22 November 2014

Behind The Scenes Epic Battles For The Future Of Music

About a month ago, Pandora dropped its lyrics service within its music streaming service without publicly acknowledging the change anywhere except a backhanded update to a seven year old post on one of its blogs.

There has also been a fierce and largely unreported fight as Pandora has struck a deal with an outfit called MERLIN that licenses music from many independent music labels at a rate about half as rich as what major labels are paid under a Copyright Royalty Tribunal ruling.

While most forms of intellectual property licenses are governed purely by contractual agreements, the "little rights" in music (i.e. the right to play and cover music in formats like radio as opposed to the "big rights" to have music used in movies and TV shows) can be used unilaterally by radio stations and certain other radio station like entities like Pandora that stream music, if exchange for a royalty determined not be negotiation, but by the Copyright Royalty Tribunal, in what amounts to a legally authorized efficient breach of contract not allowed in other parts of copyright law.  (Efficient breach is when you intentionally breach a contract and pay damages because that is cheaper than performing the contract.)

The MERLIN deal is controversial because it involves "payola", i.e. playing a song more often for a monetary inducement, something that was banned in the radio world decades ago because it was considered a form of corruption in the music marketplace.

But, the MERLIN deal is also an effort to renegotiate the Copyright Royalty Tribunal rates for non-independent label music which is much more expensive, on the grounds that the MERLIN deal is a bona fide arms length deal between a willing seller and willing buyer that is a reference point for setting royalties when they are determined by the tribunal rather than negotiated.

There are other elements of the epic behind the scene battles.  Aereo, a company that tried to create free streaming of broadcast television was batted down in a U.S. Supreme Court fight, leading to its bankruptcy this week, but while Aereo lost the battle, it may have won the war, with the FCC formulating new rules to allow essentially the same services under an FCC regulatory framework with a Copyright Royalty Tribunal model.

The tribunal and related legislation drive the economics of all sorts of streaming media, satellite TV, cable TV, broadcast TV and essentially the entire electronic media world.

Maddeningly, however, in a world well companies like Pandora will only grudgingly and backhandedly acknowledge a sea change in their policies and won't publicly explain exactly why they did it, it is very hard to know what is going on in this demi-monde of media economics and law.

This is not the first time things like this have happened.  For example, a flourishing online world of fans who translated Japanese and Korean manga into English on a volunteer basis, largely in the absence of a commercially available alternative since the works were not being translated by the copyright owners, vanished, almost overnight a few years ago, without so much as a newspaper story in a mainstream American newspaper in a coordinated legal effort by manga publisher's lawyers.

Outside the area of media, the most similar case involves the reformulation of dishwashing soap for environmental reasons in an unannounced change that impacted hundreds of millions of people in their daily lives without their knowledge.

Efforts to make movies available online have been rather more resilient, and have been hurt more by legal alternatives like Netflix and Hulu and Amazon Prime, than by legal action, despite relentless efforts to shut down these operations.

Engineering New Faiths

Suppose that you take it as an axiom that substantial portions of both the Christian religion and the Islamic religion are profoundly negative forces in the world that greatly detract from the well being of humanity.

Suppose that you further acknowledge that a tendency to be religious is a natural personality trait.  Some people may have it to a greater degree, and some to a lesser degree, but this tendency is inherently a part of human nature for a great many people, in some people to a great degree.

Thus, it may be impossible to have a human world that is truly secular.

Contrawise, it may also be impossible to have a human world that is full of truly devote people.  The Hebrew Bible is to a great extent a chronicle of Pyrrhic efforts to accomplish this that failed over and over and over again despite the best efforts of its rulers, priests and prophets.

Of course, even if a tendency to be religious is part of human nature, the way that this tendency manifests and plays out is almost purely cultural.  No one is born Christian or Muslim or Buddhist.  Someone with a natural tendency to be religious will manifest that in the shape of whatever religious beliefs they are exposed to in their lives.  And, even during someone's life, a person's religious worldview through which that person expresses their tendency to be religious can change.

It is not self-evident what must be part of a belief system for it to feed into and satisfy the tendency of some people to be religious.  Must it be metaphysical?  Must it be unknowable?  Must it involve a metaphysical realm that acts with moral purpose in our world?  Must it involve an afterlife?  Must it provide a way to deal with grief and injustice in the world?  Must it merely provide a moral code?  Are rituals and life scripts the key elements of what naturally religious people need?

At any rate, if the human world cannot be truly secular because Nature abhors a religious vacuum, then the alternative to the harm caused by the religions that we do have, would be to devise one or more new religions that are less harmful and find a way to get people to convert en mass to them.

This is not unprecedented.  Mass religious conversions of whole populations that virtually wipe out the religions that came before them a living faiths have been documented many times within the span of the historically attested past.  It hasn't happened particularly frequently, but it has definitely happened.

Conventional wisdom is that this has been driven by sincere true believers in an organic fashion.  But, if one really understands the process, and there is not actually any metaphysical world out there, so that no religion can actually be true, shouldn't it be possible to intentionally create a religion for this very purpose?  Issac Asmiov's Foundation series poses just such a scenario.

If one could do it, and the status quo is as bad as is assumed axiomatically for the purposes of this post, isn't this not just possible, but morally obligatory to do so?

21 November 2014

Federal Judicial Nominations From 1789-1861

A new law review article comprehensively reviews the historical record of federal judicial nominations under the existing constitution of the United States which took effect in 1789 prior to President Lincoln taking office.

The process is essentially unchanged from modern practice, with the exception that in the early Republic judge's not infrequently declined to accept their appointments once the Senate approved their nominations.

Song of the Day

I heard the striking song "Shatter Me" by Lindsey Stirling (violin) & Lzzy Hale (vocals) (of the band "Halestorm") on the radio yesterday. I hadn't heard the song announced, but had heard Stirling on Pandora before and recognized her unmistakable violin style.

I'd figured it was a Disney movie song, but turned out to be wrong about that.   I've since learned that Hale is a 2014 "America's Got Talent" reality TV show contestant and that Stirling was a previous contestant on the show. The song is apparently the title track of Sterling's new album.

 An RWBY anime video (RWBY is a web based distribution anime series) featuring the song is here.

In other news, feminism apparent leads to witchcraft and the destruction of capitalism.