Wednesday, July 23, 2014


This article originally appeared in the 7.24.14 issue of Metroland.

            Net Neutrality Update:  Well, the FCC received well over a million comments on its “Notice of Rulemaking” to consider ways to destroy the internet.  Last week so many comments were coming in that the FCC’s servers crashed, twice, forcing the FCC to push the comment deadline out a few more days.  I suspect the vast majority of comments demanded that the FCC create strict and real net neutrality rules, not the half-ass pretend neutrality that FCC Chairman Wheeler has floated as a possible outcome.  I’m sure there were plenty of Astroturf form-letters written and financed by the segment of the corporate internet world that wants a better internet for them, and a crap internet for us.  And Techdirt reports that some guy filed a dishwasher user manual as his comments.  I wanna party with that guy.

            Anyway, now there’s a period where folks can file comments on comments that have already been filed.  This lasts until September 15, so get busy.  After that, the FCC could: issue a new rule, decline to issue a new rule, hold hearings to discuss new rules, or, believe it or not, ask more questions for the public to comment on.  Yes, this could go on forever.

            Moving on.  One totally geeked-out article caught my eye last week.  As you may have heard, there’s rumors that AT&T is in talks to acquire Direct TV, the satellite television giant.  Now, history teaches us that mega-mergers like this are almost never in the public interest—the stockholders and transactional lawyers get richer, then lots of people lose their jobs (in corporate-speak this is called things like “increased synergies and efficiencies”) and then prices go up and service quality tanks.   

            But this article, buried in a high-tech news feed, suggests that there may be reasons to want this merger to happen.  To really want this merger to happen.  The tech part of this is way over my head, but it goes something like this:  AT&T has a wireless broadband technology that it hasn’t been able to use here because it hasn’t had the right wireless bandwidth or a delivery system to make it feasible.  This technology delivers super-fast wireless broadband by the truckload, and it can’t be metered, and even if it could be, it’s so fast and plentiful it wouldn’t make sense to meter it.  According to the article, AT&T has recently acquired the right part of the bandwidth spectrum for this service, and Direct TV’s infrastructure, with a little tweaking, could deliver it.  I hate the term “game-changer” but it sure seems apt here.  Stay tuned.

            In my last article I was bitching about the horrible misreporting of the Washington Redskins trademark debacle.  Well here we go again.  Yesterday almost every news outlet screamed things like “Judges Deal Death Blow To Obamacare” and “Court Guts Obamacare.”  This did not happen.  What happed was that a panel of the DC Circuit Court, a federal appeals court, ruled 2 to 1 that the Obamacare legislation did not provide for subsidized health care in states that declined to set up their own health exchanges (36 states, all with Republican governors, shamefully refused to lift a finger to help their citizens get affordable health care).  It was, by any measure, an insane ruling, supported by two Bush appointees who, like some of their brethren on the Supreme Court, are agenda-driven toads hell-bent on destroying the New Deal and establishing a corporate-controlled fascist state.  Koch-churian judges.
            Significantly, a few hours after the DC Circuit made its ruling, the 4th Circuit Court of Appeals made the opposite ruling on the exact same issue.

            So what does it mean?  Immediately, it means nothing.  The DC Circuit’s ruling will not go into effect until the appeals process plays out.  So does this mean it’s headed for the Supreme Court, where insane rulings like this have become the order of the day?
No, it doesn’t.  The government can (and will) ask for the DC Circuit to reconsider this decision en banc, meaning instead of a three-judge panel, all of the active DC Circuit judges will decide the matter.  There are eleven active judges.  One was appointed by Bush I, three were appointed by Bush II, three were appointed by Bill Clinton, and four were appointed by Obama.  I hate the term “do the math” but it sure seems apt here.

            And if the en banc panel rules like we know it will, there won’t be a split among the circuit courts and the Supreme Court won’t likely pick it up.  It’ll be over, and Obamacare will be fine.

            This isn’t rocket science.  You’ve been subjected to shoddy sensationalist journalism.  At the highest level of what passes for journalism these days.  The internet isn’t killing journalism.  Lousy journalism is killing journalism.

Paul Rapp is a local IP attorney who invites you all to the 37th annual Monterey Fire Company Steak Roast in Monterey, Massachusetts this Saturday from 5:00 to 7:00.  Really tasty swordfish will also be available for you pantywaist communists.

Wednesday, July 09, 2014

7.10.14 Ou Est Le Jazz?

This article originally appeared in the 7.10.14 issue of Metroland.

Festival International de Jazz de Montreal 2014
June 30-July 3

            After a 2 year absence, I was able to get back to the Montreal Jazz Festival.  I was delirious with excitement, as my previous visits had been about the most fun I’ve ever had.  This time things were considerably less awesome; I’ll spread to blame among me, the weather, and the Festival itself.
            First, I took work with me.  Worky work.  I had no choice, but even so that’s just stupid.  Idiotic.  Second, it was hot, searingly hot, and I don’t do hot well. (Perversely, these two things worked well together—it was too hot to do much but stay in my room and do work.  Third, for whatever reason, the Festival didn’t provide me with press tickets to the small-venue shows, the shows where something resembling jazz was being performed, the shows that make, at least for me, the Festival so special.  So for the three nights I was there, I had tickets to a couple medium-sized shows, and the rest of the time was left to wander among the numerous outdoor stages in the lovely Place Du Arts.  Which would have been fine, really, except it was too damn hot.
            Anyway, first stop, Ginger Baker’s Jazz Confusion.  Words can’t begin to describe what drummer Ginger Baker means to me, having had the Cream albums burned into my DNA during my formative years.  If you’ve seen the excellent documentary “Beware Of Mr. Baker” you know he’s had a singularly difficult life, is a complex person, arguably a complete prick, and not at all a well man.  I saw him play at Iridium in NYC last year and was fearful he wouldn’t make it through the show.  He whispered weakly into a microphone onces or twice, took an unscheduled break, and played OK, but without his signature power.
            A different Mr. Baker roared into Montreal.  He told jokes, he mugged, he spoke fondly of his excellent band-mates: the supremely tasty Pee Wee Ellis on sax, Alec Dankworth on bass, and the superb African percussionist Abass Dodoo.  He laughed.  Took me a while to realize it; I thought he was grimacing.  Nope, Mr. Baker was having himself a time.
            The show was, like most of Baker’s solo work, Afro-centric to the core, and featured a bunch of things of his brand new (and excellent) album Why? as well as Afroed-up versions of jazz standards by the likes of Wayne Shorter and Thelonius Monk.  Baker played simply, but he played deadly.  The crowd, which greeted him like a conquering hero at the start, was bonkers throughout.  I’m so glad I saw this.
            Night 2, Sly and Robbie and Burning Spear at the mammoth club Metropolis, an old movie / vaudeville theater turned nightclub.  I just wanted to see legendary drum/bass production duo Sly and Robbie, who have been since the 1970’s Kingston, Jamaica’s Wrecking Crew and George Martin, responsible for zillions of hits for zillions of artists from reggae stars to No Doubt to Serge Gainsbourg.  And they didn’t disappoint.  Metropolis’ massive sound system was perfect for their sledge-hammer dub-wise grooves.  Sly, wearing a gold-plated hard-hat, simply massacred his drums, playing from his shoulders, not his wrists.  Early on he did a simple little snare fill, and when I realized he was mimicking a slightly out-of-time repeating echo, my mind was blown to smithereens.  With a cool band (with a horn section), they could have done their thing all night, all week, in all its bass-dropping head-banging goodness.  But then they introduced a singer, a tall slick-looking Rasta fellow in a suit who ran around the stage trying to fire up the ladies and waiving his arms in the air like he didn’t care.  I didn’t either.  Nighty-night.
            Night 3 started with a nervous and tentative female blues trio better left unmentioned.  Then I moseyed over to the international stage to see Mokoomba.  From Zimbabwe.  From heaven, actually.  30 seconds in and I was moving briskly toward the stage.  There was nothing this band couldn’t do and do well; play, sing (all 6 of them), move (same).  Singer Mathias Muzaza is one of the best pure singers and charismatic frontmen I’ve ever seen, sounding like Sam Cooke one minute, throat-singing multiple tones the next, then peeling off a perfect Steve Perry yowl the next.  What do you say to a band that pounds a reggaeton beat while the guitarist is copping Dickie Betts licks over the top?  Mercy.  Heat schmeat, I did something I almost never do. I danced.
            ‘Til next year Montreal.  Please stay cool.  Literally.

7.10.14 Hell To The Redskins

This article originally appeared in the 7.10.14 issue of Metroland.

Hey, it’s been awhile!  Sorry, extenuating circumstances every which-a-way.
            Anyway, there was all sorts of rejoicing a couple of weeks ago when a panel of administrative judges at the Trademark Trial and Appeal Board (a quasi-judicial branch of the Patent and Trademark Office) ruled that six trademark registrations owned by the Washington Redskins football team should be canceled.  The ruling was pursuant to a provision of federal trademark law “which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute.”  The import of this decision has been misreported almost everywhere, and there’s all sorts of reasons the decision isn’t what you’ve been lead to believe it is and even reasons to hate the decision altogether.
            First of all, the decision doesn’t stop the Redskins from using the name Redskins.  Trademark rights arise upon the use of a mark, and the Redskins have been the Redskins for a long time.  Federal trademark registration is something you can only get once you’ve started using the mark, and it provides you with stronger protections in the form of a public record of your mark, a presumption of ownership, better damages if you’re infringed, etc. But that’s about it.
            Second, the decision doesn’t mean everybody can run around making money off the Redskin’s trademarks.  They can’t.  The Redskins mark is famous, about as famous as a mark can be, and there are substantial statutory and common law protections for famous marks, even if they are unregistered.  There are a few more hoops to jump through and maybe some remedies that aren’t as readily available.  But I suspect there are going to be a lot of get-rich-quick idiots out there who are in for a rude awakening when they start marketing Redskins merchandise thinking they’re immune from getting sued.
            Importantly, the decision only called for the cancellation of six of the Redskins’ trademarks, all of which contain the word “Redskins”, and that protect the mark only for presenting football games, except for the mark “Redskinettes”, which is for “entertainment services” in the form of cheerleaders. I’m not making this up.
            The decision did not cancel six other trademarks owned by the Redskins organization, including three trademarks for the Redskins logo – the silhouette of an American Indian chief (years ago I asked a South Dakota government official in charge of “Indian Affairs”, herself a prominent member of a Sioux tribe, how her people referred to themselves.  She rolled her eyes and said “Indian.  Always.”) that is on the Redskins helmets.  Got that?  The Indian head logo is still a federally registered trademark of the Washington Redskins, and it protects use of the logo for such things as the presentation of football games and a whole bunch of merchandise-y things.
            This case was far from a slam-dunk.  If you think otherwise I suggest you find the decision online and read the lengthy dissent (it was a two-to-one vote).  I’m not saying I disagree with the decision, but I am saying there were very interesting arguments on both sides.
            The fundamental problem I have with all of this is that the law the decision is based on sets up the Patent and Trademark Office, a faceless bureaucracy if there ever was one, as an arbiter of political correctness, good taste, and moral propriety.  While what they do falls far short of censorship (like I said before, the PTO doesn’t have the power to stop anyone from using any kind of trademark, it can only block registration), it still reeks of governmental meddling where it probably doesn’t belong.  Not surprisingly, the PTO’s (and the courts’) history of applying this law is inconsistent and contradictory (“Hooter’s” is OK; “HEEB” for a magazine published by Jewish scholars, isn’t; “Squaw” for clothing is not OK, but “Squaw” for ski-related goods is; “Dykes on Bikes” is OK for street festivals; “Black Tail” is OK for a nudie magazine featuring women of color).
            I think the PTO (and the federal government in general) should just stay out of this morass.
            So, what happens now?  It sure ain’t over, that’s for sure.  The Redskins can appeal the decision to a federal court, where litigation (including more appeals) can drag on for years.  I’m sure that they’ll appeal this, and I wouldn’t bet against them overturning the decision.
            The biggest import of the decision, of course, is the intensifying of the on-going public relations debacle the Redskins are in.  This debate has been raging for decades, and the team’s fans are some of the most notoriously passionate in all of sports.  It’s bad enough to have the President suggest the name be changed; it’s another thing to have a judicial body, applying the law, find the name not worthy of federal protections.  Legalities aside, it’s time for the team to change its name and move on.
Paul Rapp is a local entertainment attorney who believes the second half of his  2014 is going to be a lot better than his first half.

Wednesday, May 14, 2014


This article originally appeared in the 5.15.14 issue of Metroland.


            Well, the net neutrality crisis I talked about last time will take a long time to play out, but it’s sure started playing.  A couple of weeks ago, it was leaked that FCC Chairman Thomas Wheeler was going to issue a proposed regulation that would allow for an internet “fast lane” for large users that wanted to pay for it.  In short, the death of net neutrality. 
            Not surprisingly (not to me, anyway) the ‘net exploded and the FCC was bombarded with hundreds of thousands of emails, a ton of petitions, and so many phone calls that its switchboard repeatedly went down.  There are reports that the atmosphere at the FCC is suddenly chaotic.  Protesters are camping out in front of the FCC offices.  Musicians, internet start ups and even some of the biggest internet-based companies (like Google and Netflix) have issue public statements opposing the measure.  Two of the other FCC commissioners have called for a delay of the roll-out of the proposed reg, which is supposed to happen on Thursday, May 15.

            On Monday, Chairman Wheeler announced that, based on public comment, he was revising the as-yet unsubmitted proposal, but as he described them, these proposed revisions don’t really cure the flaws of the original.

            This is an incredibly fluid situation, and who knows where this is going.  But it’s incredibly important, and if you want to voice your support of a truly fair and open internet, the FCC has set up a dedicated mailbox for your comments:  And if you read this in time and want to watch the roll-out live, if it actually happens, you can catch the feed of the hearing at starting at 10:30 AM Thursday morning. 

            Once the proposed regulation is unveiled, there will be a further public comment period that you can participate in.  I’ll let you know how when it’s time.

            Moving on!  Here in the US we’re so used to the freedom of speech as something approaching an absolute that it can be stunning to see other countries of the free and democratic and non-totalitarian variety cavalierly disregard it.  And there was a whopper this week.  In Europe there’s apparently a concept floating around called, remarkably, the “right to be forgotten”.  It’s essentially a privacy concept, rooted in the concept of anonymity and being free from one’s past.  Kind of weird, right?

            Well, the highest court of the European Union doesn’t think so.  This week it ruled that the “right to be forgotten” was alive and well, that it applied to information that turns up in internet search engines, and that internet search engine companies had the ability to remove information from search results.  Therefore, the court concluded, companies like Google, Yahoo, and Microsoft had a legal duty to remove search results related to people when the information in the search results "appear(s) to be inadequate, irrelevant or no longer relevant or excessive … in the light of the time that had elapsed".  And by it’s language, this decision applies even where the information is true and a matter of public record.  The case was brought by a Spanish guy who was angry that a 1998 newspaper article listing the repossession of his house was showing up when you googled him.  The Spanish guy figured that the matter had been resolved long ago, and so it shouldn’t come back to haunt him now.  And the court agreed!

            I’m having a hard time getting my mind around this.  I can’t help but wonder if the judges either don’t use the internet, and/or have an irrational hatred of it, and/or have a profoundly bizarre philosophic bent in matters concerning personal privacy.  Because this is nuts.  Think about it.  First of all, who gets to decide what’s “inadequate, irrelevant, or excessive”?  The subject?  The search engine company?  Are they going to establish little bureaucratic agencies to figure it out?  And every one of these criteria are incredibly subjective to the point of being meaningless.

            And so you figure out what has to go and then what?  The search companies will have to hire massive numbers of employees to code specific search requests to ignore certain search results.  What about close spellings?  What about repostings, or the natural evolution of a search result over time?

            And hey, does this apply to corporations, too, my friend?  And what happens if you access a search engine that’s not under the jurisdiction of the EU/  And will Google be liable if it removes something that later could be shown to have prevented a murder had it stayed up?

            I’m no expert on EU law, but I’m guessing that the EU parliamentary body will now need to pass some kind of directive to reverse this judicial ruling.  And I’m also guessing that getting things passed through this multi-cultural, baggage-laden body is the legal equivalent to herding cats.


Paul Rapp is a crotchety IP lawyer who changed his mind and decided that yes, he will let this torn rotator cuff slow him down.