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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 
deal. 

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 
copyrightable."

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?" 



Wired News

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