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This Week in Law 270
Denise Howell: Denise Howell here, and you are about to listen to This Week in Law. This week we've got Matt Schruers, Michael Weinberg, and Vankat Balasubramani joining me. We are going to talk about Tweets and Monkey's without copyright, felony k cup deviations, fallout of Aereo and net neutrality, and lots more on This Week in Law.
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This is TWiL,This Week in Law with Denise Howell and Evan Brown, episode 270, recorded August 8, 2014.
3D Nato and the Selfie of Doom
Denise: This episode of This Week in Law is brought to you by Personal Capital. With Personal Capital you will finally have all of your financial life in one place and get a clear view of everything you own. Best of all, it's free. To sign up, go to personalcapital.com/twil.
Hi folks, Denise Howell here, and you are joining us for This Week in Law. Happy summer to you! We are so glad that you are taking the time out to join us today because we have a slew of great topics to discuss and some really wonderful people to chew through these difficult topics at the intersection of technology and law. Returning to the show, the Vice President of Public Knowledge and 3D printing expert extraordinaire is Michael Weinberg. Hello Michael, great to see you.
Michael Weinberg: Hello, great to see you, too.
Denise: Great to have you back. Lots going on in Washington these days.
Michael: Lots going on in Washington these days. Everyone is busy. Everyone who is in town is busy. Everyone who is away is just on vacation hanging out.
Denise: Alright, well, I'm not sure how much hanging out you can be doing when you are getting pestered by Public Knowledge to come and help deal with some of the heady issues that you guys are plowing through here in the month of August. Also in Washington DC, probably not too far from Michael, is Matt Schruers, who is the VP of Law and Policy at the Computer and Communications Industry Association. That's CCIA for those of you into acronyms. He's also a professor at Georgetown Law and its program on Communication, Culture, and Technology. He writes for a really wonderful blog. For people who watch the show, follow the show, you have probably already come across the Project DisCo Blog, which has great coverage of the kinds of things that we like to talk about each week. So Matt, great to have you on the show…
Matthew Schruers: Thanks. Good to be here.
Denise: How are things at Georgetown these days?
Matthew: Unlike Washington, which never actually gets quiet in the summer, the nice thing about academic calendars is that it actually does get quiet in the summer. This is when all of the full time go off and do symposiums and conferences. Those of those who are just adjuncts and pretend to be faculty in the evening get back to our day jobs.
Denise: Wonderful. What are you teaching in the fall?
Matthew: In the fall I will be going back to my Intellectual Property Survey Course, which I always enjoy a lot. It's Intellectual Property for non-lawyers in the Communications and Technology Program in the grad school. It's one of a hand full of programs that is trying to familiarize non-lawyers with legal subjects that are increasingly unavoidable in the business marketplace. You just can't get away from IP in so many aspects of business today. It's a good idea to try and familiarize folks with issues that they may encounter even if they are not practicing law but might have to negotiate none the less.
Denise: Well, you couldn't be a more perfect fit for our show because that's exactly what we try and do here is get people to understand what is going on; highlight issues that if they haven't already come to their attention, will soon, and are important to them. Also returning to the show, one of our favorite friends and guests, Vankat Balasubramani. Hello Venkat.
Vankat Balasubramani: Hey Denise. Hey everybody.
Denise: Great to see you.
Venkat: Likewise. Thanks for having me.
Denise: Venkat writes for Eriq Goldman's Technology and Marketing Blog, and is a lawyer at Focal. He's up in Seattle. Anything else going on with you these days Venkat?
Venkat: No, but I did have the opportunity to convene with Eriq Goldman, my co blogger, in Whistler, British Columbia. That was super fun. You have these online exchanges that span a long time. I've met him before, but it's always fun to meet people face to face that you chat with over Skype or online. I thought I would mention that.
Denise: Yeah, that's really cool. I think that I am in the same boat that I feel like I know Eriq well and consider him a great friend, a great friend of the show for sure, and I don't believe I've ever met him in person. So that's the world we live in today. Let's go right into some interesting copyright stories.
(Music intro plays)
Denise: We always love talking about 3D printing when Michael is here with us. It's a great opportunity, because he is one of the foremost experts in the world on the legal issues effecting 3D printing. So let's go there first. There are a few different things we could touch on. First of all, the government is trying to make 3D printing files more widely available. Can you tell us about that Michael?
Michael: This is a really exciting thing that is happening right now. A couple of months ago an office in the White House, the Office of Science and Technology Policy, helped put out a memo from the White House to the entire government that basically said take steps to put any 3D files online and if you have stuff that could be scanned then scan it and put it up online. This is great, both because its Federal Government stuff, which means it's not protected by copyright. Basically it's ours already. And also, the Federal Government has a lot of stuff. So you could see a world full of all of these 3D printable objects that could just explode and expand the number of things that you can do with a 3D printer. In the months since we have seen something of a scramble among different pieces of the Federal Government to get their stuff online. We are seeing the Smithsonian Institution get their stuff online, the NIH get their stuff up online and NASA get some of their stuff up online. It's neat to watch them because they are all doing it kind of differently. Often, people think of the Federal Government as kind of a big, monolithic place. But actually it's very sprawling in a lot of ways. These folks are in touch with each other, but they are essentially running independent shops in trying to figure out how to do this. So you've got the Smithsonian Institution that has a massive physical archive that is working on scanning those things and putting them up online. So you have Abraham Lincoln's death mask, or you have Amelia Earhart’s flight suit, or airplanes, or whale bones, or wholly mammoth skeletons. And then you have the NIH, which has this combination of medical things that have been generated from data sets, so they have these super intense visualizations of bacteria. Or they have learning models, kind of simplified versions for people like me who don't know what bacteria really should look like. And then even some lab tools. Then NASA has all sorts of stuff. They have scans of asteroids. They have renderings of satellite dishes. All of these are available for free for download, and they are all trying to put more stuff up. So it's a great time to watch this happen with the Federal Government.
Denise: It's really, really cool. I hadn't even thought about all of the things that they might be able to make available. Thanks for giving us those examples. On the receiving end, does anyone really have a 3D printer yet that could print out a wholly mammoth skeleton?
Michael: I don't know that anyone has easy access to one that could happen at scale. Although there are programs that could slice it up and print it in tiny little pieces. There is actually a great project called “We the Printers” that people are doing. They are taking a bust scan, the first one they were doing was George Washington. They took a full size, actually more than full size bust of George Washington from a library museum in Baltimore and they chopped it up into a bunch of 4 X 4 inch squares. They had people all over the world print out their own 4 X 4 inch square and send it to them, and then they kind of pieced it all together. So I guess you could do the same kind of thing with a wholly mammoth skeleton, but for now I think you are mostly talking about printing out smaller replicas if you are on your own and you have limited amounts of time.
Denise: As Lego projects go that sounds like definitely in the 14 and up category. Alright, well, another thing that you recently highlighted on Twitter that I though was really cool; about things you could do with 3D printers. Maybe this is something we could see rolling off of NASA in a more detailed and to scale version. But there is a Mars Rover on Thingiverse now. I believe it is a toy Mars Rover, right? This isn't to scale?
Michael: Yeah. There is a toy Mars Rover. This is cool for a couple of reasons. One, it's up on the screen there, and it's a really detailed version of it. You print it out and assemble it. You see there, all the different pieces are broken up. So you don't print it as one model, you print it in pieces and assemble it. Actually, they released probably three or four years ago, a different model of the Mars Rover that was much less intricate. It basically was as good a model as you could print on a desktop 3D printer a couple of years ago. To see this one, the improvement is incredible leap of quality even at the desktop level. In addition to being just neat in and of itself, it's a good way to track the evolution of what is possible with the desktop 3D printer. It is just getting so much better and so much faster.
Denise: Are there national security and or trade secret considerations that come in to place as far as what the government will release? Obviously, there must be.
Michael: I'm sure there are. There are plenty of physical objects that the government has that I don't think that they will be scrambling to release. You won't be printing out weapons systems from the Department of Defense anytime soon. There are plenty of things in that other category that are fine. You can just kind of go down the list and imagine all of the samples that the EPA has, for example. The Department of Interior, they have probably both artifacts, and they probably have scans of huge areas. It's not hard to imagine. The technology is certainly out there to scan all sorts of National Parks, or the Grand Canyon, or something like that. Then be able to render that, and take it, to print it at home or imagine it being in a classroom. As you start thinking about all of the nooks and crannies in the Federal Government, of places that they may already have this data for various reasons, it's a huge treasure trove of information.
Denise: You touched on the fact that because these are government properties they are in the public domain. Are there some nuances to that? Some things where the government, or someone retained by the government, might assert a copyright in these kinds of items?
Michael: Generally speaking I want to say just no. There are no nuances what so ever. The government is not eligible for copyright protection. Unfortunately, it can get complicated if something is the creation of a contractor. The person is not actually part of the Federal Government. We and a number of people have been talking to the Federal Government about finding a better way to label those things. It should be if you go to a government website and you find some kind of government resource that it should be part of the public domain and you can do whatever you want with it. But because you sometimes have to worry, there should be a better way to figure it out. I was working with some people who were just trying to download all of the headshots of the members of Congress. And they were a little bit worried that if Congress had brought in an outside contractor then they couldn't assume they were in a public domain. We got in touch with the General Services Administration, and they walked us through it. They said it was fine, but it's a shame that it had to go that far. It would be so much easier if there was some sort of mark, almost like a creative comments public domain kind of mark, that would go on these materials so that people would just know and be confident that they are available and in the public domain. Most of the stuff on these sites; for the Smithsonian, for NIH, and for NASA is in the public domain. So go print download / print it. Have fun with them.
Denise: Have you ever paid attention to the White Houses' Flickr stream and copyright notice that they applied there?
Michael: Yes! I'm so angry about that. I've have an angry blog post about that.
Denise: Tell us about that.
Michael: The White House does this and many parts of Congress, especially committees, do this. They have this weird disclaimer on it that doesn't explicitly claim copyright on that. It just lists a bunch of restrictions on what you can do. They say this is only for personal use or news gathering purposes. You can't use it for this whole other list of things or to imply endorsement. The result is kind of a chilling effect for people who should just be able to use it. On one hand, you understand why someone in the government should decide to list all of these restrictions, but you take that to the extreme. There are all sorts of things you can't do with an official OIS photograph. You can't use it as part of mail fraud. That doesn't necessarily mean that you should put a warning up on a site and say, oh yeah, you can't use this for mail fraud. You can't use it for an elaborate assault on somebody. You should just say, look, this is in the public domain and you can use it as you see fit. So we have also been talking to the White House and some of the Congressional Committees that have both photographs and videos of their proceedings to make it super clear to people that these are in the public domain and you can do whatever you want with them of course subject to existing criminal statutes and other random things that would apply just generically across the board.
Denise: Here is what it says now. As far as the copyright notice goes, they have a link to the US Government Works page that explains what a US Government Work is. But then, it looks like for every picture they have text in the description of the picture that says, "This official White House photograph is being made available only for publication by news organizations and for personal use. Printing by the subjects the photograph may not be manipulated in any way, and may not be used in commercial and political materials, advertisements, emails, products, promotions that in any way suggest the approval or endorsement of the President, First Family, or the White House." That seems like not consistent with actual Government Work copyright page that they link to.
Matthew: I have a thought on that.
Michael: Go ahead.
Matthew: This is the copyright views. Sometimes people refer to it as copyright views; sometimes they call it copyright fraud. I don't think that this as an egregious as example. You can open just about any published book and you can often find an extended paragraph in the fore matter that attempts to control what you do with the book. Including things like, "Do not introduce into an electronic retrieval system." Which is essentially what we have found out from Federal Courts is lawful under copyright because of the Google Books litigation or all sorts of other crazy things. The sports leagues have all sorts of things that they say you cannot do. Just because the demand is made doesn't mean that the demand is enforceable. I think that an example is that the copyright law is supposed to work as an incentive. But here the White House has totally understandable desires about information control. They don't want people to say use photos of the First Family to imply endorsement of some product. Copyright law isn't really the mechanism to achieve that. So you have this language that has sort of been crafted to imply that that is still controlled by the Copyright Act as opposed to say some other provision of the law.
Denise: Right. Is it too much to expect precision on copyright law from the White House? I don't know, maybe it is.
Matthew: It should not be.
Denise: It's a nice example for the rest of the country.
Matthew: Years ago we actually complained about this. I had some dealings with the FTC and generally a lot of the folks who were engaging in this type of activity were like, well, it's just too complicated to explain to everybody how these things work, so we will just use some very officious language and hope that people don't do anything wrong.
Michael: We will just scare everyone away.
Denise: Well, that is a sad thing. But I'm glad, Michael, that you are paying attention to how the government is rolling out its 3D resources. That seems like we are at just the tip of the iceberg on how great these resources are going to be. Let's talk about Amazon's 3D Printing Store, which people may not be aware there is one on Amazon now. They are calling it Shop the Future. It's like Thingiverse, but you pay for things, right Michael?
Michael: It's sort of a hybrid between Thingiverse and what a company called Shapeways does. Amazon got into 3D printing a couple of months ago when they started selling 3D printers and equipment for 3D printers. Now they are dipping a toe even further in. It's not quite like Thingiverse is where there is a huge range of stuff. There is sort of a limited universe of things, but those things are all customizable. So you can go, you can find, you can change the design on things, you can change the colors and patterns. And they will print them out and ship them to you. It's a good step for 3D printing. It will be interesting to see as Amazon gets more engaged with 3D printing how they will decide to go about it. It's certainly a suggestion that their first 3D printing store was successful enough to justify building a second version of it.
Denise: And Kat, what do you think about the copyright compliance that Amazon will have to do in determining what they are allowing for sale in its 3D printing store?
Verkat: That's a good question. I imagine they will take the route of standing behind their DMCA Policy. That should offer them some level of protection, but not necessarily 100%. I imagine they are selling designs that third party would offer. I haven't taken a close look at their store to the extent of how they do that. It's probably somewhat similar to their existing marketplace that deals with Trade Mart and other claims in addition to copyright claims. I think that some sort of a notice take down is what they will do. It will be interesting to see in the future what sorts of claims people assert and to what extent the take down regime allow Amazon to escape liability. I must confess I have a very limited understanding of the scope of IP protection over 3D printing so if Michael wants to chime in I am very curious to hear his thoughts on that as well.
Michael: I think that for them this is a slow process, so it's a much curated marketplace. I would be surprised if they didn't have a business relationship with everything that is featured. The question about what happens as those marketplaces' scale becomes interesting. It depends on who does the printing. As a virtual space, on some level they do have DMCA protection. But if they are then manufacturing the object, it becomes an interesting question as to if the DMCA protection, that would protect them if they were YouTube and streaming a video, would extend to them if they are printing and sending an object.
Verkat: Right. And I think that a case that involved CafePress recently sort of didn't touch directly on this issue but talked about online vs. offline protection for the DMCA. It kind of raised these interesting issues. Some people filed an amicus brief that I actually helped write as well. I think that area of the law is very interesting and 3D printing will definitely have a lot of nuances.
Denise: Matt, your colleague at Project DisCo, Sarah Feingold, who I am pretty sure we have had on the show before, has a great article on copyright compliance and Etsy, which faces similar kinds of issues. They are dealing with a whole vast universe of people submitting items for sale. There is only so much vetting they can do, and only so many terms they can get people to automatically click through without reading and not necessarily understand as their obligations as submitters. Do you think that Amazon is opening a can of worms here?
Matthew: No, not particularly. I think the CafePress is sort of a similar situation here. I don't think we see CafePress as being particularly rebellious in their legal activities. They are providing a service at the other end of the network. I see 3D printing as a natural evolution of that. For that reason, it would make sense that the DMCA would apply. Having a DMCA Policy at the platform would solve the sorts of problems that we might expect to arise here. Amazon, or anyone who is offering sort of third party hosted 3D printing, is going to have to rely on claims by rights holders' saying that, I own this and it needs to come down. It's simply not possible for any intermediary to vet and validate who owns what when you are dealing in such large amounts of content. If you go back and read the legislative history of the Digital Millennium Copyright Act, which I'm sure everybody does, you know that they...
Denise: Every weekend!
Matthew: Right, you know, I've got mine by my bed.
Michael: I will see you tonight, Matt. It's our group reading Friday night.
Denise: Your book clubs in D.C. must be pretty funny.
Michael: Oh, they are hot.
Matthew: But there is this part in there where Congress is saying, you know there is 800,000 links in Yahoo. How could anybody possible police that? It was 1998 and they were worried about 800,000 links. Now the indexable web is in the billions. You simply need to have this kind of system where the intermediaries are reactive. They do what they are told to do when they are told to take things down. I think Amazon will have to be in the same position. I'm sure they are up on their DMCA compliance or they wouldn't be launching this.
Venkat: I think one point that is worth highlighting for viewers is that the DMCA applies to copyright claims. Trademark claims have followed suit, and most intermediaries have implemented a notice of take down, and for the most part have achieved similar protection even though there is no special statute that protects intermediaries. I don't know to what extent 3D printing will implicate just copyright claims. I assume the designs themselves will have copyright protection, but presumably whatever the objects produced could have other; I would assume patents will figure in as well as other rights. So that's worth clarifying for everybody. The DMCA deals with copyright. That's a big chunk of it, but it's not the entire story.
Michael: It's really interesting to watch, you are right. DMCA only applies to copyright. All of these companies that are doing the printing, and even somebody like Etsy, they are getting trademark claims. In 3D printing you are definitely starting to see more patent claims. Those trademark owners and those patent owners, they tend to just sort of do a quasi DMCA process where they send a letter and the site complies and gets taken down. It's kind of been grouped into the social norms of rights holders in websites. It's an open question; you certainly start to hear people talk about it, whether or not at some point that will need to be formalized into the DMTA or DMPA that formally builds a notice of take down structure around trademark complaints or patent complaints. In the absence of that, it's just kind of interesting. I don't know that I would have expected it to be so engrained into lawyerly social norms. That they just send what look like properly formatted DMCA take down requests for patent things and trademark things.
Denise: It's sort of wishful thinking probably.
Matthew: It's not always wishful thinking, in the sense that a lot of services do honor what they perceive to be valid complaints even though the complaint compliance is not required by the DMCA. So there are platforms that will honor trademark related take downs if they think that the complainant is within their rights. You also don't necessarily want mandated DMTA, for example. You could imagine what you see a lot of the luxury goods vendors doing in Europe happening here in the U.S. Where they decide that high priced handbags or leather goods, I'm not an expert in these things, but they always seem to be the plaintiffs in these cases, shouldn't be sold online or shouldn't be sold second hand. There was a long attempt by certain luxury goods owners to go after EBay. EBay ultimately prevailed in that litigation. They certainly didn't want their goods being sold online. They wanted to be able to control aftermarkets for their own goods. Fortunately, I think those efforts largely failed. You could see them recurring if you had something institutionalized like legally required notice of take down. Right now we sort of have an informal practice; you might even call it a gentleman's agreement, among these industries. They seem to honor legitimate ones in some cases. In a lot of environments that's not going to work. You wouldn't want to see Disney running around, for example, filing take downs on the basis of people selling used Disney lunchboxes.
Denise: No. We wouldn't have an internet left if you had to take down all of the Disney and various other things that are being resold. I was unaware that there had been a big scuffle with luxury manufacturers and EBay. That's fascinating. Of course it sounds like the right legal decision for EBay to prevail, but it makes perfect sense that there's at least attention paid there. Obviously, you said that you aren't a big expert on the leather goods. I'm not a big expert on them either, but I do, from time to time, go into a department store and it just floors me that you can buy a handbag for $10,000.
Matthew: Just think how much money as a vendor you are afraid you are losing from those secondary sales. Even if only on of ten of those goods that are bought used might have been purchased as a primary sale, that's still a non-trivial amount of sales that you could make. If you could reach out into the aftermarket and control all of those sales and stop all of those transactions you could make a lot of money. It would basically mean that people who bought their stuff don't really own their stuff because they can't sell it. Fortunately, U.S. law is pretty hostile to that notion.
Denise: Well, I think we will have a chance to talk about that a little more when we talk about cell phone unlocking later in the show. Right now, let's wrap up our copyright stories and have Matt tell us about your session with the House, right? You were in a House Hearing this week, I think, on copyright damages?
Matthew: That's right, yes. A number of folks, including Michael's colleague Sherwin, and I were testifying before the House Judiciary Committee, which has had a long string of hearings now. Somebody told me that they were up to fifteen or sixteen hearings exploring various aspects of U.S. copyright law. This particular hearing was focused on remedies. Primarily, two issues, I should say three, came to the fore front in the hearing. One was about the so called felony streaming issue. Another one, which I was principally focusing on, was about statutory damages. The third issue was about a proposal to have a small claims court for copyright. They are all very different issues but fell under this common heading of remedies under the Copyright Act. So the committee decided to bundle these subjects up and bring a bunch of folks in to talk about it. Each one is kind of a different kettle of fish.
Denise: Right, exactly. Tell us about felony streaming.
Matthew: Due to a quirk in how, I shouldn't say this, you could characterize it as a quirk or you could characterize it as intentional policy. Right now for criminal copyright enforcement, the felony penalties are only available for reproduction and distribution. Let's step back a little bit. The Copyright Act isn't just the right to make copies; it's a bundle of rights: reproduction, distribution, the right to make derivative works, the right to publicly perform. Those bundles are really what the copyright holder controls. That means a lot of different things. It means the right to make copies of the book, but also to sell copies in the bookstore, to have the Hollywood adaptation, or even the lunchbox. Those are all exercises of the copyright. When our felony copyright penalties were created they only applied to the reproduction and distribution rights. Which sort of makes sense, because at the time that was most of what was happening with respect to criminal piracy enterprises. They were making unauthorized copies of things and selling them. But now, the concern is that more criminal enterprises are unlawfully streaming things online. One of the big complainants in this area are folks that do pay per view streaming of things like niche sports like these cage matches where they put two guys in a cage and they beat the pulp out of each other. The primary business model there is streaming. If those streams are getting hijacks and restreamed by an infringing site, then that's a big problem and yet, under the current interpretations of the law, only misdemeanors can apply. These online streaming folks are saying, hey, why shouldn't we get as much protection as the publishers who publish Harry Potter? That's sort of the issue that is before Congress now. It's being kicked around. It came up during the ill-fated Stop Online Piracy Act debate a couple of years ago and crashed and burned when that bill went down as well. That's just sort of coming back.
Denise: Okay. Let me ask you this before we go more into the details of the hearing. Overall, does the fact that there is this stream of hearings going on mean that we are going to see some movement on copyright reform?
Matthew: No. That is my short answer. I don't. Here's why.
Denise: Now I feel sad.
Matthew: I think that there are a lot of aspects of how we structure the current copyright system that could be improved. We could also make it far worse. If you look at how hard it was for Congress to fix something that was ridiculous, the cell phone unlocking problem you talked about, which was not Congress' intent. They had no desire to control people's ability to resell their phone, but now that was an unintended side effect of the DMCA. Yet, it took years to get a tiny, imperfect fix into the statute. So given how long it took to solve that one problem, I'm not optimist that Congress in its current condition can effectively resolve the numerous issues that are out there. Their sixteen hearings, fifteen, have dealt with far more than that number of issues. There are as many complexities in music licensing as there are in the remedies area. I see a comprehensive reform as unlikely. I do think there will be an effort to fix some narrow issues, and it's possible that those items could be broken off and legislated separately. If I had to bet on it, I would be against a comprehensive reform at least anytime in the near future.
Denise: Yeah. There seems to be consensus on that point. Let's look at why, Matt, I need to know why Michelle Shocked did a nonexistent song named after you. Tell us about that.
Matthew: I know. It was 45 seconds. So it was my 45 seconds of fame there.
Denise: What happened there?
Matthew: A number of folks put together a briefing for Hill Staff about the ASCAP and BMI, which are the big performing rights organizations here in the United States that more or less control about 90% of the performance rights. So when things get played on the radio, or television, or certain online services, these are the entities that collect the money and hand it out to artists. So basically, you have two organizations that have acquired all most all of the rights in the country and they pretty much set prices. The Department of Justice didn't take kindly to that in the mid twentieth century. So they sued these guys for being cartels, essentially. On the other hand, they also acknowledged that they were serving an important role. What's happening now is they are operating under Anti-Trust Consent Decrees. So they are functionally constrained on what they can do and what they can't do. They continue to do the transaction cost reduction that needs to happen for music to be played on the radio or other services. But also do so in some way that is supervised by anti-trust. So these Consent Decrees are out, and they are both kind of dated by now. ASCAP's was updated about twelve or thirteen years ago. They are not functioning particularly well. There have been a number of cases brought where Federal District Courts have said that, yeah, these PROs are acting noncompetitively notwithstanding the consent to create. So the Department of Justice, on its own accord, said that they were going to take a look these Consent Decrees. So we put together this panel on The Hill to brief folks. At some point along the way, some fellow got upset, made a scene, threw some t shirts at us, stormed out, and he later blogged about it. A number of the details were wrong and the whole thing got billed as a Congressional Hearing, which it wasn't. So Michelle Shocked read this and decided that those of us who had participated in the event and a bunch of other completely random folks, general councils for companies, some fellow who writes for Yahoo Music; we were all the bad guys, the twelve horsemen of the music apocalypse or something. We are all now title tracks. I'm still waiting for her to come to me and ask for a publicity right's license.
Denise: Right. There is some precedent for what she did. She didn't actually put anything in these tracks. They are silent.
Matthew: It's a crafty idea. I think that some other artists have done this before. They basically put silent tracks on an online service, in this case it was Spotify, and when those tracks play Spotify has to pay. They basically pay out for the performance rights. What she said was that if people play this music it will fund my tour. The idea is that because its silent music you could just leave it playing on overnight and indefinitely and Spotify will compensate folks. Someone else did this, but I think that Spotify took issue with it. That wasn't what they quite had in mind in offering their service. So it came down. I haven't checked if you can still listen to 45 seconds of Matt Schruers in silence on Spotify.
Denise: Someone please check for us. I think that the other band that did this, or the one that we talked about on the show, was called Wolfpeck, maybe? Wolfpack or Wolfpeck.
Matthew: Right. I think that they actually did make some money off that. It was an inventive technique for getting their tour funded.
Denise: It is certainly inventive. Let's talk about the copyright ability of a couple of things near and dear to people's hearts. The first being Tweets. This is something that has come up again and again on the show with the teeing of the issue being could you have a copyright on something so brief and oftentimes informational rather than creative? Of course there are so many different creative uses of Tweets. I was just reading in Wired magazine yesterday about a guy, I'm forgetting his name now, who published an entire short story by having his friends initially Tweet sentences of the story and then he would retweet them, so it looked like he was gathering them from around the web. Certainly, this seems like a very creative use and something that might be able to trigger a copyright. Maybe other Tweets might now. Over at Techdirt, Gabriel Miller, who writes there, decided to do an experiment. Back in January he had an exchange about an A.O. Scott, who is a film critic for the New York Times. A.O. Scott got upset because a couple of lines in one of his Tweets were pulled out and used by a film promoter as part of a full page ad promoting the film. I have the feeling this kind of thing happens all of the time. It's one of the hazards of working for the New York Times. You positively review something then people are going to pull out and want to use that to advertise their wares, whatever they may be. Here there was a discussion about whether you could actually use copyright, getting back to maybe using copyright law for more purposes than it was intended, to pull down the Tweet under the DMCA. You could go back and forth on that issue. The experiment that Gabriel did was take one of his own Tweets, pay $35, send it in to the Copyright Office, and try and get it registered. I'm not sure how long this process took. He said 7 months and $35 dollars later. I don't think the request was pending quite that long. He got a rejection from the Copyright Office saying, no, sorry; your Tweet is not copyrightable. What can we conclude about the copyright ability of Tweets from this, Venkat?
Venkat: I think that it depends, to give the typical answer. The Copyright Office rejected, it was a great blog post and a great experiment, by the way, and well worth reading, rejected his attempt to copyright a Tweet. They cited the circular that talks about short phrases and expressions not being copyrightable. He filed a short response, or submission, because the copyright registration process allows you to include comments along with the registration that sort of explained why he thought that Tweet number 452 should be eligible for copyright protection. But, that didn't change anyone's mind. There is an appeal's process. I don't know exactly what it is called. He decided not to spend the money to further push the envelope and see if he could get somebody to change their mind. I'm with you; I think that short phrases and expressions is just a short hand to say things that are not of a certain length we don't think of as being copyrightable. But, that's not always the case. I think we can think of creative expressions that are just five words long or around that length. There is no reason why there should be an absolute bar. I think it was an interesting anecdotal look at whether or not something that short can be copyrighted. My recollection is that the law is somewhat mixed. There are examples of short phrases being afforded copyright protection.
Denise: Matt, this kind of example makes me think about whether our whole registration system jives with technological realities these days anyway. I remember back when I first started blogging in the early 2000's there was a flurry of people and hand ringing around whether we have to copyright each and every blog post. Send it in, $35 fee, register it, and you know, this is just a more compressed version of that. Obviously, you don't have to. Well it's not obvious. For people who are not lawyers it is not all that obvious. You do not have to physically register and pay that fee in order to enjoy copyright protection. But if you ever hope to follow up on your DMCA take down notice and bring litigation about the thing that you are complaining of; you have to have registered the copyright. Do we need to rethink this whole process?
Matthew: You are sort of getting to the primary tension in copyright law, which is that we want to have the bar low enough that the incentive to create is a meaningful incentive in the cases where it is necessary. But we have also chosen to have the bar there, to some degree, for a variety of reason, including that you don't want to have frivolous disputes. You want someone to assess whether or not something was creative before necessarily launching a federal case. Just like the patent system, there is a good argument to be made of having a list of all of these federal entitlements that the government is handing out. It's just a very challenging time. My argument would be that it’s never been easier to have a low cost registration system. We could even have a mandatory registration system. There are problems with the fact that every Tweet is potentially copyrightable, that every email is potentially copyrightable, every photo taken by a non-primate is copyrightable, right? That is kind of a problem in the sense that there are potential liabilities attached to every piece of communication on the internet. I also appreciate the concern as a blogger myself. It's true that by not registering every post I make I forfeit some potential benefits under the law. The Copyright Office has been working to try and solve these sorts of issues. Particularly in issues where like photographers, they have been rolling out files for batch filing large amounts of works because photographers will take thousands of shots in a shoot perhaps. $35 for each one of those is just implausible. My view is that, in fact, the registration system is more important now than ever. Trying to figure out a way to get people to register what they think requires protection in a low cost easy way is something that should happen in a copyright reform. It's also something that is unlikely to happen because it would be such a radical shift from how we do things now.
Denise: I will run this by Venkat to fact check myself. If you do decide, okay, this one particular thing that I haven't registered is the one that I'm going to maybe have to sue over. Then you register that right before you file suit. That's still perfectly okay, right?
Venkat: It is, yep.
Matthew: In fact, it doesn't even have to be registered. You can file the form with the copyright office, and you don't have to wait for them to get back to you before you initiate the litigation. It might turn out that during the litigation that the Copyright Office comes back to you can says, hey, you know what, that's not protectable, and now you are in trouble. But, your only obligation before going to the Federal Courthouse is to file the form VA on your selfie. That only costs $35.
Denise: Michael, any thoughts on this before we move on?
Michael: Just that I think that Matt is right. We are in a world where whether or not a Tweet can be copyright protected, a lot of things can be. There is a huge value in making sure that we do have a list of central registry of what is protected. It should be super easy, especially when you think about photographers and things. There is no technical reason why a low cost registration couldn't be built into the work flow. There is not technical reason why, if you are a photographer, every time you save your photograph in Photoshop that it automatically registers it with the Copyright Office and you pay whatever it is, $100, $200, $500 a year to do that. Or even a blogging platform. There is no reason that WordPress couldn't have a plug in that connected directly to the Copyright Office. If you were a blogger and you were worried about suing someone in the future, you pay some sort of flat fee to connect. Every time you publish a post it's automatically submitted for registration. There are a lot of "easy" technical solutions to the problem of registration as a barrier. We can have a long conversation about what should or should not be protected by copyright. But as long as it's protected, there are huge benefits for everyone knowing what it is and who the owner is.
Denise: I'm worried that as more and more people are creating, and I'm using the word creating in a legally significant way, works, and they are people who don't consider themselves authors or photographers. But yet, they are out there using the tools that exist to create things. I wonder whether being given the option to pay $200 a year associated with your Instagram fee is something that people would really jump on.
Matthew: It's sort of the problem that we have now with patents, right? People come up with inventions and innovations which they may well be disclosing to the public without necessarily realizing. But we don't bestow upon that inventive activity legal protection unless they have gone through the formalities of filing the patent and prosecuting it, which can cost a lot of money. I've always thought it very strange the hostility that we have towards registration isn't also directed towards the Patent and Trademark Office.
Denise: Right. God knows I don't want to open the floodgates of copyright litigation though an automatic registration system, which is certainly what would happen. Especially if we had a small claims option.
Michael: That's not where to fight that battle though, right? It's not that you have the registration, it's because the thing is already eligible for copyright protection. If you are worried about people having too many copyrights, the solution for that isn't to make it really hard how to identify who owns them. The solution is to dial back how easy it is to get non registered copyright protection. But once you come to terms, I'm not saying I have come to terms, but once you have come to terms the boundaries of what is going to be protected by copyright, it feels like there is a lot of upside to what's in there.
Denise: Sue the writer is asking in IRC, "Why should I have to pay to get a right that I supposedly have upon creation of the work?" You aren't paying to get the right is the problem. It's kind of a technical distinction, because in order to enforce the right is when you have to pay. Maybe it's a distinction without a difference.
Matthew: Well, you certainly do have to pay today, yes. You just have to pay to get into the courthouse as opposed to get it automatically. But you still are going to be out $35 if you intend to enforce.
Michael: But it's a potentially huge benefit, right?
Denise: Because the damages are so high. Alright, well, speaking of things that are copyrightable and subject to high damages, let’s trying to figure all of this out. Whether or not you are a primate, aren't we all primates actually anyway? I don't know. We will have to get a zoologist in here. Way back in July 2011, for those of you who are long time listeners of the show, you will remember when we discussed the delightfully cute selfie that was taken by a monkey when the photographer left the camera there intentionally or lost the camera. Maybe that's significant for the copyright analysis. The monkey took a photo of itself that is just wonderful. I'm sorry that I didn't put it in our rundown to quickly be flashed up on the screen. Someone will do that, I'm sure, and let you know what it looks like, for people that are watching. There you go, he's so cute, or she. I'm not sure if we have a female photographer or a male monkey photographer here. We wound up talking about this story because the person who owned the camera, and claims to be the photographer, even though the monkey took the picture, has made various efforts to enforce his copyright. Back in 2011, there was not any actually any DMCA take down notice submitted to Mike Masnick at Techdirt, but more like an informal letter from Cater's News saying that it represented David Slater with respect to this photo. Mike refused to take it down. He went through a whole thing saying I cannot figure out how you have copyright in this photo. The photographer was the monkey. So Mike stuck to his guns, did not take it down, and that is what Wikimedia had now done, too. The photo file has been up there for people to use all of this time. When recently they were asked to take it down, they took that position that it was in the public domain. We are going to go ahead and make "Monkey Selfie" our first MCLE pass phrase for this episode for This Week in Law. Because how can we not? If you are listening to the show for continuing legal education credit we drop these phrases into the show so that you can demonstrate that you have watched or listened should you have to. Michael, what do you think about the monkey's copyright, or anybody else's in this photo?
Michael: Yeah, I mean, you know, every lawyer's joke that could be made about this has been made. I think my favorite point that I have seen has reemerged besides talking about if you incentivize creation is it a first step towards Planet of the Apes type takeover? Somebody who works here in Washington, Brandon Butler, who is now at American University, was the first person who flagged this for me. He suggests that perhaps this was just a good story gone badly where the photographer actually took the photograph and then decided that he would get more attention by saying that it was a monkey selfie. When he was unable to take it down and it went viral he was kind of stuck in his own trap of lies. I have no idea if that is true or not, and if he is litigious I hope I don't get a notice of being sued for defamation. It's a version of the story that does not feel crazy on its face. Maybe it is a fake selfie and he never gets to claim it because he missed that opportunity, which is a lesson for children, to always be honest.
Denise: Yes, definitely. We have a law professor with us. Can you shed any light Matt?
Matthew: Well, so, I think Mike Masnick's and Wikimedia's analysis here is entirely correct. The copyright office circular on this is pretty unambiguous. It would apply to other things as well, not just monkeys. If you have a machine that generates random patterns or random data then that's not protectable. There have been cases where businesses have attempted to secure copyright on randomly generated data that hasn't been deemed sufficiently creative. It's built into the statute that it needs to be a body of originality implicit in that it comes from a person. This got misreported as the monkey owns the copyright, and then there are all of these questions about well, can I hire thousands of monkeys with thousands of typewriters? That's wrong; it's actually that there is no right, which sort of confounds people, the notion. A number of people have said this; the notion that no one owns it strikes people as foreign. I think that is the right outcome. This is sort of like the copyright law's equivalent of Schroeder's cat. Everybody is going to love to talk about the monkey selfie indefinitely. We will never get away from it.
Denise: Have you put it in a law school exam yet?
Matthew: I have not. The problem is that everybody is going to do it, and then it will be like a duck question.
Denise: That's right, so unoriginal now. Venkat, any thoughts?
Ventkat: No, just a fun story, definitely. Even coming back a couple of years later it's still as interesting as it was the first time around. It's fun to hear all of the theories and speculation about it.
Michael: I will say we had a fight here at the office about like, if you had a camera set up and you pushed a lever to take a picture, then you have the copyright. But then, further down the list, what if you trained the monkey, like you taught the monkey how to do it? Then do you have the copyright? What if you put electrodes into the monkey's brain, so that you were actually controlling the monkey? How far do you go down this scale of control before you are no longer allowed to say you are the right's holder? It is an interesting thought experiment as you anamorphize technology.
Denise: What if the monkey is wearing Google Glass and just nods his head? I don't know. You have to tap it, not nod. It's fun to think about. I had to update you all that were listening back in 2011 to let you know that Wikimedia has weighed in on the public domain front. Let's take a break really quick to thank our sponsor for this episode for this week in law, which is Personal Capital. Summertime is an amazing time to put Personal Capital to use for you because your money is very important to you, obviously at all times of the year. But, when you are trying to organize summer travel or camps for your kids you can wind up with some big expenses for the summertime. Or you can wind up being out of town unable to go through your regular process of keeping tabs on your finances. Personal Capital could be very convenient for you under those circumstances, too. It solves the two main barriers to growing your wealth. The first is that it is hard to keep track of everything. Certainly it is hard to keep track of everything while you are on vacation. You have stocks, you've got your 401k, and you’ve got your bank account. They are probably all on different sites with different user names and different passwords. Goodness knows, if you like to leave your computer at home when you are on vacation and try and manage things with your phone or your smart watch that's going to be an issue for you. The second is that you are paying someone to manage your funds, and you might be paying too much. Personal Capital, though, will bring all of your accounts and assets together on a single screen on your phone or tablet, if you are traveling, or on your computer at home with real time and intuitive graphs. Personal Capital has an award winning watch app, too. This is even more important when you are running around. You can download in Google Play, and it seamlessly integrates with Personal Capital or other Android devices and provides users with relevant and timely updates on their finances whenever and wherever they need it. If you find yourself on a beach in Hawaii and yours stocks are tanking then you are going to get an alert and be able to take some ameliorative measures if need be. Personal Capital shows you how much you are overpaying in fees, too, and how to reduce those fees. You also get tailored advice on optimizing your investment. So why wait? Now is the perfect time. Signing up takes just a minute and it will pay big dividends. Personal Capital gives you total clarity and transparency to make better investment decisions right away. So go ahead and set up your free account by going to personalcapital.com/twil. Personal Capital is free, and the smart way to grow your money. Thank you so much Personal Capital for your support of This Week in Law. Let's move on to some more copyright related issues on the entertainment front.
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Denise: The Aereo decision came out, goodness; let's see, almost two months ago now. We've had just a minor development in that case this week when Aereo filed some documents. Eriq Gardner over at THR, ESQ. got hold of them. I think their motion was withdrawn. I don't know if those documents are part of the public record any further. But, in those documents Aereo was pleading with the court to give it some kind of relief and sympathy because there were statements in there about it bleeding to death and having dire financial trouble in light of the Supreme Court's decision. Matt, you wrote a really, really nice detailed post the day after the Aereo decision came down over at SCOTUSblog analyzing the decision. Just amazing impressive how long that decision was and how quickly you had such a dead on analysis on the web for people to be able to try and grock the case and figure out what is going on. You talked about a couple of things in there that I thought we could pull out here because we really haven't talked about it on the show yet. One of the points that really struck me in reading through your analysis was this possessor language that the court used in trying to save cloud services in its efforts to limit the case to area situations only and not to something like Dropbox. The court used language that if you were the owner or possessor of the media in question then you would not trigger liability by uploading it to something like Dropbox. I'm paraphrasing and probably getting it wrong. I thought this possessor language was really interesting because it brings into question, the whole lockering discussion brings into question, things that have been resolved in copyright cases before. Perhaps the Aereo decision actually breaks some of those open. The original MP3 Tunes Case that was very famous, at the time had, I think, the largest copyright's damages decision at that time. I think other things have blown by it since. MP3 Tunes got in trouble because they were letting people rip and then locker their music. Actually, MP3 Tunes matching process, so maybe it's not quite a one to one correlation. I'm thinking that under the Aereo decision, ripping and lockering, if they are carving that out, might be just fine. What do you think?
Matthew: I think you are, on the specific question, yes. It was mp3.com. MP3 Tunes is still in litigation about a number of very technical issues. The mp3.com case was twelve or thirteen years ago now? They were sued, although the lawsuit was filed before the service went live. They were doing the matching on the back end. It's not quite the same that is happening now with common cloud services. MP3 Tunes was actually uploading content on their end, and then when you came in to access that content, if you could prove you owned it with a CD then they could give you access to content in the cloud. It was essentially going to be one copy for many users, and as we sort of know from many cases now, that won't work. The cloud model of everyone has access to a copy that they have created is sort of generally accepted. Aereo was an example on the edge of that hypothetical where it was being created virtually, remotely, when you would gain access to the file by virtue of renting a broadcast antenna. I don't think mp3.com would have come out differently under this situation, I'm sorry, under the Aereo case, although, I do, as you point out, I think that the most important takeaway is that there is some ambiguity although also some encouraging language around that phrase "owner" or "possessor". It does seem to suggest that the court thinks putting stuff, your stuff lawfully acquired in the cloud is okay. Of course, I think, as most copyright lawyers will immediately start thinking, well wait a minute, a lot of times people may possess stuff but they are more accurately described as licensees. You don't own a lot of the media you now have at your fingertips. You are a licensee of it. Is that covered? I think the answer is probably yes. It certainly ought to be yes. It was language that I suspect was chosen because of this very poorly conceived hypothetical that came up in the oral argument about a valet service for cars. The plaintiffs for the broadcasters went in there with this valet example saying if you bring your own car it’s okay for somebody to valet it for you, but if you show up without a car they can't give you one. That was sort of an effort to describe Aereo which fell apart at all sorts of detail levels. But, I think it actually influenced the court's thinking. That's where we got the language in the opinion.
Denise: We are going to have to call this episode "A Few Years Ago in Law" instead of "This Week in Law" because we are talking about all of these old cases today. The other one that came to mind in reading your analysis of Aereo, Matt, was the IVTV case that was in about the 2011-2012 time frame. IV, unlike Aereo, did not have tiny antennas. Instead, they were giving you software that would allow you to do live video streaming of free over the air broadcast television signals. IV wanted a compulsory license and was shut down at both the trial court and Court of Appeals level. Does IV somehow spring back to life in the wake of Aereo, do you think?
Matthew: That's my opinion. It's hard to read the Supreme Court's decision as saying something other than that. I have never said it. I've always said IVI. They took the position that they were a cable company and tried to get the compulsory license on under the Copyright Act. The court said no, you are not a cable company. The Appellate Court opinion stood until the Aereo Case, where, of course, Aereo was shot down on the basis that they looked like a cable company. Now Aereo, this emergency motion where they said they were bleeding to death essential is an effort to expedite a determination that they are, in fact, a cable company and that they can get a license that the Supreme Court says they are entitled to. My view was that the IV Case was effectively overturned sub silentio by Aereo. We will need lower courts to confirm or deny that construction.
Denise: We will see if IV, somehow, comes back around and decides to exploit this. In the meantime we have got Aereo supposedly bleeding to death and now we are a cable company, too. So we will somehow cobble together the fees to pay that compulsory license and let us survive. But, in some of the coverage I've read of that whole issue; there’s been an indication that the copyright office has telegraphed that they don't agree. Michael, have you been paying attention to that? Do you know what the copyright office's position has been?
Michael: I believe that there was a request made by Aereo to the copyright office. In their response, it was an informal response, Matt probably remembers this better than I do, the copyright office general counsel’s office gave an informal response kind of acknowledging receipt of the request where it was read as being very dismissive of Aereo being a cable system for their purposes. This is one of the major problems of the Aereo decision where the Supreme Court is saying that you are a cable system so you cannot do what you want to do. Then Aereo tries to say, okay, we will be a cable system. Then basically, the copyright office says, no, you are not a cable system which would allow you to do what you want to do. So they are in this position where they can't catch a break. There is nothing to do right because at every turn whatever the status, cable system or not cable system that they would need to be to move forward that the person deciding that, totally in a vacuum totally related to the other decisions, decides against them.
Denise: Matt, do you think that Aereo will be in kind of this rock and a hard place position where courts are telling them whichever way they go that they have no business model? Not a legal one, anyway.
Matthew: That's my current concern with the copyright office's response and their inability to get a decision promptly out of the courts is that it is sort of a rock and a hard place. I've characterized it as which shell is the ball under? IV is told, you are not a cable system, so Aereo says ok we are going to design a system that works this way and then they go to the Supreme Court and they say, ah, you are a cable system. So then Aereo goes back to the copyright office and they say, no, you are not a cable system. It’s like, will you make up your mind? Because you have two different decision makers here you can essentially have conflicting views. There are differences of opinions about how determinative the FCC's views are here as well because they have some overlapping regulatory authority but not actually the ability to decide what is a cable system. That's not something that the Telecom Act has a VPDE. Technical terminology here. I think what the copyright office's letter might be read to be doing is sort of lateral the issue to the FCC for resolution. It's fair to say that the copyright office was not supportive of their effort. They also did not reject the application.
Denise: Before we move on from Aereo, the krux of the analysis was Matt, that the court tried really hard to say, cloud services, you are going to be just fine. There is no way to insure that that will be the case. What do you think likely will happen?
Matthew: Well, in the short run I think what I have referred to as traditional cloud services, where we think of as cloud lockers putting your regular files in Dropbox or Microsoft SkyDrive or Google Drive and so on. Those services are fine. Those companies can rely on the owner possessor language. The court is very vague, but determined in an effort to say that they didn't have anything to worry about. I worry more about newer implementations of cloud services; side loading, certain streaming functionality that we may see built on once as bandwidth improves. Old fashioned file storage is probably not a problem. Even there, I can't be certain because the language is somewhat ambiguous in the court's opinion. I have great concerns about newer features being rolled out. All of the research and evidence that I've seen from scholars talking to investors and innovators is that folks want to stay away from services that touch media because of the potential copyright exposure. I am concerned about the future of new cloud functionality because of this opinion.
Denise: Alright, well, we've been in wait and see mode on that. I guess we will continue to be. One thing we haven't been in wait and see mode because we actually got a determination, and the passage of a bill, and the signing of a law is cell phone unlocking. Let's look at some law and policy issues around that.
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Denise: Guys in Washington, help us understand. The cell phone unlocking bill was passed, but it's kind of a pyrrhic victory, if that's the right phrase for it, because it's temporary. This is something that enabled a DMCA exemption that will only last possibly for a year because the Register of Copyrights gets to revisit those exemptions every three years. Next year is the next time they all come up for renewal. Should we be happy about this? We've already heard from Matt that the chances of real copyright reform are not that great. Can we at least pop a tiny little bottle of champagne about this? What do you think Michael?
Michael: The answer to that is yes. If nothing else, we will get to the substance part of it. This is a situation where the Copyright Office made a bad decision. People actually went to the White House petition site to elevate this issue and say that this is really important. Then we saw the White House get engaged. Ultimately both parties in both houses came together on some sort of compromise to address this. It is an imperfect solution, but from where we are sitting in Washington right now any time we see any type of responsiveness to what is really any type of pure consumer desire, it should be celebrated. We had people who not only signed the petition, but were calling Congress and calling the White House. This is an example of an issue where the only people who wanted this really were consumers. The big industry players in town were not excited about this. There was a collection of people who said, no, this is important and we want to do it. And it actually happened. That is the good news part of this. The reason that it is not a kind of flawless victory is that you can always describe a bigger win. There are two kinds of bigger wins. The good news is that you can unlock your phone. You can get someone to help you unlock your phone, which was in play for a while. The not as good news, the bad news is that it's not a permanent exemption. So we are going to have to work at the end of this year and next year to make sure that it happens again. We will hope that the Copyright Office gets the message from Congress that this is the kind of exemption that they should be granting. The real victory in this would really be a blanket exemption that says, right now you are not allowed, and it’s a separate offense to break a digital lock. It's a DMCA offense to break a digital lock that protects copyrighted work. Now you can talk about DVD encryption. Regardless of whether or not you are allowed to access it, that work should be protected. What a great victory would look like for this would be an exemption that said if you need to break a digital lock in order to make a legitimate use of a copyright protected work, if you want to take a DVD that you have and you want to take out a couple of clips to make a political point about what's going on, you are allowed to break that digital lock because the underlying cause of that digital work is not illegal. So as long as your underlying use of that copyrighted work is legitimate, then the fact that is protected by a lock shouldn't prevent you from doing it. That's the real version of the win in this. Digital locks don't get in the way of what is allowed in copyright. That's a longer fight. It's still a good win. We will take them when we can get them.
Denise: This was one unlocking cell phone bill that passed. There was another one, the Unlocking Technology Act, that would have folded this in as well as a lot of other considerations including looking at the whole DMCA exemption process and reviewing the DMCA in general. That has not passed. Is it still alive Matt?
Matthew: I suppose, to be technical, all bills are alive until Congress adjourns. I think the probability of this issue being revisited once this piece of legislation has gone to the White House and everyone has declared victory is low. The odds of any legislation are low at any point in time. Particularly once an issue is addressed by congress it tends to cast a long shadow, even if the result isn't necessarily good. Look at patent reform. We had a major patent reform bill pass a few years ago and there are still perceived problems. You always have people saying you just passed legislation on this. Let's see how that works. Let's give it time to play out. Frankly, there is always fatigue from any issue. Not to pour cold water on things, but I don't think revisiting that issue anytime soon is likely. I certainly think it ought to be revisited in the context of overall copyright reform. The issues that Michael pointed to, that you can violate the DMCA when what you are doing doesn't violate in any way the copyright holders' interest in the work seems pretty strange. I always, when I explain this to students every year, I just get universal views of bafflement. Why would that be the case? There is a least some willingness to accept, I think, that if you have a digital lock and it is preventing you from engaging in piracy then maybe that is a valid policy objective. But, if it is preventing academics from engaging in media literacy or it is preventing you from using your own hardware that you bought then the law tends to lose credibility in those circumstances. Some of the really big cases were examples like that. They involved a garage door opener where someone tried to use an aftermarket remote on their opener or printer toner cartridges. These are not cases about piracy.
Denise: This seems like a bigger problem, perhaps, to address. If we are looking at the way that government processes work than some sort of streamline copyrighting legislation. If you have got more and more devices out there be they garage door openers, or printers. Or recently in the news; we have talked about them on the show; the ReNo battery in the car where the battery stops working if you haven't made your payments or having k cups that are not conforming or not manufactured by Keurig in your coffee machine. This is just the tip of the iceberg, a flood of litigation over devices that have software in them that have locks that cannot be undone. Venkat, do you think that we are going to see some reform on this? Or are we going to see a whole lot of pain first?
Venkat: I don't have a great view. Being in the Pacific Northwest I'm not so close to the discussions. My guess is that reform would be slow coming. My impression is that things seem like they take a long time. This wait and see attitude is probably a typical response that might come up. On the other hand, I think that it is curious to see public pressure and to what extent public pressure plays a part in sort of mediating these issues. I know with the Keurig Coffee replacement canisters that there was a fair amount of public pressure in response to that. I don't know to what extent that actually effected the company's behavior, but these issues are more and more seeing the light of day. I think the internet as a whole is playing a bigger role in exerting pressure against companies. So, I think that might increasingly be a factor going forward in mitigating against abuses of this sort.
Denise: We should underscore, and I should have you explain maybe more Matt, that if you do circumvent a digital lock under the DMCA without an exemption that there can be felony liability for that, correct?
Matthew: There are, yeah. Just like in regular copyright, we have both civil and criminal penalties. Generally, the criminal penalties only operate when there is some sort of commercial impact or motive. Although, we have seen over the years that the threshold for when that operates has sort of functionally been reduced. There is a famous case years ago where a guy was running a swap website, basically not for profit, but he was able to access this stuff of his site. He beat a felony prosecution. Congress promptly modified the rules so that wouldn't happen again to close a perceived loophole. If one is unlocking for profit then certainly the potential for criminal exposure is there. These are the things that worry me about the general credibility of the copyright system. People will say, well it's my phone and I should be able to do with it as I chose. That's kind of hard to argue with. It doesn't help the legitimacy, the perceived legitimacy of the system. That is true. There are relatively few DMCA criminal prosecutions. Mostly they tend to be in cases that you think they should be brought. Criminal enterprises doing large scale sale of mod chips and selling batches of games for profit, right? That is pretty much a run of the mill piracy operation. It would also violate the unlocking if you were modding the chip inside of game consoles, for example. In other cases, whether its phone unlocking or selling people attachments so that they can use aftermarket k cups, having potential criminal exposure there is not the right way for the copyright system to go.
Denise: No. It doesn't seem that way. Michael, any thoughts before we start talking about net neutrality?
Michael: Oh no, I'm always ready to move quickly to net neutrality.
Denise: Let's move quickly then to net neutrality. During its initially comment period the FCC got more than 1.1 million comments from people concerned about this issue. Where do things stand now, Michael?
Michael: Procedurally where things stand is that the comment period has closed and now we are in the reply period that ends on September 10th. Then, in theory, the FCC has all of the information it needs, it sits down, and it writes a rule. In practice, they just told us today that they are going to do a series of roundtables here in Washington after the reply comment deadline, so in September and probably October as well. What we are looking at is a situation where two things are happening. One is, the day when a decision rules may come out is probably moving at least toward the end of this year. The question is what are the rules going to be? I think the good news, what we are seeing right now, is that when this proposal first surfaced this time around, back in April or May, it looked like it was going to be a very bad proposal. You may remember that there were a lot of stories about how the rules that were reported to be net neutrality rules were going to allow fast lanes and slow lanes online and ISPs to charge edge providers to get better service. What we've seen is a slow and steady evolution towards an understanding that that is a real problem. We've seen President Obama come out this week on how fast lanes and slow lanes are a problem. We've seen members of Congress in both the House and the Senate step up and say this is a problem. Even today, there was a press conference where Chairman Wheeler has said that this is a problem. I think that if you were talking to somebody in Washington, this was surprising to me that in January of this year there was an evolving wisdom that four years ago people cared a lot about net neutrality but that it was an issue that's time had passed and there wasn't that much public interest. I think what has become crystal clear to everyone involved, you said that 1.1 million comments, it's been all over the place. This is something that people really, really care about, and doing this right is going to be largely what the FCC is judged on, in whether or not they actually create rules that are strong and protect net neutrality and they do it in a way that will actually survive court challenge so that we don't have to do this again in two or three years.
Denise: So Michael, what do you think about the recent statement from the cable companies that it's really not they who are the gatekeepers, but large sites like Google who control all of our access to things? And that they are the real net neutrality threat?
Michael: This is something that they trot out every time. You can have a conversation on whether or not there are websites out there that have a lot of sway and have a lot of influence as to what people do. First of all, the nature that influences fundamentally different that connects you to the entire internet. If I want to do a search and I don't want to go to Google I can immediately go to Bing. If I want to connect to the internet I may have only one option. If I have more than one option then it will be a huge process to make the switch. But more importantly, net neutrality is all about that last mile termination monopoly. So the issue at hand when we are talking about this is the company, that one company that controls your access to the entire internet. There is no routing around them. If they make a decision, that's what your internet looks like. We hear all sorts of bogus arguments from the cable companies about this. That is one of them that I will include in the bogus argument list.
Denise: Matt, do you think that there is any way if the FCC moves forward with its proposed rule, and obviously we've got a lot of comments, and hearings and discussions before that actually becomes a done deal, if it does. Do you think that there is any way that companies are going to be able to do preferential paid deals with providers and that ends up being a good thing?
Matthew: We have seen some of that thus far. Certainly, there are circumstances where a particular preferential arrangement with one service and one broadband provider may provide short term benefits to customers. Its co located closer and so on. If those are the exception to the rule, then it's not nearly as problematic if those become the rule. A few, here and there, if they are sort of ancillary to the general thrust of the marketplace I don't view as problematic. It's apparent that that can be done, and in a way that it's discriminatory. My sense is, and I'm admittedly not as much of a telecom expert as some other folks, you have to take my opinion with a grain of salt. My sense is that the regulatory framework doesn't inhibit that. The deals we have seen getting struck are permissible under the current regulatory apparatus. The FCC needs to think very seriously about whether or not that is something that they want as an industrywide practice.
Denise: Well, yet another thing that we are going to be seeing more on this in the next month or two. Stay tuned. Venkat, you have some really interesting stories in the technology and marketing blog that implicate first amendment issues and cyber bullying laws. I'd like to get to those before we wrap up the show today. The first of those has to do with a public school teacher who was blogging, not anonymously, but pseudonymously. You could probably put two and two together and figure out from the pseudonym the teacher was using who the teacher was and saying not very nice things about students in the posts. How did that decision come out?
Venkat: Predictably, she lost. She was a public employee, and public employees have a pretty difficult road when they allege that they were fired for something they said. I think Eriq's follow-up comments; she was venting and said you know, and I'm paraphrasing, in the old days I used to spend a lot of time and energy on grades. And now I just wished I could really be honest. She was kind of losing energy for her teaching. She called her students and her parents a bunch of names on this pseudonymous blog that a reporter found and starting digging around. Somehow the school district put two and two together, perhaps based on context, and found out that she was the author of the blog. She brought a first amendment claim saying that her firing was retaliatory. The court said that you have to show as a plaintiff you are speaking out on a matter of public concern. There is kind of this wishy washy balancing test where the court asks if the public's right to know and your right to speak is outweighed by the interest in efficiency. Here the court said that her blog was really not a matter of public concern in the first place. There are tons of these kinds of cases, and they are always fun to blog because people seem to vent. They love venting about their job. People get fired all of the time, both public and private employees. For the most part, it is rare that an employee in this circumstance wins their claim against the employer. This case is no exception. I liked Eriq's follow-up comments that, as a teacher, do we really want to have people teaching that have, everyone has a dark side, but here the teacher's dark side really made one question her fitness for teaching. I think that there were other examples of adjudicators, and nurses, and healthcare workers all who sort of say similar things. They all pretty much end up when they sue they don't fare particularly well.
Denise: Matt, do you think that this was rightly decided, or do you think that there should have been a stronger acknowledgement that a teacher, when off hours, even if they are calling kids jerks, and rat like, and thunderhead, and whiny simpering grade rubber with an unrealistic high perception of their own ability level (pretty insulting stuff about the kids)? Do you think that there is any sort of first amendment issue triggered there?
Matthew: You know, speaking strictly in my personal capacity, I don't even hold myself out as a first amendment lawyer. I do consider myself a first amendment zealot. Nevertheless, I don't really think that this is what the first amendment was principally focused on. First of all, no educator should ever be using that language about their students. Whether it's first amendment or not, it certainly shows a lack of judgment. I'm inclined to defer to the courts here. I'm just another bystander with an opinion.
Denise: The name of the blog was "Where are We Going and Why are We in this Hand Basket?" Clearly, the teacher here has another career ahead of her as a writer of snark online. She's good at that. Let's move on to another case that you wrote on the Technology and Marketing Law Blog Venkat where the first amendment did prevail. In this case it undid a criminal cyber bullying statute in New York. What happened here?
Venkat: Basically, a student created a Facebook page and posted details of their classmates and their sexual practices. He was prosecuted under the Cyber Bullying Statute. The conviction was overturned because the statute the court said violated the First Amendment. These types of court cases are also somewhat typical. There are ton of cyber bullying statutes out there in various state levels. Every month or every couple of weeks we always see a case, Eriq and I, which involve an application of that statute that is ill suited and creates a lot of First Amendment problems. I think cyber bullying and harassment in the old days what might have been conversation between classmates, often harsh conversation, now often gets turned into cyber bullying or a violation of a cyber-bullying statute by an overzealous prosecutor. That's exactly what happened here. The particular part of the statute that was problematic was that it gets at communications that are intended to harass or annoy someone. There's a little bit of gray area as to whether you can criminalize or prescribe somebody when then intend to cause distress. I think harassment law and First Amendment law have a well-recognized tension, but this falls well outside the bounds of that. When you start getting into saying that annoying speech can be criminalized or ever prescribed I think that most people recognize that as problematic from a First Amendment standpoint. Even the government did in this case. They virtually acknowledged that the statute violated the First Amendment.
Denise: Thank you for bringing us up to speed on that. I think that it's time for us to move to our tip and resources of the week. Our tip of the week is right in line with what we were just discussing. And that is that although this particular statute in New York was invalidated as unconstitutional under the First Amendment, there are various other states with similar statutes that where these are perfectly viable. California is one of them. The tip has to do with if you are someone who is prone to making prank calls, I know that we have some jokesters who listen to the show, or if you might know children who might be prone to making taunting or annoying phone calls, we have a lot on the books in California that criminalizes that activity under certain circumstances. It involves penalties of up to six months in jail and a $1000 fine. It's a misdemeanor liability. It's going to depend on whether you encounter a prosecutor who is going to enforce this law. But it is on the books, and has to do with harassing or annoying conduct on the phone. The way it works, basically, is that there are a couple of components to it. If the calls are repeated, and they are harassing and annoying, then that would be sufficient under this statute, it appears. Also, if they cross the line from annoying and harassing to obscene then they don't even need to be repeated, so the language of the statute goes. So, if you are a Jerky Boys fan or anyone else who is a fan of prank or annoying phone calls and you are in California, or perhaps there are other states - I have not done a fifty state survey of these kinds of laws - other people have. I do know that here in California we do have a law on the books that attempts to, and does impose misdemeanor liability for prank phone calls. Or harassing or annoying phone calls. So that is our tip. Our resources are twofold. One is Michael, if not it was Matt, who pointed this out in their Twitter feed, was this great timeline from the Copyright Office, that is the history of copyright. Every significant event as far as the United States Copyright Office is concerned anyway. Who wants to take credit for finding this? Matt or Michael?
Matt: Everybody gets credit for finding things on Twitter, right? I think I did point to that. Just watching that move, that was quite popular. It's a really fun toy to play around with, and there is a lot of great stuff there. I look forward to pointing my students to that.
Michael: Can I just plug? It's actually built on an open platform that the Knight Foundation has done. It is so easy to make a timeline that looks that good. It's just Timeline JS. I know we used it on viewer website whatisnetneutrality.timeline. It's basically the same timeline, but for net neutrality. To make this thing, if you are thinking about doing it yourself, all you need to be able to do is type things into a Google spreadsheet. It's so easy.
Denise: That would be useful for educators anywhere. For anyone interested in copyright law or copyright principles this would be a great thing to take you through how we got to where we are and a reminder of copyright terms when they first came into play were fourteen years long and not life plus seventy. There's quite a bit of good stuff in here for anyone interested in those issues. Also, for anyone interested in the issues that we discuss on this show. Venkat's co-blogger, Eriq Goldman, does a very good job obviously of teaching his internet law courses at Santa Clara University and a good job of making a whole bunch of his teaching materials available and transparent. Right now, his 2014 Internet Law Syllabus and Updated Casebook is available for $8 in a DRM free PDF format. Eriq makes his exams available, too, which are always a hoot and a half. This is just an incredible resource for anyone interested in internet law whatsoever. He's got all kinds of cool things in here including, new this year, a cheat sheet on the DMCA, how the DMCA online copyright Safe Harbor has failed, how the Silk Road ruling will hurt online commerce, all of the cases that are used in his course, and analysis of these cases. So it's a really cool tool, and if you are interested, it's just $8. Go check that out. Also, I'm reminding myself as I look at our spreadsheet that we need a second MCLE pass phrase before we go ahead and wrap up the show. Let's make that "Jerky Boys". For anyone who even remembers who they are.
Michael: I remember those. All my shoes and all my glasses, so I have them.
Denise: We will just mention, too, that if we are interested in continuing legal or other professional credit for watching the show, head on over to wiki.twit.tv. We've got a page there under the "This Week in Law" show of course with lots of information on how you can bring that about for yourself. What else? That pretty much does it for use guys. I will ask you to please, please get in touch with us between the shows. I'm firstname.lastname@example.org. My cost host, Evan, who will be back next week, is email@example.com. You can send us tweets; I’m @dhowell on twitter. Evan is @internet cases there. That's his blog. Let us know things that pop up on your attention radar, so that we can think about putting them on the show. Let us know about guests that you think we could have on the show. Let us know your thoughts about things like monkey selfies and who has the copyright in them and other things you think we should be paying attention to. We also have Facebook and Google Plus pages that you should check out. You should also go to twit.tv/twill if you want to go to shows years and years ago and try and figure out the difference between MP Tunes and mp3.com. We will try to keep that straight ourselves as we go forward. It's always fun to see how stuff that was resolved decades or more ago can still have currency today as we try and figure out all of these issues related to technology and the law. We couldn't do this show without the help of our great panelists who come each and every week. This week has been no exception. Just a wonderful discussion. Venkat, thank you so much for joining us again.
Venkat: Thank you.
Denise: Enjoy the rest of your summer in Seattle. Please come join us again soon.
Venkat: Thank you.
Denise: And, Michael Weinberg, again so great to be able to pick your brain on all issues related to free printing, and net neutrality, and all the other great stuff that you guys pay attention to at Public Knowledge. Any particular issue or place you want to point people towards where they should be taking action or looking at an issue that they may not realize is very important to their daily lives?
Michael: I would say that if you haven't weighed in on net neutrality yet, definitely go to publicknowledge.org and click on "act now". We've actually got a cool new tool that makes it super easy to call your member of Congress and tell them what you think about net neutrality.
Denise: That's wonderful. Thank you so much Michael, and enjoy the rest of your summer.
Michael: Thank you very much. You too.
Denise: Great to meet you Matt Schruers. I'm envious of all of your seasons at Georgetown. Seems like you would be a great person to hang out with for a semester, too.
Matthew: Oh, well thanks. I hope my students would agree. Good to be here.
Denise: Tell us a little bit about the program on communication, culture, and technology that seem like a great thing to be able to take advantage of while at Georgetown.
Matthew: It's an interdisciplinary program in the grad school. It attempts to bring together a variety of different educational resources and backgrounds to give students a more robust tool set for, whether it's going on to do further academic work in the form of a PHD. I've also run into graduates of the program working for companies, and agencies, and institutions here DC. So, as I said, it’s sort of interdisciplinary multipurpose degree exposing students to all sorts of interesting facets, communication, tech law, tech policy, technology in society from a variety of different angles. I work with a lot of great faculty members there.
Denise: Do you write regularly at SCOTUSblog or was your area piece a one off for them?
That was a one off. I write regularly at Project DisCo. I imagine they saw me ranting at length there and said, well, he obviously has an opinion on the subject, why don't we give him some space when the case comes out?
Denise: Right. Absolutely. That was a good call on their part. For anyone who is already not reading Project DisCo, you need to be doing that. It's a great blog. Alright guys, this had been really, really fun. We so appreciate your time and your insights. We appreciate the time of everyone who has joined us today. We will be back next week for "This Week in Law" and we will see you then! Everybody take care.