Gym Class Scuffle [absolutepunk.net]
Gym Class Heroes Frontman Arrested For Assault After Reacting To Racial Slur [RS; HT Christopher Weingarten]

The vacant, 18-foot wide property at 2007 Fifth Ave. and East 124th Street - near the fancy Marcus Garvey Park - is due to be auctioned on Aug. 13.

The sheriff's sale should satisfy a judgment - totaling $281,000 with interest - resulting from a breach of contract lawsuit filed in 2004.

Ellenville, NY-based Amusing Diversions won the right to the judgment after doggedly pursuing the star, whose real name is Earl Simmons, for not promoting its line of dogwear.

Sources said other creditors will also have their hands out at the sale, which could reap over $1 million.

It's kind of odd that DMX, who isn't really all that nice to animals, would be a desirable fit for a company promoting anything dog-related. As it turns out, the guy in charge of sealing the DMX deal didn't really do much research when he was pursuing the MC:

Ironically, Eric Arginsky, head of Amusing Diversions, initially pursued the gravelly voiced DMX to promote its urban doggie wear after hearing him in public service announcements urging folks to be kind to their animals.

But the rapper had earlier been ordered to make the PSA when he was found guilty of animal cruelty in 2002 after New Jersey officials found he'd mistreated his 14 pit bulls.

"He had the bark and the growl. . .but we were definitely sold a bill of goods," said Arginsky, who intends to be present at the sale.

I kind of think that Arginsky should be dinged at least a little bit for, well, being a moron who was so enamored with the idea of "celebrity" that he didn't actually find out about "the person behind the name." But I don't make the bankruptcy laws, so.
RAPPER DMX IN FIFTH AVE. SCRAP [NYP]
DMX Arrested In Miami For Trying To Buy Cocaine, Marijuana [MTV]

"I wasn't sure if they were going to come by with a warrant and trash the place, like in the movies," he says. "It was nothing like that." The FBI officials wanted to see the original files, but Skwerl erased them last week per instructions from Axl Rose's attorneys. Skwerl ultimately gave them second-hand files that are now widely available on the Internet.

Last week Skwerl's blog crashed from the traffic flood that resulted from his controversial posting. "My host contacts me and says, 'What the fuck did you do?'" I go, "Uhhhh. I posted some music." He goes, "What exactly did you post?" I go, "Uhhhh. [Meek voice] New Guns n' Roses." He goes, "Motherfucker." Before long his cell phone rang with an unfamiliar 323 number. "It was a really cool guy from the Gn'R camp that was a middle man between someone who was very angry and me. He was trying to reach out and see if I'd go without a fight, which is more or less what I did."

Skwerl agreed to take them down, but a cease-and-desist letter soon followed threatening possible legal action. "I'm not so worried about that," Skwerl says. "It's a legal grey area since it wasn't for download, it wasn't a finished product. We aren't sure who owns the recordings. I feel like I might survive this."

While I wish him—and the "anonymous online source" who leaked him the tracks—luck, I also hope that musicFIRST doesn't get wind of this guys' comments about the legality of streaming vs. downloading. Otherwise, he might be getting a lot of "funny" presents in the mail pretty soon.

UPDATE: Skwerl writes in: "Andy Greene at Rolling Stone took me a bit out of context. I told him that I was cooperating completely with the Feds, and that I was 100% ready and willing to face any legal repercussions my actions deserved. I suppose that wasn't a good enough story. He asked if I was freaked out, and that's where the closing quote come from. I said it 'may' be a legal gray area, not that it is. I admit that I don't know the law thoroughly, and have ruled nothing out at this point."

Guns N' Roses "Chinese Democracy" Leaker Gets FBI Visit [RS]
Earlier: "Chinese Democracy" Creeps Ever Closer To Actually Existing (Maybe)

TMZ has learned hip-hop artist Nate Dogg was arrested around 8:30 AM PT this morning while driving on the 405 in L.A.

Cops tell us a woman who said she was Nate's estranged wife called into 911 freaking out as she was driving, claiming Nate was making death threats against her and "dangerously" following her as she drove down the road. The CHP stopped them both, and after interviewing both parties, arrested him for making terrorist threats and driving on a suspended license.

The singer, whose real name is Nathaniel Hale, is currently in the process of being booked into the medical ward of the Twin Towers jail in downtown L.A. He suffered a debilitating stroke last December.

Yep, that's the whole item. There isn't even a semi-incoherent Erik Estrada joke! And it even uses the word "debilitating"! Is TMZ showing its heart—or even a drive toward trying to save the use of humor for jokes that actually work?

Ex Says Nate Dogg's A Roadside Terrorist [TMZ via Nah Right]

When asked by assistant U.S. Attorney Robert McBurney who the customers were, Simms gave two names: William "Doc" Marshall, a high-level BMF co-conspirator who testified earlier in the trial, and "Jeezy."

"Young Jeezy the rapper?" McBurney asked.

"Yes," Simms answered.

Aside from his whole "snowman" motif, which filled many a shop with angry-Frosty-emblazoned T-shirts for a long time, Jeezy and the BMF have something of a history, and it was chronicled in part in a 2006 Vibe article by investigative hip-hop journalist Ethan Brown:

Just after 9 p.m. on a hot and muggy night in late July 2005, a pair of chartered tour buses pulled up to Vision Nightclub & Lounge on Atlanta's Peachtree Street for a party celebrating the release of Young Jeezy's major label solo debut, Let's Get It: Thug Motivation 101. Yet when the bus doors opened, it was not Jeezy who emerged but members of the storied ATL street crew Black Mafia Family (BMF).

Dressed in head-to-toe black, the hundreds-strong posse strode toward the megaclub in almost choreographed unison. "They moved like one mass, one organism," remembers one of the party promoters. "I had never seen anything like that." The club had expected BMF in force—they were even comped on the guest list as "+100"—but it was not prepared for an army. Panicked promoters hustled BMF through a special side entrance, VIP treatment that even Jay-Z, Ludacris, Fabolous, and Slim Thug did not receive.

Once inside, BMF awed partiers by tossing fistfuls of cash as they awaited Jeezy, who, though not officially a crew member, was considered "family." And by the time he arrived, just after 1:30 a.m., the crowd was stoked and ready to receive him as A-town royalty. Jeezy took the stage surrounded by BMF members and employees of his Corporate Thugz Entertainment label and tore through songs like "And Then What" and "Go Crazy" with such swagger that the success of Let's Get It seemed all but assured. Indeed, the 25-year-old rapper would move an impressive 172,000 copies of the album in its first week.

Witness: Young Jeezy received kilos of BMF coke [Creative Loafing via Gawker]

It seems the music industry's desire to paint OiNK as a criminal network focused on the ruination of the music business, has so far led them to direct the police into arresting users who allegedly pre-released albums, i.e shared albums before their stated retail release date. As mentioned in our previous article, there are no laws in the UK which give extra gravity to pre-release cases, but the music industry seems keen to portray this type of copyright infringement as being much more serious. It has been their theme since the day of the original raid and shutdown of OiNK.

Many observers have been questioning for some time now why the police are involved in this case when it's believed users of the site committed only civilly actionable offenses at best. It's clear that simple copyright infringement isn't what the music industry has in mind.

Those accused were visited by detectives involved with 'Operation Ark Royal', sometimes accompanied by local police. After identification, they were arrested under suspicion of "Conspiracy to Defraud the Music Industry", told that they were not alone and that police would be arresting and interviewing more people in connection with the case. Suspects were then taken to their local police station for questioning and required to provide DNA samples and fingerprinting.

During their interview the suspects were asked all about OiNK, their understanding of the purpose of the site and what they did as a user there. The police were also keen to discover if these alleged pre-releasers personally knew OiNK admin, Alan Ellis, which of course - like the majority of OiNK members - they didn't.

British Police Confirm OiNK Arrests [TorrentFreak; HT The Daily Swarm]
OinK Pre-Releasers Accused Of Conspiracy To Defraud Music Industry [TorrentFreak]
Earlier: All the OiNK coverage from last year]

Gawker Media polls require Javascript; if you're viewing this in an RSS reader, click through to view in your Javascript-enabled web browser.

Anything else would be absurd.

R Kelly lawyers hope mystery man can help defense [AP]

First of all, it must be said that "Be Careful" is one of my favorite R&B tracks of the '90s, and news of her impending appearance on the stand had me singing various parts of the song all day yesterday. Stephanie "Sparkle" Edwards herself didn't really disappoint, coming to the stand with facial glitter, large hoop earrings, and a bad attitude. Sparkle's relationship with R. Kelly ended poorly—a familiar story!—and that possible bias was the emphasis of defense attorney Ed Genson's cross examination. Sparkle resented the idea that she would accuse R. Kelly of child molestation out of revenge, calling Genson "sweetie" sarcastically at one point. Yelling ensued, and the judge had to simmer the whole thing down. That was as exciting as it all got, outside of a woman yelling "Free R. Kelly" at the jury before her inevitable arrest.

The jury has the day off today, while the defense makes an apparent attempt to charge Jim DeRogatis with possessing child pornography in the meantime. Enjoy your weekend, esteemed members of the jury!

Kelly witness, 'Sparkle' clashes with defense [Chicago Sun-Times]

It's like 2000 never ended, isn't it?

Boy band mogul Pearlman sentenced to 25 years [Reuters]
US 5 TOO MUCH HEAVEN OFFICIAL VERSION [YouTube]

Apparently, the guy in the famous R. Kelly sex tape video? According to the defense, it's not actually R. Kelly. The girl in the video? A prostitute. Who knew? The prosecution, somewhat predictably, disagrees, stating that "everything [in the clip] was written, directed and choreographed by Robert Kelly [including] the angle [and] the lighting." Despite the protests of the defense, the video itself was shown to the jury following the opening arguments on a six-foot-wide screen, with the Chicago Sun-Times reporting that R. "wore a deep frown, with two dark furrows between his eyebrows, occasionally putting his finger to his lips and resting his head on his left hand while the tape played."

The tape itself will obviously be the focus point of the trial, especially considering the woman alleged to be Kelly's partner in the video will not be testifying. To my personal delight, Sun-Times rock critic Jim DeRogatis has been subpoenaed, which should make for a fascinating recap in the paper the following day.

Is the wood-paneled room seen in the video Kelly's former basement? Will the absence of a tell-tale back mole on the tape turn the tide for the defense? Will DeRogatis drop a quick review of the new Fleet Foxes disc into his testimony? There are so many questions left unanswered.

R Kelly opening arguments start; juror dismissed [Chicago Sun-Times]

"Remy Ma is not even close to who I am," she said through tears. "I'm not a thug. I'm not a hardcore anything. I have feelings and emotions, and I'm a human being like anybody else. I'm Remy Smith."

Perhaps this means that her sniping about C.O.'s lower-than-her net worth was also part of her label's marketing plan. She also took time out to apologize, sort of, to her victim, who was in the courtroom but who didn't get a direct look from Remy:

"I apologize," she said, "and I'm sorry for not saving you. I feel so bad for all the physical and mental pain you went through, and go through. Myself, I have a lifetime scar on my face. So I know the pain you feel when I look in the mirror."

I'm surprised that she didn't add, "But if I got through it, so can you!" to her motivational speech, if only to seal the cluelessness of said statement.

Chaos in Court Hallway After Remy Ma Sentence [NYT]
Remy Ma calls in from Rikers [ImHipHop]

DeRogatis has the full text of the ordinance, and a list of nights that would likely be affected:

• The Nocturna dark alternative dance nights at Metro.

• Chicago Acoustic Underground shows at various venues around the city.

• The Chicago Independent Radio Project's annual Record Fair.

• The International Pop Overthrow Festival at the Abbey Pub, the Elbo Room, Double Door and other local clubs.

• The Tomorrow Never Knows Festival at Schuba's.

Chicago aldermen's attack on music [Sun-Times]
Why proposed music-promoter ordinance could hurt Chicago's best clubs [Turn It Up]
Chicago promoter's ordinance: Ald. Brendan Reilly, 42nd ward [Time Out Chicago]
Save Chicago Culture [savechicagoculture.org]

The jurors who will be subjected to a number of Sexfacts previously inconceivable:

- An African-American woman whose husband is a Baptist pastor, and who lives in the same Chicago suburb as Kells.
- An African-American man who was only familiar with "I Believe I Can Fly", and dislikes seeing pornography behind the counter at 7-Eleven.
- The white "vice president of national accounts for an unnamed company" who believes Kelly is guilty, but who also believes he can provide him a fair trial.

Sadly, the woman who described Kelly as "a musical genius" and "the pied piper" was not selected; nor was a gentleman of advanced age who stated that "My son says nature already provided an age of consent—puberty. It made sense to me." With those sort of standards, how are they ever going to find 16 people to fill that jury box?

In case this trial never actually happens, there's always the festivities as imagined on TV's The Boondocks.

3 Kelly jurors picked 1st day [Chicago Sun-Times]

The contraband was quickly confiscated by eagle-eyed guards, according to city correction officials. Papoose was kicked off the island without ever seeing the woman to whose cuffs he once held the key.

The wedding was kaput.

"Get out of my face," Papoose snarled at a reporter yesterday as he returned to his Cadillac SUV in the jail's parking lot.

"I don't want to talk," said the still-single "Mix Tape King," who had worn his Sunday-best Yankee cap for the occasion.

"You all write racist articles."

Not to defend Papoose's contraband, but the phrase "Sunday-best Yankee cap" would seem to back up his statement. Anyway, Remy is expected to be all contrite at this morning's sentencing, but given that she was on Hot 97 last week bragging about how she makes more money than the jail guards, I suspect that the judge will see it as something of an act and that she'll be in the pen for at least a few years.

A KEY TO REMY'S HEART [NYP]

• A woman who was at one time in love with R. Kelly was allegedly paid an undisclosed amount by one of the singer's aides to hand over a tape of a sexual encounter between her, Kells, and an underage girl. [Chicago Sun-Times]
• The Tribune is liveblogging the whole trial as best they can. One detail: Two men who played on the singer's contribution to the Ali soundtrack by holding up a sign that said "R. Kelly World's Greatest Pedophile." Clever? [Chicago Tribune]
• Kells' normal Thursday-night basketball game in the south Chicago suburb of Markham was marked by him angrily hurling a basketball at a reporter who'd stopped by to watch the game/come up with metaphors for future stories about the trial. Also, a former opponent of the singer's claims that he insists on playing point guard and that he "hogs the ball and shoots all the time." [Chicago Sun-Times]
• What's the best way to maximize pageviews from a big news event that will bring more people to your newspaper's Web site than ever? A photo gallery! [Chicago Tribune]

On January 21, the actor/rapper was photographed driving his 1966 Chevy Nova II on the Loop 101 at a speed of 100 miles per hour in a 65 mile per hour zone.

Just a minute later, DMX, born Earl Simmons, was photographed at another camera moving at a speed of over 114 miles per hour.

Three minutes later, DMX was caught on camera driving at a speed of 101 miler per hour.

Police arrested DMX at his home in Cave Creek and charged the rapper with racing on a highway, reckless driving, two counts of endangerment, three counts of criminal speed and driving with a suspended license.

I guess at that speed, the "but I really had to pee" excuse doesn't work. But who really needs to drive 114? Is DMX's car tricked up with a flux capacitor or something?

DMX Busted In AZ For Driving Over 114 MPH [AllHipHop]

Meanwhile, Sony has invited fans of all ages to share photos of their finest hair braidings, in honor of his latest single, "Hair Braider." Just click on a photo (like JAMILAHWILLIAMS' here) and give it a rating.

★ Lookin' like SPAGHETTI!
★ Super tight
★ Cornrows
★ Frizzy
★ Straight back wack

While none of the allegations really change the way I feel about his music (if you destroyed every album made by an artist that used their fame to have sex with an underage girl, there wouldn't be a Rock And Roll Hall Of Fame), it's clear this goes beyond some Steven Tyler-esque passing fancy and into some serious pathological issues. I'll live without the next crazy sex metaphor if it means Kelly's taken off the street and given the counseling he clearly needs.

R. Kelly Trial: A Timeline [MTV]
Kelly wants to see your braids! [R-Kelly.com]
[Hairbraiding photo: R-Kelly.com]

While none of the Web companies involved would comment on the judge's decision, a source close to the three sounded like the players on a baseball team after the other side just hit a walk-off home run.

"This wasn't good for us, to say the least," the source said, adding that the judge's order isn't yet final and that the three companies plan to continue fighting.

If the final fee structure looks anything like what is prescribed in the judge's written opinion, RealNetworks, Yahoo, and AOL would likely have to raise prices. It may also mean that the cost of doing business for anyone streaming music over the Web just went up.

"What this means to other licensees is, they now see what a standard benchmark fee should look like," [ASCAP CEO John] LoFrumento said. "They now know what to expect from the rate court."

Somehow no online-music services announced that they'd be closing today, but I guess part of that is because the fees were retroactive to 2002 so they'd be in for paying up anyway.
What the ASCAP decision means for consumers [news.com]
Court Sets Royalty Fees To Be Paid To ASCAP [WSJ]

The federal case in question involves an FCC policy that allows for fines against broadcasters who let swears flow like it's free booze at a SXSW day party. In this particular instance, the policies are being challenged by Fox, ABC, and CBS, after brilliant commentary uttered by Bono, Cher, and Nicole Richie on awards shows in 2002 and 2003:

No fines were issued in the incidents, but the FCC could impose fines for future violations of the policy.

The case before the Court technically involves only two airings on Fox of the Billboard Music Awards in which celebrities' expletives were broadcast over the airwaves.

FCC Chairman Kevin Martin said Monday that he was pleased with the Court's decision.

"The Commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility," he said in a prepared statement. "I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience."

Fox Broadcasting Co. was also pleased. The decision will "give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace where parents have access to a variety of tools to monitor their children's television viewing," company spokesman Scott Grogin said in a prepared statement.

It remains to be seen whether the decision will pan out successfully or not. My personal feeling is that if we were really thinking of the children, we could start by keeping some of these folks off the air. TV would be boring and less profitable, of course, so this case review comes at a moment when the networks are looking to capitalize on spectacles of all kinds.

Shock value is also the main selling point of this whole Montclair debacle, too. I don't see what's "edgy" about the alleged violations—has everyone forgotten already forgotten about The Vegetable Report and other shenanigans of radio's past?

Perhaps the wannabe Howard Sterns at WMSU desperately need their 15 minutes of fame in a suburban landscape dominated by the likes WFMU, WSOU, and WPRB (where I DJ). So here are some details:

Montclair State University this week began an investigation into a February student radio broadcast that apparently included naked women, lap dancing and other sex acts.

A faculty adviser pulled the show off the air this week, but not until a parent of one of the women called the school Tuesday to complain about videos on the Web that purportedly showed the scene at the college-owned studio. The university began its probe Wednesday.

"Basically, it is what it appears to be and we're looking into which of these individuals are students," said Minne Ho, spokeswoman for the university. "If they are students here, we will find out who they are." She said they could be sanctioned - from probation to expulsion - for behavior that detracts "from the core mission of the university."

Some of the raunchy videos — which apparently date to a broadcast of the Randy Rogers show in February — were posted on one of the disc jockey's Web sites Friday and were not removed until The Record tried to contact the DJs. One of the videos featured a man writing Rogers' initials in whipped cream on the body of a naked girl in what appears to be the FM radio station's studio.

The intro to the video directs viewers to tune in to the "Kinky Olympics" on WMSC 90.3 every Tuesday from 7 to 10 p.m. Other photos that appeared on the Web show men lining up and receiving lap dances.

Montclair State shock jocks in hot water [Northjersey.com]
Supreme Court Will Review FCC Policy on Broadcast Profanity [Law.com]

Growing up in central New Jersey, one of the first Christmas songs I remember hearing on WPRB that I couldn't find anywhere else was by a group of snotty punks from Iowa called The Law.

The Law moved east to Boston in search of fame and fortune when I was still in grade school, and one of their members, "Billy Disease," would later attend Princeton—which is how their songs ended up at WPRB. Their 1980 "King Sized Cigarette" single is one of those 45s that is just dying for Hyped2Death to give it the attention it deserved 25 years ago.

This holiday song—recorded live at Boston's The Rat in 1981—was for many years available only as a cart at the station, and hearing it appear on the airwaves always meant that the holidays were officially here. Now, as one of the three songs I close my 24-hour Xmas show with, it means that it is time to go home and get some rest and that I've hopefully done a good job this holiday season.

Wanting to share this song with people was the impetus for The My Pal God Holiday Record, and I still hope that someday The Law's "Instant Party" cassette can get a CD release.

Folks from The Law went on to join Scruffy The Cat, Young Fresh Fellows and The Minus Five.

Happy Holidays!

The Law - What Did Santa Claus Bring You For Christmas [MP3]
The Law [Iowa Underground Archives Network]

"It is an awful thing to be accused wrongfully of copyright infringement," Keith said in a statement. "It goes to the core of what you are as a man, a singer/songwriter and an artist ... I was put in the terrible position of not being able to defend myself until the trial and I just could not wait for that day to come. I knew it would take no time at all for the case to be dismissed and it was, of course, with prejudice which means: He had no case whatsoever."

Keith's disputed song has "also spawned I Love This Bar & Grill restaurants in Oklahoma City and Las Vegas," which is now definitely on my itinerary of "musician-themed restaurants where I can do harm to my body and soul" after eating at a Jimmy Buffet's Cheeseburger In Paradise a few weekends back. No, I'm not particularly proud.

Toby Keith Infringement Suit Dismissed [Billboard]

The lawsuit alleges unfair competition, dilution of the value of the name and unjust enrichment, claiming the title is "inherently distinctive, famous ... and immediately associated in the mind of the consumer" with the Red Hot Chili Peppers.

"Californication is the signature CD, video and song of the band's career, and for some TV show to come along and steal our identity is not right," said the band's lead singer, Anthony Kiedis, in a statement.

The AP had no luck in tracking down Tom Kapinos, the show's creator, whose only other major credit seems to some writer/producer involvement with Dawson's Creek. (Did you check the picket lines, guys?) But wait, isn't "Under The Bridge" the Chili Peppers' signature song? Maybe a troll should sue them for unfair competition.

Red Hot Chili Peppers Sue Showtime [AP]

As The Register notes, the Pirate Bay will probably use the "we were only helping people find ways to infringe copyright, but we didn't host any files" defense that ex-OiNK admin Alan Ellis floated to the media last year, although whether or not that will fly in this case remains to be seen. A side note: It seems to me that the site's sponsorship of bands would further cloud this issue, at least as far as the site's intentions toward facilitating infringement of copyrights; the sponsorship seem to be saying that there are some artists that are OK with what they're doing, and TPB is rewarding said outfits with publicity accordingly. But I'm not a lawyer, and I'm only really sure of one thing: Conviction or no, the site will probably not be hosted inside Sweden's borders by the time the year's out.

Prosecutor sets date for Pirate Bay showdown [The Register]

EMI's complaint says MP3tunes' two Web sites offer an integrated music service, allowing users to listen to music on their computers, obtain copies of songs online, transfer music to their computers and portable devices, and distribute it to others.

Sideload.com streams music to users, enabling them to listen to a wide array of music on demand, the complaint said.

Robertson sold MP3.com and "ultimately started this one as a vehicle to achieve a comparable infringing purpose," the complaint read. "MP3tunes, however, does not own the music it exploits; nor does MP3tunes have any legal right or authority to use or exploit that music."

Robertson claims that dinosaur EMI is just behind the times, man, and that the lawsuit "is really a shame because instead of using these technologies to improve their business they make an enemy of every technology company out there." So, it's kinda like the OiNKish "the music industry could learn something from our sweet technological architecture if only they'd chill" argument? Except wrapped-up in a three-piece CEO's suit?

EMI Labels Sue Online Music Exec Robertson [Reuters UK]

First, I chatted with an American intellectual property litigator who asked to remain anonymous, and asked him basically the same question posed by Pytlik:

They should be very, very scared. There are at least two reasons why this is not just your average, everyday, run-of-the-mill file sharing copyright infringement: this involves music that has not yet been commercially released, and money changed hands.

Because the music has not yet been commercially released, as a practical matter, the fair use defense effectively disappears. The leading case involved The Nation beating Harper & Row to press by publishing merely "between 300 and 400 words" of President's Ford's memoirs; the Supreme Court held that "The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right." Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 548-49 (1985). "First publication is inherently different from other [exclusive copyright] rights in that only one person can be the first publisher;... the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced 'sharing' of the first publication right ... is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts." Id. at 553.

That fact also makes it criminal infringement, because it is "the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution." 17 U.S.C. § 506(a)(1)(C). (A "'work being prepared for commercial distribution' means ... a musical work ... or a sound recording, if, at the time of unauthorized distribution (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not been commercially distributed." 17 U.S.C. § 506(a)(3)(A).) Of course, it's also criminal because "the infringement was committed ... for purposes of commercial advantage or private financial gain." 17 U.S.C. § 506(a)(1)(A).

Prison terms for this stuff run up to 3-5 years for first offenses, 10 years for repeats. 18 U.S.C. § 2319(a), (c).

Yipes! As a follow-up, I asked two questions: Whether or not it was likely for prosecution to occur in the US, and whether or not the idea that any money that changed hands was donated—as opposed to the fees being a membership requirement—made a difference as far as "commercial distribution" goes:

The legal issue of what constitutes infringement in the US stays the same—there still has to be an infringing act in the US, or importation into the US. There are probably differences among the protections that US, UK, Netherlands, and EU law afford to subscriber information, but unfortunately, I don't know the other countries' law, so I don't know whether those differences are material.

As far as money goes, remember that "commercial advantage or private financial gain" can include the benefits of barter and the like. So the fact that, in your [description of OiNK's ratio rules], "they had to assist in infringement in order to keep infringing" might be enough.

Ah, those ratio requirements—they'll always get you.

Later, I had a quick IM exchange on the subject with MCBarrister, a Washington-based attorney with a background in IP and Internet law:

mauraidolator: So basically I am curious as to whether or not you think it's likely that authorities in the US will try to go after American users of OiNK; there's a threatening message on the front page of the site right now, and the freaking-out has commenced, as you might imagine.
MCBarrister: I think it depends on how quickly the RIAA gets its hands on any of the server logs. That's partly facetious, but I don't see the U.S. Department of Justice using its resources right now for criminal investigations of copyright infringement. The overseas raids were criminal matters—I don't expect the same here. Plus, there's an interesting issue of whether the UK and Dutch authorities would share the information with a private party. There are long-running debates over data treatment and security between the US and EU.
But if RIAA does get the logs and data, then there will be hell to pay for anyone who used credit cards [to donate]; those who maintained membership via upload will be a little harder to trace because you'd have to follow the IP addresses, and ISPs are not always willing to hand over their customers without court orders
mauraidolator: i'm pretty sure that the donations were done via PayPal.
MCBarrister: Hrmmm. PayPal is owned by eBay, which has pretty liberal policies about helping IP rights owners. I think it would still take a court order, but PayPal / eBay would be more likely to hand over personally identifying information that universities have proven more unwilling to give.
mauraidolator: What is interesting to me is the rough estimates of where the users came from — I've read that the US-based membership of the site was as high as 50%, even though the site was located in the UK.
MCBarrister: It's not that surprising, depending on the content. I graduated from college before there was a graphical Internet, so I never really participated in these activities—but I have a rough sense that lots of US-based university students were playing since they have access to the best net connections around. My cable modem would choke on the kind of uploading necessary to support what I would want back down, assuming I had anything that was of value to the network in my vinyl rips.
mauraidolator: same here
MCBarrister: My bottom line—there should be some level of fear, but the action is going to be from the RIAA (again), not the feds, unless a new US Attorney General (once confirmed) has a real passion for prosecuting IP violations.
mauraidolator: Has there been any word on his attitude towards IP violations yet?
MCBarrister: I haven't noticed—the mainstream coverage has focused on his willingness to back the administration's claims of independence from the rule of law when it affects them personally, and a short time searching on Google turns up nothing more relevant.

So, there you have it. And if the new US Attorney General is excited by the idea of going after illegal downloaders? Well, look on the bright side, ex-OiNKers: There could always be another terrorist attack! That would certainly tie him up for a while.

Okay, the world was probably never really going to be ready for the Blackout bomb, but the lawsuit slams Hilton for posting nearly a dozen half-finished (or finished songs that sure sounded half-finished) Britney songs over three months, the reason Zomba is claiming that Blackout has now been bumped up two weeks from 11/13 to 10/30. Like Silicon Valley Insider, every music blogger knows very well that "even when the label is genuinely opposed to the idea, it's usually handled via a sternly worded letter from a lawyer," but with the RIAA winning its first trial, maybe the music industry's lawyers are strutting around with a little more confidence in their plans to sue everyone in sight. Or maybe they've just heard all of our prayers for someone to take Hilton down. Bad karma be damned.

Brtiney's Label Vs. Blogger [Silicon Valley Insider]

It has been widely speculated that the decision could have far-reaching repercussions in the music industry, encouraging any musician who had played on any recording in the last 40 years to raise a potential claim of joint authorship. Baldwin told the judges today: "It raises issues of principle which are of general importance to the industry and which merit particularly close consideration by the Court of Appeal."

Of course, even if Fisher wins, he's "only to be entitled to royalties dated after May 31, 2005, when the claim was filed"—which annually still comes out to about as much as a lower-middle-class American family makes in a year—thanks to the four decade lag between release date and complaint. However, if the case holds up, this may finally be Ringo's time to shine. Or his lawyers' time to shine, anyway.

London Judge Hears Whiter Shade Appeal [Billboard]