Happy Birthday, Dear Children: Once Again, to the Courts!

So in September, I wrote about the latest twist in the copyright ownership or existence in the lyrics for "Happy Birthday." Warner-Chappell had been the current and sole party alleging that it had license to the lyrics through a series of sales of same over the years. In a summary judgement, however, those rights were wiped away. A judge said that the evidence made it clear that there was no valid transfer of copyright in the 1930s from the Hill sisters to Summy Co., which was the ostensible owner. He walked through the potential that no valid copyright existed at all in the lyrics, but didn't formally issue a decision, because it was necessary.

At the time, this was trumpeted as the song finally being deemed in the public domain—but I argued while it was likely, it wasn't certain. That was because even should Warner-Chappell give up its fight (it hasn't) or lose on appeals, potentially all the way to the Supreme Court, there might be other valid parties extant who could establish a right. At which point, more litigation would be necessary to determine whether a) that party had a right in the work and b) the work had a valid copyright from around 1935. (Remember the musical tune was devised in the 1870s, copyrighted in the 1880s, and is clearly out of copyright for decades now.)

I wrote:

The only likely group that has standing to pursue legal action if they demanded royalties and didn't receive them is the charity that became the ultimate beneficiary of the Hills, the Association for Childhood Education International (ACEI). It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years. Should ACEI choose to attempt to enforce rights, sue Warner-Chappell, or carry out any other action, it has just two bases on which it could proceed. (Diane Whitehead, the executive director of ACEI, says, "We are not commenting at this time.")

Well—the ACEI is pursuing this argument now. I was unable to determine (nor were other reporters) whether the Hill Foundation that ostensibly received one-third of the royalties of "Happy Birthday" still existed in some form. It had apparently passed its share to ACEI. But ACEI now says, rather late in this process (a suit to which it wasn't a party), that it received the full ownership of all the Hill Foundation copyrights in a bequest.

Jessica Hill had inherited from her sister Mildred's estate her share in the rights to various songs, and Patty (who created the songs with Mildred) had the remaining rights. The two created the Hill Foundation as the entity to own these rights. The ACEI, which Patty helped to found, received Patty's share on her death. The remaining half was bequeathed to a nephew, who, because he died without issue, had his share revert to the ACEI in full. 

Thus the mystery of the Hill Foundation is solved, if the chain of bequests can be documented. The ACEI would be the owner of any rights that the sisters failed to assign properly to Summy. The ACEI has been receiving its royalty share from preceding owners and then Warner-Chappell.

So if it is proven the rights weren't properly assigned to Summy, they reside with ACEI, which can sign them over again properly today, at which point they would remain in effect either until 2017 or 2030. (There is an issue as to whether the rights were properly renewed after 28 years, however; if Summy did so, it wasn't entitled to, and thus even if they existed in 1935, they would have expired by 1964.)

The rights would expire in 2017 if an unpublished manuscript of the lyrics were found, as they would be protected for 70 years following Patty Hill's death. (Only the original creators' deaths are counted for this purpose.) If the 1935 registration is found valid and the transfer of rights is not, then the rights persist until 2030 due to the vagaries of copyright law extensions.

The leading expert on the "Happy Birthday" copyright status, explained the issue about an unpublished manuscript back in September:

However, the Hill sisters in the 1940s lawsuit maintained that they had made a transfer of rights in 1935. These are the rights that the judge said didn't exist. That ruling could leave the unpublished rights active. But Brauneis says, "We don't know that Patty Smith Hill ever wrote anything down." No manuscript has ever been mentioned nor presented across multiple trials and 125 years. This also requires that the Hills never "abandoned" the rights, a complicated concept, but Brauneis says his reading of the judge's ruling is that King leaned toward that interpretation.

One outcome is that the judge lets ACEI join the suit and produces a new summary judgment in which he finds the registration invalid or the rights abandoned, or turns to the reliance on an unpublished manuscript which, as there's no proof of one existing, would ostensibly be dismissed as well. It could also go to trial and any of these conditions might be met. In all of those cases, the copyright was never valid, and there was no basis by any party to collect royalties.

The ACEI receives a significant portion of its income from these royalties, and thus is motivated to pursue the case. (Its filing is here.)

What this means, however, is that the issue of whether lyrics are clearly in the public domain for the purposes of companies who want to avoid being socked with a copyright lawsuit for unlicensed use has been punted forward, potentially for months to years.

My Latest Book: A Practical Guide to Networking, Privacy & Security in iOS 9

I've been writing about the three topics in this book's title for…well, decades now. And even though iOS is ostensibly an intuitive and simple operating system, knowing where every setting is and which software to use to enhance safety, security, and privacy can be a struggle. This 176-page book, A Practical Guide to Networking, Privacy & Security in iOS 9, documents all that in concise chapters divided by tasks that tackles the basics all the way up to advanced topics. (You can download an excerpt with a full table of contents and a chapter.)

Folks concerned about privacy controls in iOS and safe/ad-free web surfing asked me to include details on those topics for this new edition. The Privacy section is thus all new. It explains how to use Apple's settings—and what Apple claims is done with data and details it collects when you're searching, using Siri, and mapping. I also have a chapter that runs through content-blocking Safari extensions, which were introduced in iOS 9, and allow third-party apps to help you block web-based malware, trackers, phishing sites, and unwanted bandwidth wasters, which can include advertising networks that don't respect your privacy, time, or your mobile data plan costs!

The book is normally $15, and you get three DRM-free versions: PDF, EPUB, and MOBI (Kindle compatible). As a reader of this blog who read to this point on the page, you can get 25% by using the coupon code FOG9 at checkout. Thanks for your support!

You can also buy the books through your favorite online bookseller:

You can even get it in print! This edition is printed on demand (POD), and it looks almost exactly like books printed in large quantity—and costs the same as the ebook edition.

It's a Big Book

I've just released The Magazine: The Complete Archives. It's the entire set of nearly 300 articles that were commissioned for The Magazine during its 28-month run, mostly under my editorship, and largely under my ownership. You can get the ebook edition (which comes as a set in EPUB, PDF, and MOBI) for $25. It's 1,800 pages in PDF!

We had a great time making The Magazine, and I didn't want it to disappear without a trace. So I raised funds in a Kickstarter earlier this year to fund production of this complete collection and create a pot of money to seed another publication, Old & New, that's more modest in its ambition.

Old & New will not be an app. It will not rely on Apple's shifting priorities. It will be web based, but also delivered as an ebook (once it builds up steam). It will be presold a year in advance once the audience is there to commit to a year at a time. It will use existing software and infrastructure; I plan to not build a single unique bit of code for it, if I can help it.

I'm trying to build something good, low-key, sustainable, and interesting. It'll be a great next experiment.

There's No Use Crying over a Podcast

This week, I pinch-hit to write an issue of a favorite email newsletter, Hot Pod by Nick Quah. I discovered it a few months ago, and it is like ambrosia to those like me who want more insight into the broad podcast "industry," especially the parts I don't know in public radio. Nick just got a new job and was going to take this week off, so I offered to write an issue, which you can read here.

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Crowdfunding The Magazine: The Complete Archives

Never let it be said that I do things by half measures: I've launched a Kickstarter campaign to fund producing the complete archives of The Magazine, the publication I edited and then purchased, in ebook form. It will be nearly 300 articles and over 500,000 words, and may be so large I split it into several files to avoid clogging ereaders and ebook software.

We had a remarkable range of articles and contributors, and this campaign will let me collect it all in one place, and then make it available forever through ebookstores and beyond. Thanks for considering being part of it!

Podcasting Hits Twitter Numbers: 39 Million Americans

In all the recent discussion about podcasting having arrived — with a lot of reliance on Edison Research's most recent in a multi-year series of interviews about radio and audio-program listening — nobody seems to have connected two numbers.

The Pew Research Internet Project's Social Networking Fact Sheet pegs regular Twitter use at 19% of online adult Americans. That's people 18 or older who use the Internet regularly, which Pew says elsewhere is about 87% of adults.

Edison Research's lengthy research deck notes that of its panel, which includes Americans aged 12 and older, so a larger pool, 15% had listened to one or more podcasts in the previous month when the survey was conducted. (Edison redefined how it counts this in 2013, which means the 9% figure in 2008 might be overstated by current terms, but helps show a slow, steady rise over the last six years.)

Edison helpfully notes that the 15% figure represents 39 million Americans. There are 309 million people in America as of the 2010 census, and the Census Bureau says 23.3% of them are not yet 18 years of age. Thus 76.7% of 309 million gets you 236 million; take 87% of that for online adult Americans, and it's 205 million; 19% who use Twitter regularly would thus mean…39 million.

A podcast and Twitter aren't comparable in nature. Someone might listen to one 30-minute episode of a radio show or their local church's sermon once a month, while they participate on Twitter every day; the opposite is also possible.

Yet given the attention paid to Twitter, it's reasonable to think that podcasting quietly arrived at a viable mass market when no one was looking. It took Serial for people outside of radio and podcasting to pay close attention.

Twitter's growth has slowed, especially for active users. Podcasting has by no means reached its top, and it's likely to be driven higher by a critical mass of adoption and shows like Serial. The number of podcast listeners could start to approach Edison's figures for online radio listeners: about 47% of the 12+ population in America, or about 124 million people.

For people who love listening to and making podcasts, 39 million is a very nice potential audience, but striving towards 124 million sounds even better.

Don't Build It Unless You Have To

My new motto for all new ventures is: If I don't have to build it, I won't. This is a marked change both in my life path and the advice I've given others. In the past, I felt that without building most elements of a digital project or a workflow from scratch, you couldn't reach something close enough to your aims to achieve those goals. Custom work, typically involving a lot of coding, was the only way.

I've gotten past that. The Magazine was a grand experiment in building it from scratch, and I credit Marco Arment tremendously for putting in the time and effort to make it happen. It was the only reasonable approach in 2012 to produce a born-digital and digital-only publication distributed to mobile devices. As I wrote at Six Colors, app ecosystems used to promise and deliver almost everything you needed for a publication; now, they promise more than they deliver, though there are still advantages.

The Magazine had these built-from-scratch properties:

  • A custom app, which was perceived (incorrectly) as iPad only
  • A built-from-scratch web site (turned into templates)
  • A custom back-end for both iOS and web app interaction
  • An in-house account management system to integrate iOS subscribers (by receipt) and Web access, as well as allow Web subscribers to use the iOS app
  • A custom Apple Push Notification (APN) system
  • Initially accepted payment solely via iTunes; then added custom ecommerce handling
  • Did not offer integration in the app to allow subscribers to add themselves to a mailing list

This all made sense in 2012 because:

  • There were no mature periodical platforms. Now there are several. (I picked TypeEngine for our 2.0 update this last summer.)
  • WordPress was the only reasonable and mature offering for hosting a web site with the complexity of what we needed in 2012, but it still wouldn't have been the right choice then. Now there's Squarespace, among others, which are much more sophisticated, even without being able to run custom PHP or the like.
  • Marco is a PHP and iOS programmer: he didn't have to hire in any expertise except in the user-interface design.

The trouble with custom everything, even if you are the person writing the code and are proficient (I can program perl and PHP but not Objective C), is that every single change you make or feature improvement you need is a slog. You're the only one who can do it. If you job out some parts of what you do for custom work, you have to manage those projects and get other people to conform to your needs, while they have other priorities they're juggling.

I have an increasingly well-formed idea for a new publication that I may launch in late winter. For this project, I swear to the heavens above, I'm going to stitch together everything I need from existing components, and only write the glue to bind them. Squarespace offers a lot of glue in its setup: linking in Stripe, Mailchimp, Disqus, and many other services by just popping in those other servcies' API keys.

  • If there is an app component, it will be a publishing platform that I license or to which I subscribe, not an app I commission.
  • Any content available through a platform will also be available in ebook format.
  • Web hosting will be on Squarespace.
  • I will not write a line of ecommerce code, but design the project around the capabilities of existing integration in Squarespace or another system that I can link to the web site.
  • I will not build an account-management system.
  • An email list (using Mailchimp) will be a fundamental part of communication.
  • It will not be beholden to Apple or any monolithic company for funding, ongoing subscription revenue, or feature approval.

I will focus all of my efforts on editorial, marketing, and design. Am I being naive to think that what I need is available? Not really. I've tested every one of the elements I mention in the last bullet list in isolation. The trick is making sure I can create an integrated whole. I believe it's possible.

A T-Shirt Celebrating The Magazine

With our friends at Cotton Bureau, The Magazine is offering a limited-time-availability T-shirt to commemorate our 28-month run, which ends next month. The color is from Issue #1. The back shows our three-diamond "end of story" icon and our run date.

This shirt is an American Apparel Tri-Blend Tri-Black with long-lasting ink — I've got others from Cotton Bureau using this method, and they remain vibrant and stand up to many, many washings.


A Kickstarter Failure, But Books Available Immediately

The crowdfunding campaign to produce a second anthology of work from The Magazine failed to fund: we reached about 60% of the target, but I believe getting people on board was trickier this time for a variety of reasons, including that we are about to halt regular issues of the publication.

However, we have a couple hundred copies remaining of our Year One hardcover anthology that were printed in April of this year. It's a great collection of about 25 stories across a huge range of topics. It's cloth-covered book with a dust jacket, and a full-color interior. We'd still like to create a second anthology, and selling down our inventory of the first-year collection would go a long way to letting us figure out that plan.

The cost is just $25 including shipping within the US, and it ships immediately (via Amazon fulfillment). That's the price offered in our first Kickstarter, and a discount off the cover price. (We're working out international shipping now.)

I'll write a full post-mortem about this campaign in the near future. More lessons learned, but not bad ones at all.

Various Thoughts on Shuttering The Magazine

I was interviewed at a few places about my decision to cease publication of The Magazine after our December 2014 issues — read more about that here — and it was neat to get a chance to explain how wonderful the whole experience was of editing it for two years, and owning and producing it for a year and a half. I have no regrets, I learned a lot, and while exhausting, exhilarating — like parenting!

The fine folks at three publications gave me a chance to explain myself:

The Kickstarter campaign for our book drawn from our second year of publication, October 2013–October 2014, is going strong, nearing 30% funded in the first few days.