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Monday, May 30, 2005

Beating a dead horse

This past week I wrote a journal entry about the issue of stealing Intellectual property.  The trigger for this topic was a website that is being set up to sell Jewish Ringtones for cell phones.  Obviously this was a hot button topic because so many of you weighed in with thoughtful comments.

Well, today the owner of the website in question weighed in as well by leaving a comment of his own:

"I was very amused by your blog. While I appreciate your defense of artist rights and intellectual property, there is also a basic tenet in Judaism of "giving someone the benefit of the doubt." As you can see from our web-page we have listed artists who will appear and sell on our site. We have contracts in place or pending with ALL of them. In fact, our first contract we signed was with the Estate of Shlomo Carlebach. Thaat[sic] being said, we are a legitimate and kosher operation and NO ARTIST's material will be posted until we have finalized an agreement with them. I appreciate your concern for the artists.

Andrew Lanter Koltones Inc."

Mr. Lanter makes a good point in saying that I made certain presumptions about him and his enterprise without talking to him.

However, I would like to draw your attention to an important phrase in his comment:

"As you can see from our web-page we have listed artists who will appear and sell on our site. We have contracts in place or pending with ALL of them." [my emphasis]

See, here is where I stop feeling too bad about not giving them the benefit of the doubt.  He basically comes right out and says that he has pictures of artists on his site with whom he does not yet have agreements!

That is problematic on two levels:

1.  It gives the consumer (who has given them the benefit of the doubt and assumes that everything here is kosher and above board) the impression that all of the artists depicted have agreed to participate in his enterprise.

2.  By placing the picture of an artist with whom he has not finalized an agreement he is transgressing copyright laws in exactly the manner I originally suggested.

UPDATE:  I spoke with a friend whose image and name is shown on the Koltone site and he has not signed a contract to allow his music to be sold as ringtones.  He has been approached by the people behind the ringtone site, but has not signed anything.  So here I made one phone call and was able to prove that this company's business practices are shaky, if not unethical.  They are promoting a product to which they presently have no legal rights!

In business law there are no such things as good intention or almost.  You either have rights to something or you don't.  If I want to use the Pepsi logo on my next album cover I need to get their permission!  I can't release the album and then begin negotiations with PepsiCo.

I accept Mr. Lanter's criticism because I really didn't give him and his website the benefit of the doubt.  But I am sorry to say that he has proven without any help from me that his end of the business world has done nothing to earn the presumption of innocence.

In Jewish law there are complex justifications for assumption of guilt or innocence based on past performance and the present likelihood of something occurring.  If a person gets caught serving traif (non-kosher) meat in his/her restaurant, that person can no longer be assumed to be reliable.  If an industry has a track record of ignoring halacha and civil legal norms, they too forfeit the right to the assumption of innocence.

If an entire industry has a long track record of trampling on intellectual property rights and ignoring all aspects of copyright law... then they can no longer demand that I (or anyone) give them the benefit of the doubt.

[Note: this was not my regularly scheduled post for today, so if you check back later I may have something else up.]

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Posted by David Bogner on May 30, 2005 | Permalink

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[Note: this was not my regularly scheduled post for today, so if you check back later I may have something else up.]

I want to know where I can get my hands on the schedule because it would be very helpful in making more efficient use of my time. As a matter of fact Old Doc Bean is exceptionally busy and I am sure that he could find ways to make use of this schedule.

Why he might even be willing to post it on his blog and help to drive more traffic here.

Skip Ackerman and go straight to Kerckhoff where you can drink some incredible Tang and receive the latest schedule of posts for Treppenwitz.

Of course if you are need assistance in developing a schedule I am sure that the loyal readership can develop one for you. ;)

Posted by: Jack | May 30, 2005 10:10:57 AM

Jack... I usually write my posts first thing in the morning Israel time. However, because I like to think about them for a few hours before I actually release them out into the world, I generally schedule them to publish around lunchtime here in Israel. I would say that at least one in five posts I write never get published because of this 'cooling off' period between writing and posting.

Of course, this is just a rule of thumb... I reserve the right to publish or update existing posts whenever the mood strikes me. :-)

Posted by: David | May 30, 2005 11:03:49 AM

You're releasing an album?! When? Where? Who? Why?

;)

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I had noticed the knot-in-tongue formulae on their site as well. Sounds perfectly well for illiterati; second, the internet is all about visuality. In some way, these people make perfect use of it. Not legal, but they've done their homework.

Posted by: mademoiselle a. | May 30, 2005 12:11:02 PM

mademoiselle a. ... I wish! If you know of anyone who wants to finance an album of trombone music that will likely sell no more copies than I have family members, please send them my way! :-)

By the way, the best part of their web site is at the very bottom. They have "Copyright © 2005 Copyright © 2005 Copyright. All Rights Reserved" in big letters! I kid you not... they actually used the word copyright three times for emphasis!!!

Posted by: David | May 30, 2005 12:23:37 PM

Not only this. Their domain info is pretty interesting and speaks for itself...

Posted by: mademoiselle a. | May 30, 2005 2:29:01 PM

David, great follow up, snake oil is snake oil. I'm sure this is not over, just wait till he launches, which form this e-mail I got will be 2 weeks from last thursday.

Posted by: Chaim | May 30, 2005 2:43:29 PM

Thanks to a couple of sharp-eyed commenters I did two things.

1. I did a 'WHOIS' search to see who actually owned the domain http://www.koltones.com.

2. I tried to e-mail the owner of the company.

For those of you who don't know what WHOIS is, according to the international convention that regulates Internet domain names and their registration, you are required to provide basic contact information for the owner and technical contact for the domain. Go look up anythnig from www.cnn.com to www.treppenwitz.com. You will find legitimate info! However, the subject of our scrutiny here has gone the sleazy route and used a 'proxy service' to hide the identity of the real domain owner and technical contact. They could have easily used a P.O. box and a hotmail e-mail address... but for some reason they felt it was important to hide. This is not the way people in legitimate businesses behave. Go to http://www.domainsbyproxy.com and read their reasons for using their service. The only thing they left off was the most obvious one: To make it hard for lawyers to deliver those pesky subpoenas!

When I tried to e-mail the company I got an auto reply that said they will be launching in two weeks. According to another treppenwitz reader they have had this on their auto-reply generator for some time now.

Posted by: David | May 30, 2005 3:00:48 PM

Hey, I use domainsbyproxy.com! Cuts down on stalkers ringing your doorbell by 56.4%.

It's only sleazy if you're running a seedy business. It's pretty nice if you're running a... er... seedy blog.

Posted by: Tanya | May 30, 2005 4:35:41 PM

Tanya... Yeah, but anyone who really wanted to could figure out who you are in about two seconds (I know I did :-)). I agree that there are compelling reasons for not wanting all of your personal info out there for anyone to find. But as I pointed out in my comment, you could just as easily have registered your domain using a drop-box address and a hotmail e-mail account. These guys are supposed to be running a legitimate business... what are they trying to hide?

Posted by: David | May 30, 2005 4:49:25 PM

The guy who put up that matisyahu website selling matisyahu cd's for 20 bucks (both of them) also used a byproxy on his whois. I'm not linking to the guy, but they used matisyahu in thier web address and told people to buy it from them. Jdub issued a post saying people should not buy from him. Once again proving that seedy people usally are hiding behind those.

Posted by: Chaim | May 30, 2005 5:30:55 PM

Chaim... Of course, as Tanya pointed out, there can be legitimate reasons for wanting to use a proxy service to register a domain. However, when one is running a business, it becomes harder to understand such a move.

I would be interested to see if the site owner comes back here to try to explain or rebut any of what has been discussed here.

Posted by: David | May 30, 2005 5:38:58 PM

Yeaup, but David, like you said, people who have nothing to hid, usally don't hide.

Posted by: Chaim | May 30, 2005 8:23:45 PM

In addition...has anyone clicked further on domainsbyBLABLA.com's red-hot-chili-pepper "click here if you're in law enforcement" link?

It says that whoever detects law infringment [like, hmmm...let me think....selling stuff one doesn't really own the copyrights for?] with a site running on their servers, then mail right away. Like, sure, that's the footer they had to include. But then again...hmmmm....

I don't think the "site owner" will engage in a discussion here, rather lurk and check where the wind's blowing from.

Oh, another thought...if I was a manager of a promising online biz, I'd not invest in a host who manages spam protection &ct. for me. Meaning, I'd not sign up with a host for these reasons; instead, I'd invest in at least one dude who'd manage this for me as my partner or employee [read: I'd have an admin]. Plus, I'd have no problems in this whole world to publish my business details with the domain registration, because...wouldn't I want good PR? As a promising entrepreneur I would need to be found. If I registered my biz address, what's the problem, since wouldn't I inlcude it anyway in my site's colophon?

Okay. I think we got it now. :)

Posted by: mademoiselle a. | May 30, 2005 10:51:51 PM

If a butcher is deemed treif, that doesn't render all his cousins who are butchers treif. If the whole family are cheats, we can't assume that the next generation will be cheats. That's simply not how the halacha of "chazaka" works.

Regarding the images, there are issues related to using the images of bona-fide public figures. I personally don't see how the images on the site indicate that the artists support the site. It was just a collage of prominent,public figure Jewish recording artists. If I had a site that sold presidential memorabilia I could create the same collage of Presidents without having to obtain approval from their estates. I think this issue is a fine legal one best left to lawyers to deal with - without making presumptions and accussations.

I recall getting bounced and blocked from this blog for overgeneralizations about religious folks. There has been a lot of assumptions made here about the ethics in the Jewish music world. No facts - just assumptions and insinuations.

People in glass houses shouldn't throw stones

Posted by: oysvurf | May 31, 2005 12:52:02 AM

Oysvurf, there is a rule I tend to know to be true when it comes to be people who so vehemently defend an industry that has been found guilty time and time again of bad business practices.

You know what that rule is? They usually work for, or are friends of people in the JM business. or your an actual artist or producer.

You can't use an image of an artist that your SAYING both on your site and in auto generate e-mails are going to be part of your inventory if they arent signed on already. So Yes, if he has a picture of the miami boys choir and he never manages to secure that deal, he has broken a copyright law.

There are plenty of facts.

Rgarding your family of cheats. Your wrong, no one will want to do business with a family that has a bad image. Whether that's right or not. You are judged by the people around you, and any past history you have. It's for that potentionally "honest" family member to earn back that trust, and not by hiding thier contanct info through a proxy

Posted by: Chaim | May 31, 2005 1:34:21 AM

Chaim... After a (relatively) good night's sleep I have tried to conjure up a list of reasons why a legitimate business might want to hide behind a proxy. I came up with bupkes.

mademoiselle a. ... OK, who's beating the dead horse now? :-)

oysvurf... oy. I'm not sure why I'm even bothering to respond to someone who isn't supposed to be here in the first place, but here goes:

OK, let's start with your insightful statement, "I personally don't see how the images on the site indicate that the artists support the site", shall we? Hmmm that's a tough one. Maybe it is the 28 point type words on the site that say, "Yerachmiel Begun and the Miami Boys Choir... Blue Fringe... Dveykus... Reb Shlomo Carlebach... Shloime Dachs... Aish... Kol Achai... Lev Tahor... Shalsheles... Chevra... Shlock Rock... Avraham Rosenblum and Disapora[sic]... Safam... Megama... Moshe Yess... Eli Gerstner... Yehuda!... Journeys... Yisroel Williger... Piamenta... Diaspora Yeshiva Band and more to come!". That sure sounds like a list of artists that are currently available for download, no? If there is any doubt, the owner's e-mail states that every artist depicted and named no the site is under contract (or pending!).

Next, You said that this legal issue would be, "best left to lawyers to deal with - without making presumptions and accusations." So your basic take on questionable legal behavior is that we should pretend it isn't happening because the authorities are surely dealing with it already? Sounds a lot like what the "good Germans' were saying to themselves each time a Jewish neighbor mysteriously disappeared during the night. Sorry, but in a free society private citizens are allowed, and even encouraged, to point out things that seem dishonest or just plain wrong. If I saw someone being robbed in the street I would report it... so why should I stand idly by when I see this website attempting to steal from musicians.

You talk about me having "No facts - just assumptions and insinuations.", yet I pointed out that I know of at least one of the musicians on this list that has not agreed to anything, so this site is absolutely using his image and reputation to advance its own enterprise without compensating my friend. So please spare me the "fine legal" issue crap.

Lastly, when you say "People in glass houses shouldn't throw stones", you are making a very grave accusation. In this context it can only mean that you think I am acting in the same manner as the owners of the website we've been discussing. If you weren't already banned I would ban you again for making such a disgusting accusation! I am very careful to provide attribution for every phrase or image I use that is not my own. And I am also quite specific about my accusations (having worked in the New York music industry for almost 18 years). You seem (inexplicably) bothered by my making accusations against this website, yet by using this offensive phrase you are doing something much worse. I provided a very clear list of problems present on this ringtones website. So far you have offered only this unsupported accusation against me!

It's a big ol' Internet out there... Isn't there somewhere else you'd rather be?

Chaim... No, I doubt oysvurf works in that industry. My guess is he just likes to argue. Don't encourage him.

Posted by: David | May 31, 2005 9:59:32 AM

to set the record straight, unauthorized use of the photo violates the copyright of the PHOTOGRAPHER (who invariably owns the copyright unless the work was one made for hire) and the right of publicity of the artist which is the artists right to control the commercial exploitation of his/her name and likeness
also form a halachic pov, hasagas gvul (of the artist) and g'naivas da'as of the unsuspecting (yet adoring) public

keep up the good work

Posted by: shmuel monkes | Jun 3, 2005 1:15:32 AM

You will be hearing shortly from my legal counsel regarding the libelous remarks made on your blog.

Good luck with your future endeavors.

Posted by: Andrew Lanter | Jun 26, 2005 6:21:16 AM

I just wanted to add that if artists want to self publish their music or jokes as ringtones they should checkout http://www.mynumo.com. No cost to the artist. Really easy to use.

As an example:

http://www.yentatones.com

A nice lady created the YENTATONES.

Posted by: William Volk | Jun 4, 2006 9:43:23 AM

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