorgeous slab of vocal melody pop, the final processing of the ambitions of a young Southern California man with lots of money, lots of success, lots of ambition, and lots of love for the sound of American voices (particularly the voices of his brothers, cousin, and school chum) raised in song—from old work songs to western ballads to turn of the century pop to doo-wop —makes all the myths of genius ignored, thwarted, throttled by considerations of gross commerce, seem a whole lot less interesting than adding this music to your day.

The music was too good to die. Its relentless bootlegging and mythologizing helped bring it to the attention of Sahanaja, the godfather to its rebirth; all the machineries of pop production and pop mythology clicked and churned in ways as mysterious as those of the American history that parts of this album limn so lovingly: the rolling trains and chanting voices that took us west on the iron horse to make Grand Coulee dams and sail to Hawaii.

Smile makes something lilting out of tragedy ("Bicycle rider/see see what you've done/To the Church of the American Indian") and heavy out of love ("Lost and found a kiss below there/Constellations ebb and flow there") and while it is almost certainly a conceptual mess, that's more than fine: The best thing about it is, you don't need to know any of the history, believe any of the myth, take sides in any of the debates (art vs. commerce, America vs. Brit, artist intentions vs. fan desires) that dog Smile's history, to groove to this brilliantly unique and joyous work.
http://www.reason.com/links/links092804.shtml


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Winning or Losing the Lottery
David Calderwood

Barack Obama, the Democratic nominee for the U.S. Senate seat being vacated by Peter Fitzgerald (R-IL), has frankly discussed using marijuana and cocaine during his youth. He credited an attitude adjustment with his choice to take a new direction.

I often wonder why no reporter asks the obvious question. "Mr. Obama, you obviously lucked out and didn’t get caught while you were getting stoned, while other young people who were not so lucky got a criminal record for doing what you did. Do you support the notion of law as lottery, or is law absolute and universal?

"If you commit murder or robbery and don’t get caught, shouldn’t you be punished no matter how long it takes to identify you? If politicians have passed laws against using pot or coke, and those laws are moral, shouldn’t you be jailed now, today, because you weren’t punished back when you committed the crimes?

"If you should not be jailed now, then why should anyone ever be jailed simply for doing today (and getting caught) what you did back then? Would jail time and a criminal record have enhanced your life, helped you get into Harvard law school, and improved your chances of being elected to the Senate?"

Which kids could have gone on to great things (no, I don’t include public office in this category) but for the fact that last night the cop noticed the bag under the back seat and pulled out the handcuffs?

Most readers of LRC recognize the obvious: The law is now a complete lottery where some people have better odds than others, but all face the same general risk of disobeying the 12th Commandment by getting caught. [The 11th Commandment is, of course, Keep a Low Profile, and if observed religiously, usually allows the observation of the 12th, too.]

Was it smoking pot? Drinking beer prior to that officially blessed 21st birthday? Exploring the biological sciences with a willing sweet young thing who’s not quite at that "consenting" age? Offering legal advice, medical care, shop services, disposal services, landscaping services, mail service, hair braiding, coloring, cutting, or styling services, taxi services, commercial trucking services, or just about anything else without first acquiring an official license?

Was it attaching a particular cosmetic part like a flash hider to a certain kind of rifle? [Sorry, I forgot, that was an immoral act but now is a moral act…it’s all in the date. Or perhaps I’m confused, as it never seemed immoral to me, and was only illegal, evidently a MAJOR distinction.] Was it accidentally spilling the wrong material into a waterway or filling dirt into the wrong low-lying area?

Was it selling a legal weed to a minor? Forgetting to eradicate ditch weed on the back forty? Saying anything other than "I don’t recall" to any government employee? Did you slip a Glock into your pocket because you were going to the ATM after dark for some cash?

Ah, and now we have a whole new class of crime: Intellectual Property Theft. Download a song, go to jail. Both the U.S. House and Senate have passed bills promising three years in the slammer for the abominable act of using a Peer-to-Peer network to download copyrighted material. All that stands between your teenager and Butch in cellblock 13 is a reconciliation committee and W’s signature (which is a given since he wouldn’t know a veto if one fell on his foot and broke his big toe).

We know that if everyone who smoked pot or quaffed a beer before 21 actually did time in the hoosegow, we’d need a whole lot more prisons. Heck, there’d be more prisons than there are bank branches and there are more of them now than gas stations. [In fact, the guards would probably have to be ex-prisoners, since there simply aren’t that many folks who didn’t take a hit or a pre-21 shot during their irresponsible years.] This same principle will clearly apply to downloaders as well.

Evolving technology virtually begs Peer-to-Peer network users to innovate, so content owners like the big movie studios will probably have the same success as the drug warriors. But how many more young people will lose the lottery? At the rate we’re going, what with Martha Stewart going to jail for lying to the Feds about something that wasn’t itself criminal, the stigma of being an ex-con is in danger of fading out completely. How can you shun someone who, in a tiny twist of fate, could just as easily have been you?

Perhaps life will be less uncertain when lawmakers (and their gutless, herding-animal constituents…i.e. our neighbors) have the cojones to face that question. Someday, perhaps our neighbors will see that the people they threaten with a life-ruining criminal record is their own next generation, their kids, doing exactly what mom and dad did when they were young – playing fast and loose with the rules. Until then, it seems that as science conquers the arbitrary dangers of nature, humans will replace nature’s horrors like polio and periodic starvation with man-made alternatives. As we know, the institution best constituted to breathe life into these lunatic fantasies is government.

Thanks guys. Thanks a lot.

In the meantime, the best our community (the LRC community, that is) can do is to teach our kids the difference between nature’s law (morality) and statehouse law (the lottery). It’s wrong to murder, or rob, or cheat. It’s just hazardous to do any of the literally millions of other things that are technically now crimes. Just remember, son, to play the odds.

http://www.lewrockwell.com/orig3/calderwood5.html
















Until next week,

- js.














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