This Week in Law 286 (Transcript)

Denise Howell: Next up on This Week in Law, we've got our last episode of the year. We're going to bring you the best of Cox and drones of 2014. We wish we were a drone flying over the Garcia v. Google 9^th Circuit en banc argument because it was replete with orcs, Celine Dion and human cannonballs. We'll tell you about all that and much more next, on This Week in Law.

Voiceover: Netcasts you love from people you trust. This is TWiT! Bandwidth for This Week in Law is provided by Cachefly.com.

Denise: This is TWiL, This Week in Law with Denise Howell, episode 286, recorded December 19, 2014.

Litigious Orcs and SOPA Zombies

This episode of This Week in Law is brought to you by Blue Apron. Blue Apron will send you all the ingredients to cook fresh, delicious meals with simple step-by-step instructions right to your door. See what's on the menu this week and get your first two meals free by going to BlueApron.com/TWiT. That's BlueApron.com/TWiT.

And by FreshBooks, the simple Cloud accounting solution that helps millions of entrepreneurs and small business owners save time billing and get paid faster. Join over five million users running their businesses with ease. Try it for free at FreshBooks.com/TWiL.

Hi folks, I'm Denise Howell. Thank you so much for joining us for our final episode of This Week in Law in 2014. We have a phenomenal panel joining us today. In fact, I have a wonderful introduction to make. Not her first introduction to the show because she joined us back on episode 272 but we've already announced on Twitter and elsewhere, but now I get to formally announce on the show. Sarah Pearson is going to be joining me as our co-host of This Week in Law starting after the first of the year. She won't be on our very first episode in 2015 but shortly thereafter, she'll be coming on board on a regular basis and she's hear with us today. Hello, Sarah!

Sarah Pearson: Hello, Denise. I'm really excited and actually, a little bit terrified about this. But I think it'll be a lot of fun and I'll learn a lot. So I'm excited.

Denise: Absolutely. I am so excited and not terrified at all. I'm so glad to have you joining us. Nor am I terrified about any of the rest of our panel today. I don't think you will be too, I think you're going to really enjoy the folks that we're bringing you here at year end. The first of those people is Margot Kaminski. Hello, Margot.

Margot Kaminski: Hi, Denise. Thanks for having me again.

Denise: Great to have you back on the show. Margot has shifted gears since the last time she joined us. At that time, you were still the executive director of the Information Society Project at Yale, Margot. Now you're over at Ohio State University teaching, researching and doing scholarship there. We're thrilled that you could take the time out to join us today.

Margot: Yes, this is right in the middle of our exam periods, so it's an exciting time for all of our students.

Denise: Yes, that's one way to put it. Another fellow who's not at all unfamiliar with the arduous process of being a law student, once upon a time, is Jake Heller, the founder of Casetext. Hello, Jake.

Jake Heller: Hey, how's it going?

Denise: Great to have you here, Jake. Could you tell us, real quickly, about Casetext for people who aren't familiar with the company?

Jake: Sure. Casetext, which is at Casetext.com, is a legal research website where all the cases and statutes involved have annotations added by a community of lawyers. So what we do, essentially, is we pull in all the amazing things written by law firms, by bloggers, by law professors on their blogs and add that to the legal research database, as well as have a lot of information that people have added to the cases themselves. The idea is, if you're doing research on Casetext, you do it with context. You understand what the headlines are about, what's been written about it and what the most important parts of the case are.

Denise: I just love this idea and I want to talk to you more about it a little later on in the show. But there have been a lot of interesting developments lately that I'd love to get into first, if everyone is game to go. We haven't yet talked about the Sony hack here on This Week in Law and I think we should, given the news that came out even after our sort of definitive show on the network that covers all things related to hacking and Security Now. The very day after Steve Gibson's show this week, it was learned or announced by the US Government that we believe North Korea to be behind the attack. The New York Times is reporting today that the FBI has come out publicly and said that it has extensive evidence the North Korean government organized the cyber attack that came after Sony. So at least we have someone that fingers are being pointed at. With this panel, I wanted to get into sort of the, what now, issue. If, in fact, the FBI is confident that they know the identity of the hackers, what sort of legal or other recourses are we looking at, if any? Margot, any thoughts on that?

Margot: I think this is an incredibly difficult area of the law and one that I'm not particularly well versed in. I know that the laws of cyberwarfare in the international context are really difficult to navigate because it's not clear what counts as an offense. In this case, you know, you have possibly a state actor going up against a private company. I'm not sure whether the US Government is going to want to get directly involved.

Denise: Yes, it certainly sounds like there are a lot of moving parts to it and some delicate diplomatic issues at stake. Possible some life and death issues at stake with Sony being a Japanese-based company and there being Japanese prisoners held in North Korea, so certainly I wouldn't be surprised if we saw a lot of treading lightly. Diplomatically, over [feedback], from a legal standpoint, Sarah – you know, I was talking about this with Keith Strier, who was on the show a couple of episodes ago, earlier this week. We were both just kind of scratching our head and going, “So, you know, what do you do when you've got a cyber attack by a foreign state? It's not exactly like you can bring them into US court and turn an overzealous prosecutor on to them under the Computer Fraud and Abuse Act, can you?”

Sarah: Yes, that's right. I mean, I think the enforcement issues are really tough. There's also just kind of the practical issue of, if we do something to retaliate, then there might be retaliation back and maybe that's worse than the original attack. So I think it's a really tricky area. One thing I read this morning is, George Clooney is really speaking out about the precedent that this sets in terms of the ability of hackers, or terrorists or anyone to kind of dictate what content we see, what movies and that sort of thing. I think that's a really interesting point.

Denise: Yes, it sure is. Jake, do you have any thoughts on this?

Jake: Yes. I think there are a bunch of interesting things happening here. One that hasn't been covered a lot but that gets discussed sometimes, when there are hacks like this, is what implications this has for what should be private communications between people like Sony and their lawyers. Now that, kind of, hacking has become common, you know, I would not be surprised if some of the more interesting releases that come out should be privileged – or should have been privileged. We may find in the coming weeks, as has happened in previous hacks, a lot of stuff that was meant to stay that way ends up getting released by the likes of WikiLeaks, or in this case, North Korea. I think that raises a lot of interesting questions around the, what you should and should not communicate to your lawyer, and how secure is that, really? How do you protect the privilege in context where what should be secure email networks gets hacked? So I think there's a lot of interesting other potential legal issues that might arise in this.

Denise: All right, well, I think that's a fantastic segue into some of the stories that I've grouped for us today under the entertainment topic. Great, let's get into some things that might have been confidential communications between the MPAA and its lawyers, perhaps, that came out – part of the many, many things that have been leaked as a result of the North Korean hack was – I'm going ahead and assuming that if the FBI says it's pretty confident that North Korea did it, that North Korea did it. I suppose that people could take issue with that and certainly, some question marks went off in my mind as I was reading through the coverage and the justifications. Again, a lot of it is not being released by the FBI because they're not going to tell us exactly how they do these investigations. It's all confidential and matters of national security. But part of the coverage emphasizes over and over again, how these attacks resemble other attacks that have been done by North Korea. Of course, one way to make it look like North Korea did the attack is to model your attack after things that North Korea is thought to have done in the past. So, you know, I guess I haven't – it's impossible to know exactly who did this, without knowing who did it. But when the FBI says they're pretty confident, I guess we can be pretty confident.

Now that I've gone down that rat hole, let us reroute to talking about things that came to light as a result of the hack. One of the things, supposedly, is that the MPAA and others affiliated with it have been working with state attorneys general to pursue investigations, legal investigations, possibly criminal investigations, against Google. Margot, what do you make of all this?

Margot: This is incredibly fascinating. The relationship between criminal law and something we're going to talk about later, which is private ordering agreements between content companies and internet service providers is really interesting to me and has been for a while. With the basic idea being that the MPAA thinks that it can get companies like Google to make these agreements with them to filter content if they have stick in place, which is the threat of criminal enforcement of some kind. So these revelations show that this is actually a deliberate strategy on the part of the MPAA. They've been giving serious campaign contributions to state attorneys general and in one particularly egregious case, they actually had the MPAA law firm, Jenner and Block, wrote the complaint for the Mississippi state AG. The document that was leaked in the Sony hack actually has Jenner and Block's watermark on it. So you see them directly getting involved with the criminal state threats against Google as a way to push them toward the negotiating table.

Denise: Right. So Jake, I guess this gets back to your point that if your corporate competition strategy is going to include law being, and donations and perhaps ghost writing briefs for state attorneys general, you're going to have to be quite cautious about how you go about that in the age that we live in today.

Jake: Yes, absolutely. I actually think we're seeing something that may be a kind of unique moment in history. I think it is possible, before this bunch of hacking, and WikiLeaks and the most recent hacks with North Korea, we kind of knew that kind of stuff happened. We knew, you know – people thought that there might be this very close relationship between, for example, state attorneys general and the people that bankroll them. But there wasn't really hard evidence of that. We're seeing that now, that there very much is, you know, this very close relationship where they're, for example, ghost writing briefs or letters to Google. One of the more interesting things I read this week basically said that there's a coalition of companies that include the MPAA, but also Microsoft and others who are backing state attorney general to take on Google for even unrelated matters. Just to kind of be a menace.

I think that this stuff will be exposed now. Then later, potentially months or years later, when security is locked down, when we change the protocol for communicating this kind of confidential information, that evidence will kind of disappear again. So we'll go back into the dark. So I think now is one of the few times in history where a lot of this information may be really exposed and brought out to the open. In some ways, I mean, it really is hard for Sony and they're in a really tough position. In some other ways, I think this is kind of good for democracy and good for our general knowledge of the way that these kinds of things work.

Denise: Yes, I think that was – I was listening to a bit of Steve Gibson's show, Security Now from this week. He was having a discussion with Leo about whether there's a positive societal benefit to these leaks coming out. Steve was of the mind that the only way for security to really get up to the level that it needs to rise is for companies to realize, with all of the associated detail, the ways in which their private matters can become public. It sounds like you're echoing some of that here, Jake.

Jake: Yes, a bit. I mean, I wouldn't argue that it's necessarily on balance a good thing. Again, I feel really bad for the people at Sony. If something like this happened at Casetext, you know, obviously it wouldn't be nearly as much as a scandal. But I completely understand the position they must be in and how hard it must be for them. At the same time, I think that those comments are right. These kind of very public things will make clear that people have to take security a lot more seriously. It also has kind of another effect, which I think a lot of people will start doing – going back to not writing things down, doing things over phone calls. You might see products coming out that look a lot like Snapchat but for what should be kind of private, secure communications. So you might send somebody a document and it disappears entirely off the servers in 24 hours. I think a lot of communications that are now being exposed that are quite embarrassing will, in a lot of ways, disappear again,

Like I said earlier, I think we're kind of in a weird, unique moment in history. Kind of like, also, when Facebook came out, people were sharing just way too much and nobody really knew what to make of it or what to do. Then people, a lot of people, started wising up to it and they're not – and privacy became a bigger issue there. I think, similarly, you're going to see right now, people are used to sharing information in certain ways. That norm will change. But as it is right now, a lot of this information that kind of peels back the, what's really happening? The relationship between companies and the government, companies and their employees, all that stuff will come out now and it should be a really interesting time.

Denise: Yes, I think you just blew my mind on several different levels there. Sarah, do you agree that, you know – my question to you originally was going to be, how will lawyers and the legal profession confront this kind of reality? I mean, certainly we have to communicate with clients. Clients have to communicate with their lawyers even if they're not engaged in lobbying state attorneys general to go after their competitors. There are a lot of reasons why communications with your client need to stay confidential. Yet there's this tension between doing that and having any kind of convenient, modern communication because it is, by nature, not necessarily 100%, all the time, secure. So do you agree with Jake that maybe things will start to self-destruct ala Mission Impossible?

Sarah: I mean, I think it is easy to kind of start to feel a little hopeless about it in the sense that we can have new technology that's more secure but presumably, eventually the hackers will catch up. So you're kind of constantly – it's this chase going on. I mean, one solution would be, I guess, for lawyers to start being really, really careful about what they put in writing. A lot of lawyers already are. But maybe that's one outcome of this, is there's more phone communication for really sensitive things. I don't know. I don't know for sure what it's going to look like but it is a really interesting issue.

Denise: Margot, do you think that the fact that this has become public will take the wind out of the sails of these investigations in several states?

Margot: You know, I actually worry about that because a lot of the investigations are things that maybe Google should be investigated for. So I'm torn on that front because I do think, as Jake pointed out, this subject matter of a number of these investigations has nothing to do with where the MPAA wants to pressure Google. It has to do with, you know, stolen credit card numbers, or child pornography which is the bane of the internet in general, or with privacy violations. So some of the dirtiness of this is disturbing because it will undermine some good causes. I was also thinking, in general, that this conversation is reminding me a lot of conversations I've heard about reporters and secure communication. You have a number of old-timey reporters who, now that they're afraid of things getting listened in on, on the internet, are actually turning increasingly to direct conversations with sources, which obviously has its own difficulties because we live in a world that's tracked in the real world, also. So trying to, you know, create the moment where you go and find your source and talk to them in real life can be as difficult as creating a secured platform online. In the phone context, you know, you have the governments using the AP's phone records – almost, I guess, two years ago at this point. So that's not particularly secure communication either. So I wonder if this just leaves us in a depressed place where you're in a world of increasing conformity and of less secure, confidential communicative opportunities.

Denise: Well, I hope not. I mean, I think you're on to something with, perhaps, a parallel to secured drop for confidential, legal communications. I don't know. I mean, we've seen this week the news of Verizon marketing its product as having secure voice communications, except when the government comes knocking. So … what's secure enough, I guess is something that business will need to work out over time. Something else that's been working itself out over the last year, and I'm so glad we get to conclude our year with the discussion of this case because it's been so fascinating. It's the innocence of the Muslims case that we've discussed several times on the show, which is in a very interesting legal posture right now. This doesn't happen all that often. It was decided by its trial court -

This is the case where the actress was deceived as to the kind of film that she was signing up to do. She gave a performance and did not realize that she was going to be in this Muslim-bashing piece of work. She decided to sue Google to remove the film from YouTube, have it removed, because she claims she had a copyright interest. I guess, procedurally, she must have – you can fill in the details if I'm wrong here, Margot. She must have initially filed a DMCA takedown notice that was not honored and that is how she sued? Is that how we wound up in this situation?

Margot: I believe so. I know that Google didn't want to recognize her, probably properly, as the owner of the copyright. Because she didn't fix her performance, she merely performed.

Denise: Right. So she did sue and the trial court sided with Google and decided that there is no independent copyright interest that the actress had. However, that went up on appeal and Judge Kozinski and a 9^th Circuit panel decided otherwise. The only other recourse to that may have been some sort of appeal to the United States Supreme Court, but an interim step that is sometimes taken is to get the entire en banc panel – that means all hands on deck. Every 9^th Circuit judge to rehear and reconsider this decision by the three-judge panel who – Judge Kozinski authored that opinion. So that oral argument just took place. Margot, you were part of an amicus brief that was filed by several law professors related to this case. Did you also attend the argument?

Margot: No, but I listened to it live streaming and was part of extensive Twitter conversation around it while it was being argued.

Denise: Right. So tell us what you think is next in this interesting saga.

Margot: So just one quick point, which is that the en banc panel is actually still a panel from the 9^th Circuit even though it seems like it's every judge in the 9^th Circuit. The 9^th Circuit is enormous. My general sense of the oral arguments was that it really went in the direction of Google. I think that you can't be completely confident about this because there were not that many judges who decided to talk. The only voice that was really supportive of the actress was Kozinski, who was making a valiant effort to defend his lower court opinion. The thing that's really at stake here is that you have a case where it feels like this poor woman had something terrible happen to her. She's received death threats as a result of being part of this film. She claims that she really legitimately fears for her life. But because Congress has set up this perfectly legitimate and probably good policy judgment-based statute, the Communications and Decency Act, Section 230, she can't get Google to take it down unless it's a copyright claim.

So this sort of forced a case that really should be about something else, about the threats upon her life, or the fraudulent conveyance to her that the film was going to be about one thing when it ended up being about something else. It's forcing concerns over that into copyright law, where it's really not a good fit. So the brief that I was part of basically tried to explain this to the court and said, “You know, this is not what Congress intended. CDA 230 really does immunize hosts like Google from these kinds of claims.” It does so because we don't want to have a significant amount of collateral censorship happen where an internet provider tries to take down as much as possible to avoid liability and ends up censoring tons of speech.

Denise: Right, so Section 230, if this is permitted to stand, the law professors' brief argued that the lower court – the appellate court's opinion here is actually a judicial expansion, or actually, contraction, of that doctrine and the immunities that it provides. Could you expand on that for us?

Margot: Sure. So this would basically, if she's found to have copyright protection in her unfixed performance, then that is going to allow anybody who is a – well, “anybody” depending on how the court defines it, who is a performer in a video to send a copyright takedown notice to Google. The point of our brief was to say, again, “This is not about copyright. This doesn't fit into the usual copyright doctrine as something that counts as copyrightable.” So instead, you're rerouting around Section 230's protections for Google and allowing somebody who can't make the defamation claim, or fraud claim or right of publicity claim and use that to get Google to take down the material, to instead claim copyright protection in it.

Denise: There were a couple of good tidbits that the Techdirt article covering the argument picked up on, in fact, put it in the headline that this was all about Celine Dion and human cannonballs at oral argument. Can you tell us how those came up?

Margot: Sure. This was hysterical. So there's actually a third example that I also want to talk about, which is the Lord of the Rings battle scenes. I never thought I would hear a 9^th Circuit judge talk about the Lord of the Rings and orcs. Anyways, the Celine Dion example was, effectively, Judge Kozinski asked Google's attorney whether it was fair that Celine Dion should get some sort of – it's actually not copyright protection, it's a related protection. But some sort of protection for her performance of her song in a video, where if Lawrence Olivier were to act in an entire movie production, he wouldn't get any kind of copyright protection in that. There would be copyright protection in the movie, which is fixed, but Lawrence Olivier doesn't have a separate copyright protection in his acting. So that was the Celine Dion example. Then Garcia's attorney gave this weird, weird description of how things could go terribly wrong if Celine Dion didn't have a way to claim copyright in her performance because some bad actor down the line could take Celine Dion's performance from Titanic and attach it to some terrible, scandalous sex movie. So she was sort of implying that performer's have this moral right in their performance to not have it associated with very bad things that they don't approve of. In the United States IP system, that's just not the case.

Denise: Got it. So human cannonballs.

Margot: Yes, so human cannonballs, I'll try to be shorter on this one. Kozinski did this strange thing. So Google's attorney was saying, and this is true, one of the more difficult parts of the finding that Kozinski made for them is that is fragments copyright in videos in a really terrifying way. So let's say you had a video of the Lord of the Rings battle scene, and let's say it was made with real actors instead of CGI characters. If you allow for copyright in unfixed performances, or in the performance itself, then every single one of those actors in that movie scene could conceivable send a takedown notice to Google. So Kozinski's rebuttal to this was that there's a human cannonball, actually, right of publicity case from the Supreme Court that found that a 15-second performance was protectable under right of publicity. Kozinski's point was, if a 15-second performance is protectable as right of publicity, then what's so bad about giving her a performance over her five seconds in the video? Google's attorney kind of stumbled on that because he wasn't expecting a right of publicity case. But the general answer is, “Right of publicity and copyright are not co-extensive, and right of publicity claims fall under Section 230. You don't get to ask for the work to get taken down.”

Denise: Right. All right, so Sarah, do you think that perhaps the recourse here should not have been copyright at all?

Sarah: Yes, I do think. I think it reflects this larger problem of using copyright to solve non-copyright problems. There are lots of examples to that. Lots of times it's well meaning, you know, it's things like revenge porn, these really tough issues. People raise the idea of, “Well, copyright is a hammer that we have.” Which, interestingly, I think it's kind of sad that copyright is the one wrong that we choose to have this enforcement mechanism that has so much teeth, more than other wrongs that actually involve personal harm in often a really significant way. But because copyright is that hammer, people often try to use it to get around their inability to deal with other problems. I think that is not a good thing, definitely.

Denise: So what should the actress have done here, then?

Sarah: I mean, I think that is the million dollar question. It might be the case that she didn't have any recourse under the law. I don't know that there's anything we can really do about that. I don't know if, Margot, you have any other thoughts about that.

Margot: Yes. I think she does have recourse, but she has recourse against the director of the movie. She doesn't have recourse against Google. So the whole thing boils down to whether you think that, in cases where you can't actually get anything from the horrible person who defrauded you, whether you should be able to still take it down from the internet. At least right now, there are things that are really sad about, for example, the inability for people to take down revenge pornography except by evoking copyright. But for right now, that is the balance that Congress has struck. Copyright gets this one system and every other content has a different kind of system, which is immunity.

Denise: Jake, do you think there's some kind of appeal to the argument that – and again, maybe the recourse here is simply against the movie maker and not Google. But the actress' argument here that she had agreed and licensed her performance for one purpose and that was not the purpose to which is was put. Does that give her an ability to reach beyond just the movie maker on a copyright basis, do you think?

Jake: I think, actually, I agree with what's been said earlier. I do think that her own recourse under law is against the movie director. I actually wonder if there might be a way for her – I haven't given this enough thought to know if this would be a legally sound strategy, but for her to sue the movie maker and say something along the lines of, “The recourse I'm looking for is for you to enforce your copyright, if I win this case against you saying you duped me, and this thing shouldn't be online in the first place. You were under a junction to then ask everybody to take down this movie.” Because I think he, I could be wrong about this, has that right, as the creator of the movie, as the actual copyright holder. That might be another kind of interesting way at getting at what she wants to get at. Essentially, you know, if there is a non-monetary way of compensating her and making up for the fact that she was duped into making this movie. But I don't think the answer is necessarily copyright for her to have a direct copyright right against Google and YouTube, etc.

Denise: All right, well, we're getting on to the point where I want to thank one of our sponsors for this episode of This Week in Law. That is Blue Apron. Blue Apron, you've heard us talk about on the show before so you might be familiar with it. But in case you aren't, it is a wonderful, wonderful service that's all about making cooking and eating fun. If you're busy and health conscious, or you just don't know you're way around a kitchen, cooking can be a chore. Ordering out is expensive and gets quite unhealthy, quite quickly. You don't know how long food in a grocery store has been sitting on shelves or how far it's had to travel. With Blue Apron, it solves all of those problems. It's going to make your cooking fresh, delicious and absolutely wonderfully gourmet, full of flavors, and easy for you. So it's the best of all worlds. Here's how it works.

You pay just $9.99, per person, per meal, and Blue Apron sends you a refrigerated box with the right, high-quality ingredients in exactly the right proportions and a simple, step-by-step recipe instruction for each meal. All this comes right to your door. If you're concerned about the environmental impact of the boxes – I've been receiving these and cooking these meals. Everything is biodegradable and that's all thought about as well. The ingredients are friendly too, to your local farmers. That's where Blue Apron sources its materials, from local farms. You'll be getting produce that's currently in season and at its peak of freshness. Meals, too, are only 500-700 calories per serving. So that's pretty darn good. I just ordered a Panini sandwich, watching the Hobbit movie last night, that topped out 820 calories just for the one sandwich. I can tell you that these Blue Apron meals are much more hearty and healthy for you than that food choice on my part was. You'd never guess, too, that you were counting calories by eating the meals. They are so delicious.

Blue Apron will work around your schedule and dietary preferences. Cooking each meal takes about half an hour. There is chopping involved, because you're working with fresh food, but really, they've made it as easy as possible. All the things are separated out. There's just the right amount of everything. Shipping, too, is always free, and the menu is constantly featuring new recipes. You'll never get the same meal twice and you'll make meals that you like, like roasted chicken with latkes or sun choke and mustard green ragu with crispy torn bread and fried eggs. They get really, really creative and that's one thing I love about the service. It encourages you to reach in your cooking a bit, like you would if you were going through a cookbook and finding a fun recipe that sounded interesting and eclectic and exotic. But not only are you doing that, you're getting all the ingredients and the step-by-step instructions, how to put together those ingredients, delivered to your door.

Given that, you'll cook incredible meals and be blown away by the quality and freshness. Blue Apron is fast, fresh and super affordable. You're going to cook like a gourmet chef. So you should go see what's on the menu this week. Get your first two meals absolutely free by going to BlueApron.com/TWiT. That's right, two meals for free just by going to BlueApron.com/TWiT. Thank you so much, Blue Apron, for your support of This Week in Law.

All right. Let's talk about blocking. We have a few blocking stories in the news this week. I kind of had my eye caught by the Roku story, the fact that Roku has been going back and forth with Comcast because it was having HBO Go and Showtime blocked on Roku streaming devices on the Comcast network. All that was kind of reminding me of Google TV and the problems that they had being blocked by the major television networks. This seems like it's going to be a give and take, tug of war kind of situation for the immediate time being and going forward. I'm not quite sure why Comcast would want to block those services on a Roku, but it seems like they have, at least for now, worked something out where the services will get through. Margot, what do you make of someone like Comcast deciding that if you've got a third-part set top box that's going to bring things in that compete with television offerings, that those things should be blocked? Are we getting into an anti-trust issue there?

Margot: It's definitely anti-competitive behavior. I don't know if it's going to rise to the level because our anti-trust law has been relatively weak recently. But it definitely should segue us nicely into a conversation about net neutrality.

Denise: Definitely. We certainly should talk about that before the show wraps up. In fact, we could talk about it now, if everyone would like. Certainly, we're waiting for the other shoe to drop still on the net neutrality front. We had some tech companies that just came out against net neutrality. Did you have a chance to take a look at that, Sarah?

Sarah: Yes, I read that article. It sounds like it's mainly companies that deal with tech infrastructure. They were making the argument that we often hear, it's, “Regulation will stifle investment.” It's always hard not to be skeptical about those because those claims are so self serving. But, you know, they're often true as well. So I feel like net neutrality is one of the issues where no matter how many articles I read, I still feel like I have a very superficial understanding of all of the arguments. So, yes, I didn't have much of a reaction other than a little skepticism.

Denise: Jake, I'm curious on your take on the net neutrality issue, given that you're the founder and CEO of a company who relies on the web to distribute and deliver what it is that you're providing. Do you have an opinion either way?

Jake: Yes, I definitely do. I mean, the thing that scares me is, as you said, as a founder of a small internet startup – without net neutrality, you could have a situation where the very big companies can pay for or otherwise negotiate faster internet connections for their websites. Right? So for us, you can imagine, LexisNexis and Westlaw paying Comcast and Verizon, etc., to have much quicker internet connections. So people using their services would get delivered faster than Casetext. We just couldn't compete in a world – you know, they make millions of dollars a year. We have, so far, spent under a million dollars to develop our product. So just totally different playing fields, and I think that for that reason it might hurt competition online. That's the one thing I worry about the most. Actually, I think there's the reason that these big companies offered, for why they're against net neutrality, and there probably is some logic there and some reason behind it. But we have to remember, whenever a very big company is arguing against net neutrality, there could be some thought like, “Oh, well, it's not going to affect us because we can just pay for speed. We will not be the ones affected.” The true people to be really affected are the people who have very small startups, who are just trying to compete with these bigger companies. That's something that's on my mind when I think about net neutrality.

Denise: So one reason that companies might try and block certain content is competition, as we've been discussing. Another is back to our old friend copyright law. It appears that the MPAA has a strategy for – once again, it's sort of echoes of SOPA. But they plan on, again, as they tried to with SOPA, legally bringing technology that will block pirate sites to the US that has been in place in other countries for a bit. Margot, can you shed any light on this for us?

Margot: Yes, this is the SOPA zombie. SOPA never dies. So the MPAA remains not very satisfied with its privately negotiated copyright alert system, which is a privately-ordered agreement between content companies and internet service providers to give a series of notifications to users that they're infringers. Then eventually, ends up maybe gently kicking them offline. So the MPAA would much prefer for all of this to take place through the US legal system and actually create a system whereby we directly, technically block sites. The revelation, the leak, or whatever ends up showing, in order of priority, what kinds of sites they're most concerned about. One of the surprises to me was actually that BitTorrent in general is not that interesting to them, relatively speaking. But this discussion of trying to enact new laws around blocking is moving hand in hand with what we discussed earlier, which is the effort to try and use criminal law to go after the companies that the MPAA is not happy about. With another topic we're going to talk about momentarily, which is the efforts to sue cable companies for failing to terminate repeat infringers' accounts.

Denise: Right, which is what Sony – actually, I think it's just BMG here, is the plaintiff that is coming after Cox in this case. Again, it goes right to that copyright alert system, which sometimes is shorthanded as Six Strikes. I think you go back and forth whether you get six strikes or not, but as it was being developed, that's what we were calling it. What BMG has done here is go after Cox for failing to terminate a user account that BMG claims this user had over 54 thousand complaints against them about their activity, using their ISP, and yet still had a viable account. So now it's going to get resolved in this case as a provision of the DMCA that deals with what an ISP has to do in the case of a repeat infringer. The DMCA will shield an ISP for liability for its users' conduct to some extent, but when there's a repeat infringer, the duties on the ISP's part go up. We just don't quite know, because Congress never defined the term, what it means to be a repeat infringer. So, Sarah, do you have any thoughts about where this case might go?

Sarah: I don't. I mean, I think it's really one of those issues where when you first read the headline, “You know, oh, it was a 50 thousand cases of infringement. Obviously, that's crazy.” But I think it's important to remember that DMCA takedowns are just allegations of infringement. I think that's going to be the big question for the court. Is that enough or is the law really talking about cases where people have actually been held liable for infringement in court? I think we just don't – that's an open question.

Denise: We had Anne Marie Bridey on the show last week and she's quoted here in this Vox article on the case. Her opinions was that a court could find that a repeat infringer is someone who's actually been found liable in a court of law of infringement, that simple allegations of infringement would not be enough to put an ISP on notice. What do you think of that approach, Margot?

Margot: I think that is precisely the crux of the issue, right, is whether this is going to be due process as determined by the company that has every interest in the world in getting the person who's infringing kicked offline. Or, if it's going to be due process that actually involves the court system to some extent. One thing I wanted to flag about this case, which is in the article but is sort of buried a little bit, is that it's a bizarre case because it's about a cable company. It's not about a website. So most of the places where there's been litigation over what constitutes a repeat infringer, we're talking about a website that does actually, to some extent, have knowledge of what its users are doing. This pushes cable companies to really be heavily monitoring what their users do if the holding ends up being that they have to be responsible for kicking repeat infringers offline.

Denise: So Jake, you're involved in a company that is aggregating a lot of other people's IP. But I'm assuming that what you put together at Casetext will be your own proprietary IP, too. So you have a dog in this hunt. Do you think that ISPs should be more vigilant in policing what their users are up to?

Jake: Quickly on what we're doing, we of course – the only things we publish on our site are done with the permission of the authors to do so, or done in kind of a snippet-like fashion, kind of like a short headline and a few words. So hopefully I don't actually have a dog in this fight.

Denise: Oh, okay.

Jake: But I do actually have an opinion on this, which is the, you know, generally speaking – I think it's actually kind of a savvy approach by BMG to force what was essentially their enforcement of their copyrights on to somebody else. They're making them do the hard work and also making them the bad guys. Because I think what BMG doesn't want, and I've seen some other leaked documents from other media companies in the MPAA, they recognize how bad it looks for them to be suing individuals for copyright violations, for sometimes hundreds of thousands, or millions, of dollars. How that makes them into the bad guy sometimes. I think part of this might be behind the scenes an effort to find another sneaky way of making them get what they want, while at the same time not being the bad guys. So I think part of what's happening here is them hoping that the court will rule in such a way that the ISPs have to be the ones doing all the hard work of finding out what people are doing on their networks, and also have to be the ones who make the tough decisions about who to kick off and when – be the bearers of bad news and so on, which I think is a very, kind of, savvy business strategy on their behalf.

Denise: Yes, I think you got a real point there. I think you've also given me my first MCLE pass phrase for This Week in Law. We put these phrases in the show in case you're listening to the show, for continuing legal or other professional education credit and you need to demonstrate that you actually watched or listened to your oversight board. So, “No dog for Jake,” is going to be our first phrase for the show. We'll put another one in before we're all set and done here and also, if you need more information about getting/applying for legal education or professional education credit, head on over to our wiki at wiki.twit.tv and there's a page there for this week in law. You'll find all kinds of information there for you. Let's conclude – I think we have concluded our Hollywood-oriented discussion for the day unless you want to go around, guys, and just give any final thoughts about the various developments we've been discussing that impact the entertainment industry. We'll start with Sarah.

Sarah: Hm, I don't know if I have any profound final thoughts. I think it's interesting that the content industry is continuing to play Whack a Mole so much. Also, just the larger theme of using copyright to solve these other problems. I think that's a big theme of the show and a theme of the year. I think it's an unfortunate development.

Denise: Excellent point. Margot?

Margot: Yes. So I didn't get to talk about this with Garcia, because there were so many interesting issues. But the big flag for me in that case was when Judge Kozinski started citing the Beijing treaty on audiovisual performances. I think the quick comment I want to make about it is that it is very problematic for a domestic judge, in a domestic court, to be referencing an executive agency's interpret – [feedback] this law going into negotiations of a treaty. Kozinski basically read the PTO's interpretation of US law and implied that his decision deferred to the PTO's understanding, which was very, very strange and problematic.

Denise: Okay. Jake, any final thoughts?

Jake: Yes. I think for a lot of these issues, the big question for me and especially, I have kind of a personal self interest in this now, but I've had one for a long time before starting Casetext, is how all this stuff affects the little guys, the small startups of four or five people trying to take on very large competitors. That's not just only for things like net neutrality where there's an obvious connection, but also when I read about the Garcia case, one of the things that scared me the most was that the defendant was Google. There are going to be a lot of legal decisions with Google in mind about how easy it is for them to take down certain things, how much administrative burden you can put on somebody. For issues like that, I mean, for a small startup of only a few people, if we had to face the kinds of problems they did in terms of copyright and takedown notices and the flood of, kind of, requests like that. It might, you know, totally kill us or at least be a really big pain in the neck. So I hope that, as these kinds of policies continue to be discussed and developed, it's not just at the level of Intel, and Google and Microsoft, but also how these broader policy decisions and decisions about copyright end up affecting the companies that may one day be very big, but start off very small.

Denise: All right. Well, we've already been discussing copyright, but we'll move away from discussing it in the entertainment industry context and into some broader context about now in the show.

Can't tell you guys how excited I am that we get to talk about the Monkey Selfie one more time before 2014 is over. Yay, Christmas came early! It came in the form of David Slater, the photographer who quite some time ago handed his camera to a monkey. A macaque, is that what kind of monkey this is? I think it is, who very beguilingly smiled into the lens and took a picture of itself. This has caused many a lawyer and law professor paroxysms of glee ever since in trying to decide whether there's a copyright in this photograph taken by the monkey. If so, who does that copyright inure to? David Slate, the photographer, continues to think that it inures to him. He is in the vast minority when it comes to the legal scholarship on this opinion.

Very recently, on December 10^th, he sent a letter to Sherwin Siy of Public Knowledge asking for sort of a confused laundry list of things to take place. Sherwin had written about the photograph and his take on the copyright issues at Public Knowledge. David Slater did not like the conclusions of that post, felt like it would encourage people to use the photo, which he claims he has the copyright in. Just did a mish-mash of arguments about why Public Knowledge should take down the post or allow him to comment on the post and do another post. It's all kind of confusing, but it ends with him saying, “If you don't comply with my demands, I will refer you to my lawyers and we'll take it from there. Sherwin Siy issued a very well thought out response to all the points and basically told the photographer to pound sand, “We're leaving the post as it is and we continue to think that you don't have the copyright. By the way, you're wrong on all the salient legal points as well.” So I'm just happy that we get to talk about beguiling macaques taking pictures of themselves once again before the year is over. I will open this up to your panel to see if you guys have any further shades to add to this. Jake, have you been following along with this?

Jake: I have been. I'm not sure if I have much extra commentary to add to it. I love the picture, though. Every time I see it, I smile. But you know, I'm not enough of a copyright expert to say whether I know for certain whether there was a copyright. Whether the monkey owns the copyright or the photographer owns the copyright, I just think it's kind of a hilarious story. I think, actually, that it wouldn't have gone nearly as far as it did, like many things online, if it didn't include a cute animal involved.

Denise: Yes, very true. Sarah, David Slater sort of mysteriously invokes wiki media and Creative Commons in his demand to Public Knowledge. It seems like he was kind of misguided there.

Sarah: Yes. I can't remember what his Creative Commons comment was.

Denise: He says, “Public domain is a not a place, such as wiki media's Creative Commons or the internet.” So he's confusing a couple of things.

Sarah: Oh, he's conflating both of them, yes. I think there were a lot of misunderstandings in the letter not only about copyright ownership and that question, but then, you know, there's obviously, as Sherwin wrote in his response very eloquently, that there's a fair use. Even if you assume that he owns the copyright, they have an obvious fair use right to use the photo in the way that they did. Another interesting thing I thought about the letter was that he talks about how use of the photo is hurting his commercial prospects. I was thinking just as a practical matter that cannot be true because so many people now want this photo. It’s become completely ubiquitous. I have to imagine that his demand as a photographer is probably way up; so this publicity seems to me like it can only be helping the photographer.

Denise: Maybe he’s trying to reverse the effect himself. Any exposure is good exposure. One really interesting part of Sherwin’s response to Mr. Slater is where he goes into the fact that the copyright office actually used this particular fact pattern of photograph taken by a monkey as its very first example of various kinds of photos that lack the human authorship requirement necessary to register copyright and they also mention things like elephant murals – wave shape drift wood or the natural appearance of animal skin. Again this I think becomes an interesting point in the times that we live in of the Human Authorship requirement and whether it still makes sense or whether we’re just going to have a whole lot of unhappy David Slaters out there because more and more photographs are not being generated because a human clicked a shutter or pushed a button somewhere. If  you have a go pro it has a setting that it’s on burst mode and takes some incredibly beautiful high definition photographs that again I suppose the photographer put it on burst mode and thus can argue that they have the copyright there but I mean all over the world look at all the people looking for big foot. Those cameras are taking lots of pictures in a very automated way and one of them is going to capture big foot and somebody is going to argue the copyright in that photo. So Margot in a world of increasingly automated photography what do you think about the Human Authorship requirement? Is it still viable?

Margot: I’m so glad that you pointed to this because the entire time I’ve been watching the monkey news story evolve I’ve been thinking to myself; I’m not the only one. This is actually all about robots because the fundamental question with the monkey picture is what counts as a work of authorship/what counts as original enough for purposes of copyright law. As you and Shirwin pointed out the copy right office now has said look; when we say work of authorship we mean  a work of Human Authorship and when we say originality we mean something coming from Human Creativity. But actually the “regs” don’t fully answer the question so we do at least with respect to AI or Robotics have a really clear description of things in nature not counting as works of authorship or things produced by animals not counting as works of authorship; but then the example they give of something not counting as a work of authorship and is mechanical is randomly produced weaving patterns. There’s definitely a continuum between something that’s authored by a human, something that’s authored by a human programmer who’s intent is translated through a machine and then something that is randomly produced and not copyrightable. So they haven’t actually answered the question yet of everything else on that spectrum between of human authors and randomly produced through algorism.

Denise: Right. Well obviously this is going to become the question. As you said it’s all about the robots, it’s all about the drones taking photos; it’s all about the comet landing space probe taking photos and how copyright law is going to shake its self out dealing with those realities. We’re happy to have one last occasion to bid our favorite monkey a Happy New Year and thank you for entertaining us so much in 2014. I wanted to take the opportunity since we have Sarah on the show to congratulate Creative Commons on its 12^th birthday and just give your take on the state of Creative Commons, Sarah and where things go from here. 

Sarah: CC turned 12 on Tuesday this week. You mentioned last week on this show that next year we’re probably going to reach 1 billion licensed works which is kind of an incredible mile stone. I think it’s really amazing that there are so many CC licensed works out there. I continue to get a glazed look often - I’d say about half the time when I talk to someone, especially now that I’ve moved out of the Bay area and I try to explain where I work. I think because it takes a certain amount of sophistication with copyright to even understand what Creative Common’s licenses are and what we do. But I think the public is becoming sophisticated about copyright because everything you do online – almost everything you do online implicates copyright. We just published – I think you’re showing it now…yes the state of the Commons report about a month ago which is a really cool… I’ll put the link in the delicious list. It is cool. It’s got an info graphic that kind of shows how far CC licenses have come, how many are out there, in what domain; what licenses are the most popular – that sort of thing. Its just kind of really handy and useful information. It is a really exciting time to be at Creative Commons.

Denise: It seems to me that in the 12 years that Creative Commons has been around that you guys have done some very important partnerships where people are able to license their works very easily and make one decision and not have to – in the case of Flicker for example you can make a onetime decision that “I like this idea and I’m going to license my works in this way”. You can always go in and alter that but it becomes very frictionless and easy for people to actually license their works and expand the body of work that’s available for other people to reuse. I think that’s a super important reason that Creative Commons is going to license it’s billionth work sometime in the coming year. Margot, do you have any thoughts about 12 years of Creative Commons?

Margot: Yes! I was a Creative Commons intern. I transitioned out of the publishing industry into my current existence as the Copyright Law Professor via Creative Commons so all the the best wishes to them. I think what they do is amazing.

Denise: Absolutely. Jake is there any tie in between what you do at Case Text and Creative Commons. Obviously you guys would I think benefit from more works being licensed in this way.

Jake: Yes, I would say just generally speaking there is an enormous amount of gratitude and a kind of debt of gratitude towards Creative Commons. At the very beginning even taking a step back from Case Text; a lot of what happened on the web is the best stuff – people answering questions on sites like --- and Stock Overflow. There are people sharing information on Wikipedia; Creative Commons made all of that – community based sites possible and really made the underpinning of the legal infrastructure that makes sharing on the web possible. So I think that is enormously helpful and for us in particular everything that is contributed to our site is licensed under Creative Commons by attribution and we do that in a way to communicate to our users that we’re committed to the open web and to the sharing of information which is a core tenant of everything that we do. I’m a huge fan of everything that Creative Commons has done. I went to Stanford Law School in part to work with Larry Lesig who then of course left immediately after I got there to go to Harvard Law School. And I switched studying copyright to corruption but it’s something that I’ve been following for a long time and it’s something that I think is a large under-appreciated reason why some of the best web sites can exist in the way that they do.

Denise: So Case Text then I didn’t notice is one of those sites that goes ahead and incorporates Creative Commons into its submission process?

Jake: That is exactly right. That is a minor point in our terms of use, although its something that we probably should make a bigger deal out of. There are thousands of posts and inline annotations and other information being shared on Case Text and all of that is from Creative Commons.

Denise: That is great. Congratulations Sarah and Creative Commons. We’re going to come back in a moment and talk about one of our favorite topics – Drones and Drone law but we’re going to first thank our second sponsor for this episode of This Week in Law and that is Fresh Books. Fresh Books; is in case you were wondering – the Cloud accounting software designed from the ground up for entrepreneurs and small businesses. I use Fresh Books in my practice and I have for several years now and it makes all of my; both accounting for my time, generating invoices, sending them out and then getting paid just completely wonderful, seamless, easy, and convenient. I highly recommend it, especially if you’re someone who is still trying to cobble together time keeping or invoices with Word or Excel or Google Docs. You’ve got to stop that right now and start using Fresh Books. It’s the easiest way to create professional looking invoices and it takes just minutes. Fresh Books is built for growing businesses. On average Fresh Books customers double their revenue in the first 24 months and get paid an average of 5 days faster. Are you tracking billable time with a watch? Billing clients for your time has never been easier than it is with Fresh Books. You just open up the app on your phone, start the timer and you’re done. Avoid those awkward emails and phone calls to your late paying clients because with Fresh Books you get automated late payment reminders that you can set up to help you get paid faster and stay worry free. You can set up recurring profiles so that you can put your billing on auto pilot. Literally you just go in, with a few clicks you enter your time for that month, and you have it all set up to go to the appropriate person and boom, its out. Fresh Books customers spend less time on paper work, freeing up to 2 days per month to focus on the work that they love. Do you keep your receipts in a shoe box? I hope not because now you can snap photos of your receipts right from your phone to instantly capture your expenses. You can also instantly access complete financial reports so that you can make smart decisions for your business. Fresh Books integrates with your Apps; for example, Google apps, PayPal, Stripe, Mail chain, Fun box and Zen Payroll. If you ever need help you’ll talk to a real live person every time and support is free forever. So you need to try Fresh Books free for 30 days with no obligation. Go to freshbooks.com/twil and enter This Week in Law in the “how did you hear about us” box when signing up. Start your 30 day free trial and go to freshbooks.com/twil. Please don’t forget to enter This Week in Law when they ask how you heard about us. That helps a lot. Thank so much Fresh Books for supporting this episode of This Week in Law. We’re going to look at drones and we’re going to look at them on the law and policy side. So just a couple of episodes ago we did a show all about drone law – episode 284: Game of Drones. We’ve got Margot on with us today so I could not resist following up on some of those themes and discussing what is going on with the FAA and drone regulation in general. Also Margot you’ve written some interesting thoughts about the free speech problems generated by regulating drones. Can you fill us in there?

Margot: Sure, this is going to tie back in a little bit with the conversation we were having about robots and copyright law. So as you pointed out increasingly recording is automated and drones are a classic example of this. If you have a quad copter and it’s got a go-pro on it and its going out there and taking video you do sensibly have a videographer for that video who is the person who is operating the drone and put the camera on the drone but increasingly there is some sort of machine action that is happening in between there. So the first Amendment issue arises because there have been an increasing line of cases that recognize a first Amendment right to record. In those cases the courts are really dealing with situations where people take out their cell phones; see police officers doing very bad things which police officers never do, and take videos of them on the cell phones. So courts have been finding that when cops then subsequently arrest them for violating wiretap law or eavesdropping law – because they’ve picked up on audio conversation without getting permission of the people being recorded. The courts that have considered this have for the most part said there is a first amendment violation – you can’t arrest people just for recording public official preforming public activities in a public space. So of course the question this raises is; does everybody who has their drone and is video recording anything with their drone have first Amendment protection? It is an extraordinarily difficult thing to try to figure out.

Denise: I think we should go ahead and make it - because it is such an extraordinarily and difficult and important issue – our MCLE passphrase so that people can remember it. We’ll call it First Amendment Drones as our 2^nd passphrase for the show. Sarah this is not a topic that we touched on a couple of episodes ago when I had our drone panel on so I’m wondering – obviously as drones and automated technologies of various kinds become more and more a part of day to day life do you think that the regulation of them should as Margot was pointing out bear in mind that the first Amendment needs to be taken into account?

Margot: Yes absolutely. I saw Margot’s sleight article in my Twitter stream when it came out and I just remember thinking; Wait, drones and first Amendment? It wasn’t intuitive to me but of course when I read it; it makes perfect sense. So yes I think it’s absolutely a first Amendment issue and a tricky one at that.

Denise: Is there a tension Margo between the first Amendment issues that you flush out and anyone who wants to read Margot’s whole piece, it and everything else we’ve been using as the basis of our discussion today is available for you to check out at delicious.com/thisweekinlaw/286 is our episode number this time. Do you think that there is an irreconcilable tension Margot perhaps between privacy issues and first amendment issues?

Margot: This is basically what has been occupying me for around a year and will continue to occupy me for the foreseeable future. I don’t think its irreconcilable. I think that what is really difficult here is that we’re in a country as you can see from the Garcia case where we believe very strongly in free speech protection and we have a first amendment that tends to be very absolute when its applied. So if you afford people the strictest kind of first amendment protection for these videos then it is unlikely that a privacy law would stand that kind of scrutiny. It’s not impossible; there is supreme court precedent around wiretapping that suggests that the court might be open to considering that a wiretap wins out against the first amendment but it is a balance that is really difficult to imagine the current supreme court making. That said I think you see in the supreme court’s privacy case law a very strong awareness of the importance of privacy in private spaces and so at least when you’re dealing with the combination of filming and trespass you may have a stronger case for banning drones from wandering into private land than you do banning drones for capturing private moments.

Denise: Jake, are you still based in Palo Alto? I know you were at Stanford. Are you still in the area?

Jake: Yes we are. We’re actually not too far away from Stanford’s campus right now.

Denise: So do you just walk around with a flyswatter to make sure no low flying drones are bonking into your head?

Jake: You don’t see them as much as you’d think actually around here although you see more of them probably than anywhere else. I have a friend who is starting a startup; it’s actually very new but it’s a drones a service startup where… The funny thing is it’s all apparently illegal as I understand under the FAA policy but that’s just the way Silicon Valley is sometimes with Uber and Air B&B as well. They essentially  - I forgot the name of it but I don’t think its online yet anyway but they will essentially connect someone who wants pictures being taken by a drone or a video being taken by a drone where people who are drone enthusiasts will help do that for you. One of their early clients kind of in their beta testing phase was a hedge fund that wanted a drone to fly over the Wal-Mart parking lots during this holiday season to see how many parking spaces are being filled up and how long people are shopping there for. I think that is fascinating stuff and again I think it’s entirely illegal. I may be wrong about that because it seems like it’s being used for a commercial purpose and I think the FAA won’t allow that for a while. But at the same time it’s definitely being done and there are question about – I think the trespass question is interesting. Can Wal-Mart be like; hey get off our land? Don’t take picture of our cars here. Or what happens when our drone runs out of batteries, falls out of the sky and hits a car or a person? I think it’s all quite interesting.

Denise: Well the Washington Post thinks that the FAA won’t make up its mind on those commercial uses until 2017. Margot, do you think that’s an accurate prediction?

Margot: Yes, so we had news around a month ago that the FAA actually… (This was also via the Washington Post) The FAA has actually finally drafted its rules for commercial drone use. As Jacob pointed out; commercial drone use right now is not legal unless you’ve gotten an exception from the FAA which I think it’s given to roughly 10 companies. But all of those wedding photography companies that are filming people’s weddings and crashing into the groom are doing so illicitly. There’s a great viral video about that by the way. I should have included that. But the FAA has apparently (again this is from the Washington Post) drafted its rules on commercial drone use based on the model handbooks that it gave to those 10 companies it did give permits to. What is really problematic for people in this field is that those are very stringent rules; they involve a limit on how far up the drones can fly, they involve getting professional pilot licenses; which seems ridiculous if you’re dealing with something that’s 10 pounds and operated on your cell phone. So they’re going about this very slowly and those rules are currently sitting with the White House which was supposed to say something this month about them and then they’ll go through the extensive notice and comments period and that is why we’re predicting it’s not actually going to be fully in place until 2 years from now – 2017.

Denise: Alright, any final drone thoughts from anyone? Sarah?

Sarah: No, not really. I guess the only thing I would say is I’m sure as the article talked about the delay and rule making will hurt some companies that really want the certainty but then as Jake pointed out it won’t really hurt others because some people are just going to plow ahead.

Denise: Right, and grooms will at least be protected under the law for a little while longer; even if people are buzzing into them. There we go… slow motion. Oh so now we’re looking down the brides shirt as well. There were all kinds of wonderful droney issues raised by that tiny little clip. Alright; let’s move on. I want to talk with Jake real quick because we’ve been referencing his company all show but not really talking about the interesting approach they’re taking that I think people who listen to our show would be fascinated by. It is not a non-profit company. You certainly have a business model Jake that involves people paying for sort of… I guess the model would be Freemium right? A lot of your content is for free but some of the more enhanced features will be for a paid subscription that will then underwrite the rest of the access that people get.

Jake: That’s exactly right. Right now everything on the site is 100% for free. We actually have – behind me at my desk at the office there are company values; the one that’s the top in the middle is “The law is free” and the law for us will always be free. So we’re not going to do what Lexus and – do and put the primary sources of law behind a paywall. Also everything that is ever added by people who contribute to the site will always be free. The model you described accurately is Freemium. We have investors who very strongly believe in our mission and thankfully we get to do what we’re doing now completely for free as we continue to build these features. There are going to be things like advanced research functionality; things that make the experience quicker, faster; find the most important parts of it quickly. We’re also actually going to have – talking about law firms right now we’re going to have a private version of Case Text. So right now people can share what’ll essentially look like blog posts or inline annotations on cases. A lot of law firms have approached us and said what if you had a version of Case Text where we could upload our briefs, our memos and internal dialogue about the cases and statutes that’s shared privately only within our firm. That’s something that we’re also going to offer although it might take a little bit of time to build that feature. So that the next time at your law firm you pull up a case like Massachusetts VPA and you get to see all of the interesting briefs, memoranda, people who’ve worked on it etc. that your firm has added.

Denise: Great and the next time Sony gets hacked there will be an even bigger wealth of information to look at because of all the annotations.

Jake: That’s right.

Denise: All kidding aside I think it’s a great concept and wonderful service that you’re going to provide. Tell us more; you mentioned earlier that you plan not just to incorporate what has always been thought of as of course the primary sources of law – the statues and case law but also a lot of commentary out there from people for example like Margot who are filing amicus briefs and important cases and writing their own thoughts about those kinds of issues and other sources that often aren’t captured or sightable or necessarily that accessible. So how do you guys plan to incorporate all of that?

Jake: That’s a great question. First I should say when I practiced law I worked at a big firm and I’d always start all of my legal research not on the big proprietary systems but on Google. The reason I did that was I would always find something very smart written by either a law firm itself when they have these things called client memos which are essentially basically blog posts that describe what a court held or an evolutionary area of law or from professors like Margot where you – many now who blog with regularity and have very insightful things to say. That was always kind of the best way for me to get a very good lay of the land or of the area of specific case that I was researching. I’ve always thought hmmm wouldn’t it be interesting if when you were doing research you could automatically see all the interesting things that were written about the case you were currently reading from all over the web. But even better – and this is something we’re working on right now – what if you could discover the most important sections of the case. We have something called the heat map which points out to you… it gets kind of darker blue the more important of a part of the cases you are reading. You can see it alongside the left side of every case but we’re also going to incorporate into the heat map and do a few other really neat things so say well out of the 50 articles about the Supreme Court case 48 of them are talking about this one sentence. So this is probably the sentence you should look at first. This is the operative legal holding or the key fact or the really interesting break from precedent that this case should be known for. You can do a lot of very interesting things if you take all this wealth of information and commentary that is happening on the web and use it to make the legal research experience better. I will go so far as to say we are at the very beginning of what we’re doing right now – there are a lot of plans for the future, some of which I can share and some which are kind of under wraps but one of the things we’re working on a lot over the next few weeks and months is making the writing experience on Case Text particular for the law and make it a better place to publish these kinds of thoughts and comments about recent cases, about changes in statutes. One of the things that we did first was we launched what we call communities platform. We did that about 7 weeks ago and there are thousands and thousands of people who are following communities. What that means is as a follower you can see all the interesting things being added to the site. As a writing it means you know exactly who your audience is. It’s kind of incredible how this kind of grew overnight to having thousands and thousands of followers for these communities. Its growing at an extremely rapid clip. Actually if you click on the number of followers in any of these communities like the business law community one thing you’ll see is that the people who are following these communities are the kinds of people who I think are much targeted group of interesting people. They are general counsel at companies big and small, partners at law firms, law librarians and law professors. We hope that what we’re building besides just a better writing experience is the best way for people to connect their commentary thoughts and ideas to exactly the kinds of people who you will likely want to be reaching.

Denise: I’m so glad you just gave us such a nice description of Case Text communities because it is one of our resources of the week here in our final show of the year and if you go and you check out each of these topical areas that Jake has been discussing you’ll see a really nice news feed of everything that relates to that topic of law. So of course there is a privacy in cyber security one, tech law, IP one, a patent law one and of course a copy right law one. All very important to the topics we’ve discussed on this show. So it’s a very neat resource and I encourage folks to check that out. Of course as Jake’s been pointing out everything on this site is free for now and lots of it will remain free as I understand once their subscription services kick in.

Jake: That’s exactly right; expect the free stuff to remain free essentially forever and for the new things we put behind a paywall they’re going to be even more advanced uses of data science and informatics to really make the research… its essentially targeted to people who have the means and the interest in having an extremely efficient research process. Right now you can use the tools. I should point out about the tools; one thing that is interesting to know is that if you sign up and follow them you’ll have a personalized news feed that is the combination of all your personal interests like tech law, copyright, IP and if you chose to sign up for it you’ll get a regular email digest that says here are the things that have been uploaded by peers in these fields that are the most interesting today or this week. So I think it’s a really good way to keep up to date with all the interesting things happening with the law.

Denise: Alright thanks so much for that. Our other resource of the week is just kind of for fun. Mashable did best drones of 2014 video so I thought we’d just take in a bit of that other than crashing into grooms what drones have been up to this year. As with the rest of our discussion points today the best drones of 2014 is over at Mashable and you can find it in our list of delicious links for this episode. I don’t think it included the conked on the head by a drone at your wedding. Keith Strier who we have on the show a couple of episodes ago pointed me towards one more that was a falcon attacking a drone and bring it down that he thought was memorable. So its been a good year with drones. We usually end with a tip of the week but because this is our concluding episode for this show I thought I’d go around and let each of our panelists looking back on the year see if they could distil a tip of the year that they might leave you all with. Margot, can we start with you?

Margot: My tip of the year is “watch out for unintended consequences of accidentally regulating information technology”. I’m drawing from the FAA’s experience of suddenly realizing that it is regulating information technology where as it was used to regulating airplanes.

Denise: Excellent point. Sarah, how about you?

Sarah: My tip was to, if you haven’t heard of it to look up the Authors Alliance. I don’t know if you’ve talked about it on the show before. I haven’t heard you talk about it but it is an organization started by Pam Samuelson and Molly van Houweling who are 2 women I admire deeply. The idea is to have a group that represents authors who want to be read. They’re doing a lot of really interesting work. It was just launched in May of this year so that is something to watch for next year. They’ve got all kinds of resources; they’re doing a lot of policy work. It’s a really cool new organization.

Denise: And Jake?

Jake: My tip of the year is that what you write on the computer is becoming increasingly important and I mean that by the downsides which is you’ve seen the Sony hack; all the stuff you thought was private becomes public so you should definitely only commit to writing things that you’re very proud of. There is also a positive side too which is one thing that kind of pleasantly surprised us when we started Case Text and some things you see in other fields of different professions is people are building a real reputation and really standing out in their professions and with their peers by sharing information about themselves or their thoughts that are really kind of though provoking and interesting. So I think people are, or should be more cognizant and think a lot more going forward about thinking about the things that they write online and how important that is both on the downside and the upsides.

Denise: Right, it’s kind of like the rule of thumb; if you put it in an email just go ahead and assume that it’s not only going to be read by its recipients. Write as though you’re always writing for a public audience. I think that’s great advice. My tip of the year has to do with the trend that we’ve seen all year towards – and I think it’s a really positive trend of private companies making privacy and security a selling point… of companies telling you “we’re going to keep your data secure and that’s why you should use us. My tip would be to push back hard on those claims and make sure that if someone is telling you they have end to end encryption and no back doors that that is really the case and don’t just be taken in because this is a popular marketing approach at the moment. It’s a very positive development but keep your sceptics glasses handy when you’re considering those claims. With that we’re going to go ahead and wrap up This Week in Law for the year of 2014. My dad likes to talk about who you would  - who’s on your imaginary fantasy guest list of dinners with interesting strangers and I’m so blessed that I get to play out that scenario every week here on the show. I’m always getting to have great conversations with interesting strangers and friends and this has been no exception. Thank you so much Sarah Pearson for joining us this week and for joining us on a regular basis in the coming New Year.

Sarah: Yes, I’m really looking forward to it.

Denise: I am too. Margot, great to have you back on the show. Enjoy the holidays.

Margot: You too.

Denise: Good luck with everything that you’re working on, which is extensive. We will continue following along with all of that. Jake we’ll continue following along with Case Text which sounds like it’s both revolutionary and interesting and can’t wait to see where you go with it.

Jake: Thanks! Thanks for having me here also. This was a lot of fun.

Denise: It was really a lot of fun for me. It’s a lot of fun every week. We do the show on Fridays and our next one will be on January 9^th when we pick up in the new year at 11 o’clock pacific time, 1900 UTC this time of year. That’s when you can join us live to see the show recorded. You can jump into our IRC and play along with us. We love it when you do that. But don’t worry if you can’t because assuming that the TWIT network isn’t blocked on your Roku device or anywhere else, you can pick us up whenever and wherever you like. You can go to TWIT.tv/twil and find our show page. Our whole archive is there, we have a YouTube page at www.youtube.com/thisweekinlaw. You can find us there too and on iTunes and on Roku as I mentioned. So definitely tune in when you can, where you can. Just join us, we love it when you do. As I said our discussion points are available for each show at delicious.com/thisweekinlaw and then the episode number. This is 286 and you should definitely get in touch with me over the break. Let me know what you’ve liked about our programming during the year; what you’d like to see in the new year. I’m Denise@twit.tv and let me know about guests you think we should have on, topics we should cover, things that you’re finding interesting at the intersection of technology and the law. I wish you all a very happy and safe holiday season and we’ll see you in the New Year! Take care.