Author: Shawn K. Quinn

Sony’s first class DMCA foulup and what it says about fair use in the modern era

TechDirt recently published an article about a Digital Millenium Copyright Act (DMCA) takedown of, oddly enough, a Harvard law professor’s lecture on copyright. That in itself is ironic enough.

What triggered the takedown were clips of different songs, used in the discussion of copyright. This, under copyright law, is called “fair use” and is not considered infringement. And this is where Sony Music Entertainment has screwed up.

Part of the blame has to go to Google (or would it technically be Alphabet now?), who owns YouTube, and who has decided to deploy an automatic music fingerprinting system allowing draconian enforcement of copyrights–and sometimes squashing fair use, possibly on purpose. This quote from the original story is quite telling:

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

The RIAA has gotten at least one thing right: they have quit suing music listeners for file sharing which infringes copyrights. Unfortunately the MPAA and other industry organizations have not followed suit. (Or maybe I should say, have not followed the distinct lack thereof.)

I, personally, believe the DMCA and other copyright-related laws which were passed during the rise of the Internet’s prominence were not strictly necessary. I despise the tactic of suggestive law names and acronyms which make implied statements subject to debate, such as the horribly named No Electronic Theft (NET) Act, named years before Nina Paley made her famous cartoon as featured on questioncopyright.org. Especially given that such laws are, by their nature, anti-consumer and, ironically, seem to do the most damage to those who obey them.

Case in point: I want to include a 15-second clip from a movie, say, Ghostbusters (1984). Let’s say I have this movie on DVD. Now, DVD has been proven to be trivially crackable, due to restrictions in key size in effect at the time of the format’s introduction. However, the DMCA gives any technology restricting copying the force of law, no matter how effective, and has no fair use exemption. Worse, the anti-circumvention portion of the DMCA has criminal penalties. So despite the fact I could easily copy that 15-second clip for fair use purposes, it’s a violation of the DMCA to do so.

Were I to try to make that copy honestly, using, say, a USB analog video capture device and a DVD player, the USB analog video capture device probably would not let me, either giving a distorted picture, a blank picture, or possibly even shutting down completely. The same would apply if I were to use licensed, legal DVD playback software; the publishers of such software are required to play into Hollywood’s hands and restrict copying the same as a physical DVD player would.

Getting back to the case at hand, were Sony to use a copy-restriction technology on an album, our Harvard law professor could find himself facing criminal charges were he to want to make fair use of it in the same manner. If all this seems Kafkaesque or Orwellian to you, you’re not alone.

I suppose the only saving grace in this is that the FBI honestly has better things to do than prosecute every single violation of the DMCA out there. It doesn’t change the fact this is a dumb law that needs to be overhauled. There need to be real, decisive penalties for those who recklessly or knowingly infringe upon fair use, and any new copyright-related law going forward needs to acknowledge and make a blanket exception for any and all fair use–not leave it up to the Librarian of Congress to make the very few and narrow exceptions.

Growing up in school, I (and my classmates) thought it was outrageous that (based on the teachings of the time) photocopiers in the USSR were rare and locked down against unauthorized access. Three decades later, we’re dangerously close to having the modern-day equivalent of that across the world (not just in the USA).

That stale stench coming from Fresh Arts and its president

First, the links, since they are a bit difficult to put inline:

Those who follow the Houston arts scene are probably aware of the abrupt departure of Jenni Rebecca Stephenson, its long-time executive director (dating back to 2010 January as executive director of Spacetaker, the organization Fresh Arts merged with, and apparently the nominal survivor of the merger even though the Fresh Arts brand is the one everyone sees). The timing was a bit suspicious as Jenni had appeared on a radio program to KUHF-FM where she openly discussed the inequity in how public funding for the arts is distributed. Namely, that three large organizations, the Miller Theatre Advisory Board, the Museum District Association, and the Theatre District Association receive a set percentage of funds from the hotel occupancy tax each year, without having to be reviewed, and that smaller organizations (like Fresh Arts, and we would assume per-merger Spacetaker as well) have to go through a grant process and fight for their money every year.

Jenni spoke out against an injustice. Given her position, it could even be argued she would not be doing her job if she remained silent. If it seems weird that the episode of the show Jenni was on aired on 2015 October 20, and within hours of the program airing she was no longer employed by Fresh Arts, that may be because it is. To take us even further into the Twilight Zone (quoting the second article above):

“If [Stephenson] just left on her own, it doesn’t make sense that they can’t talk about it,” says the artist advisory board member

(period missing in original)

The real fish stinking up the room is that according to Fresh Arts, Jenni resigned, which based on what little I know about Jenni didn’t make any sense at all, until just now (the night of Wednesday, 2016 February 17, stretching into the following morning).

Tonight I learned of Jenni’s lawsuit against Brian McMahan, president of Fresh Arts and vice president of Frost Bank, Spacetaker (d.b.a. Fresh Arts), and Frost Bank. I have read the complaint as filed with the court, and if true, what Mr. McMahan has done to Jenni is the most disgraceful thing I have seen in the Houston arts community in the time I have been following it. In summary, Jenni claims not only was she fired based on a bogus “audit” conducted by someone at Frost Bank, but that Mr. McMahan moved the Fresh Arts bank accounts to Frost Bank from Amegy Bank in a rather flagrant conflict of interest, and that she was also openly and falsely accused of stealing money from Fresh Arts. Not surprisingly, this has completely ruined Jenni’s reputation, and according to the court documents:

[The Defendants’] conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious, and uttlerly intolerable in a civilized community.

I applaud Jenni’s decision to speak out about what she did, when she did. I don’t know Jenni that well, but the impression she has made on me is that of an honest, upstanding person. I am happy she has chosen to stand up for her rights, and take legal action against those that have wronged her. I am sad that one of the defendants happens to be Fresh Arts.

(Sidenote: Under most circumstances, I consider it to be in at least moderately bad taste, and often in at least extremely bad taste, to sue a non-profit. However, this is an exception, as it is an employment-related dispute, which just happens to involve a non-profit.)

And in turn, I’m also a bit sad about the entire situation. Great people like David Brown (founded Spacetaker), Mandy Graessle, Ian Garrett (former executive directors for Fresh Arts pre-merger), and many others too numerous to try to name helped build what is today Fresh Arts, and I am sad for them as well because a lot of the goodwill they have helped build over the years has been ruined by the actions of Mr. McMahan and people like him.

I’m a little sad as well for the employees of Frost Bank, who as one of the results of this dispute, either way, will probably be a bit less proud of their jobs. Now, I have never banked with Frost Bank (their target market seems to be people with much higher income levels than mine), and up until now I’ve never had reason to doubt them as an arts sponsor.

Finally, I am sad for the Houston arts community as a whole, including the artists who depend on the services of Fresh Arts and the art fans in Houston. Regardless of the resolution of this lawsuit, they are probably going to lose something as a result of it at some point.

(It’s noteworthy that I am not the least bit sad for Mr. McMahan and, barring evidence that I should be, probably won’t be for the foreseeable future if ever.)

Finally, based on what I read in the complaint, it would not surprise me in the least to see Fresh Arts and Frost Bank in turn personally suing Mr. McMahan and those acting in concert with him. This happens often in civil suits where one or more defendants have a counterclaim against other defendants or even a third party not named in the original suit.

What are the priorities in Michigan, really?

So, I’m sure many of you have heard about the water crisis in Flint, MI, somewhere. Obviously, something like this is outrageous by itself, the corrupt government wanting to save $100 per day at the cost of risking lead poisoning of the entire city’s population, including somewhere between 6,000 and 12,000 children.

That’s bad enough. But instead of spending time doing all things necessary to resolve this crisis, somehow, the Michigan state legislature wastes the time to pass a dead-on-arrival law prohibiting anal and oral sex, intertwined with a bestiality law and effectively equating the two.

Really, Michigan?

Never mind that these types of laws have been struck down as unconstitutional in the past. I should know, since it made the news here given that Texas used to have such a law too. Why is the Michigan legislature even wasting their time on this, when the Flint water crisis is still ongoing?

There are a ton of jokes that could be made about this, but I’ll pass on them. I’ll just briefly state in closing, if the drinking water is contaminated with lead, it really doesn’t matter who is doing what behind closed doors, regardless of how “kinky” it might be. Lead in the water screws everybody and it screws their whole bodies. That’s where the focus should be, and it really looks bad on Michiganders when their legislature passes dead-on-arrival garbage in the midst of a crisis.

A shocking “Discover”y, and related lessons

First, one apology (of two) to my readers. I have been aware of this for about a year. I originally sat on this for a while because the relevant lawsuit was pending. I continued to sit on it because I felt an appeal and/or a new trial was pending, which would have been another three months or so. I have little excuse for sitting on it after 2015 October 1. (This should have been posted no later than the end of 2015 September.) On one hand I don’t like posting stale news; on the other, the only thing worse than posting this late is not posting it at all.

(The second apology will be made in context.)

Rewind to the summer of 2012. Specifically, 2012 August 15. A good month and a half had transpired since my reply to whoever was behind “admin@wordcamphouston.com” with nothing but radio silence. I had received a reply to the third message I sent regarding the financial statement from WordCamp Houston 2010 and who received the scholarship (well, and also what became of the video that was shot of the breakout sessions, but that’s not what this is about). The reply I got merely stated “Thanks for your inquiry, please look for information to be announced regarding the scholarship later this year.” (Again, along with a reply about the status of the video, but I have covered that already.)

Fast forward to early 2015 (I unfortunately don’t have an exact date, but it was well before July). I’m punching some names of people into public records websites as part of an unrelated project, and seeing if I find anything I don’t yet know but should. I finish with the names I had originally planned to look up and move on to some other names. One of those names happens to be Monica Danna (now Danna-Garcia), former WordCamp Houston organizer. What comes up is shocking, in at least two ways, which I’ll get to shortly.

What I found was that Ms. Danna had been sued by Discover Bank for an unpaid credit card debt, in the amount of $12,758.21. The first shock is the amount of the lawsuit, and at first I figured this credit card debt had been run up over a period of about five years or so. When I attended the trial setting on 2015 July 7, I found out the card had only been issued sometime in 2010 (I didn’t take notes, but pretty sure it was in the first half of the year, before the WordCamp Houston 2010 event date), which was perhaps the bigger shock of the two.

One of my original reasons for attending the trial date was largely curiosity on seeing how well the defense presented by Ms. Danna’s attorney, Robert Hinsley, would hold up. Also, I have not really observed that many court trials in real life (really, none of substance from start to finish save the one time I was actually picked for a jury).

As originally stated, I had originally intended to post immediately after the trial date, though that changed once the “trial” had taken place. Counselor Hinsley didn’t make it to the trial due to a medical emergency. (Whether that would have changed the outcome is a matter of debate.) Given that Discover had flown in a witness from Delaware the judge went ahead and allowed the witness’s testimony to be entered on the record so a default judgment could be issued. (Civil cases are decided by a preponderance of the evidence, and a preponderance means there has to be something there for the plaintiff to win.) That was on 2015 July 7. No developments occurred as of the last time I checked; the motions (to set aside the verdict and for a new trial) appear to have been denied and I can’t find any appeals, so it would appear to yours truly, technically a layperson but with a bit higher than average knowledge of law, that this case is a done deal.

With that said, let’s rewind a bit. Before I get into this, I have absolutely nothing to show that there was a plot to steal the WordCamp Houston 2010 proceeds in full, by any of the organizers. I wish I had the proverbial “smoking gun” (smoking credit card?) to show that was the case. But I don’t.

The proceeds from WordCamp Houston 2010 totaled $2,790.30. Take the balance at the time of the lawsuit, $12,758.21. Doing a web search for ‘Discover card minimum payment’ finds a typical minimum payment is the greater of $40 or 2% of the balance.

The responsible thing to do, when trusted by the community to handle money properly in such a situation, is full disclosure and full transparency from start to finish. To this day I have no clue whether or not the money was commingled with personal funds of one or more of the organizers (which it most certainly should not have been), or separated into another account as it should have been. A simple “hey, we still need to find a recipient for the scholarship,we didn’t get any nominees in August” would have helped. Even if a year of searching had been fruitless, how about “hey, the money is still safe and in a separate account, here is the (partially redacted) bank statement” or something like that?

And here’s where some of the lessons to be learned come in. First, my failure. I’ve said this before, but it bears repeating: stupid me, I trusted Ms. Danna, Mr. Valdez, Ms. Laird, and Mr. Everson to do the right thing, and keep the word given by Ms. Danna on the video-recorded introduction to the keynote speech in 2010. So much so, that my first message merely asked for the financial statement and what happened to the video. I decided to think like the rest of the community, and trust that the right thing had already been done. The moral of the story, again, is be careful who you trust and never assume someone will do the right thing, even if their history is impeccable. I still regret not jumping on this sooner. I hold myself to high standards, and my lack of pursuit of transparency of the financial end of WordCamp Houston 2010 until quite some time had passed is, to say the least, a departure from those standards. I am grateful the money did eventually find its way to a deserving college student. That doesn’t change the fact I still feel it’s completely unacceptable for it to have taken over two years.

Second, it should go without saying, but I’ll say it anyway: if you default on a credit card owing enough money, you will get sued! At the very least, even if you are not sued, your credit report and credit score will take a hit, and you may find your borrowing ability suffering for years. So, with that in mind, don’t borrow money you cannot afford to pay back. Realistically wouldn’t expect to get sued for a credit card debt under about $1,000, but as the amount goes up, the odds go up considerably; for a default on $10,000 or higher, I’d call a lawsuit a certainty.

Now, I will admit I haven’t been perfect here; without giving away too many details, what’s on my credit report currently is close to average, but as recently as 5 to 6 years ago, it was an entirely different story. I’ve never been in a position where I was likely to get sued, though, nor have I had to file bankruptcy. Neither are a good time from what I have heard and observed.

To those of you getting your first credit cards, here is my advice (based on both my mistakes and those of others): Use as little credit as you possibly can. Ideally, pay your cards in full every month and carry a balance only if you have absolutely no other choice. Pay on time, every time, with good funds. Late payment and returned payment fees are expensive, especially on top of a 20%+ APR. Annual fees can also get expensive; shop around every few months, and replace cards charging outrageous annual fees with ones that don’t. I’ll break this down into further detail in a post later in February, but these are the most important points for now.

This may seem like a very tardy post, and some may consider it to be beating the proverbial greasy spot where the dead horse used to be. I disagree. Learning of the lawsuit, and reading (and later re-reading) all the documents in the case file, gave me a newfound appreciation for just how lucky we were and are as a community. I am certain now that had I not spoken up when I did, my failure to do so would have haunted me for years.

Yes, this still angers me even though the actual scholarship award was three years ago. You can use whatever comparison you want, say it may as well be 10, 20, 30 years ago, a century ago, in some year BCE, the jurassic era… whatever. It really doesn’t matter to me, this may as well have been last week or even yesterday. I believe strongly in the saying of George Santayana: “Those who cannot remember the past are condemned to repeat it.” (More often said as “those who do not learn from history are doomed to repeat it” and similar forms, but the sentiment is the same.)

One (DH) rule to bind them all?

As a long-time baseball fan, though not as ardent of a fan as I used to be, I want to weigh in on this one. The designated hitter (DH) rule is probably one of the most controversial topics among baseball fans, next to the steroid scandal that rocked the sport almost a decade ago now (2007). One of the things that makes baseball at least semi-interesting is the fact one league allows the manager to designate another player to bat for the pitcher, and one does not.

But that might be about to change. Among other sources, this article on stltoday.com notes St. Louis Cardinals’ GM John Mozeliak’s comments on the movement to apply the DH rule in the National League. (It has been applied in the American League since 1973.) John’s comments state in part (from quotes in the article):

I do feel like there were times I could look all of you in the face and say it’s a non-starter, it’s not being discussed at the owner level or GM… But over the past year it has. I’m not suggesting you’re going to see a change but I definitely think the momentum (has changed).

As a Houston Astros fan, I get a bit of a different look at this than fans of other teams around the league; the Astros switched leagues in 2013, joining the American League West after 51 years in the National League. I have never been a huge fan of the DH rule, even though I’ve never been alive to see an American League game without it. Every Astros game from the era when I was a hardcore baseball fan was without the DH rule. I’ve seen a couple of Astros pitchers hit home runs over the years–always a spectacular sight when it happens, as usually pitchers are considered the worst batting players on the team. Thus the argument for the DH rule, that pitchers will almost always be lousy hitters and the game is more interesting if we let someone else bat for the pitcher all the time.

I feel very strongly that we will have lost something if the DH becomes universal at the major league level. If anything, I would like to see the AL dump the DH rule. According to the Wikipedia article, the main criticism of the DH rule are that it introduces asymmetry in the game: the players in the batting order are not entirely the same players that take the field. Pitchers who bat are, in general, less likely to hit batters with a pitch, knowing there’s the possibility of retaliation when they step up to bat. The DH takes this out of the equation; it’s just not the same when someone who bats for the pitcher gets plunked or beaned. This by itself is enough reason to call the DH rule a bad idea.

I wish the Astros were still in the NL. Not only do I hate the DH rule, I miss the old rivalries (Cardinals, Cubs, Brewers, Pirates, and Reds–yes, there were six teams in the division), even though it’s obvious the Astros can hold their own in the AL West. (There was concern about this when the Astros had over 100 losses in each of their last two NL seasons.) Yes, there’s a chance AL pitchers injure themselves running the bases when forced to bat. However the solution to this is not to introduce an asymmetry to the game that simply doesn’t belong. The solution is to make sure pitchers get at least some time running the bases and a decent amount of batting cage time.

In summary, it’s time to dump the DH and dump it now. The experiment has run long enough, and it’s time to call it a failure and move on. The same nine players on the field should be the same nine players come to bat. As a corollary to this: too old to field (usually) means too old to play (it is exceedingly rare for a player to stay on the roster just to be a pinch-hitter in the NL, though once in a while it happens).