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Wilco Pays Up for Spycasts
By Noah Shachtman
Story location: http://www.wired.com/news/digiwood/0,1412,63952,00.html
02:00 AM Jun. 23, 2004 PT
This story has been updated from a previous version to add information about
who originally recorded the mysterious on-air transmissions.
Critics and fans just about deified singer Jeff Tweedy and his alt-country
band, Wilco, when the group released its album Yankee Hotel Foxtrot in 2002. But
now, on the cusp of Wilco's next release, a small British label has forced
Tweedy to fork over tens of thousands of dollars for questionable samples that
gave his previous star-making record its title.
In 1998, London-based Irdial-Discs put out a four-CD collection of broadcasts
from so-called numbers stations -- mysterious shortwave transmissions,
allegedly sent by the worlds' intelligence agencies, of monotone readers spewing
alphanumeric streams. On the first of the discs, a woman in an indecipherable
accent -- a Mossad agent, according to legend -- keeps repeating three words:
"Yankee ... hotel ... foxtrot."
It's the same recording that loops for a minute and a half during "Poor
Places," the 10th track on Wilco's 2002 album. After a two-year legal fight, Tweedy
agreed in an out-of-court settlement to give Akin Fernandez, Irdial's owner
and sole employee, a substantial royalty for the recording.
Fernandez is trumpeting his victory as a "classic David and Goliath
confrontation." But copyright lawyers and intellectual property activists aren't so
sure. How exactly, they're wondering, does a guy get ownership over something he
taped off of the radio?
"Copyright requires some amount of creativity by an author," said Electronic
Frontier Foundation attorney Jason Schultz in an e-mail. "Simply pressing the
record button on your radio receiver hardly qualifies to me."
Fernandez disagreed. Under British law, "If I had taken a hydrofoil out to
the ocean and recorded whale songs, the copyright belongs to me," he said. Other
people are free to make and sell their own recordings. "But nobody can take
this recording and use it in a commercial setting -- or any other setting --
without my permission."
But here's where a strange story turns even odder: It's unclear whether
Fernandez even recorded the "Yankee" shortwave broadcast himself. Simon Mason, a
spycast enthusiast and author of Secret Signals: The Euronumbers Mystery, said
he gave Fernandez the captured transmission -- one of many -- in an informal
According to Mason, Fernandez asked him for his numbers station collection --
much of which is freely available online -- when Fernandez was putting
together the Irdial compilation. "I was happy to do so as I felt he was sticking his
neck out and spending his money on what I thought would be a very esoteric
collection of about 300 boxed sets with a very limited appeal, and that there
was no money to be made on selling them," Mason recalled in an e-mail.
"All that money I could have made if I had copyrighted them!" Mason wrote.
"Since I gave Akin the recordings willingly for nothing, I don't have any come
back. But in hindsight I would have come to some sort of deal that meant I
would get a cut, but life is too short to get upset about it now."
Mason may be maintaining a Zen exterior. But some intellectual property
lawyers are more than steamed at Fernandez for laying claim to Mason's recordings.
"If Irdial simply published someone else's recording verbatim, then under
U.S. Copyright law, they don't own anything," Schultz said in an e-mail.
"If anyone held a copyright here, it would be Mason," added Wendy Seltzer, a
fellow at Harvard Law School's Berkman Center for Internet & Society.
Fernandez' admits that Mason was "one of the major donators" to the Irdial
set. But despite the familiar-sounding MP3 file on Mason's website, Fernandez
said "the recording used on Wilco's Yankee Hotel Foxtrot was made by me."
In any case, the deal between the indie label and Tweedy still stands. The
terms of the agreement weren't disclosed. But Fernandez said Tweedy will
reimburse him 15,000 pounds (about $27,300) in lawyers' fees. The royalty granted to
Fernandez could be worth many times that amount.
To Tweedy -- newly flush, after the success of Yankee Hotel Foxtrot -- the
cash isn't that big a deal.
"It's an interesting legal issue," said his lawyer, Josh Greer. "But it's not
worth the money to resolve whether these strange shortwave beasts are
But to Fernandez, the payments were make-or-break. If he had lost the legal
tussle with Tweedy, "it would have definitely been game over" for his
14-year-old label, Fernandez said.
"For the first time in history," Irdial's website announced for the
double-album Electric Enigma, "the sounds of the Aurora Borealis and the EMF discharges
of lightning bolts bouncing and stretching through the earth's magnetosphere
have been captured, recorded and presented to the public in this
groundbreaking double-CD set."
Few Irdial records gained as much attention as the Conet Project, Fernandez's
collection of the bizarre shortwave broadcasts. USA Today, NPR and Wired
magazine all featured the recordings. In them, voices of a dozen different accents
repeat strings of numbers and "phonetic alphabet" letters -- the
abbreviations pilots use ("alpha" for a, "bravo" for b and so on).
The numbers stations have been on the air for at least 30 years, according to
Fernandez, and "they can still be heard today, all over the world, without
any special equipment other than an ordinary shortwave radio."
The transmissions -- long rumored to be sent by spy agencies -- are perfect
for giving instructions to a clandestine agent, said Bill Scannell, a former
U.S. Army signal intelligence officer turned privacy activist.
Shortwave is so commonplace, the signals "can be picked up without arousing
suspicions," he noted. More importantly, the broadcasts are coded with a
"one-time pad" -- a mathematical formula for encryption, to be discarded after a
single use. So they "make no sense to anyone, unless you're a specific agent
going to a specific frequency at a specific time," Scannell said.
Irdial has made its spycast captures, and the rest of its catalog, available
for people to download and share. But making money from the works, without the
company's permission, is restricted.
Advocates of more-open intellectual property policies say they like Irdial's
Free Music Philosophy. But they're not so nuts about the company's tangle with
Wilco and Tweedy, which was brought before the High Court of Justice in
London before it was settled.
"They're playing in and reinforcing this legal regime that's limiting
creativity," said Nicholas Reville, the head of the activist group Downhill Battle,
which recently organized protests when the label EMI clamped down on a DJ for
blending together albums by Jay-Z and the Beatles. "Will the next Wilco even
consider using a sample like this after seeing what happened here?"
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