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music and musicians

Selected as an international music ambassador for her outstanding playing, 13-year-old Avery Gagliano charmed audiences in Munich, Hong Kong and elsewhere with her renditions of Chopin, Mozart and other classical repertoire. Her parents could not charm the District of Columbia Public Schools, however, into treating ten days of travel by the straight-A student as excused absences, although they “drafted an independent study plan for the days she’d miss while touring the world” in performance. They’re homeschooling her now. [Petula Dvorak, Washington Post]

Sequel: The D.C. schools are now trying hard to portray it as all a big misunderstanding. More: Jason Bedrick, Cato.

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As the war on musical instruments continues [The Jazz Line; earlier here, etc.]

Labor roundup

by Walter Olson on June 13, 2014

  • “Coming to Your Workplace Soon? Union Organizing Efforts Via the Company’s Email System” [Daniel Kaplan, Foley & Lardner]
  • “Pennsylvania Unions Still Exempt from Harassment [Law], Continue Harassing with Impunity” [Trey Kovacs, Workplace Choice, earlier here, here, here]
  • Music production gravitates to right to work states attract in part because union musicians less afraid of discipline for taking gigs there [Variety on union's dispute with videogame-composer member]
  • New definition of “nationwide strike”: protesters show up at a few Wal-Marts, few workers pay attention [On Labor]
  • Presently constituted NLRB and U.S. Department of Labor are zealous union partisans, not impartial arbiters [Alex Bolt]
  • “Workers filing wage-and-hour lawsuits under Labor Act at record pace” [Crain's Detroit Business]
  • “Despite repeated failures, Card Check still top Big Labor priority” [Sean Higgins, Washington Examiner]

The feds’ insane war on antiques and musical instruments continues. “Orchestra spokesman Adèl Tossenberger said in an e-mail that the seized bows did not contain any ivory and the orchestra received a certificate from a Hungarian expert verifying this.” It is unclear why they had to pay a $525 fine anyway. A few days earlier, according to a German publication, “the Munich Philharmonic nearly cancelled three performances at Carnegie Hall in April after that orchestra’s string players could not produce CITES certificates for their bows.” [WQXR, The Violin Channel] Earlier on the old-ivory ban here, here, and here; on musical instruments here, here, and here.

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Music rights organization BMI has sued a Cleveland bar seeking up to $1.5 million over one night’s performance by a cover band that allegedly performed ten well-known songs without paying license fees, including “Bad Moon Rising,” “You Really Got Me,” and “Some Kind of Wonderful” [OnStage]

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The National Football League had already been seeking $1.5 million in arbitration for alleged contractual breach against rap singer M.I.A. for extending her middle finger during a performance at the 2012 Super Bowl. “Now the NFL has added an additional claim, seeking $15.1 million more in ‘restitution’ as the alleged value of public exposure she received by appearing for an approximately two minute segment during Madonna’s performance. The figure is based on what advertisers would have paid for ads during this time.” [Hollywood Esq.]

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February 20 roundup

by Walter Olson on February 20, 2014

  • “Woman Arrested Nine Years After Failing to Return Rented Video” [S.C.: Lowering the Bar, more]
  • “Why India’s Ban Against Child Labor Increased Child Labor” [James Schneider, EconLib]
  • “I’ve never seen an attorney general sanctioned.” Court hits Nevada AG Catherine Cortez Masto with sanctions after collapse of robosigning suit against mortgage servicer that state hired D.C.’s Cohen Milstein to bring [Daniel Fisher, update (case settles)]
  • Another review of the new collection The American Illness: Essays on the Rule of Law (Frank Buckley, ed.) [Bainbridge, earlier]
  • They would be major: “The Gains from Getting Rid of ‘Run Amok’ Occupational Licensing” [David Henderson]
  • E-cigarettes could save lives [Sally Satel, Washington Post]
  • How incentives to avoid tax can lead to social tragedy, in this case via ABBA stage outfits [Guardian]

What do our border control authorities have against musical instruments? First it was pianist Kristian Zimerman’s Steinway, destroyed by TSA agents because they thought the glue in it smelled suspicious. Then it was the prized cello bow that Alban Gerhardt says was snapped in two by TSA agents (bows are surprisingly costly things, and can run the price of a Mercedes). Now, according to a report in the Boston Globe, customs agents mistook a rare collection of handmade flutes for pieces of bamboo and destroyed them as illicit agricultural goods. I’ve got a discussion at Cato at Liberty.

Cato trade analyst Dan Ikenson draws my attention to this passage of Frederic Bastiat’s:

Between Paris and Brussels obstacles of many kinds exist. First of all, there is distance, which entails loss of time, and we must either submit to this ourselves, or pay another to submit to it. Then come rivers, marshes, accidents, bad roads, which are so many difficulties to be surmounted. We succeed in building bridges, in forming roads, and making them smoother by pavements, iron rails, etc. But all this is costly, and the commodity must be made to bear the cost. Then there are robbers who infest the roads, and a body of police must be kept up, etc.

Now, among these obstacles there is one which we have ourselves set up, and at no little cost, too, between Brussels and Paris. There are men who lie in ambuscade along the frontier, armed to the teeth, and whose business it is to throw difficulties in the way of transporting merchandise from the one country to the other. They are called Customhouse officers, and they act in precisely the same way as ruts and bad roads.

Further update from Foreign Policy (h/t reader JohnC): “In an e-mail exchange with NPR Music, a Customs official says no musical instruments were involved in the CPB’s actions — a claim not offered to FP. The story indicates that fresh bamboo was found in the luggage separate from Razgui’s 11 flutes. However, when American Airlines eventually delivered Razgui’s luggage, it did not contain the flutes. If both claims are true, it remains a mystery as to what actually happened to the flutes and why they didn’t show up in his luggage.” (& Greenfield, Above the Law) More: Zenon Evans, Reason.

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Free speech roundup

by Walter Olson on December 19, 2013

  • After Rolling Stone interview comments on race in America, Bob Dylan hit with hate speech proceeding in… France? [Popehat]
  • “The Buckyballs Guy Is Suing the Feds Over Free Speech” [Bloomberg BusinessWeek]
  • “Reconsidering Citizens United as a Press Clause Case” [Michael McConnell, YLJ via Volokh] “Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology?” [Eugene Volokh, more]
  • Liability for content posted by third parties? “Ex-cheerleader’s defamation suit puts Internet giants on edge” [CBS News]
  • Forced expression tramples freedom: Cato asks SCOTUS to review ruling against New Mexico wedding photographer [Ilya Shapiro, earlier here, etc.] Related: Mike Masnick questioning why the ACLU is on the wrong side, a topic I’ve covered here too;
  • “Three puzzling things about NYT v. Sullivan” [Len Niehoff, Communications Lawyer]
  • “Why can’t we admit we’re scared of Islamism?” [Nick Cohen, Spectator]

I was a guest Friday on Fox Business Network’s The Willis Report, with guest host Dennis Kneale, to discuss two antitrust cases in the news: Apple’s vigorous efforts to fight back against a monitor appointed as part of its e-books antitrust case [Roger Parloff/Fortune, Alison Frankel/Reuters], and the FTC’s enforcement action against music teachers for anti-competitive practices. You can watch here.

I’ll save the (highly significant) Apple-vs.-monitor case for another post. The Federal Trade Commission’s enforcement action against music teachers, skillfully told by Kim Strassel in the WSJ, demonstrates what officialdom is willing to do with the legal sledgehammer that it claims to need to take on giant corporations like Apple: it uses that weaponry against the mild-mannered piano teacher next door and her little trade association. In a sane world, when the association said its hortatory statement had never been enforced and it would delete it from now on, the FTC’s enforcers would declare victory and move on to some more important case. That they did not do so here speaks volumes about the zeal, careerism and lack of proportion that add up to runaway government. More: George Leef, Forbes.

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Yes, the New York City arts scene has a lot of money sloshing around in it, that of Minneapolis-St. Paul much less, but in neither instance are performing-arts labor unions doing well at reaching a livable accommodation with the needs of high culture. [Hoover "Defining Ideas"]

June 28 roundup

by Walter Olson on June 28, 2013

  • Record-setting tenure of bullying Rep. John Dingell (D-Mich.) “nothing to celebrate” [Dan Calabrese, Detroit News] Compare: “How to shut down a restaurant in Mexico” [Rob Beschizza]
  • How far does discrimination law go? Bill Baldwin interviews John Donohue [Forbes, and thanks for further-reading link]
  • Claim: bonding company responsible for actions of criminal after tracking failed [Insurance Journal, S.C.]
  • Memo to California legislature: don’t abolish statute of limitation on abuse claims [Prof. Bainbridge]
  • Here Come the Other “Happy Birthday” Lawsuits [Lowering the Bar, earlier]
  • SCOTUS story someone should cover: Christian-right legal groups backed “right to advocate prostitution” brief in AID case [Volokh, earlier]
  • “A TSA employee spotted [the beautiful jeweled lighter] and I swear his eyes lit up.” [David Henderson]

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Warner/Chappell Music continues to demand and collect royalties for public performance of the ditty, although its melody was first published more than 120 years ago and the familiar celebratory words have been sung to it for more than a century. A new lawsuit seeks a judicial ruling that the song is in the public domain and asks a return of wrongfully collected royalties. [The Hollywood Reporter via Mike Masnick, TechDirt]

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  • For most private-sector employers it’s illegal to let workers take comp time off in lieu of overtime; H.R. 1406, the Working Families Flexibility Act of 2013, would fix that [Hyman]
  • Christine Quinn take note: laws requiring paid sick leave do not constitute social progress [Richard Epstein]
  • Occupational hazards of bagpipe playing (other than being chased out of your neighborhood) [Donald McNeil Jr., New York Times]
  • “Phoenix ‘Not Looking for Strong Swimmers’ for Lifeguard Jobs” [David Bernstein; earlier on discrimination against deaf lifeguards]
  • Decline of full-time work in retail sector in response to ObamaCare: year’s biggest employment story? [Warren Meyer, FoxNews (largest movie theater chain cuts hours for thousands of employees)]
  • City of Philadelphia not doing well on workers’ comp program, to say the least [Workers' Compensation Institute]
  • “New labor rule will violate attorney-client privilege” [Diana Furchtgott-Roth, D.C. Examiner]
  • “Calling a Co-Worker ‘Stupid’ Not Enough to Prove ‘Disability’, Court Says” [Daniel Schwartz]

Terry Teachout, WSJ (via About Last Night):

…In Europe, sound recordings enter the public domain 50 years after their initial release. Once that happens, anyone can reissue them, which makes it easy for Europeans to purchase classic records of the past. In America, by contrast, sound recordings are “protected” by a prohibitive snarl of federal and state legislation whose effect was summed up in a report issued in 2010 by the National Recording Preservation Board of the Library of Congress: “The effective term of copyright protection for even the oldest U.S. recordings, dating from the late 19th century, will not end until the year 2067 at the earliest.… Thus, a published U.S. sound recording created in 1890 will not enter the public domain until 177 years after its creation, constituting a term of rights protection 82 years longer than that of all other forms of audio visual works made for hire.”

Among countless other undesirable things, this means that American record companies that aren’t interested in reissuing old records can stop anyone else from doing so, and can also stop libraries from making those same records readily accessible to scholars who want to use them for noncommercial purposes. Even worse, it means that American libraries cannot legally copy records made before 1972 to digital formats for the purpose of preservation—not unless those records have already deteriorated to the point where they may soon become unplayable.

That’s crazy.

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Lip-syncing scandals

by Walter Olson on January 25, 2013

Dan Brillman at Reuters recalls the Milli Vanilli affair, which set the standard and led to some silly but lucrative class-action suits.

  • “The patent, used as a sword” [NY Times, Flowing Data]
  • Default judgment over 528 songs against contumacious defendant: “Website ordered to pay $6.6 million for posting song lyrics” [NLJ]
  • “Monsanto Seed Patent Case Gets U.S. Supreme Court Review” [Bloomberg Business Week]
  • New book tells story of Ira Arnstein, whose frivolous suits against Cole Porter, Irving Berlin et al set important precedent [WSJ]
  • “Do it ‘on the Internet,’ get a patent, sue an industry — it still works” [Joe Mullin, Ars Technica]
  • “Court rules book scanning is fair use, suggesting Google Books victory” [Timothy Lee, ArsTechnica]

From the summary: “Judge throws out multibillion dollar suit arising from obscure CD-and-audiotape rental law, saying there’s no evidence anyone was actually harmed by Pandora’s integration with Facebook two years ago.”

The suit [by class action firm Edelson McGuire] claimed violations of an obscure pre-Internet era Michigan law, which says a company “renting or lending” sound recordings may not disclose details about customers’ transactions without their written permission. Because it specifies $5,000 penalty per violation, the possible damages could total in the tens of billions — far more than Pandora’s actual $1.8 billion market capitalization.

The judge, however, said the law did not create a right of action on behalf of unharmed consumers, and also was unpersuaded that the music-streaming service was “renting or lending” songs. [Declan McCullagh, CNet]

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