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Comment: Re:Great one more fail (Score 1) 599

by flopsquad (#47909643) Attached to: High School Student Builds Gun That Unlocks With Your Fingerprint
Amen. There is a credible argument that our national attitude towards guns should change, and there is a damn near irrefutable argument that our national obsession with incarceration (over mostly nonviolent drug offenses) should change. But pillorying the two in the same breath, as if they were two heads of the same hydra, is incorrect. It may even be the same (type of) people who are overzealous about both, but these are completely separate issues.

Comment: The quicker the better (Score 1) 117

by flopsquad (#47749587) Attached to: Securing the US Electrical Grid
Though it almost always comes down to $$, there are certainly steps that can and should be taken immediately. A significant grid attack combined with a power plant attack could quickly put the affected metro/region into survivalist panic mode.

Bonus points if the security upgrade process provides a convenient vehicle to modernize for things like solar sell-back ("smart grid"). I've always thought that power should (ideally) be more like decentralized network traffic, able to rout around damage and not dependent on single points of failure. Of course, historically it made zero sense to build a dozen mini-plants in neighborhoods when one big plant 30 miles away was more efficient and palatable. But relatively soon, we're going to be able to coat whole communities in rooftop "power plants", and that's a great thing.

Comment: Re:How to avoid sampling? (Score 1) 226

So what steps should George Harrison have taken to prevent himself from accidentally sampling "He's So Fine" in his own song "My Sweet Lord"?

That's an excellent question. The short answer is that "subconscious copying" is bullshit and Harrison should have won that case.

It's worthwhile to note that this wasn't a sampling case per se, it was copying of the composition (subconsciously, no less), not the sound recording**. Harrison was accused of taking the melody for "My Sweet Lord" from some back recess of his mind where "He's So Fine" was still echoing, unbeknownst to him. I've listened to the songs, and yeah they're similar. Not so similar that I would find infringement absent evidence of actual copying i.e. knowledge, intent, bad faith, etc.

<rant>
Being a musician myself, I can confidently tell you that with music, there is nothing new under the sun. There is a finite number of note combinations ("chords"), a finite number of chord progressions with a reasonable number of steps (say, 6 or less), and, while both are objectively large sets, only a small subset of both would sound pleasing to the human ear. That set is further reduced by tonal equivalence--you get about the same mileage out of Am and Am7, or Cmaj in 1st or 3rd position.

Pretty much any ordering of chords that you could classify as "commercially viable" has been played, many times, in many different styles, by many people. While ultimately the combination of melody (notes) + harmony (chords) + tempo + arrangement + timbre/tone + lyrics is infinitely variable, it is remarkably hard to write a song that is truly original in chords and melody and sounds decent to human beings.

Music, like science, is a whole lot of standing on the shoulders of your predecessors. And what your predecessors have done is exactly what people in your culture are tuned to like. Unless an artist is bursting with uncommonly rare musical genius, the "new" songs she writes are going to be made entirely from the DNA of the music that came before her. There are only so many ways of doing D - C - G - D, but there are thousands of songs based on just that. Should Lynyrd Skynyrd get to sue them all because, hey, Sweet Home Alabama?

So I think it's shitty to charge George Harrison with copying The Chiffons, especially since he didn't know he was doing it (independent creation is a defense to infringement). Yes, RHCP's "Dani California" sounds like Tom Petty's "Last Dance", and yes Lady Gaga's "Born This Way" sounds like Madonna's "Express Yourself"--but pretty much every other song we've ever heard is, like, spooky close to some prior song if we look hard enough.
</rant>

**I'm not sure how anyone could ever "subconsciously" insert the actual audio from another song into their own, so sampling is always a conscious choice to appropriate another's music. This may be one reason why some courts treat sampling with such disdain compared to (logically equivalent) copying of compositions.

Comment: Re:Laws vary by country. (Score 1) 226

Agreed. Music is at the far right end of the factual <---> creative scale, and US judges have been especially strident and hard-line about music sampling in particular ("if you're going to sample, get license, period!"). Whereas, footage of a soccer goal is both factual and newsworthy. There may be copyright in the broadcast, but this is not cut from the same cloth as music, poetry, painting, etc. This isn't sampling either; that would be more like "autotune the news." Thus a short goal clip should fall under fair use in the United States.

EU/UK fair use ("fair dealing") law is different than US, in part because they don't have a 1st Amendment. They do allow for news reporting, comment, and criticism. However, across the pond their copyright exceptions (of which fair use is one) tend to be stricter and much more... I guess you'd call it "enumerated," in the sense that they list out acceptable use cases. OTOH, they have a way better "compulsory" (-ish) licensing system in the UK, covering a broader range of materials and uses than the U.S. (which covers mostly song compositions and certain broadcaster licenses).

Comment: [Destination] in summary links (Score 1) 109

by flopsquad (#47665855) Attached to: Type 225 Words per Minute with a Stenographic Keyboard (Video)
Hey /. devs: could we maybe take the <a>link</a> [website you're linking to] format that's currently in comments, and drop that into summaries? The first link in this article is to a startlingly loud YouTube video, and it would be helpful to know on this and other links where I'm headed beforehand.

Yes, I could've checked the status bar first, but then you could say that about comment links.

Comment: Re:What about Oregon and Washington? (Score 1) 368

by flopsquad (#47656765) Attached to: Comcast Drops Spurious Fees When Customer Reveals Recording
Great law review article. I gave a "brief" analysis above for why it's probably still OK to tape a call where you're the consumer in a one-party state, calling customer service that happens to be in California (probably applies to other two-party states as well). If you're the business doing the taping, or... if you're trying to tape your ex-husband who lives in Connecticut... all bets are off.

Comment: Re: Automated notice not necessary here (Score 3, Informative) 368

by flopsquad (#47656675) Attached to: Comcast Drops Spurious Fees When Customer Reveals Recording
I would add, from Kearney:

[B]ecause this case does not involve the isolated recording of a personal telephone call by an out-of-state individual in a nonbusiness setting, or the recording of a phone call by an out-of-state business that has a reasonable, individualized basis for believing that a particular caller is engaged in criminal or wrongful conduct, we have no occasion to determine how the comparative impairment analysis would apply in those or other comparable settings.

Comment: Re: Automated notice not necessary here (Score 5, Informative) 368

by flopsquad (#47656525) Attached to: Comcast Drops Spurious Fees When Customer Reveals Recording
Off the bat, IAABNQAL (I am almost but not quite a lawyer, took the bar but no results until Oct.) so take this with as many grains of salt as you feel appropriate. This isn't legal advice, etc etc.

The short answer is, this is pretty much unsettled law, but there is good reason to believe that the knowledge and status of the caller (i.e. business vs individual) would matter. The Wiki article cites Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006) for the proposition that, at least if one caller is in CA, its stricter two-party law still applies to out-of-state callers trying to (legally, in their own jurisdictions) record phone calls with CA residents. However, that is too broad a generalization.

The defendant in that case was Smith Barney, a national brokerage (corporation) with independently sufficient contacts for CA to exercise personal jurisdiction over it anyway ("SSB 'systematically and continually does business' in California, and SSB does not deny that it maintains numerous offices and does extensive business in this state"). SSB was conversing with clients in CA (two-party), but making and receiving calls in GA (one-party), and the CA Supreme Court found that there were compelling reasons not to let a company doing business in CA escape the CA privacy law, much less a business with offices in CA that could conveniently "outsource" its calls to other states (pretty much gutting the law). On a technical point of law, this was also a ruling reversing the trial court's dismissal of plaintiff's case, merely allowing the case to proceed and not addressing many of SSB's factual arguments (like "hey, this isn't what the legislature meant by 'confidential communication'").

However, look at it from the out-of-state consumer perspective and everything changes. Lets make the easy assumption that you don't have any presence, property, or business dealings in the two-party state of CA. First, from a personal jurisdiction standpoint, if someone from an unknown location (oops it's CA, gotcha!) is calling you in your one-party state, you have not established minimum contacts with California because you did not purposefully avail yourself of CA's laws—you didn't contact CA on purpose!

What if you know they're calling from CA? You're hardly directing any activity at CA by answering the phone. What if you're the one making the call and it's an 800 number to a destination unknown? This happens all the time, on the same day I'll make three calls to customer service and get centers in Illinois, Arkansas, and Pennsylvania. Well, you still haven't directed your action at CA if the call winds up there. In all these cases, it would be nigh-impossible for a CA business to make a case against you, because you (almost certainly) didn't establish minimum contacts with California such that the CA courts could exercise its long-arm jurisdiction against you. Even if you had a contract with this company with a CA forum selection clause, it would be a huge stretch; you consented to CA jurisdiction to settle disputes over that contract, you didn't say "I submit to the laws and jurisdiction of California for everything ever."

What if you're a consumer in a one-party state, knowingly calling a number in a two-party state, to discuss business you have with that company? Well, I would wager you're still in the clear, and in fact I record a significant number of customer service calls as I sit in my one-party state, regardless of where the representative is located or what the telephone number is. I do this in order to protect against the abuses in TFA, "forgetful" supervisors, etc., and I do not worry about the wiretapping laws of some distant state. Why? Well, even though they might be able to establish jurisdiction, that is just a threshold requirement.

There is still a choice of law aspect to the legal analysis, and there is a substantial consumer protection interest in my state's law protecting my ability to record conversations evidencing bad faith or abuse by out of state actors. I am a private citizen calling a large, well-funded, legally-savvy commercial entity (imbalance of power). I am not subjecting the (similarly-ill-equipped) private citizens of the two-party state to the business practice of secretly recording them. I don't have an incentive (as a business might) to circumvent the laws of the two-party state, and in fact I may be involuntarily at their mercy if e.g. my local monopoly power company only takes calls in a two-party state. There is no countervailing "privacy expectation" for call center drones in a corporate work environment, making and receiving business-related calls all over the US and often overseas. The nature of the calls is not what most people would call "confidential," and objectively I think an ordinary, reasonable person assumes these calls are being recorded, and can be overheard or monitored at the call center. The business knows where I am, and has a commercial interest in doing business with me where I am (according to the laws of my state), but I almost never know where the business or its call centers are, and I have no interest in reaching into their home state. In other words, tenuous jurisdiction plus overwhelming factors favoring my home state's one-party law means that most of the questions you pose should go in my favor as a one-party caller.

There have been some cases in CA specifically that limit these kinds of interstate actions, including one where a MO (one-party) caller wanted to use the CA law against a CA business, but was denied, as well as some cases saying calls to customer service centers are not covered. My hunch is that there will be a case on this sometime in the near future, in some two-party state where a business gets really shellacked for dishonest BS and sues (maybe an unsympathetic defendant or a corporate client). We shall see.

How often I found where I should be going only by setting out for somewhere else. -- R. Buckminster Fuller

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