New Werner Herzog film on the death penalty
It’s called Into the Abyss and it opens today. Trailer is here:
There’s an interview with Herzog about the film on the Tribeca Film Festival site and Ebert gave it four stars.
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kottke.org posts about legal
Christopher Hitchens on capital punishment
From Lapham’s Quarterly, Christopher Hitchens on capital punishment in America.
Since then no country has been allowed to apply for membership or association with the European Union without, as a precondition, dismantling its apparatus of execution. This has led states like Turkey to forego what was once a sort of national staple. The United Nations condemns capital punishment-especially for those who have not yet reached adulthood-and the Vatican has come close to forbidding if not actually anathematizing the business. This leaves the United States of America as the only nation in what one might call the West, that does not just continue with the infliction of the death penalty but has in the recent past expanded its reach. More American states have restored it in theory and carried it out in practice, and the last time the Supreme Court heard argument on the question it was to determine whether capital punishment should be inflicted for a crime other than first-degree murder (the rape of a child being the suggested pretext for extension).
Hitchens, as you may have guessed, pins much of the blame on religion…after all, the US is the most (or only?) fundamentalist country in the West. (via ★interesting-links)
Confessions of a “Rape Cop” Juror
Gothamist is trying something new: long-form articles available for a small fee ($2-3) on the Kindle or as a PDF. The first one in the series is a real corker…Confessions of a “Rape Cop” Juror, a piece written by a member of the jury that acquitted two NYPD officers charged with raping a young woman in her East Village apartment.
The former cop sprang from his chair and rushed toward me, and before I could step back, the stocky arms of the ex-boxer were curled around my shoulders. To my left, I saw a crowd of faces; to my right, a place setting. One knife, one fork, and one dull spoon wrapped in a white cloth napkin — not much help if he started strangling me. The arms tightened, and then the high-pitched, soft-spoken voice I recognized from the witness stand whispered, “Thank you.”
My chest sank with a long exhale, and a whirlwind of high-powered suits and smiles rose from their glasses of Cabernet. They floated toward me with outstretched hands and watery eyes, the aroma of freshly baked focaccia robiolas mixing with their cologne. One floor below, diners in this Murray Hill Italian restaurant chattered away ignorant of the strange encounter at the top of the back staircase. The man hugging me was supposed to be the monster I had spent seven weeks analyzing and seven days judging. This was Kenneth Moreno, Rape Cop.
I haven’t read the piece but The Awl’s Choire Sicha has:
It’s a fascinating read, and I mean that in a very honest sense. In large part it’s about how unbelievably important jury service is in America, and about how we treat those accused of crimes. Whether you like the verdict or not, or whether you like the case presented by prosecutors or not (SIGH), this view into the thinking and process of the jurors is really valuable.
Our broken patent system
Finally got around to listening to the excellent episode of This American Life on patents: When Patents Attack! The episode surveys the state of the US patent system, using Nathan Myhrvold’s smarmy Intellectual Ventures as a hook to tell the story.
In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. In other words, it does exactly the opposite of what it’s supposed to do. It doesn’t encourage them to come up with new ideas and create new products, it actually gets in their way.
The Economist chimed in as well, saying that the American patent system is “a travesty which threatens the wealth and welfare of the whole world”.
At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation.
Aaron Swartz indicted on charges of “wire fraud, computer fraud” etc.
Swartz is known around these parts for being a programmer, long-time blogger, early employee of Reddit, and legal enthusiast. Nick Bilton, writing for the NY Times Bits blog:
Aaron Swartz, a 24-year-old programmer and online political activist, was indicted Tuesday in Boston on charges that he stole over four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment.)
The charges were filed by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and could result in up to 35 years in prison and a $1 million fine.
In a press release, Ms. Ortiz’s office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and stole millions of documents from JSTOR.
The full indictment is here (PDF, via @delfuego). Non-PDF version is here. The whole thing is worth a read for the technical detail of how the “hack” was allegedly perpetrated:
26. This time around, Swartz circumvented MIT’s guest registration process altogether when he connected to MIT’s computer network. By this point, Swartz was familiar with the IP addresses available to be assigned at the switch in the restricted network interface closet in the basement of MIT’s Building 16. Swartz simply hard-wired into the network and assigned himself two IP addresses. He hid the Acer laptop and a succession of external storage drives under a box in the closet, so that they would not be obvious to anyone who might enter the closet. January 4 through 6, 2011
27. On January 4, 2011, Aaron Swartz was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer.
28 On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment. This time he attempted to evade identification at the entrance to the restricted area. As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet before peering through a crack in the double doors and cautiously stepping out.
Here’s a statement from Demand Progress, an organization founded by Swartz, about the case (via @aaronsw). This is a very different take from the indictment.
Moments ago, Aaron Swartz, former executive director and founder of Demand Progress, was indicted by the US government. As best as we can tell, he is being charged with allegedly downloading too many scholarly journal articles from the Web. The government contends that downloading said articles is actually felony computer hacking and should be punished with time in prison.
“This makes no sense,” said Demand Progress Executive Director David Segal; “it’s like trying to put someone in jail for allegedly checking too many books out of the library.”
“It’s even more strange because the alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” Segal added.
James Jacobs, the Government Documents Librarian at Stanford University, also denounced the arrest: “Aaron’s prosecution undermines academic inquiry and democratic principles,” Jacobs said. “It’s incredible that the government would try to lock someone up for allegedly looking up articles at a library.”
JSTOR, the document storage service allegedly accessed by Swartz, released a statement on the case (via @delfuego):
Last fall and winter, JSTOR experienced a significant misuse of our database. A substantial portion of our publisher partners’ content was downloaded in an unauthorized fashion using the network at the Massachusetts Institute of Technology, one of our participating institutions. The content taken was systematically downloaded using an approach designed to avoid detection by our monitoring systems.
The downloaded content included over 4 million articles, book reviews, and other content from our publisher partner’s academic journals and other publications; it did not include any personally identifying information about JSTOR users.
We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.
The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.
As for what Swartz was planning to do with all these documents, it’s not difficult to guess…he’s done something like this before (this isn’t actually a very good guess…see the update below):
Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.
Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud’s appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.
Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.
A notice went out from the Government Printing Office that the free Pacer pilot program was suspended, “pending an evaluation.” A couple of weeks later, a Government Printing Office official, Richard G. Davis, told librarians that “the security of the Pacer service was compromised. The F.B.I. is conducting an investigation.”
Lawyers for Mr. Malamud and Mr. Swartz told them that they appeared to have broken no laws, noting nonetheless that it was impossible to say what angry government officials might do.
Twice bitten, indictment? Is that how the saying goes?
Update: This is a more accurate guess as to what Swartz wanted with the JSTOR documents: analyse the documents as part of his on-going work with “the corrupting influence of big money on institutions”…and *not* to free non-copyrighted information from an inefficient gatekeeper as with the PACER data. From the front page of his web site.
He is the author of numerous articles on a variety of topics, especially the corrupting influence of big money on institutions including nonprofits, the media, politics, and public opinion. In conjunction with Shireen Barday, he downloaded and analyzed 441,170 law review articles to determine the source of their funding; the results were published in the Stanford Law Review. From 2010-11, he researched these topics as a Fellow at the Harvard Ethics Center Lab on Institutional Corruption.
Takedown notice for monkey self-portrait
Wow. So remember the photo taken by the monkey and Techdirt’s subsequent musings about who owns the copyright a photo taken by a monkey? Today Techdirt is reporting that Caters News Agency sent a takedown notice to Techdirt asking them to remove the monkey’s photos. Totally not making this up.
We were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn’t even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note.
When asked for clarification by Techdirt, a representative from Caters replied:
Michael, regardless of the issue of who does and doesn’t own the copyright — it is 100% clear that the copyright owner is not yourself. You have blatantly ‘lifted’ these photographs from somewhere — I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.
Onionesque. Please someone interview the monkey about his/her views on this.
Andy Baio was sued for Kind of Bloop
Andy Baio got sued for using a pixel-art representation of Jay Maisel’s iconic photo of Miles Davis on the chiptune album of Davis’ music he commissioned in 2009. He settled with Maisel by paying him $32,500 and agreeing to stop using the artwork.
After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I’m unable to use the artwork again. (On the plus side, if you have a copy, it’s now a collector’s item!) I’m not exactly thrilled with this outcome, but I’m relieved it’s over.
But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.
At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.
Unfortunately, Baio’s post does nothing to dissuade me that Maisel is a joyless putz. Seeing this kind of behavior from large clueless companies is almost expected but from a a fellow creative artist? Inexcusable. Surely some reasonable arrangement could have been made without visiting enormous stress and a $30K+ bill onto a man with a young family. Disgusting.
A story from the near future
Paul Ford is writing on Ftrain.com again and it’s just super. Today’s post is a short story that extrapolates our present cultural preoccupation with lawsuits, privacy, and surveillance into a future where anyone can bring a lawsuit for copyright violations against a fetus.
We had gone to a baseball game at the beginning of the season. They had played a song on the public address system, and she sang along without permission. They used to factor that into ticket price — they still do if you pay extra or have a season pass — but now other companies handled the followup. And here was the video from that day, one of many tens of thousands simultaneously recorded from gun scanners on the stadium roof. In the video my daughter wore a cap and a blue T-shirt. I sat beside her, my arm over her shoulder, grinning. Her voice was clear and high; the ambient roar of the audience beyond us filtered down to static.
Legal advice from Jay-Z
A gem of a Q&A from Quora: How valid is the implied legal advice in Jay-Z’s “99 Problems”? The lyrics, in part:
“Well do you mind if I look around the car a little bit?”
Well my glove compartment is locked, so is the trunk in the back
And I know my rights, so you gon’ need a warrant for that
And the answer:
Consenting to a voluntary search is never a good idea, especially if you have felony weight on you. The standard to search the glove compartment is actually fairly low in California, since it’s accessible to the driver. I’m not sure how the locked status interferes with it being a glove compartment. The trunk can be opened if the car is impounded, for inventory reasons, which is a common way to get evidence. However, a locked case inside the trunk will not be opened (depends on the state).
(via ★kellan)
Law and order
A jury foreman in a criminal case describes his experience and what the jury ultimately decided (or actually, didn’t decide).
These are the facts we were given as a jury, facts upon which we were to decide if a boy was guilty of a crime that would put him in prison for 10 years. We were admonished to consider all of the facts but nothing outside of them. Don’t consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.
Airport contraband
Taryn Simon spent five days photographing items confiscated from people flying into New York’s JFK airport. This one is “mystery meat”:
These images are from a set of 1,075 photographs — shot over five days last year for the book and exhibition, “Contraband” — of items detained or seized from passengers or express mail entering the United States from abroad at the New York airport. The miscellany of prohibited objects — from the everyday to the illegal to the just plain odd — attests to a growing worldwide traffic in counterfeit goods and natural exotica and offers a snapshot of the United States as seen through its illicit material needs and desires.
Here’s more about the project, which will be released in book form and also put on display in galleries in LA and NYC.
Jobs’ keynote praise gets RSS reader pulled from App Store
Steve Jobs praised an iPad RSS reader called Pulse in his keynote yesterday. Then the NY Times complained about the app and Apple pulled it from the store later in the day.
The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.
Four things:
1. Why is there a comma after “The Pulse News Reader app” in the laywer’s note to Apple?
2. The very same NY Times ran a positive review of the very same Pulse a few days ago. Doh!
3. Seems like all the Pulse guys need to do is unbundle the NY Times feeds and open the actual nytimes.com pages into a generic browser window and all is good.
4. I wonder why the Times et al. haven’t complained about Instapaper yet. It might not technically infringe on copyright, but magazines and newspapers can’t be too happy about an app that strips out all the advertising from their articles…as much as we would all be sad to see it go.
US Gov’t accuses Goldman Sachs of fraud
The SEC has filed a lawsuit against Goldman Sachs for fraud. Specifically:
According to the complaint, Goldman created Abacus 2007-AC1 in February 2007, at the request of John A. Paulson, a prominent hedge fund manager who earned an estimated $3.7 billion in 2007 by correctly wagering that the housing bubble would burst.
Goldman let Mr. Paulson select mortgage bonds that he wanted to bet against — the ones he believed were most likely to lose value — and packaged those bonds into Abacus 2007-AC1, according to the S.E.C. complaint. Goldman then sold the Abacus deal to investors like foreign banks, pension funds, insurance companies and other hedge funds.
But the deck was stacked against the Abacus investors, the complaint contends, because the investment was filled with bonds chosen by Mr. Paulson as likely to default. Goldman told investors in Abacus marketing materials reviewed by The Times that the bonds would be chosen by an independent manager.
Goldman’s stock price is currently off about 12%.
Viacom vs. YouTube
In defending itself against a copyright lawsuit brought by Viacom, YouTube notes that the media company has been surreptitiously uploading its copyrighted content to YouTube for years.
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
This jibes with what I heard a couple of years ago:
I heard that the staff of the Daily Show and Colbert Report upload the shows to YouTube as soon as they can after the shows air and then the next day, lawyers from Comedy Central hit YouTube with takedown requests for the uploaded shows.
(thx, @peretti)
VC funding for 20x200
Congrats to Jen Bekman on getting funding for 20x2001.
“I love the idea of taking the friction out of the art world,” said Mr. Conrad. “A lot of people want to buy nice things, but don’t know how. Jen has built a business from that, which is growing very nicely and has a lot of repeat customers.”
[1] In light of the new FTC guidelines for disclosure by bloggers2, a few somewhat relevent statements. 1. 20x200 has in the past paid $1200 to sponsor the kottke.org RSS feed. 2. I have linked to 20x200 and Jen Bekman’s gallery several times on kottke.org, for which Jen Bekman has thanked me, which is a good feeling, to be thanked, and perhaps that subconsciously predisposes me towards future linking because who doesn’t like to be thanked? 3. Jen Bekman is a friend. 4. I also know Caterina Fake, Zach Klein, and Scott Heiferman socially; they are a few of 20x200’s angel investors. 5. I am a resident of New York City, in which 20x200 is headquartered. 6. I have purchased art from 20x200 in the past. 7. I may have received a 20x200 print from Jen Bekman herself, either as a straight-up gift or as a promotional item. Honestly, I can’t remember if she gave me anything, what it was, or the circumstances of the giving. 8. I have received 20x200 prints as gifts from others. They are thanked. 9. I know my wife and my wife knows Jen Bekman. 10. I may have unwittingly posed for photos next to 20x200 artwork hanging in my residence or in the residences of others, giving the impression that I am endorsing said artwork. Apologies. 11. I have agreed to, at some point in the future, curating a selection of artworks for 20x200 and then chatting casually with Jen Bekman about my choices, an edited transcript of which will appear on the 20x200 web site. As far as I know, no payment for this service is forthcoming and if it was, I would refuse it politely. 12. Jen Bekman’s dog’s name is Ollie. So is my son’s. ↩
[2] Why just for bloggers? Do New York Times book, music, and movie reviewers disclose that they received review copies for free? ↩
Indian casinos
David Treuer, an American Indian, is writing a series of dispatches for Slate in which he visits Indian casinos. I’d never heard the story of how casinos on Indian lands came to be. It seems a state tax bill on a mobile home led to a lawsuit which led to a legal precedent that state and federal governments have no regulatory jurisdiction on Indian lands.
The Supreme Court ruling in the Bryan case was expansive. More than just a ruling on taxation, it declared that states and the feds had the right to police the reservation only in the interest of “law and order” and had no civil or regulatory jurisdiction over sovereign Indian nations. Until this time, tribes and states more or less assumed that states had civil and regulatory power on reservations. But the Supreme Court maintained that as sovereign nations, Indian tribes had always had the right to govern themselves (including civil and regulatory powers), just as all nations do, and that tribes should deal with the U.S. federal government, not with states. Kansas, for example, has no power to levy taxes in Luxembourg — and not only because Luxembourg is far away.
My home is my home
I often enjoy what Christopher Hitchens says and how he says it. Here he wades smartly into the Henry Louis Gates Jr. arrest.
It is the U.S. Constitution, and not some competitive agglomeration of communities or constituencies, that makes a citizen the sovereign of his own home and privacy. There is absolutely no legal requirement to be polite in the defense of this right.
(via gruber)
It took him a long time to find images he liked
Here’s a new wrinkle in the ongoing battle with people that inline other people’s images: I stole your images, put them back or I will call a lawyer.
Why is business so hard? (thx, jillian)
Update: That image is from 2005…here’s the rest of the story and a couple more images. (thx, andy)
Can you copyright a bunch of tweets?
Yesterday I linked to a long piece by attorney Brock Shinen discussing whether individual posts to Twitter are copyrightable and asked:
Does this mean that nearly all of Twitter’s content is in the public domain? Or can you copyright a collection of tweets…the entire output of one person, for instance?
Brock sent along a short reply to my question, reprinted here with his kind permission:
This is information and not advice: It’s possible (and likely) that the majority of individual Tweets are in the public domain. But copyright protection may extend to a compilation of otherwise non-protectable Tweets. The question of whether ‘you’ can do that as opposed to the author of those Tweets is tricky and would depend on how it’s done. If the compilation is authored in such a way as to suggest a false designation of origin (i.e., that the person compiling the Tweets actually authored them), you might run into false designation claims. Also, as a practical matter, you may still get sued and forced to spend tens of thousands of dollars to defend a lawsuit you might otherwise win - if you can afford to get to trial. In the end, if you are a Tweet author and want to protect your Tweets, then you should probably compile them and seek protection with the US Copyright Office. If that works out for you, you’re set. If the Copyright Office denies your application for registration, you have your answer.
Can you copyright a tweet?
In the opinion of intellectual copyright attorney Brock Shinen, the short answer is “no”.
I admit, I think a protectable Tweet exists in theory. I have read hundreds if not thousands of Tweets and have yet to read one I believe would be protectable, but the possibility exists. The question is not: Are Tweets Copyrightable. The question is: Is This Tweet Copyrightable. The copyrightability of Tweets is not dependent on the fact that they are Tweets. Rather, it’s dependent on the analysis of the Tweet in question. The all-encompassing response that all Tweets are either protected or not protected is misguided. The real response is that it depends. However, when you analyze most Tweets, they would never individually pass copyright muster.
Does this mean that nearly all of Twitter’s content is in the public domain? Or can you copyright a collection of tweets…the entire output of one person, for instance? Let’s say I want to publish Tweatise: The Wit and Wisdom of Merlin Mann, an unabridged book of Merlin’s Twitter stream…can I do that?
Update: Another opinion: tweetCC.
tweetCC makes it easy for you to offer your tweets under a Creative Commons Public Domain Dedication or other Creative Commons licenses.
(thx, dan)
Update: Yet another perspective.
Rwanda, fifteen years after genocide
Reading two-week-old 13-page New Yorker articles about Rwanda probably isn’t your favorite thing to do, but if you’re a subscriber, I’d urge you to check out Philip Gourevitch’s fascinating article about what’s been happening in Rwanda in the fifteen years since the genocide. It’s a complicated situation (boldface mine):
On the fifteenth anniversary of the genocide, Rwanda is one of the safest and most orderly countries in Africa. Since 1994, per-capita gross domestic prduct has nearly tripled, even as the population has increased by nearly twenty-five per cent, to more than ten million. There is national health insurance, and a steadily improving education system. […] Most of the prisoners accused or convicted of genocide have been released. The death penalty has been abolished. And Rwanda is the only nation where hundred of thousands of people who took part in mass murder live intermingled at every level of society with the families of their victims.
Like I said, complicated. This is the best thing I’ve read in the New Yorker in a long while.
Update: As We Forgive is a documentary film about the Rwandan reconciliation.
Can survivors truly forgive the killers who destroyed their families? Can the government expect this from its people? And can the church, which failed at moral leadership during the genocide, fit into the process of reconciliation today? In As We Forgive, director Laura Waters Hinson and narrator Mia Farrow explore these topics through the lives of four neighbors once caught in opposite tides of a genocidal bloodbath, and their extraordinary journey from death to life through forgiveness.
(thx, misty)
Vengeance, part two
The New Yorker is being sued for $10 million over a story written by Jared Diamond. The fascinating story, Vengeance Is Ours, tells of blood feuds in New Guinea and now two of the men described in the article as participating in those feuds say they have been falsely accused of “serious criminal activity” and “murder”.
When foreigners come to our culture, we tell stories as entertainment. Daniel’s stories were not serious narrative, and Daniel had no idea he was being interviewed for publication. He has never killed anyone or raped a woman. He certainly has never stolen a pig.
I get the impression that Diamond has spent a lot of time in Papua New Guinea and, as a result, might not be taken in so easily by locals telling tall tales. Indeed, a fact-checking research team was told by one of the men in question that “the stories he told Diamond were in fact true”.
Saigon Grill owners arrested
More on the Saigon Grill saga: the owners were arrested yesterday on over 400 counts of “violating minimum-wage laws, falsifying business records and defrauding the state’s unemployment insurance system”.
“Like so many restaurants across New York City, Saigon Grill was run on the backs of its workers,” Mr. Cuomo said in a statement. “These workers allowed the business to thrive, and in exchange they were allegedly cheated out of wages, fined for ridiculous reasons” and, he said, “pulled into a painstaking ploy to cover it all up.”
(thx, nick)
Polanski seeks case dismissal
Lawyers representing Roman Polanski have asked a California judge to dismiss the statutory rape case against him because of evidence presented in Roman Polanski: Wanted and Desired, a documentary about the case, that the judge in the original case engaged in unethical and unlawful behavior.
Tuesday’s filing said Judge Rittenband, who is now dead, intentionally violated a plea agreement with Mr. Polanski after having engaged in what it called “repeated unethical and unlawful ex parte communications” with a deputy district attorney who was not involved in the prosecution, but was independently advising the judge.
Boycott! Saigon Grill!
A federal judge has awarded $4.6 million in back pay and damages to 36 delivery workers at two Saigon Grill restaurants in Manhattan, finding blatant and systematic violations of minimum-wage and overtime laws.
We live right around the corner from one of the SGs and have avoided eating there despite the decent and close Vietnamese food. The fired workers were out in front of the place protesting for months and months…it’s great to see hard work pay off like that, particularly when the protestors probably couldn’t actually afford to be out there.
Muxtape v1.0, RIP
As anticipated, Muxtape was unable to maintain its original form under assault from the RIAA and slow moving legal negotiations with the labels.
The first red flag came in August. Up until then all the discussion had been about numbers, but as we closed in on an agreement the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted. I had been worried about Muxtape getting a fair deal, but my biggest concern all along was maintaing the integrity and experience of the site (one of the reasons I wanted to license in the first place). Now it wasn’t so simple; I had agreed to a variety of encroachments into Muxtape’s financials because I wanted to play ball, but giving up any kind of editorial or creative control was something I had a much harder time swallowing.
Instead, the site will become more of a stripped-down MySpace for bands wanting to put their music online. Disappointing because Muxtape, as originally conceived, was obviously what everyone but the “music industry” wanted. Some of that simplistic magic will likely transfer over to the new incarnation but it won’t be as cool as mix tapes for your pals. (thx, mark)
Update: For posterity, I’m pasting Justin’s whole note in here.
I love music. I believe that for people who love music, the desire to share it is innate and crucial for music itself. When we find a song we love, we beckon our friends over to the turntable, we loan them the CD, we turn up the car stereo, we put it on a mixtape. We do this because music makes us feel and we want someone else to feel it, too.
The story of Muxtape began when I had a weekly show at my university’s radio station in Oregon. In addition to keeping the station’s regular log I compiled my playlists into a web page, with each show represented by a simple block that corresponded to a cassette recording for that week. At the time, mixtapes were already well into their twilight, but long after my show ended I couldn’t stop thinking about how the playlist page served a similar purpose, and in many ways served it better. Like a mixtape, each playlist was a curated group that was greater than the sum of its parts. Unlike a mixtape, it wasn’t constrained by any physical boundaries of dissemination, but… it also didn’t contain any actual music. Someone might come across the page and smile knowingly at the songs they knew, but shifting the burden of actually compiling the mix to its intended listener defeated the purpose entirely.
Five years later, internet technology had advanced significantly. I was working on experimental user interfaces for web sites when I started thinking about that playlist page again, and ultimately set out to bring it to life. My desire to share music (in the mixtape sense) hadn’t gone anywhere, but the channels to do so were becoming extinct. Popular blogging services allow you to post audio files in an ephemeral sort of way, but it wasn’t the context I was looking for. A physical cassette tape in your hands has such an insistent aesthetic; just holding one makes you want to find a tape player to fulfill its destiny. My goal with Muxtape’s design was to translate some of that tactility into the digital world, to build a context around the music that gave it a little extra spark of life and made the holder anxious to listen.
The first version was a one-page supplement to my tumblr, and was more or less identical to what it would become later. The feedback was great, and the number one question rapidly became “can you make one for me, too?” At first I started thinking about ways I could package the source code, but the more I thought about it the more it seemed like massively wasted potential. Distributing the source would mean limiting access to the small niche of people who operate their own web server, whereas I wanted to make something that was accessible to anyone who loves music. The natural conclusion was a centralized service, which suddenly unfolded whole other dimensions of possibility for serendipitous music discovery. What seemed before like the hollow shell of a mixtape now seemed like its evolution. I knew I had to try building it. Three weeks of long nights later, I launched Muxtape.
It was successful very quickly. 8,685 users registered in the first 24 hours, 97,748 in the first month with 1.2 million unique visitors and a healthy growth rate. Lots of press. Rampant speculation. Tech rags either lauded it or declared it an instant failure. Everyone was excited. I was thrilled.
There was a popular misconception that Muxtape only survived because it was “flying under the radar,” and the moment the major labels found out about it it’d be shut down. In actuality, the labels and the RIAA read web sites like everyone else, and I heard from them both within a week or so. An RIAA notice arrived in triplicate, via email, registered mail, and FedEx overnight (with print and CD versions). They demanded that I take down six specific muxtapes they felt were infringing, so I did.
Around the same time I got a call from the VP of anti-piracy at one of the majors. After I picked up the phone his first words were, “Justin, I just have one question for you: where do I send the summons and complaint?” The conversation picked up from there. There was no summons, it was an intimidation tactic setting the tone for the business development meeting he was proposing, the true reason for the call. Around the same time another one of the big four’s business developers reached out to me, too.
I spent the next month listening. I talked to a lot of very smart lawyers and other people whose opinions on the matter I respected, trying to gain a consensus for Muxtape’s legality. The only consensus seemed to be that there was no consensus. I had two dozen slightly different opinions that ran the gamut from “Muxtape is 100% legal and you’re on solid ground,” to “Muxtape is a cesspool of piracy and I hope you’re ready for a hundred million dollar lawsuit and a stint at Riker’s.”
In the end, Muxtape’s legality was moot. I didn’t have any money to defend against a lawsuit, just or not, so the major labels had an ax over my head either way. I always told myself I’d remove any artist or label that contacted me and objected, no questions asked. Not a single one ever did. On the contrary, every artist I heard from was a fan of the site and excited about its possibilities. I got calls from the marketing departments of big labels whose corporate parents were supposed to be outraged, wanting to know how they get could their latest acts on the home page. Smaller labels wanted to feature their content in other creative ways. It seemed obvious Muxtape had value for listeners and artists alike.
In May I had my first meeting with a major label, Universal Music Group. I went alone and prepared myself for the worst, having spent the last decade toeing the indie party line that the big labels were hopelessly obstinate luddites with no idea what was good for them. I’m here to tell you now that the labels understand their business a lot better than most people suspect, although they each have their own surprisingly distinct personality when it comes to how they approach the future. The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid. I sympathized with that. I told them I needed some time to get a proposal together and we left things in limbo.
A few weeks later I had a meeting with EMI, the character of which was much different. I walked into a conference room and shook eight or nine hands, sitting down at a conference table with a phonebook-thick file labeled “Muxtape” laying on it. The people I met formed a semi-circle around me like a split brain, legal on one side and business development on the other. The meeting alternated between an intense grilling from the legal side (“you are a willful infringer and we are mere hours from shutting you down”) and an awkward discussion with the business side (“assuming we don’t shut you down, how do you see us working together?”). I asked for two weeks to make a proposal, they gave me two days.
I had to make a decision. As I saw it I had three options. The first was to just shut everything down, which I never really considered. The second was to ban major label content entirely, which might have solved the immediate crisis, but had two strong points against it. The first, most visibly, was that it would prevent people from using the majority of available music in their mixes. The second was that it did nothing to address the deeper questions surrounding ownership and usage for everyone else who wasn’t a major label: mid-size labels and independent artists who have just as fundamental a right to address how their content is used as a large corporation, even if they don’t carry quite as big a stick.
The third option was to approach a fully licensed model, which I had been edging toward since I met with Universal. I knew other licensed services so far had met with mixed success, but I also knew Muxtape was different and that it was at least worth exploring. The question about whether or not the labels saw value in it had been answered, the new question was how much it was going to cost.
It was June. I approached a Fifth Ave law firm about representing me in licensing negotiations with the major labels, and they took me on. Two weeks later I met with all four, flanked by lawyers this time, and started the slow process of working out a deal. The first round of terms were stiff and complex, but not nearly as bad as I’d imagined, and I managed to convince them that allowing Muxtape to continue to operate was in everyone’s best interest. Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations. A big concern was getting a deal that took into consideration the fact that Muxtape wasn’t a straightforward on-demand service, and should pay accordingly less than a service that was. Another reason I liked the licensing option from the outset was that it seemed like an uncommon win-win; I didn’t want the ability to search and stream any song at any given notice, and they were reluctant to offer it (for the price, anyway). Muxtape’s unusual limitations were its strength in more ways than one.
The first red flag came in August. Up until then all the discussion had been about numbers, but as we closed in on an agreement the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted. I had been worried about Muxtape getting a fair deal, but my biggest concern all along was maintaing the integrity and experience of the site (one of the reasons I wanted to license in the first place). Now it wasn’t so simple; I had agreed to a variety of encroachments into Muxtape’s financials because I wanted to play ball, but giving up any kind of editorial or creative control was something I had a much harder time swallowing.
I was wrestling with this when, on August 15th, I received notice from Amazon Web Services (the platform that hosts Muxtape’s servers and files) that they had received a complaint from the RIAA. Per Amazon’s terms, I had one business day to remove an incredibly long list of songs or face having my servers shut down and data deleted. This came as a big surprise to me, as I’d been thinking that I hadn’t heard from the RIAA in a long time because I had an understanding with the labels. I had a panicked exchange of emails with Amazon, trying to explain that I was in the middle of a licensing deal, that I suspected it was a clerical error, and that I was doing everything I could to get someone to vouch for me on a summer Friday afternoon. My one business day extended over the weekend, and on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account. I moved the domain name to a new server with a short message and the very real expectation that I could get it sorted out. I still thought it was all just a big mistake. I was wrong.
Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over. I also learned that none of the labels were especially interested in helping me out, and from their perspective it had no bearing on the negotiations. I disagreed. The deals were still weeks or months away (an eternity on the internet) meaning that at best, Muxtape was going to be down until the end of year. There was also still the matter of how to pay for it; getting investment is hard enough in this volatile space even with a wildly successful and growing web site, it became an entirely different proposition with no web site at all.
And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to. They’d already taken so much attention away from development that I started to question my own motivations. I didn’t get into this to build a big company as fast as I could no matter what the cost, I got into this to make something simple and beautiful for people who love music, and I plan to continue doing that. As promised, the site is coming back, but not as you’ve known. I’m taking a feature that was in development in the early stages and making it the new central focus.
Muxtape is relaunching as a service exclusively for bands, offering an extremely powerful platform with unheard-of simplicity for artists to thrive on the internet. Musicians in 2008 without access to a full time web developer have few options when it comes to establishing themselves online, but their needs often revolve around a common set of problems. The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format. Bands will be able to assemble an attractive profile with simple modules that enable optional functionality such as a calendar, photos, comments, downloads and sales, or anything else they need. The system has been built from the ground up to be extended infinitely and is wrapped in a template system that will be open to CSS designers. There will be more details soon. The beta is still private at the moment, but that will change in the coming weeks.
I realize this is a somewhat radical shift in functionality, but Muxtape’s core goals haven’t changed. I still want to challenge the way we experience music online, and I still want to work to enable what I think is the most interesting aspect of interconnected music: discovering new stuff.
Thank to you everyone who made Muxtape the incredible place it was in its first phase, it couldn’t have happened without your mixes. The industry will catch up some day, it pretty much has to.
Justin
Illegal but mainstream behavior
A list of illegal behaviors that are also mainstream: pirating media/software, alcohol during Prohibition, speeding, marijuana, and sodomy. (via waxy)
Muxtape and the RIAA
Muxtape finally runs afoul of the RIAA.
Muxtape will be unavailable for a brief period while we sort out a problem with the RIAA.
Update: On their blog, Muxtape emphasizes that the outage is temporary:
No artists or labels have complained. The site is not closed indefinitely. Stay tuned.
The girl in the window
This story about a “most outrageous case of neglect” was extremely difficult to read at times, but it’s an amazing tale.
“It’s mind-boggling that in the 21st century we can still have a child who’s just left in a room like a gerbil,” said Tracy Sheehan, Danielle’s guardian in the legal system and now a circuit court judge. “No food. No one talking to her or reading her a story. She can’t even use her hands. How could this child be so invisible?”
There’s a collection of video and audio that accompanies the story as well. (via waxy)
Legal pot in California
In California, it’s pretty much legal now to buy, sell, grow, and smoke pot, provided you’ve got the proper documentation from a doctor, which is pretty easy to get. This article from the New Yorker details the industry that’s sprung up around this legalization, filled with people who, you get the feeling, really like smoking pot for recreational and not medical reasons.
The counties of California were allowed to amend the state guidelines, and the result was a patchwork of rules and regulations. Upstate in Humboldt County, the heartland of high-grade marijuana farming in California, the district attorney, Paul Gallegos, decided that a resident could grow up to ninety-nine plants at a time, in a space of a hundred square feet or less, on behalf of a qualified patient. The limited legal protections afforded to pot growers and dispensary owners have turned marijuana cultivation and distribution in California into a classic “gray area” business, like gambling or strip clubs, which are tolerated or not, to varying degrees, depending on where you live and on how aggressive your local sheriff is feeling that afternoon. This summer, Jerry Brown, the state’s attorney general, plans to release a more consistent set of regulations on medical marijuana, but it is not clear that California’s judges will uphold his effort. In May, the state Court of Appeal, in Los Angeles, ruled that Senate Bill 420’s cap on the amount of marijuana a patient could possess was unconstitutional, because voters had not approved the limits.
Senate Bill 420! The LAPD and DEA have taken the stance that federal law takes precedence over state law and are routinely busting people for growing, selling, and possession. It’ll be interesting to see what happens in the future here.
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