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Rich Fiscus

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Posted on Techdirt - 16 July 2011 @ 12:00pm

Rich Fiscus' Favorite Techdirt Posts Of The Week

This week’s favorites post comes from Rich Fiscus, who hasn’t commented on the site much, but when he does, it’s almost always worth reading.

By far, my favorite story of the week was one that seems to have gotten very little attention from the Techdirt community. That’s understandable since it revolves around a musician many readers may not have heard outside of samples and a 52 page legal document. In fact, despite his status as one of the most influential musical figures in the last 50 years, it’s not immediately obvious why you should care about George Clinton’s lawsuit against his former lawyers. I would argue, however, that his career is a textbook example of why artists should pay more attention to the business side of their craft. To put it in Mr. Clinton’s own words, “free your mind… and your ass will follow.”

One of the most common complaints whenever someone suggests to musicians that they need to develop a business model is, “we shouldn’t have to be business men.” You need look no further than George Clinton’s career to understand why that argument was never valid. His work over the decades has netted hundreds of millions, if not billions, of dollars – but not for him. It was never his art which held him back. It was poor business decisions.

In market terms, he invested heavily and unwisely in the funk bubble of the seventies and ended up bankrupt by the mid-eighties as a result. Even though George Clinton understood early on that his career was a business, he failed to arm himself with the basic tools to operate it wisely. As a result, he blindly trusted others to protect his interests and has been paying the price for at least three decades.

To be sure, the people who apparently defrauded Mr. Clinton should be held accountable for their actions, but that doesn’t relieve him of the duty to oversee his business. If he were building houses or selling shoes, wouldn’t the responsibility for hiring competent and honest managers, accountants, and lawyers rest at his feet? Why should he get a pass because his product is entertainment?

At the same time, the question of legal malpractice is more complex. Mr. Clinton claims his lawyers worked directly against his interests and wishes. He alleges they failed to take obvious and necessary steps to disqualify key evidence. According to his filing, they went so far as to instruct him to lie on the witness stand. Lawyers, more than any profession besides doctors, are the public’s only link to a service vital to our everyday lives. Without lawyers most of us have no access to justice.

Yet, somehow, we don’t hold them to the same level of professional accountability as doctors, accountants, or even used car salesmen. On one hand, this is a necessary evil. No lawyer can know all the nuances of the law or memorize every court decision that might be relevant some day. But authenticating disputed documents and telling the truth in court would surely be obvious even to a layman, let alone a legal professional.

From legal malpractice we move on to legal misrepresentation and the fading fortunes of Righthaven. As they lose more and more cases, the questions are shifting from the legitimacy of their copyright claims, to the legality of their entire business. This is an issue bigger than Righthaven or their individual victims. Lawyers, including Righthaven CEO Steven Gibson, do not just work in the legal system. They are its representatives. If they are allowed to knowingly perpetrate fraud upon the system, it victimizes all of us. A justice system that the people cannot trust is one they will fear to avail themselves of. Likewise, those who see others gaming that system for their own illicit gains will be emboldened to do the same.

Which brings us to a final stop on this week’s legal merry-go-round. The question of whether a picture taken by a monkey qualifies for copyright protection may have a touch of the absurd, but it is deadly serious to photographer David Slater. His assertions and the takedown request from Caters News Service, which neglects to state any legal claim, illustrate the biggest obstacle to an honest debate over copyright.

Both parties make the same mistake. Instead of questioning whether the photo meets the legal requirements for copyright, they assert it must be so because he deserves it. Copyright has never been about a single individual, or at least it’s not supposed to be. Its stated purpose is nothing more or less than to act as an economic incentive.

Furthermore, if we make it about fairness, we must consider more than the creator and publisher. It must be about fairness for everyone. That includes creators of future works and the public at large. What appears just when you consider only the artist is often completely unjust for the rest of society. That’s what our laws are supposed to be providing – justice for society. Justice does not mean the best possible result for one party, but rather the most equitable result for all.

Finally, on a lighter note, I wonder how different my life would have been had I known my love of Iron Maiden and Motörhead might just be a symptom of addiction. How much better off could I be now if I had known to seek treatment for the compulsion to grow my hair long, wear t-shirts with pseudo demonic imagery, and give myself whiplash while listening to music at an unhealthy volume? It’s a relief to hear from a Swedish psychologist that it’s not my fault. Now, I just need to find a way to overcome this handicap and maybe someday I will be able to lead a normal, healthy life.

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