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Talk the Talk

Apple started selling DRM-free tracks from major label EMI last week with enhanced fidelity, and for a premium of $1.29, up from the regular download price of $.99. Early reports were that getting the tracks was a pain, with slow downloads and connections timing out; these might just have been because the iTunes store got jammed with demand—it’s really un-Apple-like to not deliver impeccable service. Then a little bomb dropped: Somebody discovered that when you downloaded one of these tracks, your identifying information (your full name and e-mail address) was embedded in it. So no matter where this particular track ends up, it will always have your name on it.

This got a number of people highly agitato, and raises a number of privacy- and lawsuit-related issues. Say you download a track from iTunes. Since it doesn’t have any DRM restricting what you do with it, maybe you give a copy to your dorky brother, who then proceeds to stick it up on Limewire. Then your brother gets sued by the RIAA, which finds your track available for free download. D’oh! Is your head on the chopping block, too?

Remember, just because you’re certifiably paranoid does not mean that the RIAA is not going to sue you for something idiotic!

The federal Second Circuit Court of Appeals took Bush’s Federal Communications Commission apart this week with a sweeping decision nullifying the agency’s recent habit of nailing anybody hard who says anything the least bit naughty on broadcast TV. In a biting 39-page opinion (you can find it at www.ca2.uscourts.cov), Judge Rosemary Pooler (who ran the New York state Consumer Protection Board in the 1980s) took the FCC to task for making a major policy change without explaining why. (Apparently “we’re phony-Christian bozos looking to preserve our fine Christian nation and appease our ignorant Republican base” doesn’t cut it.)

In the 1970s, faced with a California radio station playing the George Carlin “seven dirty words” monologue, the FCC announced that the routine was over the line, but the rule that emerged was reasonably clear that Carlin’s routine was over the line not only because it had dirty words, but because, like any good comedy routine, it was pretty relentless about it. A “fleeting” use of one of these words, in an unscripted, spontaneous and especially news-related context, wasn’t such a big problem.

And the FCC kept the rule like this for 30 years. Then, in 2003, Bono let the f-word fly during a Golden Globes award ceremony, saying that something or other was “fucking brilliant.” The FCC panel, now stacked with neocon hacks and under constant pressure from Bush weekly Jesus advisor James Dobson’s insidious Focus on the Family media empire, decided that the Carlin standards were no longer good enough and announced that any use of “fuck” on the air was going to be punishable, period. While a reconsideration of this Bono flip-flop was pending, the FCC busted Fox for Cher saying “fuck ’em” on the 2002 Billboard Awards and for Nicole Ritchie saying “cow shit” and “fucking” on the 2003 Billboard Awards. (The Ritchie outburst caused the FCC to decide that any use of “shit” on the air was now also presumptively bad.)

Pooler’s decision simply says that if an agency is going to reverse itself, to pull a 180 on a 30-year policy, it had better enunciate a plausible reason for doing so. And the court found that the FCC didn’t do that. The FCC just announced that the rules were suddenly different. Pooler also pointed out, deliciously, that the FCC’s insistence that “fuck” and “shit” were always evil, evil words was perhaps belied by our president’s documented statement to Tony Blair that the United Nations had to “get Syria to get Hezbollah to stop doing this shit” and Dick Cheney’s famous telling Pat Leahy to “go fuck himself” on the Senate floor.

FCC Chairman Kevin Martin, who was general counsel for Bush 2000, worked on the Florida recount for the Republican National Committee, and was groomed to be Bush’s “decency czar” at the FCC, complained bitterly about “this New York court” not caring about protecting children. Those out-of-step New Yorkers! They care about things like process and the rule of law! If Martin had followed the rules, if he had done his job with any competence, if he wasn’t bloated with the transparent hubris that’s finally bringing his boss’s little kingdom down, he wouldn’t have to throw cheap-seat divisive insults at a court that did its homework.

This isn’t over. Remember the clowns upstairs. The Supremes. Be afraid.

—Paul C. Rapp


Paul Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop. Contact info can be found at www.paul Comments about this article can be posted at rapponthis

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