This Week in Tech 562

Leo Laporte: It's time for TWiT, This Week in Tech! There's lots to talk about, we got a great panel to do it. Dan Gillmor from the Cronkite School at Arizona State, we've got Stephen Kovach from Tech Insider, and our own Denise Howell from This Week in Law. Denise will weigh in on the Google versus Oracle case going on right now. We've got a preview of Google IO coming up this week, and what happened to Boatie McBoatface. We've got the answer, all coming up next on TWiT.

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Leo: This is TWiT, This Week in Tech, episode 562, recorded Sunday, May 15, 2016.

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It's time for TWiT, This Week in Tech, the show where we talk about the week's tech news! It's going to be a big week ahead, and we've got a great panel to discuss it. The week behind and the week ahead, starting with Steve Kovach, joining us from what used to be Business Insider, now it's Tech Insider publication within business insider. Techinsider.io, Steve, great to have you. 

Steve Kovach: Thanks for having me back.

Leo: techinsider.io, is it fair to say that is inside? 

Steve: It's the first spinoff site the company has done, so it's a totally separate publication. It's outside, but I still work in the same newsroom as all the other business insider folks. Same company.

Leo: I love this. Why Minecraft is so incredible and there's a picture of a Battleship and a harbor.

Steve: People do crazy stuff in Minecraft.

Leo: they do! It's so much fun. I should show you the TWiT Minecraft build. It's a gorgeous city and there are ships in the harbor and all sorts of stuff. I've become a Minecraft fanatic, now we play it in VR and it's really fun. 

Denise Howell: Did you see that Mine Con is in California this year?

Leo: Is it? Your son probably told you that.

Denise: My son wanted very badly to go. But the tickets, they sold them in two batches of 6,000. Each batch went in a minute. 

Leo: What? That's by the way, Denise Howell from This Week in Law. Always a thrill to have Denise on TWiT, and you can see her every Thursday... no Friday. It's on my day off because I listen. I sit in my jammies and listen to This Week in Law. There's some law to talk about. Big case going on, Google versus Oracle, it's back in court and we're starting to hear arguments and it's mind boggling. Also joining us, I'm thrilled to have a guy who hasn't been on TWiT for a long time, but I've always admired, going back to the 90's when he was Silicon Valley reporter for the San Jose Mercury news. One of the best journalists in technology. He's now at the Cronkite school of Journalism at Arizona State University and writes for a number of publications. Dan Gillmor, great to have you back on TWiT.

Dan Gilmor: It's great to be back. 

Leo: Thanks for joining us. You wrote an article, Dan, that I think we could use to kick off on your column on Slate. Why It's so Funny That Republicans are Upset with Facebook for censoring News. First of all, I think there is a certain amount of... I don't believe this story, coming from these anonymous curators that were brought in to work at Facebook. Last week the same anonymous people or person said Facebook was just using us to polish their algorithm. Now they're saying Facebook censored conservative news. Do you believe that's true, Dan?

Dan: In the first or second paragraph, I did not write that headline. I said we should be cautious about believing this because it's based on anonymous sources.

Leo: As you point out, from Gawker media, which makes it less reasonable to trust. 

Dan: Another interesting thing. The thing about it that's intriguing to me, Republicans, even if this is not true, there's an interesting point there. Facebook has unprecedented control over what news is at this point. It's charming to watch Republicans realize that a big company has a lot of power, but they should have realized that a long time ago. If I were in charge of any policy right now, I would have the anti-trust people looking incredibly hard at Facebook. The power that they're getting is unprecedented and dangerous.

Leo: It would be a bitter irony if a party that championed the free market was bit by a company that used the free market to dominate news. One of the things you teach at Arizona State is media literacy. It is true that Facebook is the source of news for a vast majority of Americans. Like, the primary source. 

Dan: It's dangerous that there's one company with this kind of power. 

Leo: Is it more dangerous... doesn't Google have similar power?

Dan: I think Google should be under intense scrutiny all the time because of the power they have in search. I don't think they're under sufficient amount of scrutiny at this point, although Europe is doing a lot at the same time. What they're doing is weird, so that's a problem.

Leo: That seems to be more about Android. 

Dan: I can't figure out what Europe thinks it's doing with this. We have to start acknowledging as a society that the Silicon Valley Companies has enormous influence that is not something that we've thought too much about beyond look at what they can do. They have the power to shut down speech. The first amendment, if you use Facebook, is not relevant. It's terms of service that are relevant.

Leo: Denise, I'm curious about if you think A, Facebook is slanting the news... it would behoove them to be as careful as they can to look balanced.

Denise: I've got to confess, until this story came around, I never looked at the trending topics on the right. I didn't know it was there.

Leo: That's easy, because there's so much crap on the Facebook page. Facebook groups. What? They have groups? It's on the left. I understand that.

Denise: I am sure there are many people who religiously go to it for their news, I just am not one of those people and I imagine I'm not alone in that regard. Where I get my news via Facebook, and I think it's important to recognize, we're talking about Facebook as a source of news, but all they're doing is pointing you to other sources based on whatever their editors are putting in the trending topics and based on what each individual editor is putting in their feed. That's where I get my news, the people I follow on Facebook. That leads to an echo chamber and I see a certain kind of news based on the people I follow, but that's not Facebook's responsibility. I think it's good that this was brought to Facebook's attention. I don't know if they knew this was happening. If you read what Zuckerberg has to say, he's anxious to make sure over there in the right hand trending topics column, they have an even handed editorial approach to what they're presenting.

Leo: There's also the algorithm, right? What you see on Facebook, and I think most normal people have no idea of this, it's very carefully modified by computer algorithm. You don't see everything Aunt Judy posts, you don't see everything your friend posts. You may see more of something that somebody you don't know posts, but you follow. You think that's the case, Dan? That's where Facebook could advertently or inadvertently influence people?

Dan: When we say that an algorithm is making decisions, we're one step, or several steps removed from the actual decision maker, which is the programmer who wrote the algorithm. There are editors at every level at how Facebook does news, whether it's in your feed or the trending area. Among those editors is the user, but there's a complete lack of transparency about what actually goes on, and that's Facebook says we dont' show our algorithm because Google does the same thing. We're relying on a company that is without precedent in its size and reach, making decisions that are editorial decisions, whether they're made by a programmer or an editor, and I'm glad to see they're using both. We have this fundamental issue of not knowing exactly what is going on. They did put out after the Guardian published part of it, their guidelines for their human editors. There are some redactions, but I thought it was interesting because it showed to me that they've put more thought into this, what aggregation means to them. Almost any news organization you can name. 

Leo: This is also a time when Facebook is actively courting the news media to put content on Facebook, using instant articles, and now with Facebook live video, at least a few outlets are doing Facebook live video. I know Activision folks are going to do a daily live video to push exports. Everyone is jumping on this bandwagon, because Facebook is the one place you can go on the Internet where you know everyone is going to see it. 

Dan: You're describing another element of Facebook's power over the news. If news organizations feel they have no alternative but to be part of that, that's short sighted of news organizations to pour their futures into a company that is their biggest competitor for advertising. But when has the news industry thought past next week? I'm glad to see people starting to think and talk about that, but Emily Bell who teaches at Columbia University did a wonderful piece called, "Facebook is Eating the News" and I think we really have to... I don't mean to be a broken record on this, but I want people to pay attention to this and other recentralizing factors that are taking the power that we had as individuals and putting it back in the center, instead of at the edges.

Leo: That was a brief moment in time when news was democratized and everybody had a voice. Never mind. The problem is you see something like Facebook that does wield such potential power, this is what I feared when you say we need to keep an eye on this. Everybody is a stake holder, and everybody is going to want to warn Facebook to do what they want to do. The Government is going to do that, the Republicans are going to want to do that, the Democrats are going to want to do that. Everybody is going to get as active as they can, but unfortunately it's not going to be to protect us, the people, it's going to be to use Facebook as best they can against us. Let me ask Steve. Do you guys... either business Insider or Tech Insider, you must look at Facebook and say there must be meetings, should we post our content on Facebook? Should we use instant news articles? What do we do?

Steve: All the time. What really bothers me is maybe a year ago, Facebook told Riko that that trending topic section was completely by algorithm. Then it comes out a couple weeks ago it was a lie! They're lying about how this product works, they have all this power over the content we see, and they're lying about how that content gets viewed. That's my first big problem. Then Oh, we do have these editors, and here are guidelines that are given. Whether or not those editors are censoring. That's beside the point right now, just the fact that they're lying about how this product works. At the same time, I don't think the trending module matters that much, because that exists in the desktop version, but people use Facebook in mobile, and that trending thing is buried in the app. You never see it. The algorithm in the news feed is built to keep you addicted and scrolling through as much as possible. It's going to give you stuff you think you like. If you're a liberal, its' going to give you a lot of Democratic, liberal news. That's what my feed looks like, it's a lot of Business Insider, Tech Insider, wsJ, and NY Times articles. I don't get a lot of Breitbart in my feed because Facebook over time has learned the content I'm going to want to see and scroll through. That's another part. There is a built in bias into the algorithm, which is to keep the individual happy and scrolling through.

Leo: That's in their long run business interest is getting people to use more Facebook, not slanting the news.

Steve: As for media companies like business insider and Tech Insider, of course. Every new or old media company is constantly talking about... we're shifting our strategy year by year based on what Facebook thinks is hot. A year ago, they went all on video. Then it's instant articles. Now it's all about Facebook live, where they're paying media companies to post live video and you get a bunch of garbage, a Washington Post columnist eating his own column. An exploding watermelon! That's not journalism, that's... stunts. I think we have to take a step back as journalists when we talk about the stuff we're posting to Facebook and whether or not that's useful or if it's to get eyeballs for fun, and that's something we're constantly talking about.

Leo: That video of Dana Novak eating his column was good video, worth seeing. He had predicted Donald Trump will not get the Republican nomination and said I will eat my column if he does. He did. It's a stunt. It's not news.

Steve: I think some Canadian publication they're eating cheese. They tied helium balloons to a dollhouse to see if....

Leo: That's why Facebook wants to put more real news in there, why they're working hard to put more substance in your feed.

Steve: That's the result of these media partnerships. That's the result of paying Mike to put this content in your feed. Facebook wants to put more news in your feed, but you get people eating cheese. It's not working right now.

Leo: I did an interesting experiment on Facebook. I followed all of the candidates for president, Republican, Democrat, even Garry Johnson the libertarian, and I'm still getting mostly dogs with lemons. 

Denise: I have a good solution for you, Leo. I have a good friend, one of my best friends, and see is as politically opposite from me as she could be. Follow your best friend who is the other end of the political spectrum and put them in your close friends category and you'll see all their stuff. 

Leo: Aren't most people going to do the exact opposite, which is unfriend, unfollow and concentrate the stuff on stuff they want to see? I don't think people, even though they admit they're getting their news from Facebook, they don't see it as a news source. That's the risk of Facebook, we are getting this material unconsciously. 

Steve: I saw some study come across my Twitter feed...

Leo: That's the other problem, by the way.

Steve: The stat was in the headline. A significant portion of people don't know where their news is coming from, whether it's business Insider, Slate, they just see it as Facebook. Facebook is pushing content to me, I don't know where it comes from, I'm just scrolling through Facebook. There's no brand identity if you're a new publication. Tech Insider isn't a year old yet, and we're trying to build a brand identity on Facebook to do that. It's tough because a lot of people don't realize those articles are coming from Tech Insider and New York Times, it's Facebook. That's great for Facebook, not so great for the media companies. 

Dan: Why do the media companies keep pouring their stuff into Facebook? 

Leo: They're desperate.

Steve: We need viewership, and right now, Facebook controls all of that. The unfortunate thing is you have to bend to what's hot on Facebook at the time. That's not the best long-term, but it's what you need right now to grow. The media landscape is intensely competitive. The littler guys are dying off and consolidating, but even among the big guys, you've got to bend to what Facebook is doing. 

Leo: Facebook is a media company now. It's not a social network, that's the old days. It's a media company. 

Steve: They don't see themselves as a media company. 

Dan: They're a little of everything, but the extent that people are creating media using Facebook, they're certainly a media company because they're selling advertising. That's what media companies generally do. They are by some standards the second biggest media company in the world after Google. 

Denise: I have a question for Dan, before we leave this topic. Dan, you're talking about wanting to keep a close eye on Google from the search standpoint to make sure that when people get results that they're getting what's relevant and things aren't getting filtered out. Perhaps we should be taking the same kind of approach to Facebook. How do you foresee that looking? Is it the job of lawmakers and policy makers to figure that one out? What's your proposal there?

Dan: I don't have a good one, but when a company achieves this kind of dominance, traditionally this has triggered anti-trust review. It's not illegal to be a monopoly, it's illegal to abuse one. What I'd like to see in general, and this would not just be trying to regulate, I don't like regulation. I'd like to see a lot of different people, including Government think about how do we inject more competition, re-inject competition into this world that was massively distributed and de-centralized but is becoming radically centralized again? How do we do something about that. I don't know if Government wants to. I think Government likes it when there are these choke points that it can apply pressure to itself. That's what I really want to see is for politicians and others, it's why I'm happy Republicans suddenly realized they were getting under the control of one media company. The solution to these things is competition rather than regulation, but I don't see much of either being done, and that worries me.

Leo: I also wonder if it's not just inevitable. Tim Wu in the MasterSwitch predicted that this would happen. When companies are small and new, there's a lot of ferment a lot of creativity, a lot of competition, but then money starts pouring in, the incumbents move in. New companies become incumbents, like Facebook, and we're right back to the old way of doing things. Isn't that what's happened?

Dan: To a degree yes. There are some advantages to centralization. But the fact that we're... it's I'm not sure scale is the right word for the economy here. There's things that can be done better.

Leo: Look what happened. You even point this out in your article. As Facebook got bigger, all it did was swoop up all the little... it started scooping them in, anybody who could be a competitor. WhatsApp, got it. Instagram, got it. They just swoop in. They tried to get SnapChat. They havne't been able to.

Dan: If for example Facebook announced tomorrow that it was buying Slack, I hope that the antitrust division would awaken from their rip van winkle sleep and say this is too much. 

Leo: That is a false hope. You know that.

Dan: If they're asleep during Democratic nominations, they're going to be put to sleep during Republican administrations.

Leo: We are talking about Facebook, the news, we're going to talk about the Google oracle case that's on right now. I'm glad Denise Howell is here, she's going to talk about how you could possibly copyright an API and a whole lot more. Steve Kovach is also here from Tech Insider.io. Are you going to Google IO this week?

Steve: I'm in New York with my colleagues out West are going to be covering.

Leo: We're going to be doing our own coverage of Google IO. Jason Howell of All About Android, Jeff Jarvis, from This Week in Google and Father Robert Ballecer from Know How will all three be at the keynote. We'll be covering the keynote struggling to get live as we always do on Wednesday at 10 PM. You can of course watch Google stream, but it's so much more fun to watch us snark about Google stream behind the scenes. I hope you join us for that, and then a special This Week in Google this week. Jeff and Jason will be joining us, I think we've got a space inside Google Plex to stream them from. Our show to you today brought to you by Blue Apron, This Week in Tech sponsored by This Week in Cooking. Blue Apron solves the problem of what to eat for dinner. Yeah, you could go to the fast food restaurant, or you could take what's in the refrigerator. I don't think there's much I can do with mustard and peanut butter, but I'll find a way. Or, Blue Apron. I love coming home and finding the Blue Apron box on the porch. There's three separate meals in there. Always interesting too. It's really about unusual ingredients, amazing recipes that you wouldn't think of buying. I don't have to go to the grocery store, because they've done all the shopping for me, exactly what I want. There's no waste. There's always exactly what you need to make the recipe. It's all local farms, sustainably produced. Seafood is sustainable, chickens are free range, the pork is natural. Always fresh, never frozen. You're going to find some unusual ingredients. You've never cooked before. Let's see what's on the menu. Crispy cod and cabbage slaw tacos with Pineapple and avacado salsa. I don't know what papita is, but once you've used it, you're going to go, “I love that!” How about crispy catfish? What is that? Yuzu koshu udon. I know “udon” is noodles. The thing is, you can make this in a half hour to 45 minutes. Your family is going to go, wow! Catfish for dinner! They have plans for couples. Great for date night. They have family plans with kid friendly ingredients. Blue Apron delivers right to your door, 99% of the continental United States, they support healthy families, in fact Blue Apron families cook three times more often. I know the kids are going to say Pizza tonight again? No. We're cooking tonight. I want you to try your first two meals free, and with free shipping, by going to Blue Apron.com/twit. You'll love how good it feels, how great it tastes. The house fills with this amazing aroma, the kids say what's for dinner? This is good. It's hard to do this, because my mouth waters. Blue apron.com/twit. Your first two meals are free with free shipping. Thank you so much for your support of This Week in Tech. Dan Gilmor is here from the Walter Cronkite school for mass communication and media. He teaches media literacy to young people. Aren't they media literate? 

Dan: They're getting better at it. I did a massive online course that was mostly older people which was more fun since I'm..

Leo: I remember talking to what was his name? Richard Hart. Remember he used to do Next Step and he was on C Net? Richard is now teaching technology in journalism to a school in San Francisco, academy of Art. I said it must be great to work with young people who are so technically literate. He said, No. They know less than we do. We grew up and had to figure this stuff out, they just were handed it on a platter. They have no idea how anything works. 

Dan: We could say the same about our generation and cars. 

Leo: Right. We were just given cars. We don't know how to fix them. 

Dan; I learned to change the oil and that was a victory.

Leo: I learned to change the oil and tune it up and set the timing, and then they made it so you can't do that anymore.

Dan; Now you can't even plug your own stuff in because it's going to violate copyright law. 

Leo: Anyway. I think it must be interesting to work with young people and I find it ironic that this Internet generation... I'm starting to think that Internet natives... wait until they grow up, they grow up with the Internet, they're going to have an appreciation. You don't know what this medium is going to turn out to be until people have grown up with it. Now I'm wondering. 

Dan: You know, there are really pretty savvy about media. I think I said earlier to you, it's healthy that they don't trust anything that they see any more, except their friends, who they should trust a little less. It's progress to me that they're intensely skeptical of what they see in the media. 

Leo: I hope it's not a cynicism either. Young people should not be cynical yet.

Dan: It borders on cynicism in many cases, and that's a problem. It would be worse if they were just trusting.

Leo: Denise, your son is how old?

Denise: He's twelve. 

Leo: He's at that age. We have a 13 year old at home. Michael doesn't use Facebook yet. There's not a lot of pressure to create a Facebook account. I remember when my kids got to that age, they really wanted a Facebook account. Not so much anymore. Michael gets all his entertainment, news, from YouTube. That's true of yours as well.

Denise: Yes, it is. He's not dying for Facebook, he's dying for Instagram.

Leo: That makes sense. there's too much text and prose on Facebook. Give me a picture. Maybe we don't have to worry about Facebook at all. Maybe that's a problem for our generation. Not for theirs. Minecraft con is in Anaheim September 24. Why does your son want to go to Minecon? It's 160 bucks, by the way.

Denise: We were talking at top of the show as you were introducing Steve with how much you can do with Minecraft. That explains why he's still engaged in it. He's used it for years. He'll do a camp this summer that's about exploring and being creative with Minecraft. One of the reasons it's so powerful is it's such an open system. There's so much you can do with it. Microsoft is following the same path, here are the building blocks, build what you want, and really aren't asserting ownership at all in what people build. There are all these thousands of servers out there where you can do different things on Minecraft. One of the things my son is into is playing factions, so it's basically video games built on the platform where you can go in and play a game someone invented. 

Leo: I prefer seeing him play that than call of duty or grand theft auto, because it's like Lego. It gets kids into computers in an interesting way. I think Minecraft universe prepare people better for engineering, for technology jobs. There's something about it that fosters this sense of... you're learning how pieces fit together, the consequences of different actions. You... I find it fascinating. We set up our own Minecraft server, actually three of them in my house. I got sucked into it for a while. I would stay up until 3 in the morning building stuff. Then you start writing software on Python... sky's the limit on this. Microsoft never did what was tempting which was to raise the price of Minecraft or give it away and then charge for textures and bit maps. In app purchase thing. That must have been tempting. 

Denise: They let other people do that. If you have a Minecraft server where you created this whole world, you can charge for the weapons and all that stuff, so they're letting people build their own businesses. 

Leo: Let's talk about Google versus Oracle. I'm very curious what you all think of this. Correct me if I'm wrong, Lisa I'm sure you'll fix me if I screw it up, I interviewed James Gosling three weeks ago, the guy who wrote Java, and Son, which was the company he was working for, made Java open. People could develop for Java, you could even write your own Javas, of course at one point Google came to them, or probably Andy Rubin before Android was sold to Google, said I want to make Android a Java based operating system. They talked, there was no license deal, but Andy decided he didn't need to do a license deal because it was an open platform, created his own Java virtual machine, called Dalvek, Google bought Android. Oracle bought Son, and the interesting thing is we saw Google's code and felt like it was a little slimy. Google didn't just clean room develop Dalvek, it looked like our code was in their code. We saw bits of our stuff in their code. It wasn't clean room, but it wasn't the point where we were going to sue them. We were upset, but we weren't going to do anything about it. But when the negotiations between Oracle and Sun began in earnest and he was in the room talking about this, I saw the Oracle lawyer's eyes light up. They knew they had something, and there could be a big payday at the end of the line. Oracle ended up suing Google. He said the thing I disagree with is that they didn't sue them over stealing the code, the lawyers decided that wasn't winnable. They copyrighted the API and went after them for stealing the API, which is antithetical to the way the computer industry works. Because of API's... we wouldn't have PC Industry if you hadn't been able to copy the interface to IBM's bio, so you could make IBM compatible computers. That wouldn't have happened. Everything from then on relies on this idea that APIs are free and open and can be duplicated. Oracle lost... I'm not sure the timeline on this. They lost the case, the case was appealed, turned down, appealed, again turned down, finally Oracle appealed to the Supreme Court, which decided we're not going to hear the case.

Denise: Not just yet. They tried to get the Supreme Court involved before the entire case had been resolved. It got sent back down for trial, which is what is going to start... retrial on a particular issue, the fair use question, which is going to happen next week. The Supreme Court declined to get involved at an early juncture. It could still get involved later on, once there's been a trial and we have a final determination, there will be another appeal, whoever wins or loses, because the stakes are so high on both sides here. At that point, the Supreme Court could say, "We think this is an important issue and get involved."

Leo: I'll tell you how high the stakes are. Oracle is suing for 9 billion dollars. It's actually 9.3, and when you talk about .3 at that level, it's 300 million dollars, so we're not going to leave that part out. 9.3 billion dollars. I think the trial has begun in court this week, Jonathon Schwartz, the last CEO at Sun testifying on Google's behalf along with Eric Schmidt.

Denise: I'm sorry. I'm a week off, this started last week. 

Leo: In front of the judge, William Elsa, whom we celebrated, he was the judge before and ruled in Google's favor and we celebrated him because we thought finally a judge who knows something about this. He was a math major and he said he taught himself Java so he could rule on this case. I think he said last night I wrote a... something. We thought this guy is good. The court sent it back to him, and it's a jury trial now, which is a little nerve racking, there's a jury of ten people, and at one point there was one person who knew about technology and was bumped off by Markel. Ten normal people who don't know anything about the subject at hand. Steve, these are people I don't feel like are capable on ruling on something like this. Do they even know what an API is?

Steve: I think that's what that Motherboard really focuses on. This is such... the importance of what an API is and how it... we wouldn't be talking over Skype right now. The fact that people who don't even grasp what that is and they bump the one person who does grasp what that is off the jury, that's dangerous. I don't know what's going to happen. I haven't listened to any of the testimony. Hopefully the lawyers are phrasing everything such that the Jury can understand it so they don't have to look down and understand the true importance of what this means for the computing Industry in general.

Dan: They're not talking about the API.

Denise: The purpose of this trial, they don't have to decide if APIs are copyrightable, that's already been determined. They're determining whether or not Google has a defense. 

Leo: They violated the copyright. 

Denise: Whether fair use applies. 

Dan: The reading I did on the first few days of this, not being there, this was by definition superficial. It sounded like Google played fast and loose and the internal emails that they pulled out were horrible. I want to come back to this idea that the APIs can be copyrighted. That's catastrophic. for technology.

Leo: You tweeted it could be the end of... if the open web dies, Oracle will be one of its killers, thanks to the terrible, horrible API case. You're quoting a very good article in RS technica about this. 

Dan: The contempt I'm feeling for Oracle right now is enormous.

Leo: I don’t want to... Larry Alison is not my favorite person in the world. I got this wrong. The Judge said that API should not be eligible for copyright. That was the right thing. Then the Oracle appealed to the US court of appeals, which said they are creative works and should be copyrighted, and that's when the Supreme Court said we're not going to...

Denise: We're not touching that... yet. We're going to let this run its course.

Leo: What could happen here is the Jury could say it's not fair use, 9.3 billion dollars to Google, would Google try to appeal that ruling, or would they go to the Supreme Court about this whole notion of whether you can copyright an API. I don't care about 9.3 dollars for Google. I care about copyrighting APIs. That seems like a very dangerous precedent. 

Denise: Once there's been a trial and we've determined the appellant court said APIs are copyrightable, you need to finish up your trial, which you didn't do the first time trial court, because you determined they weren't copyrightable. You need to go back and have a trial on that issue and see if Google's fair use defense flies before a jury and they'll go through applying Fair use analysis and see how Google fares there. Once there's a final decision, on that point, they can't go straight to the Supreme Court, they have to appeal to the ninth circuit. The ninth circuit has already spoken on that substantive issue that is so important to you, Leo. If they say the same thing again, at that point Google can knock on the Supreme Court's door and try and involve them. That's up to the Supreme Court. They don't have to take cases.

Dan: Wasn't it the ninth circuit... it was the DC Court of appeals that loves everything with intellectual property.

Leo: It went to the federal circuit according to Joe because there was... they hear patent appeals, and Google prevailed on the patent claims, Oracle did not appeal to patent claims, but because the patent claim was in there, it went to federal circuit. Actually, I think the ninth circuit is a little more sophisticated and more sympathetic to Google. Yes? Or no?

Denise: You're right. I was thinking ninth circuit because they're back in trial in San Francisco. 

Leo: Ninth circuit is much more tech savvy, partially because of their location. What really scares me is this is in the hands of people who have a thin grasp of what it all means. Maybe I'm giving too much away to Sarah Jong's motherboard article. It was a little chilling. The headline is "In Oracle V. Google, a nerd subculture is on trial." Her point, at least her analysis of this is the jury is trying to wrap its head around things like free software in the sense of open source. Liberated software! At one point, part of the problem is you've got Jonathon Schwartz who is trying to explain what an API is by talking about hamburgers on breakfast menus at restaurants, which even the judge said, I don't understand. I don't know what the witness just said, the thing about breakfast menu makes no sense. Oh boy.

Denise: There are a couple of ways Google could pull this out ultimately. Right now it has to live with this determination that APIs and this particular API is copyrightable.

Leo: They can't dispute that. It's already been decided.

Denise: Yeah, it's been decided for purposes of this trial, but ultimately hopefully they'll get to take another whack at that one.

Leo: So this is a fair use case?

Denise: Yeah, because they now have to argue if it's subject to copyright, we get to use it anyway. I'm hoping that somewhere in here, I like Dan am not there. I'm hoping that an implied license argument is being made as well. They didn't have the express license anywhere, but maybe the way the parties conducted themselves and what Google wsas led to believe, you can't just take back making something open because there's been a change of management and lawyers with a gleam in their eye. 

Leo: Right.

Denise: Hopefully, they do have some blatches and aStopple arguments, those are ways of saying you waited too long, and you led us down the primrose path and to build things in reliance on what we reasonably believed.

Leo: Do you think the Jury could handle this? It's not a technically argument?

Denise: I think so. 

Leo: A reasonable non-technical human could have an opinion on this. 

Denise: I think so. Lawyers all the time in tech cases have to distill complicated issues in ways that juries can understand. The copyrightability question is really hard. But with that off the table for purposes of this trial, then you're in that whole fair use analysis, which while kind of a wildcard and it doesn't fit this case very well. We're used to being applied in different contexts. It's hard to think about an API as a creative work and that's why the copyrightability question is so controversial to begin with. If the jury is asked to... whether they misled Google and these latches and stopple arguments should apply, or whether Google hit the four fair use factors. That should be something a jury can process.

Leo : Four factors are those rules about what makes something fair use. Having to do with transformative...

Denise: The purpose of the use, why did you use it, the nature of the work, is it a highly creative work that your use.

Leo: I think Android is pretty damn creative.

Denise: The amount used, how much of the copyrighted work did you use? Did you use a portion of it?

Leo: They used all of the API. How much did you use? If you only use a littl eof the API, that's OK.

Denise: The effect on the market for the work. 

Leo: That might be one where Oracle would have something to say, right? 

Denise: If Google creates its own version of an API... does that mean Oracle's version...?

Leo: I'm not going to give the lawyers any arguments, but it undermines the value of Java if anybody can come along and say I don't need Java, I'll just duplicate the API. I think you could say that undermines the value of Java. Your point is well taken, that is the intent of Java. That was Sun's intent before the article came along.

Denise: I thought this was a fascinating issue when I first started practicing. and looking at APIs. In some instances, people license them. In other instances, they're open and widely known as open. 

Leo: It's the nature of an API. You have to publish an API if you want people to use it, because if they don't know the API, then they don't know how to use your stuff. API is always to some degree open. There are hidden APIs, Microsoft always kept some to itself... hmm. How do you feel Dan? Are you worried?

Dan: I'm worried. I think this could be disastrous for open technology in general. There's a lot of things we use every day that completely rely on the inter-operability of technology and the web etc. If you need permission at every step, that's not good. 

Leo: It stifles innovation. You got to love a company that names an AI engine, Parsy Mcparceface. I think this is a little tip of the hat to Boaty mcBoatface. Remember the open vote the British research vessel, they asked for names and they suggested lots of good names, and the Internet decided it should be named Boaty mcBoatface. And then, the agency that was naming the boat did a turnaround said we're going to name it anyway, We're not going to name it that. Google decided as a consolation prize to name its AI project Parsy mcParsface. By the way, Sundar Pichai tweeted that. Our state of the art language model is now open source for you to use. Google plays fast and loose with the idea of open source too. They've always said Android is open source, and technically it is, but at the same time, there's considerable restrictions on how you can use it if you want to have Google services, if you want it to be fully functional. That's one of the things it doesn't like. Boaty mcBoatface was named RSS Sir David Attinborough. Who doesn't love David Attenborough? 100,000 people voted for Boaty McBoatface. Sir David attenborough. Let's take a break. Come back with more. Want to talk more about Google IO, what do you expect? It's just around the corner on Wednesday. There's lots to talk about, as always. Microsoft says Windows X is now on 300 million active devices and only half of those were upgraded behind people's backs. Joking. Oooh, I somehow annoyed Windows people. I got all these Tweets saying stop it. I don't know what I said. Our show to you today brought to you by my mattress. I love my Casper. A good night's sleep is about health, not just how you feel during the day, but your overall health. You need to get a good night's sleep and if your mattress is keeping you awake, I've got a solution. A premium mattress. You buy direct from the manufacturer, made in the USA and you save so much money because you don't have to pay for showrooms. It's Casper. You get your springy latex foam, plus your supportive memory foam to give you an award winning sleep surface with just the right sink and bounce, and I say that because I know it. Here is my Casper mattress. We got a queen. You see how small that box is? That's what I love about Casper. I got a Queen for my son in college too, because he's on third floor no elevator and it's so easy for him to get it upstairs. Talk about sink and bounce. You get free delivery and I know some people say I'm not going to buy a mattress without lying on it, here's the good news. You can lie on it for a hundred nights, and if at any time in those hundred nights you say it's not right for me, you call them, they come and get it, they'll refund you every penny. Every penny. They're made to uphold the highest environmental production standards. When I open that box, there's no smell, you don't have to air it out. By the way, talk about breathing. It breathes. This is a cool, comfortable mattress. You get free shipping, of course, and free returns in the US and Canada. 500 dollars for a Twin, 950 for a King size, we're going to save you even more because you can get an additional 50 dollars towards the mattress if you go to Casper.com/twit and using the promo code TWiT. Casper.com/twit, promo code TWiT, terms and conditions apply. 50 dollars off your award winning sleep surface. It's not a mattress, it's a sleep surface. OK. It's a mattress. It's a nice mattress. We love it and I hope you will enjoy your mattress, but if you don't return it and they'll refund every single penny. Don't forget the Casper pillows and sheets and all that too. The pillows are great. Lisa and I fight over our Casper pillows. I want my pillow. We got two so we wouldn't fight. Thank you Casper, for your support of This Week in Tech, and thank you to our team, our panel this week. Steven Kovach from Tech Insider.io, great to have you @ Steve Kovach, Denise Howell, she's an attorney, she's not making this stuff up. She's trained, a professional and the host of This Week in Law every Friday on TWiT. Great must listen to show. You'll probably talk about this a little bit, the Google thing.

Denise: We will indeed, yeah.

Leo: You find fun stuff too, though. 

Denise: There's a good link between this Google Oracle dispute and we had the lawyer on recently who wrote the brief in Klingon that you heard about.

Leo: Warner brothers says we copyrighted Klingon. 

Denise: Copyrighting a language and copyrighting an API are fairly similar. 

Leo: Huh?

Denise: Someone who wanted the Supreme Court to intervene in the Google case when the Supreme Court declined to, made the pitch that you should find that languages like Klingon are not subject to Copyright and APIs are not subject to copyright. It didn't persuade the court. 

Leo: You must have loved this brief filed by the language creation society in this case, they challenged Paramount's claim of copyright over Klingon. Somebody is making a fan film that has Klingon in it. Paramount says you can't use Klingon. 

Denise: paramount doesn't like the whole film.

Leo: They're just trying to shut down the fan film. Amika's brief, this is from an article in reason is peppered with Klingon words and phrases, even quoting the Big Lebowski in Klingon. This will not stand, man, in response to the idea of anyone expressing anything in Klingon would be a copyright infringer

Denise: Yes.

Leo: Alex Spears’ dad taught him Klingon at an early age.

Denise: I highly recommend. The brief didn’t actually get permission to get filed in that case. It was lodged and the court decided it did not need the help of the party that filed the brief.

Leo: Wait, the court can turn down an Amicus brief?

Denise: Yes. It’s purely optional. Often times—

Leo: They can go, “I’m not listening, na, na, na, na, na. I don’t want to hear you, na, na, na, na, na.”

Denise: Yes because the Amicus is not a party to the lawsuit. They’re just someone who’s interested in the outcome and who wants to help educate the court on the issues. And the parties have page limits. You know they can only pack so much into their briefs. So Amicus briefs are helpful for points that didn’t get raised in the original briefs.

Leo: That I understand. If I were the judge--

Dan: Did they write the brief in Klingon?

Leo: Yep, part of it, yea.

Denise: Part of it, yes. 

Leo: (Laughing).

Denise: Marc Randazza is the lawyer. He is so funny. Folks like, definitely not to plug my own show, but he was great on This Week in Law when we had him on. He’s a first amendment lawyer, Dan, and was the guy who put Righthaven out of business and has had all kinds of really interesting cases in his career. And just was approached by these folks who wanted to submit this Amicus brief. And just knocked it out of the park. I mean the brief is not long. I highly recommend it. I usually don’t recommend that people go read legal briefs but this one is so clever and so well written and they even manage to find a Klingon font to write out the Klingon language in the brief.

Leo: Marc has a good sense of humor, I must say. Yea. And it’s a, I mean it’s like a real brief and everything. By the way, here’s the introduction. (Klingon garble). There is no world for love in the Klingon language. They don’t need it. They don’t need it. Some things just remain unsaid. As the Klingon proverb says, I can see where the court turned this down. As the Klingon proverb says—did you get Marc to actually read some of these Klingon phrases (laughing)?

Denise: No we had Emery my cohost was the only one brave enough to try and pronounce the Klingon. 

Leo: It’s so funny. Oh my God. Hmm. Huh. So you’re of the opinion that one cannot, that one can neither copyright an API nor the, or own a language. Even if someone made up the language? Like because this was made up.

Denise: It was made up but by the people who—it’s not a great analogy to an API.

Leo: Ok.

Denise: Because—

Leo: Because it was a creative work. I mean somebody made up a language.

Denise: Right. But there were some lines of Klingon that were generated for Paramount for some of the original series episodes. And then Klingon just took on a life of its own. And people you know, basically it was the fans who created the language.

Leo: Oh, I see. So there were only a few lines created for the show.

Denise: Right.

Leo: Ah.

Denise: Yes.

Leo: Well if it’s a fan created language, Paramount does not own it. Come on, Paramount.

Denise: We will see. It’s going to be an interesting—the movie, the crowd funded movie they’re seeking to make is called Axanar and looks like it’s going to be great.

Leo: (Laughing).

Denise: But Klingon is not the only aspect of the would-be movie that Paramount’s taking issue with. Use of the costumes, use of the Vulcan ears, various copyrighted components they’re claiming, make the film impossible.

Leo: Historically they’ve been very protective of Star Trek. I remember somebody, who was it? There’s a description of what the Enterprise should be that is very minute. And if you, you know, when they made, I guess the reboot or whatever, you have to have everything exactly right. They treat this as a very serious subject. There’s no messing around with Paramount on this subject. Let’s talk about Apple. We talked about it last week and I’ve been very quick to say you shouldn’t blame users. Jim Dalrymple and James Pinkstone both have complained that Apple’s Apple Music deleted files on their computer. Pinkstone who’s a designer said that 120GB of music files after he matched it in Apple Music, Apple’s software just deleted it. This is behavior that most of us who use Apple Music have never seen before but enough people have reported it that I hate to say it’s their fault. I think a lot of people, including some Apple press, must have been their fault. Well, maybe not. Now Apple says there may be bugs in iTunes. Could happen. Just in case, we’re going to fix—we’re not admitting anything. But just in case, we’re putting out a patch next week. That’s not an admission. That’s just you know, we’re just going to be—here’s what they wrote. “In an extremely small number of cases, users have reported that music files saved on their computer were removed without their permission. We're taking these reports seriously.” Good for Apple. “As we know how important music is to our customers and our teams are focused on identifying the cause.” Here’s the key, though. “We have not been able to reproduce this issue.” Which usually you need to do if there’s a bug. We need to be able to show how that happens. “However, we're releasing an update to iTunes early next week which includes additional safeguards.” So they haven’t fixed, if there’s a bug they haven’t found it and they haven’t fixed it. But they’re going to do something extra. “If a user experiences this issue they should contact AppleCare.” Don’t know, I don’t know if you can say this is victory for Jim Dalrymple and James Pinkstone or if Apple’s just I think, probably doing the right thing.

Steve: Assuming it even fixes the issue. I mean—

Leo: Well if they don’t know what the problem is, you can’t fix it.

Steve: Right. How—exactly. So what is this patch if they can’t recreate the bug or if it is a bug or whatever it is, it sounds like they don’t even know. And so I don’t even know what this patch means or if it’s—it’s a really oddly worded statement. I mean great that they’re taking it seriously, and it’s also great that they’re supposedly totally revamping it, Apple music again this summer. So hopefully they can get a lot of those kinks ironed out.

Leo: They need to tear this sucker down. 

Steve: Yea just start—burn it down and start from the beginning. Just use Spotify. Spotify’s so great.

Leo: I think Apple, that’s Apple’s fear. I mean they have 13 million paid users which is pretty good for Appel Music.

Steve: For not even a year.

Leo: Not even a year. And they started really at 100,000, you know it wasn’t, Beats Music was not burning up the charts.

Steve: Right.

Leo: But it’s still a fraction of the 30 million that Spotify has. And I think Apple really wants this to succeed. So they need to. And iTunes is terrible. They really need to fix it. I’m a little disheartened by the early reports of what they’re going to do. They’ll announce this I’m sure at WWDC. According to 9 to 5 Mac it’s just going to have a new sidebar and a refreshed media picker and things like that. That’s not what it needs (laughing). Start from scratch. We’ve seen enough patching on iTunes. No more patching it. 

Denise: There’s at least a little legal CYA going on here, too. If you have a piece of software that’s in an unauthorized fashion deleting files off people’s computers, that opens you up.

Leo: Not good.

Denise: They have to make sure that that’s not happening.

Leo: That would not be a good thing.

Dan: Given the terms of service though that basically say in most software, whatever goes wrong, tough.

Leo: Right.

Dan: How would anyone win a case on this?

Denise: It would be tough but they wouldn’t want to have to fight off a class action I’m sure.

Leo: In fact that’s what James Pinkstone’s blog post pointed out. He actually quotes from the Apple terms of service. Apple stole my music. No seriously. And he uses it to prove his point. He says, “If you read the terms of service, it’s clear Apple was prepared for such a thing and made sure that they weren’t going to be—“You can show that (laughing). Weren’t going to be—

Steve: That’s fine.

Leo: He says this is—we’re showing a picture of the middle finger and the caption is “Apple’s terms of use abridged.” It says when your Apple Music subscription term ends you will lose access to any songs stored in your iCloud music library. You agree, expressly agree that your use of or inability to use the Apple Music Service is at your sole risk. Of course this is boiler plate. Every company has this. In no cases shall we be held liable for any direct, incidental, indirect, punitive, special or consequential damages. Any loss or damage of any kind is—see, this isn’t a smoking gun. This is in every contract. 

Denise: Right and it’s just good practice by the lawyers to put it in there. But that doesn’t mean it’s under the right circumstances is going to be enforceable.

Leo: Right, right, right. You can still sue them. You can sue them for anything. You might even win, as we’ve learned. You never know what’s going to happen (laughing). Now here’s an interesting article and I really did want to talk about with all of you because—well, I found it just from a website by Neil Cybart called Above Avalon. And the analysis is quite interesting. He’s taking a look at Apple’s R & D, their research and development costs. In the past, it’s been pointed out by many that Apple’s costs are unusually low for a company of its size, with its cash. But all of a sudden starting in 2010, the cost started to ramp up rather rapidly. And they have increased significantly. $10 billion dollars a year in 2016. That’s up 30% from a year ago. And just 4 years ago Apple was spending $3 billion. So from $3 to $10 billion in just 4 years. He says this is evidence, and I think this is interesting, that Apple is about to pivot. Now I think he’s using pivot in a way that I don’t, that is not kind of common usage. Usually what you mean when you say pivot, at least with a startup biz, what they were doing didn’t work so they’re going to try something else. Pretty clear what Apple’s doing is working. There’s no need for Apple to pivot. On the other hand, I think there’s significant interest in having the next iPhone. And that’s where you do a lot of R & D. 

Steve: I didn’t read this as when you say pivot, it’s not even the next iPhone which is what another personal computing device. And I don’t think we’re going to see that kind of revolution in personal computing. You know I’m going to be an old guy before that happens. I think when he says pivot he means a whole new kind of category. And the obvious category is transportation. There is that billion-dollar investment in the Chinese company, I’m going to pronounce it wrong, is it Didi or Didi?

Leo: I don’t know. It’s the Uber of China.

Steve: Uber of China which is—

Leo: Let’s call it that.

Steve: Yea, the Uber of China, Didi. So it’s clear they’re thinking not just building a car that you’re going to go a buy a physical object, but it’s also clear that they’re thinking that transportation and mobility services which is super interesting and very ambitious. And that’s not personal computing. It’s maybe enabled by you still call a car with your phone but that’s just a wild new step for them, assuming that’s what they’re, that’s where all this R & D spending’s going. So a physical car plus this concept of mobility services which there are already some startups working that now, like that Faraday Future startup. And even Ford is thinking about this and GM. So the fact that Apple is going to be going after that kind of market, that is a pivot in their business. It’s not a personal computing play. It’s going after—

Leo: I guess you’re right. That is a pivot, isn’t it? Yea. Yea. It could be wearable though. We don’t know what they’re spending that money on. We know they spent as you said a billion dollars on the acquisition. 

Steve: Right or the investment. 

Leo: The investment. We don’t know what the ten billion dollars is. It could be in the next iPhone. It could be in the next Apple Watch. It could be on anything, right? They don’t break it down.

Steve: Right and then you look at Samsung. I mean they, Samsung spends tens, maybe 10 or 15 billion a year. Something crazy like that. And they’ve been spending it. They’re involved in everything from ship building to life insurance so they’re just a conglomerate. 

Leo: $14 billion dollars in 2015.

Steve: Yea, so there you go. It’s—

Leo: But they’re a much bigger company. Or maybe not. It feels like they are.

Steve: They are. They have their hand in everything. I mean if you go to South Korea, Samsung is everywhere. They’re 30% of the GDP or something so they touch everything not just phones and ships. But yea, I mean it’s not pivot in Silicon Valley talk, like what you and I are used to talking about, but for Apple to go from a personal computing company into this whole new aspect of just getting people around whether it’s through an Uber-like service or an actual vehicle, that’s huge. That’s a huge fundamental shift and I totally agree with Neil that they’re working on such a shift.

Leo: Would it be autonomous electric vehicles, Project Titan? Would that?

Steve: I mean there’s always autonomy. I don’t think they’re going to have full autonomy.

Leo: Not fully autonomous.

Steve: Yea. I mean Tesla’s already had the semi-autonomous auto pilot and things like that. That’s where you kind of start now. But I think the more interesting thing is actually that service. I think that’s, the fact that you don’t need to own a car, especially in urban areas, that’s just a huge opportunity for any car company now. The fact that you just call a car when you need it or you get one when you need it! It’s like Spotify for cars. I think that’s a more interesting play than even just building an electric car. 

Leo: Right. Is it credible, Dan, you think? You’ve been watching Apple since practically since the beginning, that they might do this kind of massive shift in business? It wouldn’t even be a computer company anymore.

Dan: Well, I think it would be a computer company. I think their—I don’t know if they’re going to do a car or it wouldn’t surprise me but Apple strategy for the last number of years has been to make Apple the center of your digital life. And as everything we touch, and this is kind of scary, but everything we touch is getting or already had software in it and memory and is connected to digital networks. Apple could make a very strong play in being the hub of our increasingly digital existence. And that might include transportation. It makes perfect sense that it would. But the whole, you know the entertainment portion of many people’s homes is all Apple at this point. That could expand out into the badly named internet of things. And onward. So, if Apple is being the Apple I think I understand, I think they’re going for a much bigger thing than simply software that runs cars. I think it’s a much bigger thing if this is what I think it is.

Leo: Yea. Denise, what would you do if you were Apple right now? I mean you have probably the most successful technology product of all time in the iPhone and it’s starting to taper off. You can’t sell anymore, as many as you used to. The growth has tapered off. The iPad didn’t really take over. The Apple Watch didn’t. Do you have to find the next big thing or do you just kind of coast on what you’ve got?

Denise: No I think I’d keep building on the fact that so many people are so invested in iOS at this point.

Leo: It’s an opportunity, isn’t it? You’ve got this captive audience.

Denise: Yea. Just what Dan was saying that you know, the more they can expand out—in IRC they’re talking about the iFridge (laughing).

Leo: (Laughing) I am not buying a refrigerator from Apple. I’m sorry. That doesn’t.

Denise: I’m stunned they haven’t done, you know they have Apple TV but I was always thinking they would do the actual physical monitor. 

Leo: You make such a good point though.

Denise: I’m waiting for that.

Leo: What Apple probably should be looking at is ways to capitalize on the very devoted fans who are locked into their ecosystem. You know, people who own iPhones tend to also own other Apple stuff. They tend to use I imagine Apple Music over other music solutions. Lock these guys in. You’ve got them. Build on that. And I don’t know if a car does that. A car is a pivot in the sense that it’s just a completely separate thing. And you’re entering a market where there are already companies that have that kind of loyalty and lock in.

Steve: Well iOS, I mean Apple is trying to monetize those iOS users a lot more. The last two earnings calls and if you want to be cynical it’s because iPhone sales are down and they were projecting them to be down. But they are talking more and more about services revenue. What that looks like? I mean Apple Music is part of it. App Store sales are part of it. iCloud storage subscriptions and so forth. What their big challenge is, I mean a lot of it just sucks right now.

Leo: That’s the real problem. Yea they made $9 million dollars on it last quarter but it sucks.

Steve: Right. So their big challenge on that side of their core business right now is to make that not suck and to make it good and make it a pleasurable experience. When I store stuff in iCloud it’s going to be available or iMessage syncs correctly between all my devices. And just numerous little glitches throughout their entire services ecosystem. When I search for an app, I get the app I’m looking for. I don’t get a bunch of clones and garbage.

Leo: God, it sounds terrible.

Steve: I think, was it last week or two weeks ago, the App Store search totally borked and you’d search Instagram and you’d get like just garbage. You know so there’s a lot of holes in their services and there’s a huge opportunity there. And they see it. But they haven’t really proven that they can fix it.

Leo: Although it does show you the benefit of lock in is as bad as Apple services are, Apple owners tend to keep using those services. They don’t even look outside of those because that’s the world.

Steve: iMessage is huge. It’s like one of the top reasons people don’t switch to Android from iOS because everyone’s on iMessage.

Leo: Right.

Denise: Right and they’re already getting into cars with, I forget what it’s called but they have something.

Leo: Apple Car or whatever.

Denise: Right. Something with sync.

Leo: Yea, Car Play. Car Play, that’s it.

Denise: Right. That makes your car into an i device.

Leo: Yea. So there was a rumor, I don’t know how true this is, Apple denied it, from Digital Music News that Apple within two years, sooner than later will stop selling music for download. They’re going to move towards a streaming only service. Apple’s issued a denial. But of course they would, wouldn’t they? I mean that’s the last thing you want people to do is start buying their music somewhere else because Apple’s going to shut down their music service. “If Steve Jobs were alive,” one source said, “he would have killed it by now.” (Laughing). Maybe. Steve was always willing to make the next move boldly. 

Denise: There’s one reason people still need physical, digital movie or music, any digital files. But music in particular, with we’re all in this realm of everyone’s a creator, everyone’s got their YouTube channel, getting their subs up as much as possible or you know, people are out there creating digital media every day and if you don’t have an actual music track to lay over what you’re doing, you can’t do that with whatever you’re streaming from Spotify. Then you’re not as creative as you could be. So people at least have to keep buying music for that reason.

Leo: This article cites a number of reasons why this might make sense. According to one analyst, “Once Apple music hits 20 million subscribers they’re revenues through streaming music will exceed the revenue through sales.” And that should happen by say 2020, the next few years. He says, “By 202 Apple’s download business would be 10 times smaller than the streaming revenue and even more crucially, streaming revenue will have reached the 2012 iTunes Store download revenue peak.” So the lines cross. That’s the point where Apple would choose to turn off the iTunes store. Also product confusion. I think part of the reason that we saw those articles about Apple Deleted My Music is because of this kind of confusion between downloading songs and owning them and having them on your hard drive and streaming them only. If you just are on a streaming service, those things don’t, you know that doesn’t come up. And also I think you’ve got to consider the music industry which loved, embraced Apple’s iTunes initially because Apple was small. They didn’t think they would be a big deal, whatever. Now iTunes is the number one place people buy music. And that gives Apple a huge amount of power and influence in the music industry. And I don’t think the music industry much likes that.

Dan: At the same time the music industry would love to create a world where we own absolutely nothing.

Leo: Right.

Dan: And so streaming services, my only surprise is that they didn’t create their own first. Well, again, we’re talking about an industry that you know, thinks backwards 20 years not ahead.

Leo: We’ve had some missed opportunity, isn’t it?

Dan: Well it’s a good thing for you and me that they blew it because I know for one thing, I’m noty going to stop making backups of my music.

Leo: Right. Most will continue to own music but you know—

Dan: But you don’t own it.

Leo: We don’t own it (laughing).

Dan: That’s the thing. You don’t.

Leo: Right.

Dan: If you buy a CD you don’t own the music, you own the disc but not literally, you can’t, you don’t own the music on it.

Leo: Remember how much artists hate this idea of streaming because they say, “We don’t get much money for streaming.”

Dan: Yea but that’s because the record industry is screwing them again as it does whenever it has a chance.

Leo: Right. Right. Yea, and it would certainly solve the piracy issue. It would solve, it would—if they could just get the revenues up to a certain point on streaming, I think the industry certainly would like it. I know if users want—I think one of the main reasons today people buy music is they want to reward an artist. You buy Taylor Swift’s newest album or Beyoncé’s newest album not because you have to. You can listen to it on streaming. You buy it because you want to give her $0 bucks. Thank you. It’s a tip almost.

Dan: I mean I’d like to see the artists control streaming because the streaming companies have not exactly been terrific for the artists either.

Leo: Right.

Dan: And it would be great if they could do this themselves. But meet the new boss. Same as the old one.

Leo: Same as the old one (laughing).

Denise: Right. And people still travel to places where either they’re not allowed to access their streaming content because they’re no long in their own country or the internet access is just sketchy and they need to have things local.

Leo: Right. That’s going to change too though, right? That’s, I mean eventually everybody will have everything everywhere, right?

Dan: You really think so? 

Leo: I don’t know.

Dan: Yea you’re dealing with companies that—

Leo: That’s what Mark Zuckerberg wants and Google wants.

Dan: Well it’s not what Netflix wants apparently. They’ve been blocking VPNs even—so I use a VPN on Wi-Fi at home just to be safer. And as a result, Netflix won’t let me watch on my devices at home.

Leo: Interesting. That’s Netflix more responding to the commercial interests of the motion picture industry than it is their own commercial interests.

Dan: That’s what they say but they also claimed that when people got upset about it, they said, “Yea but we’re releasing all of our stuff worldwide.” And then it turned out that I couldn’t watch House of Cards either. So not so much. Netflix is becoming a lot like the studios that it has wanted to disrupt. 

Leo: Right. Interesting. You’ll end up that way eventually. All right we’re going to take a break. Got a great panel. Dan Gillmor is here from The Cronkite School at Arizona State. He also writes a column, a regular column in Slate. And it’s always great to talk to one of the senior members of the tech journalist community. It doesn’t mean you’re old, just senior, like you’re top.

Dan: Yea, I got that.

Leo: Top dog (laughing).

Dan: Thanks a lot.

Leo: And one of the young Turks, Steven Kovach. Steven Kovach from techinsider.io and of course our great friend and host of This Week in Law, Denise Howell, TWiL. And we have more to talk about. We haven’t talked about Microsoft in ages. Let’s find a Windows story. Throw one in. And Yahoo. Yahoo’s for sale. And you won’t believe who’s considering buying it. There’s a tease. And you—Yahoo is up for sale and you won’t believe who bought it. Coming up. Did you see all the shows? You didn’t see all the shows this week. Because we had some really good stuff. But we’ve made a little mini movie so that you can be caught up. Here, take a look.

Narrator: Previously on TWiT:

Leo: And you bought a $340 dollar mug?

Steve Gibson: (Laughing) don’t ask me why. I was just—I just got a little carried away.

Leo: I did order a unicorn that farts rainbows when—

Steve: (Laughing) I’m sorry?

Narrator: Triangulation.

Leo: You may remember Dan Lyons, the fake Steve Jobs. The Secret Diary of Steve Jobs.

Dan Lyons: After he died I had this idea. He’s blogging from the afterlife. He’s still there. And he’s pissed at Tim Cook for screwing everything up.

Leo: (Laughing).

Dan: No, no. Not the watch. Not the watch. No, no, no. Don’t do the watch. Aahh!

Narrator: The New Screen Savers

Leo: We’re excited because the main cabinet’s been here. How long have you been working on this main cabinet?

Jason Howell: It’s closing in on a year at this point. A woodworker fan of the network, Dyami Plotke from the east coast reached out to me shortly after and he’s like, “Hey. I work with wood and I’d be happy to work with you on this project.”

Leo: Jason, you get to keep this.

Jason: I know. It’s kind of crazy. It’s one of those I’m not worthy moments. 

Leo: I can tell you this, Dyami, every quarter that goes in here is going to go right back to you. After it falls on the ground.

Jason: I’ll put a little cup on the ground to catch all the quarters.

Narrator: TWiT. Or if you’re on a Commodore 64, it’s TWiT,8,1.

Leo: (Laughing) Oh, I’m glad to know that. A great big week ahead. Is it Megan who has the week ahead for us? Megan, take it away.

Megan Morrone: Thanks, Leo. This week is Google I/O, the company’s big developer conference where we get to hear about all the interesting things that are in the works from the company that brings you everything from mobile systems to machine intelligence. Remember last year when they showed off Smart Pants? Where are my Smart Pants now, Google? I haven’t seen them. And speaking of Google, Nest is officially disabling the Revolv Home Automation Service this week on May 15th. And we’ve been reporting on this since the announcement a few months ago but next week your Revolv Home Hub Hardware will officially become a doorstop. Use it wisely. Next week we’ll also see earnings from Cisco and Sales Force. Facebook’s trending story controversy is unlikely to die down next week. And probably we will also hear more on the developing story of Apple’s investment in a Chinese ride hailing service. Jason Howell will be in the trenches of Google I/O for most of next week but I will be here reporting on all of this news and so much more on Tech News Today. I hope you’ll be there with us. Back to you, Leo.

Leo: Thank you, Megan. Megan Morrone and Jason Howell on Tech News Today, Monday through Friday, 4:00 PM Pacific, 7:00 PM Eastern time, 2200 UTC. You’ve got to watch each and every episode. Our show this week brought to you by Harry’s. You may have noticed how clean shaven and soft my cheek is. That’s because I use Harry’s high quality, high performance blades made in Germany. Because you know what? Harry’s bought the factory. They decided if we’re going to get people great blades at a great price, we’re going to have to own the place where they’re made. The asked and they said the best razor blades are made at this factory in Germany. They bought them. And now they ship them right to you so the blades are half the price of leading brands. You don’t have to deal with lines at the drugstore or kind of feel like a criminal as you stand there as somebody comes to unlock the Plexiglas so you can get your blades (laughing). That’s a sign they’re charging too much for the blades I think. One million guys have made the switch to Harry’s including me. I love my Harry’s. Easy to go to the website. Start with a Harry’s kit like the Winston set. That’s the one I use. I actually have a collection of Winstons. I’ve got the copper handle, the silver handle. I love my Winstons. And then of course I get the blades in the mail every month. Now you have your choice of foaming shave gel or the shave cream. I like the cream. It comes in a tube but I know a lot of people like gels. You get your choice and that’s mailed to you each and every week. But you’ve got to start with a razor handle and that’s where the kit comes in. Take a look at the Truman set. $15 bucks you get a handle. You get three blades. You get a full size, not a sampler, a full size bottle of the gel or the cream. And the travel cover which I think is actually a very handy little added product. And then you get the razor and the shaving cream delivered to your door. So why pay $32 dollars for an 8 pack of shaving blades when you can get them for half the price from Harrys.com and a great shave. They’ve got the Truman set as I mentioned, $15 dollars. But we’ve got a little deal for you. $5 dollars off your first purchase when you go to Harrys.com/twit. H-A-R-R-Y-S.com/twit. Pick up the Truman kit. That’s $10 bucks and a great way to try it. Get started. I think you’ll like it. Harry’s. Stop compromising. Give Harry’s a try today. H-A-R-R-Y-S.com/twit. We thank them so much from This Week in Tech. 

Leo: So thank you FCC. They’re going to allow Charter Communications to merge with Time-Warner Cable, a $78-billion-dollar merger. This after Charter got in trouble for flouting customer service rules. That didn’t stop them. Remember Charter was blocking cable subscribers from using their own modems even though they weren’t allowed to do so by law. Charter customers, in June 2012 the company stopped allowing new customers or those switching to new price plans to use their own cable modems because they get $10 bucks a month for renting them. This continued through August 2014 and the FCC slapped them with a fine that probably didn’t come to 10% of the amount of money they made. A $640,000 dollar penalty and oh, here’s the prize, why don’t you merge with Time-Warner. (Sighs) the big get bigger. It’s 18-- $640,000 dollars is 18 minutes’ worth of revenue for the line companies (laughing).

Steve: (Laughing). 

Leo: It’s going to be, they’re going—Time-Warner Charter will make $18.6 billion dollars a year. Now they’re still number 2 to Comcast I think. So you’ve got Comcast and this new Time-Warner Charter. Don’t know what to say.

Dan: Are they number 2 in most hated companies?

Leo: Yea, everybody hates their cable company, right? And I’ve been getting a lot of calls, because I do the computer radio show, and it’s heard in Los Angeles, I’ve been getting calls from people who are furious because Verizon sold their FIOS installation in that area and other areas of the country to a company called Frontier. Did you get sold, Denise, to Frontier?

Denise: Yes. We had Verizon service and just got a bill that all of a sudden said Frontier (laughing).

Leo: And Frontier Service has been execrable. I don’t know—have you noticed any changes?

Denise: Only that they forgot to bill us for a month so all of a sudden we--

Leo: Oh, that’s not bad. That’s good.

Denise: No, well they wanted us to pay (laughing), they just forgot to send the bill during the whole transition so. Whoops. Now all of a sudden we’re a month behind. No, I haven’t noticed a service issue.

Leo: Here’s Channel 4’s report from Long Beach as customer voice their frustration.

Male Announcer: --TV and internet service last month.

Leo: That service has been up and down.

Male Announcer: Frontier executive about the problems we’ve been covering for weeks. And NBC 4’s Jane Yamamoto joins us live.

Leo: Frontier’s apologized. Now a member of the California State Assembly representing Southern California has started, launched an investigation and so the alternative? What’s the alternative for you guys? Time-Warner (laughing). So I’ve been telling listeners, “Well, you’ve got a choice. You can stay with Verizon slash now Frontier and have terrible service or good news, you can go to Time-Warner which is about to be sold to Charter. 

Dan: At least they have 2 high speed things to choose from.

Leo: At least you have a choice.

Steve: A lot of people don’t have that, yea. I have Time-Warner and that’s it.

Leo: Oh, man, really?

Steve: Yea. That’s my only choice.

Leo: And this is why, at least when it comes to the internet, the United States where the internet was invented is basically you know, number 20th on the list for the most, you know for speed and price. Our internet is not good. 584 complaints lodged with the Public Utilities Commission against Frontier. So you haven’t had up and down service yet, Denise.

Denise: Not that I’ve noticed.

Leo: Don’t worry.

Denise: But then again, you know our reliance on cable services—I haven’t had up and down internet service.

Leo: Ok.

Denise: Our reliance on cable servicers is tailing off month after month. I got rid of a bunch of our cable boxes recently. No one in the house noticed except my son who just asked me, “Where’s my clock?”

Leo: (Laughing).

Steve: Perfect.

Leo: Yea, I use it for a clock too. 

Denise: Yea, that was it.

Leo: Oh, man. That’s a telling question. Why are you still paying for it?

Denise: Good question. Because—

Leo: Now look, her internet’s starting to go down by the way. I just want to point out as soon as we talked about Frontier, you’re getting all scratchy.

Denise: Yes. For all the sports, live sports that my husband likes to watch.

Leo: That’s the only reason.

Denise: Yep.

Leo: The Academy Awards, you know. Any of those live things. And I think it’s not, we’re not long for this world. We just made our new TWiT t-shirt by the way, the Teespring t-shirt. And we decided to celebrate the fact that we are IPTV. That we have for a long time, for 10 years now, really been a television network on the internet. What is the—is it teespring.com/twit? Is that the—

Jason Cleanthes: Yea.

Leo: This is our, we call it our World Tour T and it says TWiT IPTV and on the back, the reason we call it the world tour t is because we’ve got all the shows. But it looks like the concert dates. So this just went on sale as with all of our t-shirts, it’s only on sale for 30 days. And I talked Lisa into $20 dollars. She said, “Let’s charge $25.” I said, “Let’s charge $19.” She said, “All right. I’m not going to go for the $19. We’ll do $20.” I said, “Ok. Deal.” So very affordable. $20 we have them in a variety of sizes including, yes we have women’s, V-neck and regular and there’s also unisex for people who aren’t sure which they are. And we only need 18 more to print and we’re going to get to that level. But we’ll keep printing them for 28 days. And they will be shipped on June 12. And there is a discount. The more you buy, the less shipping costs and I think the price of the shirt goes down $5 bucks too. So I thought I’d plug that. We are IP. We finally admit it. We’ve been IPTV all this time and you didn’t even know it. All you need is internet. Google I/O around the corner. It’s going to be Wednesday. What are we looking for? Anything exciting?

Steve: I’m the most excited about this Chirp thing.

Leo: Chirp is really interesting.

Steve: Yea if they put Google Now in a can, that’s going to be tough for me to not buy it. But at the same time, we have a history of things launching at I/O that never really come to fruition, so I’m a little skeptical, but that’s the most exciting.

Leo: What is the evidence for Chirp? Is Chirp just a rumor or is it?

Steve: No, the information I think was the first publication that broke that they’re working on an Amazon Echo-like device and then I think it was Recode this week figured out that’s the name, Chirp, or at least the code name is Chirp. But you can easily imagine what’s it going to be like. Basically Google Now in a speaker. Hopefully it has a lot of good partnerships. I mean the one reason I didn’t buy Alexa right away was because I have Spotify. So hopefully they have a lot of those.

Leo: It has Spotify now though, by the way.

Steve: It does now, yea, so hopefully they have a lot of those key partnerships locked down right away, Uber and all that kind of stuff that makes the Alexa, the Echo so much fun. But for me I’m super excited to see what this thing’s like.

Leo: I am an Echo fanatic. I have a Dot, the newest one and I have several Echoes. I have one here in the office. I have them all over the house. I love them because—you know the speakers aren’t great which is why I don’t listen to a lot of music on the Echo but now with the Dot I have it paired to a good speaker system so it’s great. I can get great music. I use it for a timer. 

Steve: Yea. I used to use it that way too. It’s fun.

Leo: Yea. I think the Echo is a really interesting product and I was always surprised that neither Apple nor Amazon, I mean Google had a similar product. So it makes sense. On the other hand, people might be a little nervous about it after reading Gizmodo’s story. It’s not really confirmed that the FBI, they did a Freedom of Information Act with the FBI asking if they’d ever turned on the Amazon Echo for wiretapping purposes. And they got back a response from the FBI, “We can neither confirm it nor deny it.” So that isn’t a confirmation, folks. It’s just, we can’t confirm it or deny it. 

Denise: Sounds like a threat.

Leo: Yea. That’s exactly what I thought is they would like you to think they could even if they haven’t. Or maybe they hadn’t thought of it. But really, aren’t we surrounded by microphones the FBI could turn on with a court order?

Steve: Yes.

Leo: Everywhere. Your TV. Your Xbox.

Steve: Your webcam.

Leo: Your phone. Your webcam. James Comey the director of the FBI said, even admitted “I keep a piece of tape over my webcam.” (laughing). He knows.

Dan: It would be nice if we actually got court orders.

Leo: Yea, that would be great. Just ask the court. The problem is the court, if it’s the FISA court, never says no. Literally. They haven’t said no to any requests from law enforcement in 2 years. Zero. So, I don’t know if a court order—

Dan: Yea, I have a theory that actually there’s no FISA court, it’s just a rubber stamp. It’s a robot rubber stamp.

Leo: It’s in the basement of the Department of Justice building. What do you want? Oh, yea, no problem. Approved. Ok, so Chirp, there’s a good one. I agree with you. I think-- if Google were going to do an Echo competitor, what could they do better than Amazon does?

Steve: I think what’s great about Google Now is how it ties into everything that, basically it hits your email so flight alerts.

Leo: They know more.

Steve: Yea, they know more. Flight alerts, restaurant reservations from Open Table, things like that are just going to be baked into there so you know, getting a reminder, “Hey, Google,” or whatever other key word it would be, “when is my, is my flight delayed?” I think that will be really cool. I just feel like they can open up some many more use cases just by the nature of how awesome Google Now is on the phone.

Leo: Yea. I would, I think one thing that Amazon does right with the Echo is an open, somewhat of an open ecosystem. It is not hard to write, they call them skills for the Echo. Amazon has a platform, you know, an Amazon Web Services platform that you can use to host the skills. And they don’t charge a lot. It’s very affordable. In fact it’s free for the first, you know, if you’re just using it for personal use, it would be free. So you use Amazon Web Services Lambda. So your code runs on Lambda in the cloud. You don’t have to run a server or anything. And it’s a fairly straight forward process to write skills. A lot of people are writing skills who are not particularly wizard coders and you don’t have to handle the language recognition. That’s all handled for you. So Google, I don’t know if Google would do something this open. I’d love to see them do it. The problem with this is if you have an Echo, it’s a pain to figure out—there’s like 80 pages of skills. And you have to enable the skills. So you have to figure out what the skills are and then you have to remember the unique syntax. On the other and I love it that you can do this. So I could say, “Read Hacker News.” You have to say, “Echo, open Hacker News.” And then it will read to you. I play Jeopardy because the folks at Jeopardy have written a Jeopardy game and they ask you six questions from last night’s Jeopardy show. There’s a lot of neat stuff. 90 pages now of skills. It’s hard to keep track of. But I think—

Denise: Do you have to affirmatively turn those on to use them?

Leo: Yea. You have to go into your Alexa app. Don’t you have an Alexa? I mean an Echo.

Denise: I do but I’ve never turned on anything besides what it comes with.

Leo: There you go. There’s the problem. There’s the problem right there. Now I can tell you, your son is going to like a few of these. There’s Alexa give me a fart.

Denise: (Laughing).

Leo: Very handy. There’s- yes, see what I’m saying? Your son’s going to love this. 

Denise: He is.

Leo: There’s, you can have it tell you a dad joke. The jokes are bad anyway but it has even worse jokes for dad jokes. You can also ask it to tell—yea, that’s the syntax. Echo, ask for a fart.

Steve: Ask for a fart.

Denise: Well, here’s what—

Leo: But you have to enable that.

Denise: Right. Why should you have to enable it?

Leo: It should just know.

Denise: Why can’t Alexa know that I want a fart when I ask her for a fart.

Leo: Right. I mean how hard can that be? And by the way, they sell it as all the fun of a fart without any of the smell. Just what we’re looking for! They have—they actually have some good skills. You can call an Uber. But again, you have to enable it. You can order a pizza from Dominos I think. Only Dominos. I’d like to see my local pizza joint. What else can you do? You can—

Dan: I ordered some plugs for some lights that I can turn on and off.

Leo: You know what? That’s actually the simple most useful, single most useful thing is buying. Anything you’ve ever bought as an Amazon Prime user you can tell Echo, buy me another, some more of that. And you have to enter a PIN code so your kid can’t do it. But of course your kid will be listening the next time you use it so it’s not really that effective. And it will send it to you. It arrives two days later. But you’re saying you bought switches so you can turn on lights, right? Is that what you’re saying?

Dan: Yea, I bought switches. I didn’t buy them through but I bought them on a website.

Leo: You could have.

Dan: Then I’ll be able to say, you know, “Insert voice here, name here, turn on the living room lights.” And the living room lights will turn on. 

Leo: Echo, ask for a fart. See if it knows.

Amazon Echo: (Farting noise).

Steve: Oh my God.

Leo: It’s you know, suitable for children.

Steve: Thank you, Jeff Bezos.

Leo: (Laughing) I don’t see Google doing that.

Denise: Parsey McParseface Face wouldn’t do that?

Leo: Parsey McParseface ought to know that, to do that. No, I just think this is a great product and I think Google should be better because they have all that voice recognition, they know everything. I can make appointments in here. I can tell the Echo to make an appointment for me on my Google Calendar. But I presume Google would do that even better. I’ve been meaning to write an Alexa skill. I’d like to do that.

Jason Cleanthes: I want to hook a Dot into my car with Wi-Fi.

Leo: Yea a lot of people want to do, think you can—and I was talking to somebody who I think has done that. One of our guests on Triangulation because ok, so the Dot is like just the top part of the Echo, you cut off the speaker. And you can pair it to any Bluetooth speaker. So you’d pair it to your car.

Jason Cleanthes: Or I’ll just plug it in, too.

Leo: Yea, the problem is that you need a battery backup on the Echo because it has to restart every time you turn on the car. And yea, it would have to get, you’d have to use a Wi-Fi, you’d have to use one of those Mi-Fi’s so you’d have to get—

Jason Cleanthes: It’s a huge setup.

Leo: A lot of work.

Jason Cleanthes: I wonder if it would be worth it, though. 

Leo: I just ordered something from Logitech that they just announced that kind of does the same thing. It’s a little magnetic dot that you put in your—let me see if I can find it. You put in your vent and then—it’s called Zero Touch. I think it’s Alexa, Echo for the car. Let me go back. It disappeared. I’m going to—there it is. Learn more. And I click the link to learn more about it. So the idea is it’s a smart car phone holder with a voice-command app. So when the phone is on the holder, I guess it’s magnetic, it launches the app. And then you can text by voice, voice activated music, voice navigation. You can use Glympse to share your location. Hands free calling. So even though your phone probably does that, this kind of integrates, it seems—I’ll let you know. I’ll do a review. It’s just a matter of time before we can talk to everything around us. And it will respond and do stuff. I like that. Do you mind? Is that scary? Are you worried about surveillance?

Dan: It’s also a matter of time before everything can listen to us and people we don’t want listening are going to be. Not talking about law enforcement necessarily but the one thing we’ve seen in this internet of things world is that it’s-- using the word security with internet of things is like a total oxymoron.

Leo: Good point. 

Dan: They have consistently made security not even an afterthought. It’s that bad. I’m not even close to ready to doing this stuff for some time.

Leo: It is really a portal, an open door into your network in many cases. Yea.

Dan: And instead of doing it right, they’ve done the expedient thing. Gee, where does that happen before?

Leo: Yea, yea.

Dan: Every time.

Leo: Somebody says “I want to hear Denise’s opinion on voice and what can or can’t be done.”

Denise: Well I was just thinking that you know, along the lines of what Dan was saying, we’re definitely going to see law makers start to pay attention to all this and insist that these devices in our homes have full security and privacy policies that are clear and reasonable and let people know, you know if the device is going to be listening to everything that is going on in your home, that has to be clearly laid out and you have to have people understand that that’s the trade-off.

Leo: I have to say thought, I’ve always been, my wife called me a bleeding heart liberal. And in favor or government regulation of this kind of stuff. But as time goes by, I’m getting more and more afeard of over government intrusion in this stuff. It doesn’t feel like government regulation is a very good solution to a lot of this stuff. And you cannot just point to here, but the EU as well and some of the things the EU has been doing lately where every time I go to a website now I get a popup saying, “Oh, we use cookies and is that ok with you?” That’s because of an EU regulation and every website if it wants to have, you know, do anything in the EU, has to do this. And it’s dopey. Because all you do is you click yes and then it's like why do I have to—it’s meaning—it doesn’t do anything. It accomplishes nothing. And it wastes my time and it wastes programmers’ time and it’s a very good example of why government regulation is not always a good idea (laughing).

Denise: Yea, that doesn’t seem like a good solution to the cookies problem. I don’t get the feeling that there’s going to be a lot of people who go out and research and go, “What are these cookie things and do I like them? And what flavors do they come in?” Yea, I don’t see that happening.

Leo: It’s just you know, and it’s every—and because of course the internet is global, it’s got every site you go to now has to do this even if they’re not particularly a European site. Here it is. I just went to Real, Madrid because we have some visitors from Spain. And there it is on the bottom. We use our own cookies and third-party cookies to measure traffic to our website and analyze browsers’ behavior, blah, blah, blah, blah, blah, blah. If you continue browsing we consider you accept the use of cookies. View our cookie’s policy. Yes, I accept. That is on every freaking page you go to. 

Dan: Yea but here’s the problem with that language. That’s nothing language. If it said instead the other part of that which is, “We use cookies and other tracking technologies to spy on everything you do and track you around the worldwide web. And we and a whole slew of shadowy advertising companies that you will never hear about are watching everything you do. Click here.” I think people might be a little less happy about clicking.

Leo: Yea, but—(laughing).

Dan: Call me crazy.

Leo: So do you use the internet, Dan?

Dan: I do and I use blockers that basically stop the tracking stuff to the extent possible.

Leo: It is a good point. There’s nowhere on this banner where I can push a button that says, “Well I would prefer you don’t.” All you can do is say yes. It’s one of those—it’s like Prop 65 in California. It has exactly the opposite effect of the intended effect. Proposition 65 said people have to warn you if there’s carcinogenic chemicals in an area. So you just, everywhere you go in California, there’s a Prop 65 warning, chemicals known to cause cancer are in this area. And you just ignore it now because it’s everywhere. It’s exactly the opposite of what the intent was. That’s why—I fear that government regulation is not the solution to a lot of these things. I don’t know what the solution is but.

Denise: Well I mean you might need government regulation to come in and say, “Ok, your disclosure about the cookies is really, really not cutting the mustard.” Not to mix cookies with mustard but you have to be clearer about what’s going on here. I mean—

Leo: Yea well smart government regulation would be great. That’s maybe where I despair.

Dan: It wouldn’t be hard.

Denise: I get concerned that we’re headed for a world where we have people savvy enough to use Privacy Badger or whatever other blocker you’re using. And the vast majority of people don’t and you have this tier of people who are getting targeted and spied on and you know, who drive the economic engine of everything it’s relying on. And then there’s this other class that is just opted out or paid out or however you’re doing it. 

Leo: Although CROne points out, I have seatbelts and airbags in my car. Thank you, you know to the Federal Government for enforcing those rules because otherwise I’d be flying through the windshield. On the other hand, I don’t think there’s anything wrong with cookies. In fact, a lot of the web uses cookies. Windows 10 now on 300 million active devices says Microsoft. That’s still only a fraction of all the Windows using devices, like a fifth. But that seems pretty good. Partly because Microsoft’s been giving it away, sometime forcing you to take it. But they say that’s going to end on July 29th, we are going to start making people pay. 

Steve: Did the popups go away in Windows 7, too?

Leo: Not yet. Not yet.

Steve: After July 29th.

Leo: After July 29th the popups go away. They should have just said that. We’re sorry we’ve been bothering you for the last year, but good news (laughing). The popups will be going away July 29th. We’ve spent some time talking on Windows Weekly about whether they really will start charging for it. And I don’t know if they should bother. Why bother charging for it? You know Microsoft’s future is not selling copies of Windows. 

Dan: Well it would be great if they would also stop downloading gigabytes of stuff to your computer without asking. That would be very nice.

Leo: Right, right. Let’s see. Lady emojis? I have to ask Denise. Do you feel that emoji’s have misrepresented the fairer sex? Do we need better lady emojis? Stephen Colbert says we do.

Denise: Well it’s kind of getting back to that question. Are we watching Stephen? Yes.

Leo: Yes we are.

Stephen Colbert: I love them. They are one of my favorite things. They express exactly how I feel whether I’m feeling happy or sad or flag of Norway. All of my feelings. And here’s the thing.

Leo: I use that one all the time.

Stephen: Everybody likes emojis but not everyone is properly represented in emojis. For instance, women are not well represented in the emoji world. But I just read that Google has announced that it’s going to start producing new emojis that will represent professional women such as scientists, doctors, educators and farmers. The farmer emoji, the farmer emoji of course fertilizes her field with—

Leo: Ah, yea (laughing).

Stephen: I’m glad emojis are becoming more inclusive. It was only recently they added the skin color options to represent people who don’t have jaundice. (Laughter) Apparently, apparently, apparently even though women use emojis more than men, they’re a little underrepresented in the emojiverse. Let me show you how uneven it is. If you’re a man in the world of emoji, you can be a police officer, a British palace guard, a Santa with a weird flesh beard, a private investigator, a, I want to say, a bike helmet sales person, a swami, a construction worker who also sells pot and the saxophone player for Stay Human. 

Leo: (Laughing) All right, that’s enough of that. Do you feel underrepresented? I didn’t even know this was an issue and I feel terrible about it.

Denise: I’ve often felt not underrepresented as a woman but just that emojis can’t begin to get across everything that you need to in your communication needs.

Leo: Because finally we’re fixing emojis, everyone’s moved to stickers and GIFs.

Denise: It’s you know, I think part of the fun of emojis is it is a closed world and you have to be creative in how you put them together to convey what you’re saying. But you know, all to the good. There’s no, there’s no central, it’s not a government thing. You can’t get mad at whoever’s putting out emojis because—

Leo: It’s the Unicode Consortium, believe it or not.

Denise: Right. Ok.

Leo: Because they decide because it’s part of the Unicode set. This is a request for comments (laughing). Expanding emoji professions: reducing gender inequality. And they have to get it approved by the folks at the Unicode Consortium. They’re the ones that decide what’s in the Unicode code set and what emojis are available. 

Denise: I don’t know. If they have various emoji’s that could be either male or female it would be nice if you had the choice like you have with skin color. Am I a boy swami or a girl swami?

Leo: That’s a good point. And I don’t think that would need approval because that’s all the same Unicode symbol. There is of course, there was a Kickstarter to raise money for the dumpling emoji. Yea, you have to actually buy a seat on the Unicode Consortium and that’s who decides emojis. And I don’t see a lot of women or swamis on the—Here’s a guy wearing a t-shirt that says Shadowy Emoji Overlord. This is an actual meeting.

Steve: I want that shirt so badly. 

Leo: These are the people who decide—this is who’s in charge (laughing). They decide what emojis will be in use. Wow. So the dumpling emoji is another movement. Because dumplings are also it turns out underrepresented. We just got hotdogs and pizza. 

Dan: I wish that someone would do a browser plugin for Chrome and Firefox that if on the desktop I hover the mouse over it, it translates it.

Leo: Oh, so you know what it means.

Dan: I don’t always, in fact I don’t often know what it means. And something that would translate on mobile too, I would be very grateful. So please, somebody out there please do that. 

Leo: You know about Emojipedia? This is where you go if you want to know what an emoji means. You paste it into Emojipedia and it gives you everything you ever want to know. It even shows you the representations of emojis for all the different phones and Google and Microsoft and Twitter and Facebook because you know they have—see that Mozilla one, that blowing a kiss, that’s definitely a lady emoji right there. It’s a weird one. I don’t know what’s going on with the eyes. Oh, I guess she’s winking. I get it. Huh. Microsoft’s blowing a kiss also, a lady emoji. Let’s take a break and we can talk about what’s going to happen to Yahoo. Apparently Warren Buffet is now getting into the act. And he’s got friends. 

Leo: Our show today brought to you by this little doohickey. This is a great thing. This is the TrackR. And you know I was just looking because I didn’t have my keys with me. I thought, “Where are my keys?” So I launched the TrackR app on my smartphone and it tells me where my keys are. Which is pretty darn awesome. But there’s even more you can do with the TrackR. See, there’s where my keys are. And it says last seen 2:16 PM on Sunday, May 15th. Oh, that’s at home. I left them at home. But I just found out I can do other things with the TrackR. For instance, this is Jason’s TrackR. See, it’s so cute. About the size of a quarter. And so it will let me know when I get separated from his phone but it also, if I’m carrying around the TrackR and I left the phone under a cushion, I can press the button on the TrackR and the phone (laughing)—and the phone lets me know where it is. Isn’t that awesome? By the way you can picture on set that’s an excellent choice. And if you’re driving in the car, no you are not being stopped right now. That’s just Jason’s TrackR. I hate it when they do that on radio shows. The TrackR, these are the new TrackRs, they’re really nice. Coin sized, aluminum. You can put them on anything. And this is the neat thing. TrackR is the largest network of trackers and this is the crowd GPS network. Now obviously something this small and light and inexpensive doesn’t have a GPS in it. The phone has the GPS so it uses that. But here’s the cool thing. If your phone gets near somebody else’s TrackR, it notices it and sends a note to their TrackR. So if your item goes missing the TrackR apps records the last known location on the map and then when another TrackR user comes within 100 feet of it, you’re going to get an update of where your item is. So other people will help you find your TrackR. It’s got a million and a half TrackRs out there right now. That’s pretty guaranteed. TrackR just announced the TrackR Atlas that works wotith your TrackR Bravo. That’s what this is. Or your third party Bluetooth tracker to pinpoint your items inside the house. What? Yep. So now you just don’t know, well the keys are at home, you know they’re under the cushions. You just ask the TrackR Atlas where your item is and you get an answer. You don’t even need to search. I love these things. TrackR Bravo. It’s beautiful anodized aluminum. It’s thin, it’s light. And when you go to the TrackR.com you’re going to get 30% off your entire order. They’ve got nice colors. Works with the iPhone, the Android phone. Go to T-H-E-T-R-A-C-K-E-R.com and use the promo code TWiT. 30% off your TrackRs. Attach them to everything. Remote controls. You could put it on a dog. It’s light enough for a collar. What would you attach your TrackR to? I have it on my bag. What I do is I put it on my keys and then I put my keys in the backpack so it’s kind of keeping an eye on both. Really cool idea. T-H-E-T-R-A-C-K-E-R, no E at the end there, .com and use the promo code TWiT for 30% off. 

Leo: So you may remember the names Tim Cadogan and Dan Rosensweig. They were Yahoo executives. No longer there but they have formed a consortium including Warren Buffet. And Bain Capital—is it Bain? No, no. Who’s involved with this? Quicken Loans founder and Cleveland Cavalier’s owner Dan Gilbert to make a bid on Yahoo. So we’ve heard that Verizon’s making a bid. By the way it’s moving along now. They’re having day long meetings with Marissa Mayer and the Yahoos and stuff. And these guys, Rosensweig, COO of Yahoo from 2002 to 2006. Cadogan was in charge of Search and Advertising from 2003 to 2008. Presumably, they have some inside information that makes Yahoo more valuable than the rest of the folks think. Neither is interested in taking a larger managerial role there. They both have their own startups. What do you think? What’s going to happen to Yahoo? Dan, can Yahoo be saved? If Marissa Mayer can’t save it, who can?

Dan: Well, hard to say that she’s done that good of a job in trying. A lot of acquisitions for no apparent purpose and—

Leo: Tumblr.

Dan: And doing, killing off some very good stuff. This Buffet thing is really interesting. Someone, I don’t know if she’s still on the Berkshire-Hathaway Board but Hilary Schneider who was a senior person at Yahoo was on the Berkshire board of directors. And she’s gone off to run some other company but I can see some pieces fitting together if that’s why he’s in it. But yea, Yahoo can be saved. It’s a—they’re still enormously used by lots of people and I think that they’re running out of time, for sure. But there’s a lot of cash flow there and there’s a lot of pretty amazing properties that they could still do a lot with. I think it’s been to some degree squandered, but it’s not over. 

Leo: There’s users for sure. This article’s by Kara Swisher. She seems to know pretty well what’s going on at Yahoo before anybody else does. She says that it’s guessed that the company will go for $4 billion dollars once you separate out about a billion in patents. So who’s bidding? Verizon, some private equity firms, TPG Sycamore Partners, Vista Equity and Bain Capital. And now Warren Buffet and Dan Gilbert. Kind of interesting. $4 billion dollars, I don’t know. I don’t know.

Denise: Seems like a lot of money for a company—I’ve been sitting here trying to think how I’ve encountered Yahoo in the last year of my life and I think the only two ways I can come up with is reprinting AP news stories and hosting Flickr.

Leo: Flickr. Flickr’s the last gem there. It’s not worth $4 billion, but it’s definitely still a gem. Although Flickr, you know you wonder why didn’t they launch an Instagram before Instagram, you know? Why did they miss the boat on that stuff? If anybody could do it, they could. Let’s see. Anything else we want to get in here? The Philly police have admitted now (laughing)—

Steve: That was great.

Leo: That was their truck. So actually I’m glad Denise is here because I would love to know the legal ins and outs of this. The Philadelphia Police are employing a device, let’s see if I can find the name here, called the ELSAG MPH-900. It is an automatic license plate reader and it’s a pretty damn sophisticated one. It uses infrared to look at temperature differentials on license plates between the raised letters and the base of the plate and it can read multiple license plates at the same time with great accuracy. Who knew more than 1000 agencies across all 50 of the United States are using the digital automatic license plate reader? They’re sitting on the roads and just capturing every license plate that goes by. I know people complain about license plates, you know red light cameras and the readers on bridge tolls and so forth but apparently the police can just sit on the road and do it. But they’re a little hesitant because you know these trucks, these vans have some equipment on the roof and maybe that may scare people. So the Philadelphia Police said, “Oh, we can fix that.” And the affixed a Google Maps logo to the truck.

Steve: It’s not even a good disguise.

Leo: It’s a bad Google Maps logo.

Steve: They just took the app icon and made a little sticker and put it on their car. I mean it’s like a clown car. It’s just hilarious that they thought that would do it.

Dan: Yea but you two are the only people in the world, or not the only people but you’re among the very few people who would know the difference.

Leo: Yea, I mean I’d let that go. I would even say, “Yea, sure that’s a strange sticker but it must be them.”

Denise: Well right because Google owns those logos and trademarks.

Leo: Oh, that. Oh.

Denise: You really aren’t allowed to use them without Google’s permission, so that’s just a no-no.

Leo: Is it allowed? I guess the streets are public. So it’s allowed for—can anybody have one of those devices and sit on the street and watch license plates go by?

Denise: I don’t see why not. I mean you’re out in public. People can, yea, they can take pictures, yea.

Leo: So not only law enforcement, but I can do it.

Denise: Probably.

Leo: Right. So you know, that’s interesting. However, they might be in trouble with Google because as you say it’s their trademark. In fact Google seems pretty unhappy about it (laughing). 

Dan: There are a couple of companies now that are actually doing this routinely and selling the data to anybody that wants it.

Leo: Right, because if you have a billboard you want to know who goes by.

Dan: Yep. They’re arguing that its First Amendment gives them the right to do that.

Leo: Wow. 

Dan: Denise, is that going to, does that fly for you?

Denise: First Amendment, I don’t get the speech component or you know, how government would be abridging your speech so that the first amendment is invoked but—

Leo: I think a lot of people just think the First Amendment is the right to do anything you want.

Denise: (Laughing) It’s privacy. What gets people’s senses tingling is, “Hey I didn’t give you permission and that’s my private information.” But when you’re in public privacy to a large extent goes out the window. You can be photographed in public as long as you don’t reasonably feel that you’re in a photo free zone. So yea, I just don’t see why they can’t do it.

Dan: I’m sure they can. But the difference now is of course the stuff becomes ubiquitous. I don’t think that people had any expectation that they would be trackable at everything they do, at every place they go.

Leo: Well and the addition not only of the tracking devices, but the ability to create massive interrelated databases that can deduce all sorts of stuff from this data smog that you leave behind you. That’s the real power of it, right? It’s not merely knowing you are on the street, it’s knowing everywhere you went, everything you saw and there you go.

Denise: Well it’s maybe pointing out the need for some other vehicle identification system that isn’t vulnerable.

Leo: At least we don’t have to put our social security number on the back of our cars.

Denise: Right.

Leo: Could be worse.

Dan: Well that’s so easy to get that what’s the difference?

Leo: Yea, really (laughing).

Denise: The whole point of a license plate is so that the public can identify you and turn you in if you’re doing something wrong. And the police can identify you if you’re at a stop or so, someone needs to entrepreneurially come up with an alternative to the license plate. Float it out there.

Leo: It also feels like a little bit of a fishing expedition. Like they’re just sitting there. But I guess that’s what a police officer would do anyway if he had an APB on a license plates, he’d be looking at the license plates. This just automates the process. Don’t—isn’t there a long standing tradition though of the police and FBI hiding their activities in a van that has like the local pest control, right? Or is that just in movies? Are they not allowed to use other people’s trademarks? Can’t say you’re the phone company?

Denise: There is some degree of government immunity from lawsuit but this seems like a pretty egregious misrepresentation and taking of logos for a very unauthorized purpose.

Leo: I think you could just, just send a Philly cheesesteak to you know, whoever’s in charge over there. Larry Page and call it good. Here’s a—enjoy. Sorry, we didn’t mean to.

Denise: I don’t think that’s going to do the trick.

Leo: Sorry, Larry. We didn’t mean to do that. Well we are looking forward to Google I/O. It’s coming up. Normal Truck Look Elsewhere. That’s it. That’s how they should do it, right (laughing). We have a Wi-Fi access point called FBI Surveillance Van here in the studio. Have we ever figured out who’s that is? Jason, have you figured that out, used your Spidey sense? Because I think it might be Alex Gumpel. I don’t know.

Jason Cleanthes: I think it’s across the street.

Leo: You think it’s across the street?

Jason Cleanthes: Yea.

Leo: Is it that van?

Steve: In the van.

Leo: All right we’re going to wrap this up. Google I/O is Wednesday. Our live coverage begins then. We expect some VR stuff too. I wouldn’t be surprised to see—I would be surprised to see any Android Wear information. I feel like Google says, “We’re bored with that. That’s done.” I would be surprised to see anything about Nest. They don’t want to talk about that. It will be all upbeat. VR, maybe, I would love to see and maybe we’ve got a lot of Google developers here, bet you’d love to see this, too, the rumor that maybe the Chrome OS and the Chromebooks will have an Android Store in there and you can put Android apps on your Chrome OS. Would love to see that. It would be good for you, right? Yea. Good for me. Want to thank you so much for joining us. Great to see you again. Dan Gillmor. Anything you want to mention, plug that you’re up to?

Dan: We’re working on a new book but that’s so far away that it’s too early to plug.

Leo: Permission Taken.

Dan: But thanks for having me.

Leo: Is it about these privacy issues?

Dan: It’s partly about that.

Leo: Good. I look forward to that. We’ll definitely want to get you on when that comes out. And of course, if you’re lucky enough to be a student at the Walter Cronkite School of Journalism and Mass Communication at ASU, make sure you stop by and say hi and ask for Dan’s class. I want to also thank you, Steve Kovach, from techinsider.io. Always great to see you. What are you working on these days?

Steve: Same stuff. I mean just the sites going really well.

Leo: Nothing to plug?

Steve: Nothing to plug other than just visit Tech Insider and check us out. We’re approaching our one year anniversary which is a big deal this summer, so we’ve got that.

Leo: Did you guys just get a redesign? I really like the look. It feels like a new look.

Steve: No, same design from day 1. Again, it’s only been 9 months or 10 months.

Leo: Ok. Ok. You don’t redesign a whole site.

Steve: No, but yea, it’s a new look for the company as a whole for websites. BI doesn’t look much like that but we got updates, splash at the top and—

Leo: Yea, I love that splash, yea.

Steve: I’d like to see that look kind of bleed over to other properties.

Leo: Please forgive me for using an ad blocker. I’m sure you have tasteful ads somewhere in there that I am not seeing. Very nice. And Ms. Denise Howell, Ms. Denise Howell, always a thrill. Thank you so much for stepping in at the last moment. We had hoped to have Mike Elgin on but his connection from Mexico was just not good enough. But—

Denise: I’m so happy to be here, so happy I could jump on.

Denise: You’re the greatest.

Leo: Great to see you. Great to see Dan and great to meet Steve!

Steve: Nice to meet you, too.

Leo: This Week in Law, every Friday on the TWiT Network. Make sure you tune in. You’re around what, about 1:00 in the afternoon?

Denise: No, 11:00.

Leo: 11:00. That’s right it’s Scotts that’s on right after you, yea. 11:00 am.

Denise: TWiET’s on right after us unless they changed the schedule.

Leo: TWiET. Oh, man. Remember, it’s my day off. I’m very foggy.

Denise: It’s your day off.

Leo: I don’t know what I’m listening to (laughing). I know I listen though. I love it. Thank you, Denise, really appreciate it. Thanks to all of you for joining us. We do TWiT every afternoon, every Sunday afternoon at 3:00 PM Pacific, 6:00 PM Eastern time, 2200 UTC. If you’d like to stop by and watch live and be in the chat room at irc.twit.tv we would welcome you with open arms. We also love having a studio audience and a great studio audience today visiting from Spain and Majorca and Uruguay and other places all around the globe. If you want to be here, just email tickets@twit.tv. We’ll put chairs out for you. We’d be glad to have you. You can also download copies of every show, audio and video available at twit.tv and wherever you get your podcasts. So please subscribe so you don’t miss an episode. I’m Leo Laporte. Thanks for joining us. Another TWiT is in the can. Bye-bye. Thank you!