Monthly Archives: August 2012

Peer-to-Peer Isn’t “Dead” so Don’t Be “Grateful”

Max Huber, a 2L at the St. Louise University Law School, has written an article arguing that if more bands followed the “Grateful Dead” model, the record industry would be saved from the scourge of peer-to-peer file sharing (available here).

Huber describes the model thusly:

The Grateful Dead forged a new path in the music industry rather than following what is generally believed to be the road to success in the world of music.  Unlike nearly every other band, the Grateful Dead, or “Dead” not only allowed their fans to tape their live shows, but they encouraged it, establishing “‘taper sections’ where fan’s equipment could be set up for the best sound quality.”   Rather than tightly restricting the distribution of their music, the Dead allowed their fans to record their shows, understanding, “that sharing would widen their audience,” and also that “a ban would be unenforceable, and anyone inclined to tape a show would probably spend money elsewhere, such as on merchandise or tickets.”  “Rather than focus on record albums as a primary revenue source the Dead created a business model focused on touring.” (cites deleted)

Arguing that more artists should follow this model (i.e. focus on tour income rather than album sales), Huber writes:

The Dead Model is the origin of what we know today as peer-to-peer sharing.  After recording a Grateful Dead performance, fans would make copies of the recording and share it with their friends who could then make copies and share it with their friends, and so on.  The only difference between this practice and peer-to-peer sharing is, with advancements in technology, sharing has become much easier.

Comparing Dead Heads swapping a few hundred cassette tapes out of the backs of VW microbuses to millions of songs anonymously shared across the Ether would be quaintly naive were it not put forward as the basis for saving the music industry.

Now, I don’t know if Max is a typical 2L, by which I mean an early-twenty-something.  I don’t know if Max followed the Dead, as I did, for two summers in 1984 and 1985.  I don’t know if Max saw the Dead perform more than 30 times, as I did, from Portland, Maine to Pittsburgh, Pennsylvania.  Regardless, Max’ article got me thinking about an interesting insight from comedian Patton Oswalt about the profound way in which the Internet has changed subcultures.

In a 2010 article for Wired magazine titled “Wake Up, Geek Culture. Time to Die” Oswalt writes

The problem with the Internet … is that it lets anyone become otaku [a Japanese word meaning people who have obsessive, minute interests—especially stuff like anime or videogames] about anything instantly.  In the ’80s, you couldn’t get up to speed on an entire genre in a weekend.  You had to wait, month to month, for the issues of Watchmen to come out.  We couldn’t BitTorrent the latest John Woo film or digitally download an entire decade’s worth of grunge or hip hop.

What made the Dead unique was its followers were otaku.  We kept set lists of every show we saw and compared them like the stats on a baseball card.  Because tape recordings decline in fidelity the farther you get from the master (unlike digital copies, which are phonically identical no matter how many versions from the original you are), there was a constant quest to “find the master” and copy that version.   I might have the same show on multiple tapes because the sound quality would vary from song to song–like if the crowd around the mic happened to get rowdy and muffled a sweet Jerry guitar lick.

I think Oswalt is entirely correct and Huber is Dead wrong.  Being a Dead Head was all about living the experience.  Sharing tapes was a way to connect with fellow Dead Heads, a conversation starter.  Anonymous file sharing on the internet is about consumption, the more the better. The Dead Model can’t be followed because, to quote a movie I’ll bet is high on Oswalt’s list of geeky favs, “There can be only one!”

Things You Never Thought You’d Read in a 7th Cir. Opinion: “Butters sings a paean to anal sex”

Readers will recall a previous post (here) discussing the United States District Court of the Eastern District of Wisconsin finding that Comedy Central’s use of the Samwell’s viral video entitled “What What (In the Butt)” (“WWITB”) was fair use.  The copyright owner of WWITB, Brownmark Films, appealed the decision, arguing, among other things, that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss under Rule 12(b)(6).  In an opinion written by Judge Cudahy, the 7th Circuit affirmed the District Court’s ruling.

Much of the 7th Circuit’s opinion is like a First Year Civil Procedure lecture, full of discussions regarding whether Comedy Central’s filing was a 12(b)(6) motion, a 12(c) motion, or a motion of summary judgment.  In the end, the 7th Circuit determined that “district court could properly consider an affirmative defense in the context of a motion for summary judgment, which it did here, regardless of the caption [Comedy Central] used.”

Central in the 7th Circuit analysis was the fact that the only 2 pieces of evidence required by the district court to make its decision were the 2 versions of the WWITB videos, which the district court had.  In a hilarious footnote, Judge Cudahy reveals himself as an avid South Park viewer:

Adopting [a summary judgment approach] would have given [Comedy Central] greater freedom in setting out its fair-use defense.  In its reply brief, Brownmark makes much of the fact that [Comedy Central] mentions Butters’ naïveté, but had not introduced evidence on Butters’ innocent nature.  While we do not feel that this case turns on any such naïveté, [Comedy Central] could have introduced previous South Park episodes to show that Butters has repeatedly demonstrated a lack of understanding of sex. See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).

I can imagine Judges Easterbrook and Posner scatologically discussing the import of Butters sexual innocence in the context of Saddam Hussein and Satan as gay lovers, existentialism in the repeated the death of Kenny, and whether feminists can enjoy the show due to some of its misogynistic characters.

BTW – Samwell is riding this Butt song as long and as hard as he can.  He even has an iPhone app!

The 7th Circuit’s opinion is below:
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