radio – Techdirt (original) (raw)

Republicans, Musk, Pretend To Care About Media Consolidation… When George Soros (Read: A Jew) Is Involved

from the do-as-I-say,-not-as-I-do dept

Though Republicans are the worse of the two offenders, neither Democrats nor Republicans have cared all too much about preventing media consolidation. As a result, U.S. journalism and media has increasingly fallen into the hands of a handful of wealthy corporations and billionaires; and it’s routinely reflected in terrible journalism (especially political journalism) and bumbling companies like Time Warner.

In fact, you might remember that in 2017 the Trump FCC went comically out of its way to strip away what was left of media consolidation limits so that Sinclair Broadcasting — a right wing propaganda empire posing as a local news channel — could merge with Tribune Broadcasting. The irony: Sinclair lied so much during its merger application that even the Trump FCC had to ultimately block the deal.

That’s a long way of saying that Republicans historically couldn’t care less about media consolidation at the hands of rich billionaires and corporations. In fact, they routinely, actively encourage it. Unless, of course, George Soros is distantly involved, apparently.

In what would otherwise be a completely ignored deal, the FCC earlier this month voted 3-2 to approve the bankruptcy restructuring of Audacy, the nation’s second biggest owner of radio stations. Audacy was delisted from the New York Stock Exchange last May due to company incompetence and an overall downturn in interest in traditional media (though Audacy is also involved in a lot of podcasts).

The bankruptcy is expected to reduce Audacy’s debt about 80% to $350 million. As part of that restructuring, the post-bankruptcy Audacy will see a 57% ownership stake by Laurel Tree Opportunities Corporation. It’s not really any sort of controversy, and the kind of restructuring that happens constantly.

But Laurel Tree Opportunities Corporation is owned by FPR Capital Holdings LLC, which in turn is managed by the Soros-funded Fund for Policy Reform. This, apparently, was enough to send Republicans and Elon Musk into an absolute tizzy over the last week. With folks like Musk lying for attention, claiming that Soros was buying the bankrupt radio company to “spread propaganda”:

Soros, as you might or might not know, is held up as a bogeyman and bizarre caricature by the right wing because he’s Jewish. Soros’ investments, like most extremely rich people, cover the gamut of industries and businesses. But because this latest investment is in media, Republicans (as per a very classy tradition) immediately jumped to seed antisemitic tropes about Jewish-control of media.

Highly-consolidated, Rupert Murdoch owned, right-wing news outlets, traditionally and quite correctly accused of spreading propaganda, got right to work pretending there was something illegal or nefarious about the FCC’s fairly routine bankruptcy restructuring vote:

FCC Commissioner Brendan Carr, who quite simply could not give any less of a shit about propaganda (if it’s coming from right wing sources like Fox, Sinclair, OAN, Newsmax, Breitbart, or any of a million other conservative organizations pretending to do journalism), or any less of a shit about media consolidation (whether it’s Time Warner or Fox or Sinclair) also put on a little hissy fit, claiming that the FCC’s approval of the bankruptcy restructuring was somehow illegal:

The FCC, for its part, was forced to issue a polite statement that nothing about this transaction was illegal or even out of the ordinary, and that Republicans were being, well, fucking gross:

“The process we use to facilitate this license transfer is identical to the one recently used by the agency in the bankruptcy proceedings of Cumulus Media in 2018, iHeart Media in 2019, Liberman Television in 2019, Fusion Connect in 2019, Windstream Holdings in 2020, America-CV Station Group in 2021, and Alpha Media in 2021. To suggest otherwise is cynical and wrong, as this precedent clearly demonstrates. Our practice here and in these prior cases is designed to facilitate the prompt and orderly emergence from bankruptcy of a company that is a licensee under the Communications Act.”

Now it certainly is true that both parties of government have historically failed utterly to rein in corporate consolidation in radio, TV, and pretty much every other industry (with occasional exception). That’s resulted in no limit of harm to journalism and media as competition and diverse voices are forced out of the market and Americans are bombarded by a rotating crop of corporatist and partisan mush.

But as is often the case, the Republican outrage here is entirely performative.

This is a party that routinely supports unchecked corporate power, monopolization, and consolidation at every turn. The only time it even tries to pretend otherwise is either in an instance like this when they’re seeding panic about Jewish ownership, or when they’re trying to gain leverage over companies for some reason (like when they pretended to care about “antitrust reform” for a few weeks to successfully scare tech companies away from moderating right wing racist propaganda on the internet).

These are not serious people. The GOP is not a serious party. It cares about two things: the power of rich white Christian men and unchecked wealth accumulation. Everything else is performance. Ironically our highly consolidated press, more worried about maximum engagement and access than the truth, routinely fails to point this fact out to the American public, giving ignorant propaganda efforts like this one more traction and “legitimacy” than they might otherwise deserve.

Filed Under: antisemitism, bigotry, disinformation, elon musk, fcc, george soros, jessica rosenworcel, media consolidation, propaganda, radio
Companies: audacy, fpr capital holdings, laurel tree opportunities corporation

Jamaican Government Thinks People Still Listen To The Radio, Bans Music About Drugs Or Crime

from the cutting-off-the-supply-with-the-least-demand dept

Jamaicans are being asked to fund futility with their tax dollars. Radio still exists, but it’s nowhere near as powerful or relevant as it was three or four decades ago. A ban like this doesn’t make sense for several reasons, but the most obvious reason is that it will only “protect” people who listen to the radio, a steadily dwindling demographic pretty much everywhere in the world.

Musicians in Jamaica are outraged after the country’s broadcasting regulator announced a new ban on content that glorifies drugs and crime.

The Jamaican Broadcasting Commission said in a statement released Tuesday that the ban reinforces their commitment to “keeping the airwaves free of harmful content given the important role traditional media still play as agents of socialisation.”

Jamaica regularly ranks as one of the deadliest country’s per capita in the Americas and is rife with gang violence.

I will say this about the directive [PDF]: it at least recognizes the Jamaican government can only control certain content sources — that being the public airwaves the government regulates.

Other than that, there’s nothing in here that will do anything more than provoke anger, mockery, or angry mockery. This directive amends the existing regulations — ones that forbid the transmission of media “likely to incite violence or criminal activity” — to include some very specific forms of lyrical content.

AND WHEREAS there is currently a proliferation of recordings with lyrics that promote, glorify and/or reference the criminal activity of scamming, through the use of urban slangs and phrases such as “chop di line”, “chop the line”, “chop ‘e line”, “pon ‘e line”, “bang line”, “chop”, “choppins”, “choppa”, “choppa phone”, “banga”, “banga phone”, “burner phone” and “client”;

_AND WHEREAS the use of these words/slangs might also have meanings that are unrelated to scamming, however when in connection to making money, wire transfers, acquiring wealth (property, expensive cars, jewellery), and a lavish lifestyle, or used in combination with other words such as “leads, lead list/sheet”, “bank/foreign account”, “food”, “wallet” and “purse”, scamming is very likely to be the connotation_…

The directive also says bleeping the words or replacing them with similar-sounding words aren’t acceptable workarounds. And it says the government is free to ban other content that isn’t explicitly referenced in this directive, which accompanies a mandate stating licensees should be proactive in removing content from playlists.

Licensees are reminded that in determining suitability for broadcast, they must consider the overall theme/message of the content and not only specific and individual words.

Some artists are understandably angry. There’s still a radio market for music, even if it’s only a mere shadow of its former powerhouse self. Then there are those who see this ban attempt as more comical than threatening, given the many, many alternatives to radio airplay artists use to reach listeners.

Romeich, a Jamaican musician and entertainment executive, took to social media to question the ban.

“While I understand why people feel like this and even I don’t agree with glorifying guns or any use of any drug at all, we can’t stop the creatives (artistes) from singing about what they see around them or grew around,” Romeich wrote on Instagram. “Are you going to ban Apple Music, Spotify, SoundCloud and other platforms where the same people have the same access to the same songs?”

These are good questions the Jamaican government doesn’t appear to have answers for. And the government should be content with the fact that it doesn’t have all the answers, since one of the answers would be a move to directly regulate foreign social media service and music platforms — something the government definitely shouldn’t attempt to do.

Other artists didn’t even bother to ask questions. To artists who have utilized YouTube and Soundcloud for years, this is a non-event.

Skeng, a popular rapper who recently collaborated with Nicki Minaj, has racked up tens of millions of views on YouTube with his tracks about the streets of Jamaica like “Gvnman Shift” and “Gang Bang.” After news of the ban, Skeng tweeted a yawn emoji with a 21 second clip from his track “Rain Like Hell.”

The government says it’s obligated to keep the public airwaves clean. Maybe so, but it’s limiting artistic expression under the theory that violent content is to blame for violent acts. Glorification of violence, crime, and drug use is in the eye of the beholder. And it’s that beholder that will decide who gets to listen to what from now on.

Filed Under: crime, drugs, jamaica, jamaican broadcasting commission, radio

FCC Inaction On Media Consolidation Continues On Anniversary Of Prometheus Ruling

from the sitting-on-your-hands dept

One year ago today, the Supreme Court handed down a decision in FCC v. Prometheus Radio Project. The decision provided a reset to a seventeen year long legal dispute over the FCC’s media ownership rules that had its inception in the Third Circuit in 2004.

In 1996, the Telecommunications Act included substantial revisions to the FCC’s ownership rules for broadcast stations. These changes led to a massive round of consolidation, especially in radio, giving rise to massive radio companies like Clear Channel and Cumulus.

Included in the Telecommunications Act was an ongoing requirement that the agency periodically review its ownership rules. This requirement was initially on a two-year (biennial) cycle that was later expanded to a four-year (quadrennial) review. As part of this mandate the FCC reviewed ownership in 1998 and in 2000 but took almost no action as the broadcast industry was still going through a substantial upheaval caused by rapid consolidation in radio.

Then, after conducting the 2002 Biennial review, the agency released a new set of ownership guidelines called the Diversity Index in 2003. Several legal challenges were filed to the FCC’s actions, and those challenges were consolidated into Prometheus Radio Project v. FCC, heard by the Third Circuit, which released its decision in June of 2004.

The decision, and the three that followed in 2011, 2016 and 2019, were harsh rebuttals of the FCC’s decision-making and represented a substantial set-back for the agency. The criticisms of the agency’s processes were focused on two major issues. First, the FCC did not, and would not, consider the effect of the rules changes on station ownership by minorities and women, and second, the FCC was unable (and largely unwilling) to generate empirical evidence that the changes the agency was trying to implement were having the desired effects.

I’ve discussed this sequence of events in research in the Federal Communications Law Journal here and here, as well as in the Hastings Communications and Entertainment Law Journal, and in a series of podcasts with the folks at Radio Survivor.

With just one day remaining in the Trump administration, and his chairmanship of the FCC, Ajit Pai’s agency and the National Association of Broadcasters (NAB) argued in front of the Supreme Court that they should be freed from the ongoing (and still unanswered) remands from the 3rd Circuit Court of Appeals. Release from the ongoing remand cycle was an important part of the petition made to the court, and to be fair, was argued for very eloquently by NAB Counsel Helgi Walker during oral arguments.

The decision, written by Justice Kavanaugh was narrow, but provided the relief that the industry and the FCC were seeking, primarily by focusing on the agency’s most recent action on media ownership from 2017 to the exclusion of the events of the other 13 years of the lengthy dispute. However, there was a lingering, and unresolved issue left on the table by the court’s opinion: Notably: how to handle the 2018 Quadrennial Review Process.

While the conflict over the FCC’s 2016 and 2017 decisions were pending in the Third Circuit, the agency launched, on the last possible day to do so, the 2018 Quadrennial Review, but functionally took no further action in the matter. Now, in early 2022, without a full Commission, the agency faces an unfinished review from 2018 and another review of its ownership rules mandated by the Telecommunications Act to be launched this year.

It bears mention, even as we celebrate another year without action by the agency… even in light of the Supreme Court’s decision, that the agency could have acted at multiple points itself to break the deadlock, but it chose not to. The agency did not complete the 2010 Quadrennial review, rolling it right into the 2014 review, and then not acting until ordered by the Third Circuit to do so in April of 2016.

Then, after releasing an order in response to the Third Circuit in August of 2016 that made no significant changes to the existing rules, in 2017 the agency, now led by Ajit Pai, issued a new set of ownership rules, based on the same administrative record, that fundamentally altered several of the existing regulations, and then even after a loss in court in 2019, decided to continue pursuing legal remedies rather than complete the open 2018 proceeding.

So, in the end, as the agency has squandered another year, we should remember that the FCC is doing so in a way that is basically a trifecta of policy failure. The Commission is making the broadcast industry miserable by not updating the rules, while not developing functional policies to promote diverse ownership by women and minorities. Then there’s that small detail where the existing rules are still allowing local stations to get swallowed up by conglomerates, often removing the important local aspects to their news and informational content and thus hurting local audiences.

But hey, I mean, what’s another year between friends, right?

Christopher Terry is an assistant professor of media law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota and a research fellow for the Center for Quantum Networks.

Filed Under: broadcast industry, broadcasters, court ruling, fcc, media ownership, prometheus, radio, supreme court, tv

Seattle Public Radio Station Manages To Partially Brick Area Mazdas Using Nothing More Than Some Image Files

from the may-we-offer-you-a-tote-bag-bearing-our-logo.null dept

Welp. This isn’t going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Drivers of certain vehicles in Seattle and other parts of Western Washington are shouting at their car radios this week. Not because of any particular song or news item that’s being broadcast, but because an apparent technical glitch has caused the radios to be stuck on public radio station KUOW.

The impacted drivers appear to all be owners of Mazda vehicles from between 2014 and 2017. In some cases the in-car infotainment systems have stopped working altogether, derailing the ability to listen to the radio at all or use Bluetooth phone connections, GPS, the rear camera and more.

Behold the collision of OTA and IO(car)T. This unique situation — limited solely to drivers in the Upper West — presented a host of new problems and a lot of speculative answers. The radio station had absolutely no idea why this was happening. One local dealership told a customer it had something to do with 5G, which apparently meant affected Mazdas were now infected with a car-borne form of COVID, presumably necessitating plenty of expensive diagnostics and what have you.

Fortunately, the cars’ manufacturer was actually able to pinpoint the cause of the malfunction — which left some drivers staring at in-car systems stuck in a perpetual “loading…” loop. The answer arrived roughly a week after the problem presented itself. The problem — discussed in this entertaining Reddit thread — had nothing to do with network upgrades or an unexplained bug in Mazda software.

Instead, the public radio station had done something completely unexpected, sending affected vehicles into in-car entertainment purgatory. This is the statement Mazda gave to Geekwire.

“Between 1/24-1/31, a radio station in the Seattle area sent image files with no extension, which caused an issue on some 2014-2017 Mazda vehicles with older software,” the Mazda statement said. “Mazda North American Operations (MNAO) has distributed service alerts advising dealers of the issue.”

While it’s somewhat troubling to note that Mazdas manufactured within the last eight years are running what Mazda considers to be outdated software, the good news is that it can be fixed. The bad news follows the good news: due to shipping constraints affecting goddamn everything, drivers affected by this oddity shouldn’t expect to see a fix anytime soon. “Part delays” cited by Mazda could put permanent fixes months off.

On the other hand (good news!), even older models will be covered by these repairs, whether or not they’re still under warranty. The company has instructed dealers to honor “goodwill requests” for free repairs of affected vehicles. Back to the bad news: the part that apparently needs to be replaced is the ominous-sounding “connectivity master unit,” which indicates a whole lot of connectivity will be affected until dealers get the part in stock and start dealing with the backlog of semi-bricked Mazdas. Some users have reported in-car entertainment systems stuck in permanent loops, non-functioning GPS systems, and bricked back-up cameras.

This isn’t going to go well for Mazda, considering it’s the only manufacturer whose systems have been rendered useless by a misconfigured file distributed by a radio station. While this situation is certainly an outlier, there’s likely a reason other in-car entertainment systems weren’t similarly affected, which suggests a crucial shortcoming in the tech installed in those models — one that could be exploited by entities far more nefarious than local public broadcasters.

Filed Under: images, public radio, radio, seattle, washington
Companies: kuow, mazda

The FCC Ponders A Hugely Problematic Tax On WiFi

from the this-won't-end-well dept

Thu, Nov 18th 2021 06:35am - Karl Bode

For years, we’ve noted how telecom and media giants have been trying to force “big tech” to give them huge sums of money for no reason. The shaky logic usually involves claiming that “big tech” gets a “free ride” on telecom networks, something that’s never actually been true. This narrative has been bouncing around telecom policy circles for years, and recently bubbled up once again thanks to FCC Commissioner Brendan Carr.

Carr’s push basically involves parroting AT&T’s claim that big tech should be funding AT&T network upgrades. You’re to ignore the fact that giants like AT&T routinely take billions in tax breaks and subsidies for network upgrades that never arrive. This quest to punish “big tech” with unnecessary new surcharges is something that’s also supported by the National Association of Broadcasters, who have long hated companies like Microsoft’s efforts to use unlicensed spectrum from unused television channels (aka “white spaces”) to deliver new broadband options.

The FCC does desperately need to find more funding revenue to shore up programs like the Universal Service Fund (USF) and E-Rate, which help provide broadband access to schools and low income Americans. So it recently announced it would be considering a new tax on unlicensed spectrum. Pressured by NAB, the Biden FCC’s plan would assess regulatory fees on ?unlicensed spectrum users,? which would include users of Wi-Fi, Bluetooth and other consumer wireless devices. It’s a tax on tech, proposed by telecom and media companies that want to punish their ad and data collection competitors in tech.

Harold Feld, who probably knows more about wireless spectrum policy than anybody, has penned a helpful piece over at Forbes explaining why this is a terrible idea. He outlines that NAB’s real goal is to punish companies like Microsoft for daring to use spectrum the broadcast industry falsely believes belongs to them:

“The NAB has made it abundantly clear this is payback against tech companies ? particularly Microsoft. Broadcasters don?t just claim to own their individual channels. They claim to collectively own all ?broadcast spectrum.? About 10 years ago, the FCC authorized unlicensed access to unused television channels, aka ?TV white spaces.? Broadcasters vowed to strangle the new technology in its cradle rather than share ?their? spectrum and, unfortunately, were largely successful. But in recent years, Microsoft has tried to resurrect the TV white spaces as a way of bringing broadband to rural America.”

The FCC’s proposal may go nowhere. Interim (and soon permanent) FCC boss Jessica Rosenworcel may just be doing her due diligence, and opening the door to a conversation about various options to shore up dwindling FCC broadband program funding. But Harold makes it very clear the proposal, if adopted, would be hugely problematic and defeat the benefit of unlicensed spectrum:

“The idea that a tax on unlicensed spectrum would only hurt Microsoft or ?big tech? is absurd. The whole point of unlicensed spectrum is that it?s open for everyone to use. The effort by broadcasters to impose a Wi-Fi tax should be as laughably ridiculous as modem taxes and email taxes. But rather than simply deny the proposal, the FCC has put it out for public comment.”

While Harold’s correct that this particular push belongs to NAB, the broader push to hit “big tech” with various new FCC regulatory fees is something also being supported by telecom giants, and the regulators who love them. Both broadcasters and telecoms realize the FCC is desperate for new funding for low-income programs, and want to exploit that with efforts that predominately benefit themselves. For NAB, it’s punishing big tech for daring to innovate using spectrum it falsely thinks it owns. For AT&T, it’s forcing “big tech” to pay for network upgrades it routinely fails to finish despite billions in tax breaks, regulatory favors, and subsidies.

Filed Under: bluetooth, broadcasters, e-rate, fcc, radio, tax, usf, wifi
Companies: nab

A Century Ago We Killed The Radio Commons; Don't Let The EU Do That To The Internet

from the a-history-lesson dept


As the EU gets set to vote on the EU Copyright Directive, it seemed like a good time for a little history lesson. Many people don’t know this, but in the early days of radio, it was not just considered a broadcast media. It was considered an open commons for anyone to use. The airwaves were the public airwaves, and the public was free to use them:

It?s easy to forget that the broadcasting airwaves are?and once were treated as?a commons, owned by citizens, not powerful media companies.

At the dawn of the broadcasting era, the free market prevailed. The government set no rules. The 1912 Radio Act authorized the federal Commerce and Labor Department to issue radio station licenses to U.S. citizens upon request. Which it did…

Admittedly, as that article notes, this created some amount of chaos, mainly because the spectrum got too crowded, and there was widespread interference between different signals that made the whole space a mess. Over time, laws were put in place to “regulate” the wild west, but what happened was we turned what had been an open commons into a locked up space where only giant media companies could prevail. The US, at the very least, decided that the way to deal with this wild west was to treat spectrum as a property right that could be “licensed.” And in doing so it set things up such that large broadcasters could collect many licenses and dominate markets.

What had been the open spaces of the public to use for a variety of creative endeavors turned into a locked down space for giant corporations.

While there are some notable differences, the attempt by the EU to pass Article 13 is truly an attempt to replay this unfortunate scenario nearly a century later. There was a good rationale for radio regulations in the past — dealing with all of the interference that made using radio difficult — and as one 1927 academic so succinctly put it: “highly annoying and almost destructive.”

But, of course, we lost something when we went from an open radio system for the public to use to one that was locked up among just a few corporations. And the wonderful thing about the internet was that we didn’t have the same limitations. There is no “interference” like there is with more limited radio spectrum. And while there are reasonable questions about companies dominating parts of the internet, others are not completely locked out as they were in radio.

Unfortunately, the entire design of the EU Copyright Directive is an attempt to do the same sort of thing to the internet: to lock it down. The EU Copyright Directive — in particular Articles 11 and 13 — are designed to make the internet a bland corporate broadcast medium dominated by a few giant companies. This dismisses the roots of the internet as a commons-based communications medium that anyone can use.

The very structure of Article 13 makes this clear. The demand that everything must be “licensed” on internet platforms makes no sense. Do you “license” content in order to communicate with your friends? Do you license a song to sing? Do you license it when you quote from a book? Licensing is not necessary for communication — it is only necessary for “broadcast.” This is the core problem that the legacy gatekeepers have with the internet. It’s a communications medium, and they come from the broadcast era. Their entire structure is built off of licensing to broadcasters. And rather than recognize that everything has changed, their only play is to try to shove the internet into a similar broadcast structure.

We killed off the open commons of radio nearly a hundred years ago. Hopefully the EU chooses not to do the same to the internet this year.

Filed Under: article 11, article 13, broadcast, commons, communications, copyright, creativity, eu, eu copyright directive, eu parliament, gatekeepers, radio

from the bye-bye-public-domain dept

Whoo boy. Did not expect this one. For a while now, we’ve noted a variety of lawsuits over pre-1972 sound recordings, due to a quirk in copyright law. You see, for a long time, sound recordings were not covered by federal copyright at all (the compositions were, but the recordings were not). State laws did jump in to fill the gap (often in terrible ways), but in the 1970s, when the Copyright Act was updated, it finally started covering sound recordings as well… but only for songs recorded in 1972 or later. This has left all songs recorded before that in a weird state, where they’re the only things still covered by a mess of confusing state copyright laws. The easy way to fix this would be to update the law to just put all such sound recordings under federal copyright law. But the RIAA has resisted this heavily, recognizing that keeping them away from federal copyright law is allowing them the ability to keep them under copyright even longer and to squeeze a lot of extra money out of music streaming companies.

Last fall, we wrote about the record labels moving on from streaming companies to instead suing CBS over its terrestrial radio operations playing pre-1972 songs as well. CBS hit back with what we considered to be a fairly bizarre defense: claiming that it wasn’t actually playing any pre-1972 music, because all of the recordings it used had been remastered after 1972, and those recordings should have a new and distinct copyright from the original sound recording. As we noted at the time, an internet company called Bluebeat had tried a version of this argument years earlier only to have it shot down by the courts (though its argument ignored the whole derivative works issue).

Now, in a somewhat stunning ruling, the court has agreed with CBS that remastered works get new copyrights as derivative works of the original. You can read the full court order here. The court, correctly, notes that for a work to get a new copyright, it must show originality beyond the initial work — and that originality “must be more than trivial.”

The court relies heavily on CBS’s own experts who claim that remastering involves a lot of choices by the engineer doing the remastering, as well as an audio forensics expert who insisted that by using the remastered versions, “CBS did not use any version of the sound recordings that plaintiffs claim to own.” The label that’s suing, ABS Entertainment, argued that remastered music is just a digital conversion of an old analog recording. ABS supplied its own expert… who apparently was completely unconvincing, mainly because his “scientific method” of analyzing the old and new songs was basically “I listened to both carefully.”

CBS objects to Mr. Geluso?s testimony on the grounds that it is irrelevant, unscientific, based on unreliable methodology, and lacks adequate foundation as expert testimony. As context for these objections, it is worth recounting what Mr. Geluso did during his testing: Mr. Geluso examined the sound recordings by performing waveform and spectral analysis, as well as critically listening to them ?a technique which is unexplained in Mr. Geluso?s declaration but appears to involve listening while also paying attention… While Mr. Geluso would ?critically listen? to all of a recording, his actual scientific testing was limited to, in most instances, the first five seconds of each recording…. Mr. Geluso?s report also includes graphs taken from his testing software which serve as visual exhibits demonstrating his scientific testing…. However, in his deposition, Mr. Geluso could not provide an opinion as to the similarities or differences between sound recordings based only on his own graphs, protesting that he needed access to his full computer workstation…. Moreover, Mr. Geluso excluded from his report results from the first test he attempted ? an ?industry standard? known as phase inversion testing ? which revealed differences in the first several works which Mr. Geluso compared…. Mr. Geluso then abandoned this methodology and did not directly disclose the results in his report.

Let this be a lesson to litigious companies: be careful who you hire as an expert. The court tossed out all of Geluso’s testimony, meaning that ABS presented basically no evidence to contradict CBS’s claims that remastered works are original enough to get a new copyright, making it easy to find for CBS on summary judgment. The court rejects ABS’s reliance on older cases that said remastered works didn’t create a new song by noting that those all involved unauthorized remastering, as opposed to this situation where the remastered versions were authorized:

Accordingly, the Court finds that on the record before it, Plaintiffs? pre-1972 Sound Recordings have undergone sufficient changes during the remastering process to qualify for federal copyright protection. For example, for Ace Cannon?s ?Tuff,? Dr. Begault found that the CBS version had additional reverberation, was played in a different musical key and at a faster tempo, and differed in the musical performance…. Additionally, many of the remastered versions included different channel assignments and adjustments in equalization…. In the terms identified in Circular 56, these differences between the recordings ? which were explained by Mr. Inglot and objectively measured by Dr. Begault ? are not merely ?mechanical changes or processes ? such as a change in format, de-clicking, and noise reduction.? … Nor are the changes ?trivial,? as evidenced by Plaintiffs? repeated decisions to have experienced sound engineers remaster their works. Instead, the changes reflect ?multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.? …

In sum, Plaintiffs have failed to create a genuine dispute of material fact as to whether the versions of Plaintiffs? works performed by CBS included sufficient originality to qualify for a federal copyright. For the 57 works reviewed by both parties? experts, the Court finds that the changes made during the remastering process were original within the meaning of the Copyright Act, and are thus entitled to federal copyright protection.

ABS raised a few other potential issues, each of which the court dismisses. The most interesting to me is the claim that even if the remastered versions are new works, ABS still holds the common law pre-1972 copyright on the original that is embedded within the remastered version. But, the court points out, the law treats the two works differently, and as long as CBS is playing the post-1972 version, it’s in the clear:

However, the Court disagrees with Plaintiffs? further conclusion that this results in CBS having infringed Plaintiffs? copyrights. The relevant question is whether CBS had the right to perform the remastered, post-1972 sound recordings.12/ Under federal law, CBS has the right to perform post-1972 sound recordings on terrestrial radio without payment, and to perform them through digital platforms under a statutory compulsory license.

Now, this ruling, if it holds up under any appeal is going to have massive reverberations and implications in the world of music copyright. While the original lawsuit (as with many lawsuits over pre-1972 sound recordings) was pretty ridiculous and a blatant attempt to use legal quirks to try to squeeze extra money out of things, this ruling could upend a bunch of things in dangerous ways. First off, it’s going to make a huge mess for the public domain. Record labels can now avoid public domain issues by simply “remastering” old works and getting a brand spanking new copyright that will last for another 95 years. Yes, the original work will still go into the public domain, but things are going to get difficult for the public to determine what’s in the public domain and what’s not. The fact that you might need to get a musicologist to analyze tracks to determine if the sound recording you have is in the public domain or subject to a brand new copyright seems like a potential disaster for the public domain. It’s going to make it hellishly risky to make use of any sound recording, even if it should be in the public domain.

The court plays down this threat in a rather unconvincing footnote:

Plaintiffs also assert a policy based argument that an adverse ruling in this case will result in potentially endless extension of copyright protections for pre-1972 Sound Recordings as they are remastered into new formats…. Plaintiffs? concerns are unwarranted because the Court?s finding of copyrightable originality is based not on a mere conversion between formats, but on the original expression added by a sound engineer during the remastering process. Such original expression is entitled to copyright protection, regardless of whether the underlying work was fixed before or after 1972.

Yeah, but that assumes that copyright holders won’t carefully make changes in the remastering process to account for this fact. And that’s ridiculous, because the RIAA and its labels will do just about anything to hold onto copyrights for a longer period of time.

Second, it’s going to wreak havoc on the issue of termination rights. As we’ve discussed in the past, under copyright law, the original creator has a universal right to reclaim the copyright from anyone it was assigned to after 35 years. This has been a massive headache for the RIAA lately, as a bunch of classic artists have started to demand their songs back. The RIAA has been trying to fight this in a number of different ways… including by arguing that remastered songs get a brand new copyright. So even though the record labels may have “lost” this case (so far), they may be thrilled in the long run, because they may have just been given a massive tool to avoid both the public domain and termination rights. Remember, this is the same RIAA, who back in 1999 had a Congressional staffer named Mitch Glazier sneak four words into a totally unrelated bill (literally) in the middle of the night, to try to exempt sound recordings from copyright termination laws (and then, months later, hired that same staffer to a job paying upwards of $500k per year — a job he still has a decade and a half later). That kerfuffle was only discovered later and a bunch of famous musicians started screaming at Congress, leading them to repeal Glazier’s sneaky change. In short: if you don’t believe the RIAA will make use of this new loophole to get around termination rights, you haven’t been paying any attention at all.

So, in the end, even though this case is a “loss” for the record labels who brought the case, the implications of this ruling almost certainly are a massive victory for the labels in a variety of other cases, and a huge loss for the public and for artists who were expecting to reclaim their works.

Filed Under: copyright, derivative works, pre-1972 sound recordings, public domain, radio, remaster, remastering, termination rights
Companies: abs entertainment, cbs, riaa

House Of Cards Sued Over Trademark Regarding Themed Slot Machines

from the slots-of-fun dept

Another day, another trademark dispute with one side weaponizing a trademark for a commonly used phrase and stretching the definition of common marketplaces. The latest foray into making my head hurt with this sort of thing is between MRC, producers of the Netflix drama House of Cards, and D2 Holdings, which claims to have trademarked the phrase and licenses for a radio program that covers gambling. At issue is a soon-to-be-released series of House of Cards themed slot machines in casinos across the nation.

In the suit, D2 Holdings claims that it owns the trademark for “House of Cards” in word form, and licenses the phrase for a gaming-centric radio show of the same name. D2 is taking issue with the slot games “House of Cards Power and Money” and “House of Cards Welcome to Washington,” which it says “are slated for placement in casinos in the first quarter of 2016.”

Where to begin? First, any mark on a commonly used phrase, such as “house of cards”, is already problematic and ought to have a very specific focus on a narrow application of the mark if it’s going to be approved. Add to that that licensing the phrase to a gambling radio show isn’t competing in the same marketplace as a series of slot machines in casinos and I’m struggling to see how this lawsuit doesn’t get immediately laughed out of court. Radio programming isn’t gambling, no matter the subject of the show. If this line of thought were to be validated, I imagine all kinds of sports radio programming would be in deep trouble, as radio shows covering sports use all kinds of sports-related phrases that are likely trademarked by all kinds of entities. If those sports radio shows are suddenly seen to be in the marketplace of “sports” rather than “radio”, there could be all kinds of infringement suits brought against them. That, of course, won’t happen, because radio does not equal sports. It also doesn’t equal slot machines.

But even putting that aside, the claim from D2 Holdings that there is real customer confusion to worry about is laughable.

“Defendants’ unauthorized use of the House of Cards mark makes it highly likely, if not inevitable, that members of the trade and general public will be confused and assume, incorrectly, that the House of Cards mark is owned by MRC, or that there is an affiliation with D2, or that Plaintiff has sponsored, endorsed or approved these products,” the suit reads.

Yeah, that isn’t going to happen. These machines will be filled with the iconography of the show. Anyone who has seen a themed slot machine knows what they look like and how they are decorated. There will be zero customer confusion between the Netflix show and a gambling radio broadcast. Suggesting otherwise is silly.

Unless D2 Holdings has some ace up its sleeve that I don’t know about, I would expect a quick tossing of this lawsuit.

Filed Under: house of cards, radio, slot machines, trademark
Companies: d2 holdings, mrc, netflix

from the just-the-latest-example dept

People are quite reasonably upset by the news of David Bowie’s passing, with lots of reminiscing and certainly tons of listening to his music. I certainly re-listened to a bunch of his music on Sunday night after hearing about Bowie’s death. And, some, such as comedian Eddie Izzard, suggested that “every radio station” should just play David Bowie music for the day as a tribute:

Please could every radio station around the globe just play David Bowie music today – I think the world owes him that.

— Eddie Izzard (@eddieizzard) January 11, 2016

It’s certainly a nice idea… but as lawyer Cathy Gellis points out, at least in the US, it’s likely against copyright law for many radio stations. The specific issue has to do with those radio stations that also stream online. As you may or may not know, there are a set of rules that you need to follow to be considered a “non-interactive” webcaster, and among those are the “performance complement” rules:

1. No more than 4 tracks by the same featured artist (or from a compilation album) may be transmitted to the same listener within a 3 hour period (and no more than 3 of those tracks may be transmitted consecutively). 2. No more than 3 tracks from the same album may be transmitted to the same listener within a 3 hour period (and no more than 2 of those tracks may be transmitted consecutively).

That’s not just something that SoundExchange came up with on its own. It’s written directly into US Copyright law (at the bottom of the page). At some point, years ago, Congress (or, more likely, a recording industry lobbyist), wrote up rules that said online radio couldn’t play too many songs in a row by a single artists, because of the ridiculous fear that if they could, no one would buy music any more.

Now, the rules do say that the performance complement “may only be violated if the service has received specific waivers from the owner of the sound recording copyright” — so it’s possible that the copyright holder on Bowie’s music could waive those rules, but it would have to be to a bunch of different radio stations, and it’s unlikely they’re going to do that.

So, once again, it seems that copyright law is getting in the way of what sounds like a perfectly lovely idea: creating a day-long tribute to David Bowie. No wonder he was so keen on having copyright go away entirely.

Filed Under: copyright, david bowie, eddie izzard, non-interactive stream, online radio, performance complement, radio, streaming radio
Companies: soundexchange

Awesome Stuff: The Internet… Who Needs It?

from the good-ol-radio dept

As a growing number of web users have become more security-conscious, there’s been an explosion of VPNs and encryption tools and other security services for the internet. But what about a device that lets you bypass the internet entirely? That’s the goal of RATS, the Radio Transceiver System, an open source communication tool for the security-obsessed and/or the internet-bereft.

The Good

The RATS is simple: it’s a small antenna that connects to computers by USB and lets them send encrypted messages and file transfers directly, via radio transmission. There are two obvious advantages to this: firstly, it doesn’t rely on any network being up or even the power staying on — as long as your laptop has some batteries, you can send and receive — and secondly, it’s a level of security and privacy that trumps most of what you can do online. Apart from being entirely separated from the internet, it employs AES-256 encryption with a randomized salt so even the same message sent repeatedly will produce completely different encrypted data every time.

The range of the RATS antenna is about a kilometer in a city, but it can also be connected to superior antennas and, in areas with no obstacles, achieve ranges above 5km. Obviously this means it isn’t suited to everything, but alongside the internet it could be extremely powerful for certain local applications in urban neighborhoods, workplaces, and other situations where we normally use the robust global internet just to send short messages to people within walking distance. But perhaps more than anything it could be a boon for people living under governments that censor and monitor online communications, allowing local groups to coordinate without so much as touching the compromised networks.

The Bad

As noted, the RATS obviously isn’t for everyone or every situation, and the Kickstarter project page certainly lines up with the fact that this isn’t a regular consumer product. If anything, it feels a little more like a hobby project, with the pitch video seemingly incomplete and the fundraising target extremely low. This could raise a few red flags for cautious Kickstarter backers, though in truth it feels more like a labor of love by the Swedish creator, and is somewhat refreshing in a sea of crowdfunded technology with overproduced pitch videos and product pages full of PR speak.

One other concern with the RATS is the legality of the radio transmissions themselves. The software includes a system for downloading XML-based lists of available frequencies and selecting the appropriate transmitter power, but since this allocation differs from country to country, it will be up to the end user to make sure they aren’t breaking any broadcast laws.

The Open

One of the first things early backers asked about RATS was why its software wasn’t open source. The creator responded, saying that if that’s what people want then it’s what they’ll get, and has now pledged to open-source the software as soon as its complete and the device is shipped. It would have been even cooler to see it go through a full open source development process and be accessible from the start, but it’s great to see a creator rapidly and positively respond to these requests (especially since open source software makes especially good sense for a device like this, as it’s certainly not the kind of thing that should rely on security-by-obscurity).

Filed Under: awesome stuff, encryption, privacy, radio, security