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This Week in Law 272
Denise Howell: Hi folks, Denise Howell here. And next up on This Week in Law, we’re going to chat today with Creative Commons’ Sarah Pearson and Stanford Law School’s Ron Dolin about automating law, disinter meeting lawyers possibly, maybe, maybe now. We’ll see. Don’t call it a browser app, and we’ll look at Adam Carolla’s podcast patent settlement as well. All next, on This Week in Law.
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Denise: This is TWiL, This Week in Law with Denise Howell and Evan Brown. Episode 272 recorded August 22, 2014
The Louisville Recursion
This episode of This Week in Law is brought to you by Personal Capital. With Personal Capital, you’ll finally have all 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, I’m Denise Howell and you’re joining us for This Week in Law. This week, we’re going to talk a lot about law and tech and tech and law and where the twain shall meet. And we’ve got two wonderful guests joining us to help do that. Of course we’ve got my cohost Evan Brown, joining us too, from Chicago, Illinois. Hello, Evan.
Evan Brown: Hi Denise. And I agree, law and tech sounds like a great thing to talk about. So it should be lots of fun. Great to be here and let’s get it rolling.
Denise: Alrighty, so to help us do that we’ve got Ron Dolin. Ron is a mathematician, a physicist, an engineer, a lawyer, a Stanford Law School professor, and an angel investor and incubator of legal startups. So Ron, it’s thrilling to have you join us this week. Thanks so much for doing so.
Ron Dolin: Thanks. Technically I’m an instructor and not a professor. Just want to be clear about it.
Denise: Oh good. I get that mixed up all the time. I figured if you’re teaching at Stanford Law School, I should just hang the old prof moniker on you but I know they get real sensitive about that. Thank you for the clarification. Also joining us from Creative Commons, their senior council, Sarah Pearson. Hello, Sarah.
Sarah Pearson: Hi Denise. Thanks so much; I’m so glad to be here. I just recently in the last week or two discovered the show and realized that all of my colleagues know it and have been listening to it for years. So I’m excited to be joining.
Denise: That’s great, that’s wonderful to hear. Of course we’ve been huge fans of Creative Commons since its inception and we’re looking forward to hearing more from you about that. And I think this is one of those weeks where we have a very great pairing of guests on the show. We go and invite people and we tend to have people on when their schedules will permit. And that factors in and I’m sure it did this week as well. But sometimes we get a really nice synergy between guests. And I think we have that going on today. Because what Creative Commons is all about, I sort of assumed that people who listen to the show will at least have run across Creative Commons at some point. But if you need sort of the Creative Commons 101, we’ll give it to you quickly here. It’s an organization that was started by Stanford Law professor. Then, Stanford Law professor Lauren Slessig with the goal of streamlining copyright licensing, was coming up with a number of licenses that people could apply to various forms of online media. And allow for a different kind of use of that media then straight copyright law wouldn’t grant under existing statute. So it was just a streamlined way to allow some more free sharing use of things when that’s what the owner of the copyright wants to have happen. And prior to the existence of Creative Commons, what people would have to do is go ahead and hire lawyers and do a license. And on a case by case basis, frequently. So it was a pretty cumbersome arrangement that Creative Commons has jumped into the mix of. So it’s a way of automating and streamlining contracts and it’s also a way; one thing I’ve always found fascinating, Sarah, that I also think is great when we’re talking about how technology and law can work together to help people with legal issues that come up in their lives all the time. Is the machine readable component of Creative Commons licenses, where Creative Commons licenses implement themselves through a person who says hey this work is Creative Commons license? Here’s the link to plain English version of the license that you’d understand how that works. And here’s the link to the more detailed version of the license if you need all the legalities. And there’s this machine readable component that I’ve always found really fascinating; where a computer could look at an image file and know exactly how that file is licensed. Or music, or what have you. And that gets real interesting too. Is that something that continues to be a big part of the Creative Commons regime?
Sarah: Yea, absolutely. And one of the things that; we recently got a new CEO that started in June. And one thing that I think he’s going to really focus on is the search ability and find ability of CC license content. And making sure that there are easy ways to find it based on the particular views, attributes that you’re looking for. Whether it’s commercial use or content that you’re able to modify, making sure it’s as easy as possible to find and share that content.
Denise: I’m giving this background on Creative Commons because I think it’s a good example of the kind of thing that Ron works on as well. Which are innovative legal solutions to age-old; innovative, technological solutions to age-old legal problems. And how the practice of law will continue to evolve around those kinds of changes. And how people’s experience and contact with the legal system will evolve as well. Ron, can you just kind of give us an overview of the kinds of things that you study and practice and that most interests you in this area?
Ron: Well I think legal technology looks at re-implementing how we’re used to doing things. And you know whether it’s not using paper but electronic filing in courts, or more efficiency gains in law firms, or trying to bring prices down to make the legal system more accessible by the people. All this stuff involves using technology and as you were just saying about Creative Commons, being able to look through and find something that you want, whether it’s a piece of software or some text. How do you mark it up, how do you find it, what kind of metadata did you need to make that easily available for people. Just across the spectrum. Legal technology is just looking at re-implementing things to make them more efficient without losing quality and hopefully gaining quality.
Denise: And Evan and I started noodling about that just a little bit before we started the show. I was kind of brainstorming a list with the help of the folks in our IRC: the most common ways people come into contact with legal issues in their lives today. Obviously if you’re doing a lot online, you’re going to come into contact with copyright law a lot. That’s why Creative Commons exists, is to help people be able to use images and music and other media, text, etcetera, in their creative online works. But if we’re taking it out of the online world, the list that I started to concoct had to do with end of life kinds of issues: estates and trusts and probates. I know there was an interesting legal development on that this week that I haven’t paid enough attention to. Evan, did you? I know one of the states just, I think passed a law granting heirs or next of kin to online accounts?
Evan: No, no I missed that.
Denise: Since we haven’t looked at that really closely, if someone from IRC wants to bring us up to speed there, maybe we can work that into the discussion too. Maybe we’ll save the specific development for a closer examination at a later time. But certainly end of life stuff is something that we all have to deal with, one way or another. Divorce and custody, and child support, auto accidents happen to just about everybody. Landlord-tenant disputes, things around financing: bill collection, getting loans, making big purchases like cars and homes. I threw in there service contracts with people like your cable company or your phone company, although there certainly is not a lot of legal back and forth involved in those contracts. You are in a legal relationship with those people; parking and speeding tickets, DUIs. And let’s hope we’re not; certainly people come into contact with the criminal justice system as well. Which I didn’t include in that list, but let’s hope that’s not happening to too many people. All of these areas could certainly be enhanced by the kind of projects that Ron and his colleagues look at. I think that just about everyone who has to deal with that little list of stuff that I put together, thinks that the process is cumbersome and unpleasant and expensive. And certainly if you get yourself into a larger, more complicated kind of civil lawsuit, it just becomes worse and worse. So Ron, what’s the light at the end of the tunnel for these day-to-day kinds of legal concerns that people have?
Ron: I think when we look at the interface using design process; Margaret Hagen is doing it through the design school now at the law school to look at how we see what users really need in order to have an easier way to accessing and navigating through complex procedures. There’s also things like document automation and other techniques that are being used to bring the cost down and increase the quality. So things like estate planning, looking at why people don’t finish the process; what we can do to kind of defix the pricing. Everything that you’re talking about, renter disputes, if you have $500 deposit and you can’t go to court and can’t afford an attorney to resolve it, how can we streamline things so that you have some dispute-resolution system that’s really low-cost and efficient and accurate. The end of the tunnel is hopefully increasing access to justice. We know that between middle class and lower class, many people need legal services. They need help and they’re not getting it. Cost coming down and/or increasing the efficiency at clinics should hopefully over the next 10-20 years, provide much better access to the legal system. That’s some of it.
Denise: Great. So with those principles in mind, let’s just kind of talk about; we love to gaze into the crystal ball into the future here; and talk about some of the things that are happening now and some of the things that we can expect to see happening down the road. It was either last week or the week before, we were talking about the role of artificial intelligence and the law. There was a great; and I always forget which Cory Doctorone novel included this wonderful little scene where a couple of the characters; I think it may have been Down and Up in the Magical Kingdom; a couple of the characters have an auto accident. And rather than just exchanging license information and insurance information, the dispute is actually resolved for them right there on the spot. And I’m not remembering all the details of the scene. But you can envision certainly, as cars get more and more smart, and have more and more data involved in them, and more and more analytics, and sensors and things, that you could have an auto accident where the cars immediately transmit whatever information is pertinent to the accident to the insurance company or whoever is the intermediary to decide who pays what here. And I believe in Cory’s example; there’s actually some very rapid exchange behind the scenes via people’s phones. And then an automatic transfer of funds on the party at fault in the accident. And then what winds up happening in the story is that it’s such a seamless little dispute resolution process that I believe the two characters end up getting romantically involved. This is obviously the stuff of fiction and fantasy but you can see us edging toward that kind of system. And what does all that mean? I know we’re not anywhere near that yet, Ron. But can you think of anything similar? I mean we’re talking about the example of Creative Commons, where the legal system is becoming streamlined in today’s world?
Ron: Well first of all if you’re going to look into the future, you’re also going to want to look at dispute prevention and why these cars got into an accident in the first place. That’s a question you want to ask technology because once we have self-driving cars or self-regulating speed with the radars, the chances of getting into an accident are minimized and that helps quite a lot. Dispute resolution as an example is happening online; tens of millions of disputes a year are handled by eBay alone. And you can’t resolve 10-20 hundred dollar conflicts by going to get a lawyer. So the only way that internet commerce functions effectively internationally is to have a dispute resolution system that helps people get to resolution right away and minimizes disputes in the first place. I’m trying to think of other areas where we’re seeing the way that settlements are happening online for example, by having transparent algorithms so that both sides are actually given ranges of settlement that they’re actually going to be happy with. And it’s in their incentive to give accurate ranges and that gets you to resolution much more quickly. Just some of the stuff going on.
Denise: Evan, I know you’ve taught negotiation classes and are actively litigating cases for clients who often settle. Have you ever run into what Ron is describing as sort of online settlement process that helps clients bring their disputes to a close?
Evan: I’ve heard of it but haven’t dealt with it directly. I think there’s a great need for that and I think there’s probably a market niche for lack of a better term for that. Basically because of the amounts in controversy, as Ron has pointed out. And sort of is what is implicit in the Vinette from the Cory Doctorole novel. When there’s small amounts of controversy on an issue, both sides’ interests can be pretty well serviced with a quick resolution without involving too many parties that are difficult to get along with. But instead if you can have certain agreed-upon principles by which the dispute will be resolved. And you have the third party who’s resolving it. Whether it be the agreed-upon algorithm for the outcome. Or whether it be some dial-a-judge, for lack of a better term, call somebody up and give a quick synopsis of the facts. And determine the outcome of that, be the finder effect and the concluder of law, what have you. You have to have trust in that central mediary, there. I’m skeptical that these sorts of automation are going to go too deep. For dispute resolution when the amounts of controversy and the depths of the interests and underlying the issues becomes much greater when you have complex fact patterns. Or when you have more than enough in controversy to justify hiring human legal council for this because the risk that you see here by automating too much is that due process can suffer. I think there’s a sweet spot for automation because you definitely have the risk of due process suffering in the example of the tenant who’s wrongfully had the $500 deposit withheld. There’s a denial of due process. If he/she can’t afford, whether he/she doesn’t have the funds, or whether the ends don’t justify the means of hiring a lawyer to go after that security deposit. Due process suffers there. But also, on the other side of the sweet spot for these automated dispute-resolution mechanisms. There’s the risk that due process could be denied or withheld from parties if the investigation is too quick. If it’s not thorough enough. These days we do three autopsies on a guy that got shot by the police. So I think that demonstrates that we don’t want to rush things along too much because due process could suffer along there. So as long as there is a means by which we ensure that the amount of diligence that goes into the resolution process, is proper. Whether that’s aided by automation from start to finish or whether it’s the ability for human tribunals to get at the facts quicker and make judgments through the use of enhanced research capabilities. Technologies, fact-finding, different access to databases and the automation of these things. We have to make sure that this ultimate question of the appropriate amount of thoroughness and diligence into the dispute being resolved is present. So let’s hope that there’s a bright future on these things.
Ron: So part of the issue here is people don’t get access to anything. And we have to weigh doing something that might be considered sub-optimal against they’re getting no help at all. For example, there’s a credit agency and they’re going after somebody and they’re going past the statute of limitations. And people don’t realize that by simply responding, they’re starting to talk again. They’re getting screwed on this one if there is an automated system that would look at something like that, the statute of limitations could easily tell them if you don’t reply, you’re fined. So where does that happen? A lot of things like if somebody is getting wrongly evicted, by the time we’ve already gotten anything they’re already out of the place. So we need to look at what real world situations are like for people that are simply not able to get access to justice. Months and months away from getting small claims, etc. Sometimes doing something sub-optimally is still better than doing nothing. And sometimes it’s worse, so it’s not so straight forward. But a lot of cases can be aided simply by asking people a few questions. For example with the security deposit, what was the situation that led to this? Did the landlord come and look, etc. You ask a few questions and it’s pretty easy to come up with a solution that says you really need to get your security deposit back. And also these automated systems would be meaningful to appeal so we can resolve things 90% of the time without it being appealed. We would be better off. And we’re still not hurting due process when there’s something we can do to bring people in on an as-needed basis.
Denise: Let’s explore along those lines then. You were just a judge, I think, Ron? At a legal startup challenge at Hastings in San Francisco?
Ron: Hastings students were running in it. It was actually hosted by Arabian B, it was in San Francisco, yea.
Denise: I would think folks like Arabian B have a particularly vested interest or a particular interest in seeing dispute resolution evolve as rapidly as their businesses are. So there was a little write up by the Daily Journal of this weekend that included a sentence that sort of captured a sentiment behind the event. And the sentiment of the students who put it on, let me read that real quick here. Where did it go? Had to do with patience. That students were in an attempt to push the limits of the profession, to change the rules, tired of waiting, here it is; for the American Bar Association to change its rules on the unlicensed practice of law. And this comes into play a lot, I think. Technology and legal enthusiasts gathered at Arabian B’s headquarters in an attempt to push the limits of the profession, creating and pitching startups intending to provide consumers with legal services without violating the law. We run into this sort of barrier that there are ways you could help people resolve disputes. That bump up against this ethical requirement that we have that all the states have and our National Bar Association has that you be admitted to practice in order to give people legal advice. Ron, let me post a question to you. Is that just an archaic protectionist kind of approach to the profession? That people need to be licensed or are there plenty of opportunities for a completely automated system to be moving into this space? Or for people who are not lawyers but understand legal issues to be doing so?
Ron: Let me just give a plug for Stanford Center and the legal profession with Professor Debra Rody or Stephanie Kimbrough who are looking at the ethics rules as well as unauthorized practice of law. Which varies state to state, and one of the things that you’ll find is that 90+% of the claims of unauthorized practice of law or UPL are being brought by attorneys. So most of this is being used in a protectionist way. The intent is to protect consumers, people dealing with immigration for example are often taken advantage of. And yet that’s not where most of the claims are coming from. We want to re-examine the use of unauthorized practice of law. I think Legal Zoom as an example has fought UPL claims in every state. The issue again is where somebody is coming up against something like document automation or helping them figure out what to do in a rent situation. We can give them quite a lot of good advice; it’s backed by sound legal work. And we don’t really want to block this under a UPL claim. We want to use UPL where it’s really helping consumers against fraudulent work. The ethics rules as well when you look at online issues like advertising or solicitation can easily prevent lawyers from being on a chat room hearing somebody having a problem and wanting to offer some help. As we move into an internet and social media environment, it gets increasingly challenging to work the rules as stated. There’s been quite a lot of movement to tweak those rules to make more sense in the internet setting.
Denise: Sarah, how have Creative Commons dealt with that issue? Obviously they’re providing licenses that people can apply to their work. That’s something that before Creative Commons existed, in order to get that kind of thing, you would either have to find a legal form or a lawyer to do it for you.
Sarah: Absolutely. I think when Creative Commons was started, this was a big issue. Lots of research was done. Since I have been at CC for three years now, we’re constantly catching everything that we say and write with the fact that it’s not legal advice. We’re not acting as people’s lawyers so it’s definitely something that we’re continually having to think about. Almost in every situation. But as far as I know we’ve never run into any legal trouble because of it. I was also just thinking as Ron was talking, I was thinking; I now live in Iowa but I have previously lived in New York and California and at one time I thought I would move to Chicago. So I’m licensed in three different states so I have had really a personal gripe with how archaic the rules are about where you’re practicing law. And if you’re physically in one state, I’m advising a company that is based in California, it really doesn’t make a lot of sense in the online environment. The legal industry is definitely not immune to the ways in which the internet is changing things and the rules are not really keeping up.
Denise: That’s a really good points. We’ve been talking about resolving disputes but I wanted to look at forming contracts that will then govern disputes. That’s sort of what Creative Commons does. Apply these licenses to their works. I know early on there was some hindering of are these things going to be enforceable? And then we had cases where the license was actually involved and yes they were applying for it and enforced it. So you’re through that hurdle, right? There’s no question about the enforceability of Creative Commons licenses at this point?
Sarah: I think that’s true. Certainly we haven’t had a case in every jurisdiction in the world. And we like to think and have made a best effort to ensure that the licenses are enforceable everywhere in the world. But the only way to really prove that would be to have a court case in every country. And we’re not there yet. And nor do we really want to be. I think there’s enough confidence based on what litigation has occurred and how much uptake there’s been there enforceable.
Denise: One of the things I’ve been curious about with Creative Commons licenses over the years is sites where you’re provided with the option of applying a license. And just the mechanics of that and the notice issue. That’s always so critical in contract formation. There’s a 9th Circuit case about browse wrap agreements that we’ll talk about in a minute here. But just as far as contract formation in the Creative Commons context goes, it works there because the person who owns the rights to the work, that’s the only person’s legal intent and consent. That we’re really concerned with. The person who’s using, according to the license, and is relying on it, they don’t have to do any legally significant action other than use the work, right?
Sarah: That’s right. And the reason why we’re not worried about the re-user is because they’re doing something that they normally otherwise wouldn’t have permission to do by definition because of copyright law. And CC licenses are very carefully constructed so that they don’t govern any conduct that wouldn’t require permission. For example, if you were going to make the use of a CC license to video under fair use, you could completely ignore the CC license. It doesn’t apply. It only applies where permission is required or there’s some property interest there.
Denise: Do you still get instances where people have uploaded a batch of photos to Flickr and didn’t realize that the Creative Commons license setting was ticked on? And they were licensing their works as far as the public was concerned and as far as Flickr was concerned, that they really didn’t have the intent to do so. And they tried to reneg on that? Is that still coming up as an issue?
Sarah: I don’t hear about that sort of thing very often. Most platforms I think are pretty careful about making it a very intentional choice for people. So I honestly don’t hear about that too often. You do hear cases where somebody purposely applies a CC license and then a few years later they say wait a minute, I don’t actually want to shoot that anymore. The licenses are irrevocable, so they can get into a bit of a problem there. What you can do of course is take down the work and restrict access to it. But anyone who got access to the work under the license still has rights until the copyright runs out.
Denise: Right, and I remember there was a little startup or maybe it was just like a browser plugin that would enable you to keep a record. Have a data trail in case you ever had to demonstrate using this Creative Commons license work. And here is the license that was applied to the work on the day I used it. We’ve mentioned that on the show before. It’s slipping my mind now what it’s called. It seems like a good idea. If you’re frequently using Creative Commons works, particularly in a commercial way, to definitely keep track of the license that applied when you decided to make the use. Let’s talk about the 9th Circuit struggling with people’s attempts to streamline and automate online agreements. There’s a new case called Wind versus Barnes & Noble. And it’s got interesting issues in this case. First of all, not a very sympathetic plaintiff because the plaintiff here was trying to take advantage of some sort of discounted offer on a tablet that Barnes & Noble maybe made a mistake, made available, then decided not to honor. So they reneged on an offer they put on their site and the plaintiff was attempting to sue them for that. And got moved into an arbitration forum, out of court and into arbitration. Based on an arbitration clause in the website’s terms of service. And the terms specify that by purchasing, using the site, you are consenting to these terms. There was no click through required. And according to Vencap Belsa Bermonni who we had on recently, Professor Goldman from Santa Clara. The 9th Circuit kind of muddied the waters here. Eric, his commentary on the case was that I believe there are two types of online terms. Mandatory click through agreements and everything else, which I’ll call things that aren’t contracts. So you know his advice is don’t try and have; he also hates the use of term browser app, the indifference to him, don’t try and have terms of service that you haven’t affirmatively had your customer agree to, manifest consent to, as part of their use or transaction. If you’re trying to have those kinds of terms, you may as well call them not a contract. Here the court tried to, the court said the terms here were actually in the field of vision of the user proceeding with the check out the link to the terms. So that’s a good thing. But there was no contracting text or warning so the court just didn’t think they were specific enough to trigger notice on the part of the user that they were also agreeing to this arbitration clause. And it’s worth noting too that courts are very hesitant for due process reasons to enforce arbitration clauses unless they’re really confident that the person is on notice and that they’re agreeing to that. Evan, what do you make of this case? Has the court just basically validated what Professor Goldman says, really don’t mess around with things that aren’t agreements? Have people click through?
Evan: I think that’s sound advice. You want to make sure there’s real concrete, verifiable, reproducible evidence that the user has indicated consent to the terms of the online transaction. And in a very Professor Goldman-like style, you got to appreciate the wit in his statement of saying that there are mandatory click through agreements and then there is everything else, what he’ll call things that aren’t contracts. That’s very Eric Goldman. He’s been on the show a number of times so we know that’s how he talks. I guess that’s in a large part true, but actually since he’s speaking in absolute, I would say I sort of take issue with that. What the 9th Circuit is saying here is these things that match factually what Barnes & Noble was doing doesn’t constitute circumstances whereby parties can enter into an agreement in an online transaction, an enforceable agreement. So that’s not to say that other courts in other jurisdictions have not held that what we’ll call browse wrap agreements. And I know Professor Goldman admonishes anyone who still uses the term, but you know what I’m talking about.
Denise: You’re part of the problem, not part of the solution.
Evan: There you go. Isn’t that an indictment of one’s redderick? There are cases in other jurisdictions that say you know common sense would dictate. If you see a hyperlink at the bottom of the page that says Terms of Service, those are the terms that govern the transaction. I don’t know if that’s the way it ought to be, I know that’s the way it is. If you were in a brick and mortar store, I guess I should pause here; it’s 2014 and we’re still talking about these issues that you thought would have been resolved before Y2K, or before the end of the 90’s is the point I’m trying to make. It’s interesting that these issues are still lingering. If you’re at a brick and mortar store and you’re purchasing a widget, taking it off the shelf, paying for it in cash; if there was just a little placard behind the counter that said ask us about what the terms of this transaction are. Or if the clerk was wearing a little pin that says ask me about fine print. And if you didn’t ask and it turns out that had you asked they said oh if there’s a dispute over this, we’re going to arbitrate it. No court would find that enforceable because there was no real means for you to learn. Of course if I’m doing it artfully, I’ll just go ahead and explain. The purpose of my illustration was to compare that to a browse wrap agreement where you have the opportunity to look at it but there’s nothing mandatory that makes you do it. Whereas if you actually had to sign on the dotted line on the bill of sale, or what have you. On the receipt, that you’d agree to those terms. That’s a much different thing. To sort of put a bow around this and tie it up, I think this case is interesting to us, to those of us that like to think about these things and get wonkish about it. And it’s interesting that Professor Goldman, being in academia and all that stuff. Professor Goldman does actually say this towards the end of his remarks: this doesn’t change the fact that there are real easy smart ways to ensure that contracts entered into online are enforceable. You just make it so that there is that way of indicating consent. Nobody is saying that this pulls the rug out from under ecommerce or anything like that. It’s just another point in support of the argument that designers and developers of ecommerce platforms or any, not just ecommerce but anytime you’re wanting to get users to consent to terms that govern the online transaction; you just have to make sure there is a real empirical way of demonstrating the consent to the terms.
Denise: I think you hit on something really interesting there, Evan. We’ve been dealing with this issue for years. And it seems like it should all be sorted out by now. But we have companies as big as Zappos who just completely whiff on it. Hopefully they’re not doing it anymore. But they were the subject of big and public litigation going through several layers of the court system. Ultimately they lost because they did not do their terms of service and get customers to assent to them properly. It’s a big issue that people still don’t have their heads wrapped around it. I’ll one up you. You’re talking about the late 90’s and I’ll go there too. The e-sign Act of 2000. The year 2000, we had a federal law enacted in the United States where electronic signatures became enforceable and a way that people could contract. And I still think they’re really uncommon. Anytime you go through an auto purchase or get a loan, I’m not finding a lot of people in those industries who have even heard of the e-sign Act, let alone are putting it into practice for themselves. Bravo to companies to like Echo-sign and Hello-sign that are making this easy but they just don’t seem to have gotten the memo out about business at large. Ron, can you tell us what’s going on here?
Ron: I just think it takes a while to go through the pipeline when you see Adobe adopting it now. And you’re seeing it in Acrobat Reader, they have a signature facility. And I think it also had to be tested enforceable, etc. I do see e-signatures making a lot of progress. I don’t know, I just think that over the next 5-10 years, it’s probably going to be pervasive.
Denise: I certainly hope so. I think it helps that Hello-Sign has partnered up with Google and is now an add-on to Google Docs. So that if you’re someone who uses Google Docs and you’re doing a lease or any kind of simple legal agreement, you want someone to sign. That facility is built right in there. That might gain some traction. Sarah, do you have any thoughts on this?
Sarah: Not so much on the e-sign, but I thought I had kind of a different reaction to Eric Goldman’s post. Which I thought was completely technically correct. But I guess I feel that I’m comfortable about us even coming up with a formula for how terms of service can be enforceable. Maybe I’m too idealistic, but I don’t really like the legal fiction that is required. Because even for a click through, I’m a lawyer and I don’t read the terms of service on every website, right. There is no meaningful consent there. And I think that’s a public policy issue. Regardless of whether or not there’s a click through or not.
Denise: And Vencap jokes about that as he writes up the case. There is no actual consent here but you should at least go through the motions to indicate there is.
Ron: These are sort of two separate issues, aren’t they? And nothing new on the online environment. It was long before the internet was around that defendants made an argument that in breach of contract cases that the contract wasn’t enforceable because they didn’t read it. And that’s one of the first things you learn in law school is that just because you didn’t read it and you didn’t understand it doesn’t mean that it’s not enforceable against you. I just want to make sure, Sarah that we’re getting the nuances of what you’re saying there. I’m not sure I would see where we should introduce in to the law the idea that the terms of service, you didn’t read them or if they’re incomprehensible to you. That’s unfortunate but I don’t know if that’s good public policy to say that because they’re complex shouldn’t mean they aren’t enforceable. I just wanted to bring that up.
Denise: So here’s a legal startup idea for you, Ron. Too bad we’re not back at the competition you were judging. But did anyone come up with a legal startup idea that sort of does for contracts what Creative Commons does licenses? Which is take that intermediary step of telling someone what all the legalies mean.
Evan: I would say that the alternative then is for the company not to provide its services in the first place if it’s going to have to go to a court and litigate every single little customer dispute. You’re going to see prices go up because of the added expense and that’s certainly not prosumer. Or you’re going to see a stifling of innovation because companies are going to have to put it toward legal defense in court. So there’s all kinds of reasons why these agreements would be enforceable and the consumer doesn’t have the right to bring everything to a halt just over a $20 dispute with a big company.
Ron: If you look at a startup like Modria which is providing kind of a compartmentalized components for dispute resolution online. So that not every company has to build their own dispute-resolution system. And this specifically handles these little costs things. I am simply saying where every single company you’re interacting with is enforcing a particular clause. For example, no class actions. Is that really fair to the consumer and what can the consumer do about it? But I agree that it’s not feasible to go to court of a $10, $20 charge. And these mechanisms for resolving these more efficiently are pervasive now. More problems.
Denise: And that’s one of the points that Professor Goldman did not like about it. The win case too is focusing so much on what notice the consumer plaintiff had in the case. You pretty much defeat the ability for a class to be certified and a class action to be brought. If notice is going to be different for every single potential plaintiff. So let’s see. Let’s put an MCLE passphrase into the show. We do two of these every episode. In case you are in a jurisdiction where your MCLE oversight board likes to have some sort of demonstration. And you actually watched and listened and you haven’t just put something on a list. Watch this nice two-hour long show about legal issues. Our first phrase is going to be things that aren’t contracts. So jot that down. If you need more information about applying for continuing legal, educational, or other professional education accredited for listening to the show, head on over to our Wiki, at wiki.twit.tv. Find This Week in Law show there and there’s sort of a jurisdiction by jurisdiction description of how one might go about things. So we hope that’s helpful for you. Let’s move on to, I’m not sure where we should move at this point. I have so many questions for Ron and Sarah that I’m not even sure where to go. Let’s look at what’s going on with Creative Commons on some sensitive copyright issues today. So Sarah, I suppose the good news is I wasn’t able to find any high profile disputes involving Creative Commons as we go along today. Which I think is a good indicator that the licenses are out there and they’re working and people are using them. And I found that actually a real positive thing: one thing in the news this week has to do with a site called Photopedia. Not something I’ve used before but it sounds like a photo-sharing site that unfortunately went under. But there’s a lot of Creative Commons material that was formally while this site was operating, accessible by Photopedia. What’s going to happen now that it’s becoming defunct?
Sarah: So when we heard the site was closing someone from CC contacted Photopedia to ask what was going to happen to all the CC licensed images. And we were able to get an archive of, I think it’s 280 GB of images that are going to be going into an internet archive. I think relatively soon, but I don’t know the exact timeline on it. We were happy that we’re able to preserve access to those.
Denise: That’s a good thing. Has this kind of thing happened before? Obviously Flickr is still hanging in there, going strong. Presumable going to get better; I believe I read something by Thomas Hawk recently so that’s all good.
Sarah: I’m sure that it has undoubtedly. Sites die and links break and it’s hard to find content. But I can’t think of any other high profile examples that I can think of off the top of my head.
Denise: Let’s get some stats from you on Creative Commons. Do you have any good feel for which is the most common license that people apply and also for whether the public domain license is getting much use?
Sarah: That’s a really good question. We don’t keep a record on who uses what license. So anything we try to find, you’re pretty discrete, anecdotal, or surveys or that sort of thing. So I haven’t seen any statistics recently but I remember in the last couple of years, there is a mark to move to the less restrictive licenses so the attribution only license. And then our share-license which is just a copy-left license as opposed to the non-commercial license. It was incredibly popular in the beginning of CC and it still is. But I think people are starting to move a little bit away from that and more toward what we call the open licenses. The public domain tools are I think some of my favorite to talk about. The public domain dedication is I think getting a lot of uptake. I’m trying to remember what year it came out, I want to say 2009. It was before my time.
Denise: But after the original Creative Commons licenses?
Sarah: Yes, the original licenses were 2002, so several years later. And the idea is to put your content as close as possible into the public domain. So in certain jurisdictions that is incredibly difficult to do as it turns out. So the way it’s called CC Hero, the tool. The way it works is the first layer is a dedication to the public domain. The second is if that doesn’t work then it’s a license basically to do anything you want for any purpose under no conditions. And then if that doesn’t work for some reason somewhere in the world, then there’s a promise not to ever serve your copyright against people who are relying on the tool. It’s kind of three-tiered.
Evan: It’s at that point you have a Comcast sales rep call you up and say are you sure you really want to donate to the public… I’m joking.
Denise: So one of the public domain license users is the Rijksmuseum in Amsterdam. What have they been discovering about putting things in the public domain?
Sarah: So it’s an art and history museum in Amsterdam. They in the past several years have made, I think it’s 150,000 high resolution images of public domain artwork available on their website. And the resolution is high enough apparently that you can print out a poster for your wall. These are really good photos. And now they’re all available for free. So recently someone did a case study about this, kind of chronicling what is the process for, because as with most people, they would be pretty reluctant to do that initially. So it was kind of, over several years, they worked toward, they started out by just making the low quality images available for free online. And then after time, just decided they were going to make the high resolution images available as well. And it’s really been successful for them. They’ve gotten a lot of publicity for one thing. But they’ve also just gotten a lot of people into the museum, who see these high quality images and want to go see the work in person. So it’s a really nice success story to highlight. The background here is in this sector, we call it GLAM, and it stands for galleries, libraries, archives, and museums. They’re very often working with public domain work and there’s this interesting legal question about what constitutes a new, is it possible to, get copyright on public domain work when you reproduce it, photograph it, digitize it, whatever it is. In the U.S., it’s pretty well-settled from the Bridgeman case at least for identical reproductions do not warrant a new copyright. But I think in other parts of the world it’s not quite so clear. But there’s also this fairly well-accepted principle that once something is in the public domain it should be free for anyone to use. And no one should be able to restrict it by the fact that they were the one to digitize it. But the problem is, digitization is expensive and it takes resources. And a lot of these natural heritages institutions are experiencing budget cuts and this is a revenue model for them. So all of that is to say that this particular museum success story is kind of a nice inspiration and model for other museums who are trying to figure out how to take advantage of what the internet can do for them, without the concerns of sacrificing possible revenue models.
Denise: I think some museums might look at what the Rijksmuseum is doing and saying hey we’re not going to digitize this stuff because we have this really lucrative museum store where we put prints of paintings on scarves and sell the posters ourselves. And really monetize the works in our collection. Although anyone else should be able to monetize them because they’re public domain. As a practical matter, they can’t because they haven’t been digitized. I think the argument would probably be that you’re not, the people who are using the Rijksmuseum works aren’t people who would stumble into the store and buy the scarf. Amsterdam is just one place in the world and their collection has a global appeal. They’re probably not hurting themselves on sales by making these things available because they’re not taking away from the things that they would ordinarily sell. And as you point out, as the study pointed out, they’re gaining a lot of exposure for the works that they do have in their collection.
Sarah: I think that’s right. It would be interesting to see statistics about their museum store. And if they see any deterioration of sales based on this. I don’t think the case study really talked about the physical museum store. I think it did make it clear though that they were actually having a lot of success when they did the two-tiered. So when they had the medium quality images, when they were free and then they still charge for the high resolution, it looked like they did see a big bump in revenue from that model. And they were ultimately still willing to abandon that which is kind of interesting. But they I guess decided that they would rather seek big grants to digitize a large amount of the collection all at once. Rather than doing it piecemeal because that was just really resource-intensive for them. Waiting for individuals or in order of three or four, and trying to digitize it was just not very efficient compared to being able to do it all at once. But it might be that all that’s to say that I don’t know if this model would necessarily, putting the high resolution images online would work for every museum, especially if they’re really dependent on the revenue from selling high resolution images. I don’t know. I imagine there can be a significant amount of revenue from that.
Denise: Right. We’re going to take a break right now and thank our sponsor for this episode of This Week in Law: Personal Capital. I want to share with you their free and secure tool. Personal Capital solves two barriers to growing your wealth that tend to get in all of our way. The first barrier is that it’s hard to keep track of the various pieces of your financial life. You’ve got a 401K, you’ve got bank accounts, investment accounts, all over the map. All on different sites. Probably have different user names and password for each of them. The second barrier is that you’re paying someone to manage those accounts for you. And you know what? You may be paying too much. Personal Capital brings all your accounts and assets together on a single screen on your computer, phone, or table with real time an intuitive graphs that help you make sense of the entire picture. Personal Capital has an award-winning watch app that download in Google Play that seamlessly integrates with Personal Capital on other Android devices and provides users with relevant and timely updates on their finances whenever and wherever they need it. Personal Capital shows how much you’re overpaying in fees and how to reduce those fees. You also get tailored advice on optimizing your investment. So why wait? 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. To set up your free account, go 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 into looking at the world of data and how that relates to some of the things we've been discussing today, particularly when it comes to technology and law. The law is obviously — maybe it's not so obvious, but it's pretty obvious to me, that it's a data-driven kind of profession. If you're talking about resolving civil cases, the parties come in; they make legal arguments that are based on statutes and court decisions; they look at different opinions that have been resolved by judges, sometimes at the trial court level, sometimes at the appellate court level, that have synthesized other cases and applied them to certain facts. Important data points there are, what facts should this legal principle apply to? Is this case that I'm looking at still good law? There are data analyses going on at every step in that chain; and then, ultimately, you get to the application of the law, to the particular facts of the case, and you get an outcome. So Ron, my question for you, given all that, is how long are any of us human lawyers really going to be here? Because the more that machines can do these kinds of analyses for us, why do you need all of us in the mix?
Ron: I think we will be around for quite a long time. One of the examples I use is, would you rather hire a thousand-dollar-an-hour lawyer who knows technology or doesn't? And I think what we're looking at is, not replacing lawyers, but amplifying their judgment and getting the mundane stuff out of the way. So where it comes to working with a contract and — or let's say a big merger — you want to look at prior examples, make sure that you have common clauses in there; and you make less mistakes when you're using automation. It's going to be a long time until we're able to automate analogies and argumentation. So different types of work are more amenable. The data that we talked about — that you mentioned — it was kind of a wide range. We look at — maybe we can handle different clauses for different clients within a large firm to see if we've left anything out. That's pretty straightforward. We look at the way the judges make decisions and try to map out what's similar or not similar so we can come to settlement agreements. So a company like Lex Machina, or some of the cases that we want to include for case live search. There's a lot of types of data analysis that are going on, but quite a far cry from being able to replace a good attorney.
Denise: Yeah, I think I agree with you on that point. I do think that we will find simple legal tasks become more and more disintermediated, just like the taxi industry, the hotel industry, have found themselves disintermediated by technology-savvy start-ups like Uber and Airbnb. I think that the legal profession is definitely looking at seeing a good chunk of what it does — if we can get around the ethical protectionism that we've talked about earlier in the show, I do think that some of the more simple transactions that people assign to lawyers are going to either be done in a self-way or in a sort of pseudo-legal help way. Do you agree, Ron?
Ron: Yeah. I think one of the models, for example, for a solo attorney is that, rather than spending ten hours on one client, they spend one hour on ten clients; and the automation and the tools that are there will facilitate that kind of spreading out. So there's this latent market of, let's say, middle class, that are very underserved, and they can afford a certain amount. And we have a lot of lawyers that are under- or unemployed, and technology could certainly intervene there. And where you have synths just gains in efficiency. There's not UPL issue; you have a lawyer behind it. So for example, the contract is being generated more quickly; but it's still being reviewed by an attorney, so there's really a problem there. Where you come up against issues would be something like LegalZoom that might be generating things based on a fact pattern, and you're crossing over to UPL. LegalZoom has been pretty successful in terms of the way that they're not running afoul on things, and they've made a pretty strong case that they're helping people more than they're hurting people. I think for — and if you read somebody like Susskind, who talks about the multiple tiers from custom work to complete commodity work. And of course we'll see more and more handling by commodity stuff. It's going to be a while until something like Watson is able to write briefs for us or that kind of thing, so the more rote, the more common the problem, the more we'll be able to commoditize the work that's going into it and, in fact, just free lawyers to do the work that they're actually trained for.
Denise: Yeah. The old saw goes, "The person who represents themselves has a fool for a lawyer," but there are a lot of services out there now, and more coming down the road, that help you be less of a fool. Is that a good way of summing it up?
Ron: Boy, I don't know. If a lawyer represents him or herself, is that a good — (Laughs)
Ron: Let me just say, when we're looking at things like statistical analysis, I think we're fine. We're getting a good idea of machine learning, where it's looking at correlations between different pieces of data and trying to come to a conclusion. Where you start getting more sophisticated — coming up with analogies, doing reasoning, that kind of stuff — it's going to be quite a while that humans still need to be involved in that process.
Denise: Right. One of the reasons humans are important to the legal process is because of that kind of inside baseball knowledge that people might have, local knowledge about the judges and what their psychological makeup is, what their proclivities might be in a certain kind of case, and the ability to use technological tools to look through the whole body of work that a judge has done, etc. Evan, one of the things that I thought might be interesting to discuss today is, did you ever see the movie Moneyball or read the book?
Evan: No, but I saw you referring to that term, so I sort of tried to figure out what it was all about.
Ron: Great movie.
Denise: Right. So Moneyball was about applying analytics to particular baseball players and trying to draw some conclusions based on their stats and history and — great movie, great book about someone who came in and really completely revolutionized a team's approach to their roster and their strategy. So I think there's probably — and, Ron, you touched on this for a moment there — the opportunity to take a Moneyball approach to the law. If you take a number as these data points that lawyers are crunching and really do it in a more rigorous and thorough-going way, you could start to make some predictions about whether it's worthwhile for Apple to pursue this lengthy multi-million-, multi-hundreds-of-million-dollar lawsuit against Samsung, for example. Can you bring us up to speed, Ron, on what people are doing along those lines?
Ron: Yeah. So when I taught my class, one of the things I wanted them to look at is — I actually had them go to the philosophy encyclopedia to look up prediction and predictability. And some of the conditions for prediction in law are lacking because it's not a closed system. A lawyer will try to distinguish this particular case from prior cases. So where you have a company like Lex Machina that is trying to look at a bunch of pacer data, a bunch of IP-RELATED cases, they're trying to extract what this judge did with this kind of case, what was at risk. And you try to look across a whole bunch of cases to come up with a pattern or a statistical spread for maybe what you want to settle for. The issue, of course, is you don't really know how a judge is going to rule until they do. Where it's high stakes, you don't necessarily want to just go ahead with this analysis. I also don't know if they're looking at error analysis here and confidence intervals that says, We can predict this with this level of certainty. So I don't know how useful it is to say, We're saying, oh, 70 percent likelihood. But if that's plus or minus 40 percent, it's not all that helpful. I think that there's a "there" there; I think it helps.
Ron: I think that it helps a lot to look at which judges are using which cases, what some of the breakdowns are from similar cases, if you can really characterize what similar means. So I think that will continue to be useful. I think it's a little bit hard to know how much — by predicting a certain outcome and therefore, somebody follows it, you're now kind of setting it up to just follow what somebody predicted. So it's kind of a self-fulfilling prophecy, in a way. A little bit of a challenge there.
Denise: Someone on IRC is pointing out, what we're talking about sounds a lot like what already goes on — has gone on for quite some time — in people who are jury consultants and will work with lawyers on really trying to analyze who's your perfect jury and whether you should keep that juror or not.
Ron: But that tells you —
Denise: Go ahead.
Ron: What you're looking at is, which characteristic of a case or which characteristics of a juror matter in terms of the way that they're going to decide some outcome. And that's not a hundred percent certain, but if you have enough cases, obviously you can really find correlations there that are very useful in predicting jurors; and I just don't know how many cases you need to see, how much that's dependent on individual criteria within a case or a particular judge or district to know how reliable this will be in the future. And of course, you can't try the same case multiple times to really get a good stat on whether you did the right thing.
Denise: So Sarah, Creative Commons is doing some interesting work with data these days as well, and a couple of projects in particular. Number one: Creative Commons is looking at sort of the overall policy approach toward privacy, emphasizing privacy versus emphasizing sharing. Can you tell us a bit about that and why Creative Commons, which is more of a copyright-related service when it comes to data, why it's getting into the privacy arena.
Sarah: Yeah. A really good question. So we have a person that is focused solely on science and spends a lot of time on thinking about issues related to sharing data. And as you point out, a lot of those — at least the biggest obstacles to sharing data are not — one of them is not copyright. It is — it can be an issue, but it's not the big issue, by any means. So we're trying to spend a little bit of time thinking about what those other obstacles to sharing data are beyond copyright. So we have these two new projects that are sponsored by the Robert Wood Johnson foundation that we're just kicking off, actually; and as you point out, the first one is really designed to kind of think about the ways that we can build kind of a pro-sharing message into the process of getting informed consent from people who want to share their data, basically. So it's kind of trying to think about ways to at least add that message into the conversation when you're talking about sharing data as opposed to having it be solely about privacy interests, which, of course, are really important as well. So it's kind of thinking about the rhetoric a little bit. The other project is kind of different. We are creating hardware kits with sensors that are going to collect environmental data and then — collect it all; make everything openly available, including the hardware, the software used, and the data; and then eventually, they're going to build a public art display with the data, which I'm totally fascinated to see what that ends up looking like. But the attempt there is to try to show the benefits of making every part of the life cycle of data open and just to see what that looks like in this specific, discrete area.
Denise: That is really cool. Where will the art installation be?
Sarah: Oh, shoot. I was afraid you'd asked me that.
Sarah: (Laughs) I know that the data's being collected in Louisville, so I want to say there, but I will have to look it up. I'll do that while someone else is talking real fast. Sorry.
Denise: All right. What a great idea. Evan, do you think that there is a good synergy between — I mean, we've seen so often how copyright comes into the privacy discussion where people are trying to protect a privacy-related interest by asserting a copyright over that data because perhaps it's just available or the more straightforward way to go about it. Do you think that there's a good synergy here between Creative Commons' traditional mission and what they're doing now?
Evan: Well sure, because as you're pointing out, there's this tricky interplay between copyright and data. Sometimes it's not that tricky, but it's sort of like the owner of that data set feels like copyright ought to step in, but it's precluded by this whole idea of facts, in and of themselves, and compilations of facts that are complete, and a whole data set not being subject to copyright protection under the doctrine that's laid out in the feist decision. So there are these — there's this sense, oftentimes, of propriety in a data set; but then there's also the public interests, and in some owners of data sets, or compliers of data sets, there's the idea of making it available for the public good or for the aesthetic value in an art display. It's the first I'm hearing of this, just in our conversation here. So certainly some value to that. And it sort of — Sarah, maybe you agree or would characterize it slightly differently — there's that problem that you were talking about earlier of making it difficult to commit something to the public domain. It sounds like what Creative Commons is doing here in this is, not only collecting data, but also providing a mechanism — as Creative Commons ought to be very well-equipped to do — to make it freely available to gain an — or to allow users of the data to have an understanding of how it might be used, or the restrictions or lack of restrictions on that. It seems like there's some kind of, dynamically, that going on here.
Evan: Hopefully, in the meantime, you've found out where the display is. Have we talked enough?
Sarah: (Laughs) It looks like, actually, maybe New York City. I'm just looking at the grant proposal. It may not actually be decided, so I may be off the hook on not knowing that. I think either New York or Louisville, so that's a little different. But to go to your point, I think you're right, Evan; and it's really interesting how hard it is to make — especially when it comes to personal health data, if you wanted to make it available for any specific use, it's actually incredibly hard to do so, to give consent. So there are a lot of interesting legal issues there, and I think it's an interesting area for CC to start to dabble in a bit and think a little bit beyond copyright.
Denise: Ron, it seems like the legal innovations that we've been discussing on the show today all rely on our moving away from Redwelds with papers in them and having things be digitized and analyzed and crunched and synthesized. Though, too, the medical profession have a lot of personal, confidential, sensitive data on people. Is that going to become a greater and greater issue as things become more automated and digital?
Ron: You're throwing me for a loop on this one; hang on.
Ron: (Laughs) Reword the — you're wanting to know if, as we're moving to more and more technology, if privacy of the data is increasingly an issue?
Denise: If it's going to be an issue for law firms, to make sure that they don't have the same kind of embarrassing data leaks that we see in the headlines from other kinds of entities that have personal data about people, whether they're medical devices or practitioners or financial institutions. Do you think law firms are really capable and ready to deal with the challenge of keeping all that secure?
Ron: Not yet. And I think, in that sense, they're like any other company that's just really increasingly inundated with the amount of hacking and/or espionage that's going on. I think that we're looking at, especially after the NSA disclosures, there just being an awareness that we need to encrypt or protect data across the board more. I think that we're looking for the developer of different service-level agreements between law firms and data centers, ways of storing data in encrypted formats rather than anything being stored in the clear. And I know some of the places, if not most of them now — the Dropboxes, etc. — can handle encrypted data. CLEO, as an example, allows lawyers on their platform to store their data encrypted. So I do think that law firms are taking on the challenge and aware that there's a problem to make sure that the client data's protected, and that's a source of leaks for their clients — that's a concern. I haven't heard a lot about loss of attorney-client privilege due to people passing things back and forth in email, for example.
Denise: What do you think, Evan? Do you think that we're the next big poster child for the industry that was not prepared to deal with people's confidential data?
Evan: Well, there sure is a risk because those who would — well, hackers, I guess is the word I'm looking for — would know that law firms could be a rich source of useful information to the hackers' purposes, whatever those may be. And this is not new. I mean, this has been — the issue of law firm security has been kicking around for quite some time. I remember hearing about it being talked about — I was pretty good friends with our head of security when I worked for a big firm here in Chicago; and I always heard stories that there were buildings full of people in China who worked day in and day out just trying to hack into the systems of law firms in the United States. So just like any other industry, there are going to be variations within the industry as to how prepared a particular entity may be. I'm sure that there are some law firms who are doing a wonderful job, a great job, of implementing best practices through encryption and appropriate firewalls and the human protocols to prevent any kind of social engineering from occurring that would compromise the security of information or clients' privacy or the attorney-client privilege or the different things that are at risk here. And then there are some that are probably very slipshod, who have essentially no framework in place at all to protect any of those interests. So it's just like the discussion in security comes, the old cliché of the chain is only as strong as its weakest link. If we think of the industry as the chain in all this, it's almost inevitable that there will be some kind of data breach that happens in the legal industry that would harm all of these different interests that we're talking about here — privacy, security, confidentiality, attorney-client privilege, what have you. So there's no — we'd be naive to think that there's not something that could happen, but we also don't need to be Doomsday and "the sky is falling" and think that the legal industry as a whole is not doing a good job because I'm sure that there are plenty who are. It's only — there are plenty of smart people working for IT and making policy decisions for law firms in this country.
Denise: Well, it's a little bit different shade of the sharing versus privacy dialogue we were talking about with the Creative Commons project. It's not so much sharing as — innovating, I think, in the legal industry is at times hampered by the fact that we have to worry so much about security and confidentiality. So I remember back when I used to work for a global law firm and they gave me a BlackBerry, and there was no way I was going to use that BlackBerry. I was completely wedded to my other phone; that's how I did business. So my BYO device that was not official became a security risk for the law firm at that point because I was using it in my practice; it was not the approved device. I think that kind of thing happens all the time, and that's partially how innovations make their way into law firms, is when lawyers get frustrated by the technology that they're presented with to use; and they say, "No, I'm sorry. I can't use that. I have to use something else." Ron, do you see that tension playing itself out in the areas that you study?
Ron: I haven't looked a lot at kind of the common, day-to-day tools, and your question is highlighting to me that I probably need to look a little more at that. But — and I remember when the iPads were coming out, people wanted to use it; the IT departments struggling to catch up with it and that the lawyers are wanting to use whatever tools, basically, that their clients want them to use, and the law firm needing to quickly adopt that. And the clients don't really care about attorney-client privilege in the sense that they just want the law firms to handle it and have it be done.
Ron: So there's an interesting push there for them to adopt the latest, greatest technology while their IT struggles to catch up with that.
Denise: Right. Well, let's make "data dump" our second MCLE pass phrase for this episode of This Week in Law. And let's look at an interesting patent case that we've been following.
(The intro plays.)
Denise: So maybe Adam Carolla got ahold of some predictive legal analytic software; who knows what the motivators are here because, so far, Adam has not spoken out. There was a joint press release issued in the podcast patent case that has been pending in East Texas against Adam Carolla and others, I think. In any event, it is no more; it has settled. And specifically, this follows the plaintiff in the case, Personal Audio, going public with the fact that, Hey, we've tried to walk away from this case, and Mr. Carolla's going to continue to litigate it with us. That's no longer the case. Adam has reached a settlement and has decided to walk away. There's some interesting wrinkles to the settlement. They did issue a — the terms of the settlement in detail are not publicly available; but they issued a joint press release where Personal Audio discussed why it wanted to walk away from this and other cases against smaller podcasters. Its analytics through discovery decided the cost/benefit analysis, according to them, of going through with these cases was just not going to pencil out because they didn't realize what a paltry amount we podcasters bring in when we do these shows. (Laughs) So they've decided, and they've publicly stated, they're not going to sue people who are — they deem too low on the food chain. And they named six parties specifically, and the speculation in the Ars Technica coverage of this is that Adam Carolla said, Hey, if we're going to make this public statement, I need you to go on record that you're not going to sue these certain people. So the case is going away. The EFF is not going to give up challenging the validity of the patent itself through the patent office, but that's a separate matter. So Evan, are you surprised about this?
Evan: No, not at all. I mean, Adam Carolla's a funny guy; he's also a very smart guy, and so he's not going to continue to fight a battle when fighting that battle's not going to give him any more benefit on the investment of his resources and time for it. He's gotten what he needs to get from having been named as a defendant, sort of a spike in interest in his comedic career. People who hadn't heard of him before have heard of him now, and those of us who hadn't thought much about him since the days of The Man Show on Comedy Central ten years or so ago are thinking about him again. So he's not going to go ahead and continue to pour his resources into invalidating this patent when he knows for sure that Personal Audio's not going to — doesn't want to come after him, is not seeking these exorbitant licensing fees. So it makes perfect rational sense for him to have gotten out of it when he did; whereas, the EFF's interests, much more in the public interest than this, it makes perfect sense why they would still be fighting their battle in the Uspto to invalidate the patent. So as far as I can tell, things are playing out exactly as they should. Any rational economic actor — a set of rational economic actors in this scenario — would be playing these roles in the very same way, as I'm seeing it.
Denise: All right. Sarah, do you have any take on the going away of the suit against Carolla?
Sarah: I mean, I agree with Evan that it's all playing out as you would expect. And I think that the positive — even though the case was settled, I think that the fact that Adam Carolla was involved and is so high-profile, apparently, maybe the most successful podcast out there, which I was surprised that I didn't know he was still around, either. But it's great. I mean, it's really raising awareness of this issue. I think it's becoming much more mainstream. Like, just talk to somebody on the street, ask if they've heard of patent trolls. It's much more likely that they have than before, which I think is really good. Raising awareness that the patent system is broken is always a good thing.
Denise: Right. Personal Audio still has cases against a number of television companies who have been using digital distribution for their episodic content, so I guess those were big enough fish to trigger going forward with the lawsuits. (Laughs) And Adam has agreed not to make statements about the settlement — I guess both parties have — until September 30 of this year, at which point, presumably, he'll give an accounting to the folks that crowd-funded his defense. He raised over $475,000. Unfortunately, it's likely, I think, that he's gone through that and having to defend the case up until now; but I'm sure the people who funded him would like to know, are we getting our money back or not, since you're not going to trial? What do you think about that, Evan?
Evan: Well, I mean, I would look at the terms of what the crowd-funding arrangement was all about.
Evan: I hadn't delved into that very much here. But it'd be sort of a weird — sort of a — what's the word for it? If you're funding this because you want it to go to trial and the dispute gets resolved early, there's sort of — isn't there sort of a little bit of a mixed motive there? Because you want to support someone; and it seems like, ostensibly, you want them to get out of the dispute as quickly and as painlessly as possible. And yet, if you're disappointed because he didn't go through and fight to the very end, I can see both sides of that. So yeah, as far as whether they should get their money back, I have no idea. That would depend on what the arrangement was, which I would just totally be pulling out of thin air what that would all be about.
Denise: Right, and again —
Sarah: Let's hope they had a —
Denise: Let's hope they had a click-through? (Laughs)
Sarah: Yes, that's exactly what I was — (Laughs)
Evan: (Laughs) Yeah.
Denise: Yes, I know. It will depend on what the terms of service had to say about the use of those funds and how enforceable those terms of service are. So the other shoe yet to drop on that one. We had an interesting question in IRC, going back to our discussion about clients and the digitization of their data. And the question from IRC is, does a client have any choice in that matter in today's day and age? And I think there's a fairly involved answer to that question that — if you get yourself involved in a lawsuit and you yourself have data related to the lawsuit that is in digital form, you're going to be asked to turn that over, likely, in discovery in digital form; so there's that. But if you go to a lawyer and you're a paper-only kind of enterprise and you don't want things digitized, how do you think that sort of request would go over today, Ron?
Ron: I don't see that going anywhere.
Ron: I think that it's just reasonable for courts to mandate that stuff gets scanned, digitized, and that that's the way that it's worked with; it's searchable. It's kind of hard to argue that you need to keep information in a particular format and make it inaccessible to people.
Ron: The whole point of discovery is to facilitate information sharing between the two sides. I'd like to see the costs come substantially down on this. And it's also harder and harder to find anybody who's only working on paper.
Denise: What do you think about making that kind of argument, Evan, that, "Yes, I'm involved in a lawsuit and yes, records under my control are relevant to that lawsuit. They're not digital now; and I'm concerned, Your Honor, that by making them digital, I'm subjecting myself to security risks." Do you think that goes anywhere?
Evan: Well, I don't know that you would need to go that far, to argue against having to digitize something. Because if you look at, at least the federal rules of civil procedure already, I mean, you've got to — your obligations under Rule 34 are to turn over the information in the format that it exists. And this cuts both a number of different ways. If you have electronically stored information that is searchable, you can't turn it over in a format so that it's less useful to the other side; so that's one way of thinking about it. So if you just had a bunch of paper and the other side was demanding that you digitize it to turn it over, I'm not so sure that the Court would — well, it's going to depend on who the judge is and what kind of mood the magistrate who's hearing the discovery issues is going to feel. But I'm not sure it's a foregone conclusion that you would have to digitize it. And you wouldn't even have to bring up the privacy interests in all of that.
Ron: No, I think the issue is more when somebody receives something in paper, whether or not their attorneys have the right to scan it so that all of that information is searchable.
Ron: And I think it's hard to make the case that the receiving side of any paper document doesn't have the right to make it digital so that they can do a better job at protecting their own clients.
Evan: Right. Yeah, with lawyers, I think there's — I think it's Rule 1.2, I think, rule of professional conduct. If it's not that, it's something like that. Essentially, what it boils down to is that in the attorney/client relationship, the client is the one who determines the objectives of the representation, and it's the lawyer who determines the means by which that objective may be attained. So an example I give to my students in my negotiations class is that, if the client wants to make a settlement proposal and the client says to the lawyer, "Let's settle this case for 10 grand," it's the lawyer's decision whether to pick up the phone and call or to write an email. So I would think that the decision of whether to digitize a document would go into the scope of things that fall within the rights, really, if you want to characterize it that way, of the lawyer in conducting the representation to determine the means by which the ultimate objective is there. Now, if the client has specifically instructed, "Don't scan this," who knows how that would turn out in a malpractice lawsuit or a grievance petition? The reality of it is, a lawyer who actually cares and who's not a total a-hole wouldn't scan it anyway because of the client's wish. But I think that the point is, we need to look at the rules of professional conduct for the answer.
Ron: I think you're looking at the other side. I'm talking about the receiving side.
Ron: So that's fine if the producing side wants to hand something over in paper, but I don't believe they have much control over whether the receiving side wants to digitize it for their own work to protect their side's client.
Evan: Oh, yeah.
Denise: Right. And I think it's sort of a work process question. And the follow-up question from the same person in IRC is, what about the lawyer's notes and files? Do you have any control over making sure that your lawyer is not keeping digital records of the representation? I think you have as much control over that as you do — well, maybe you have slightly more control over that if you really want to say, "I'm just not comfortable being your client if you're going to do anything other than take notes on a legal pad with my information." You might find that most lawyers would say, "I'm sorry; I just can't effectively represent you that way." But at least you could have a platform for venting your frustration or your request to the lawyer.
Ron: (Laughs) Yeah.
Denise: When you're talking about the opposing party, the side to which you might be producing documents, I don't think you have any control over how they're going to make use of that data at all, as Ron is pointing out.
Ron: I also think it doesn't — there's not a lot of purpose to not digitizing one's work product; it's more efficient, and it's just as protected as something on paper. If you have to produce it, you have to produce it. But for the most part, work product in any format is protected from discovery.
Evan: And, Ron, going to your situation — I mean, the reality of it is, if it's of concern to the producing party because of its confidential nature — maybe it's something like — I'm thinking of Kentucky Fried Chicken — purportedly, the handwritten list that Colonel Sanders made of the eleven herbs and spices is on a sheet of paper —
Evan: This is the second time we've brought up Louisville, Kentucky, in this show. This is — that's great.
Evan: — is in a safe in downtown Louisville somewhere. So if there were trade secrets, litigation over that, and you wanted to make a photocopy of that and turn it over to the other side, I could see where there would be a compelling issue where a court might rule, in a protective order, that the information won't be digitized.
Evan: So it'd seem like the time to think about that would be well in advance. And then also, you'd want to really be able to articulate some legally recognizable reason why it wouldn't be digitized. But just the run-of-the-mill stuff, sure. Gosh, it sure would be an impediment to not be able to scan this stuff, just so it's useful.
Ron: I think there's been cases for Google's search algorithm. I mean, clearly there's trade secrets there, and clearly that's digital. I mean, it's just as protected, digital or paper, when it's a trade secret.
Evan: Yeah, for sure. For sure.
Denise: Right. All right. I think we're going to move on to our resource and tip of the week and go ahead and wrap up this show. We have a number of resources for you this week — actually, just a couple. One of them: If you are someone who does work with Creative Commons licenses — or are interested in working with Creative Commons licenses — and you'd like to get some more information about what license you might want to work with under particular circumstances, the site Digital Inspiration did a nice poster/chart that helps you understand. It's an even more simplified version of the simplified versions of the licenses that Creative Commons already supplies. This is reduced to sort of infographic chart form and gives you what the graphical representation of the license is, and then how it functions, in a concise way. As a lawyer for Creative Commons, Sarah, do you think this is a useful tool?
Sarah: Absolutely. I think that it was actually created by CC Poland, our affiliate in Poland.
Denise: Ah, right. Yes.
Sarah: And they do great work. And it's really a nice little infographic. Definitely recommend it.
Denise: Yes, yes. Digital Inspiration did the nice step of translating it into something that I could read, so — (Laughs) that was nice of them.
Denise: And also, you pointed to something I've seen floating around for the last few days, which is an article on The Verge. I hesitate to call it a listicle because it's nice and substantive. (Laughs) It is six lawsuits that shaped the Internet. Can you tell us a bit about this?
Sarah: Yeah. I found that on Twitter; I think Eric Goldman maybe tweeted it. And I found it really useful because I am, I am ashamed to admit, old enough that there was no Internet law class when I was in law school. So I often feel like I'm a little behind of the people that kind of had it all put together in one nice little class. So I just thought it was a nice little handy reference of six major lawsuits that every Internet lawyer should know about.
Denise: Right. Sony v. Universal isn't in there, though; so it's certainly not —
Sarah: No, it's not. It's — yeah.
Denise: (Laughs) — not a complete list and maybe not one that goes back quite as far as it could. But yes, it's a nice reference; and it's fun to think about, as the sub-caption of the article says, "If these cases had ended differently, we would live in a very different world." And it's a good reminder that it all turns on how the judges apply their analysis to the facts in front of them; and it all sort of dances on the head of a pin, depending on how a particular case is going to come out.
Our tip of the week comes from listener and lawyer Ben Manevitz — I hope I'm saying your last name right, Ben. I actually invited Ben to come on the show after I got this from him, and I'm hoping he'll join us soon. He was listening to our episode 270 a couple weeks ago with Ben Shears and had a clarification on one of the statements we made there about needing to register copyright before you sue to enforce. His point is — I think what he says Matt said — he has quotes around this, so I'm assuming it's verbatim from the show. "In fact, it doesn't even have to be registered, your copyright. 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." What Ben points out is, there's actually a circuit split on that, with some of the circuits — the tenth and eleventh — requiring the actual issuance of registration; and others — the fifth, the seventh, and the ninth — requiring only that the application be filed. So our tip for this week is best to pin down your registration before suing unless you're in one of those circuits where you know that it's okay to go ahead and just register and then sue. And this is one of those instances when having a knowledgeable lawyer in your camp and not just a piece of machinery might be very helpful to you as you decide whether or not to register your copyright before going down that road, or when you file your lawsuit after you register your copyright. So some nuances to that. Thank you so much, Ben. And thank you so much to our wonderful panel today for helping us think about and try to understand the complicated and interesting issues that we've gone through today. Ron Dolin from Stanford, we're so thrilled that you could have joined us today. Is there — I know you are just off of the one contest that you judged. I know you do a lot of work with start-ups. Anything else that people should be paying attention to or looking at as the fall term here starts?
Ron: Just ongoing. You're just going to see more and more of it across the board, and a lot of work going on with legal design in particular, making the legal system easier to approach from a lay person's perspective.
Denise: That's right; you have a whole program that you do jointly with the design school at Stanford as well?
Ron: Margaret Hagan is spearheading that effort, and it's just putting a new interface so that complex processes are just easier to navigate. So it's trying to make it more user-friendly.
Denise: Great. Well, for those who are watching, the URL for that Legal Tech and Design has been up — not Professor. (Laughs) Under Ron's lower third throughout the show. So if you're interested in that, it's also in our discussion points. You can look at that and everything else that we've been talking about today on the show at delicious.com/thisweekinlaw/272 is our episode this time around. And Sarah, it's such a pleasure to meet you.
Sarah: Yeah. Thank you so much; it was a lot of fun to be here. I'm glad I discovered the show.
Denise: Me, too. Very great to have you on the show, great to talk to someone working on the inside of Creative Commons. I know that Creative Commons always has interesting and new projects going on — we talked about some of them today. Is there anything else that you'd like to highlight before we go ahead and wrap up?
Sarah: Well, I was going to say that I did confirm it is — the data art installation — is going to be in Louisville. So we will mention Louisville for the third time in the show.
Sarah: And then, also, just — I would just say that generally, this is an exciting time, I think, for Creative Commons with our new CEO; and we're kind of figuring out new strategies. So I would just keep an eye out, generally, for what CC is up to in the next few months as we get going on some new things.
Denise: Cool. We will do that. Evan, so good to chat with you. We were gabbing before the show about Footloose and the fact that the main characters from your hometown. You think you could dance us off the air today, just in honor?
Evan: Absolutely ... not. So —
Denise, Ron, and Sarah: (Laugh)
Denise: Too bad. I had to just try.
Evan: I could — maybe one of these days, I'll put on my Speedos, and it'll be a show that will interest everyone. So —
Denise: That's right. Maybe next week, you could just rock a skinny tie for us.
Evan: Okay. I'll do that.
Evan: I guess. (Laughs) But yeah, lots of fun. Yeah, this has been a really interesting conversation. Ron, enjoyed discussing these issues with you, hearing about your work; and Sarah, very — like Denise said, just to tack on to that, very cool to talk with someone from the inside of Creative Commons. We've talked about those concepts so much on the show over the years, and so it's just really neat to get your perspective. So I've really enjoyed the conversation. Denise, thanks for doing such a great job putting it together. It's been a lot of fun. Great way, as usual, to spend a Friday afternoon.
Denise: Yeah. We've had a great time looking at the future — the present and future of the law. The future is — what's the saying? — the future is here today; it's just not evenly distributed. So I think we've seen a good deal of that today on the show. I mentioned where you can find the links to the things we've been discussing today. You can find this show and all the back episodes of our show at twit.tv/twil, once it comes out. We record the show live — we've been recording live today — at 11:00 Pacific Time, 1800UTC; but if you can't join us live, then that's where you can find all the episodes also on YouTube at youtube.com/thisweekinlaw. We're also a netcast, as we like to call ourselves; so that — if you'll remember, there was not only patent litigation related to podcasting technology but trademark litigation way back. So if you are a consumer of netcast entertainment, you can go ahead and find us on iTunes and however else you'd like to pick up those kinds of shows. Roku is a great option, too. What else? We'd love to hear from you. We'd love to hear how you liked this week's show, what you'd like to hear us talk about with guests in the future, any guest suggestions you might have for us. You can reach us by email. I'm firstname.lastname@example.org; Evan is email@example.com. Or find us on Twitter. I'm dhowell there; Evan is internetcases there. That's also the home of his excellent blog at internetcases.com.
Evan: Thank you.
Denise: And — oh, you're so welcome. I enjoy reading your blog. And We have some interesting copyright stories from your blog that we need to get into the show soon. We weren't quite able to do it this week, but we're going to do it hopefully next week. Also —
Evan: Actually —
Evan: — I have a listicle coming out, believe it or not.
Evan: And actually, I'm hoping to get past your definition because it's at least quasai-substantive. So that's something to look forward to: a trademark listicle. So anyway, go on witcha bad self.
Denise: Oh, good. Yes, no, we're going to look forward to that as well. And you can also find us on Facebook and Google+ if you have a little bit more to say than you can stuff into a tweet. Of course, email is always the great way to get in touch with us, too. And we're looking forward to seeing you on the — well, no, we've got one more show before Labor Day, right before Labor Day. We'll kick off your holiday weekend with some scintillating discussion, I hope, next Friday on This Week in Law. See you then! Bye-bye.