This Week in Google 293 (Transcript)
Denise Howell: Next up on This Week in Law, Rob Walker, Jim Gibson, and Sarah Pearson join me, Denise Howell. We will discuss how some lawyer's head clearly rolled when Samsung had not-so-smart privacy or terms of service with its smart TVs; we'll talk about purring cats being misidentified; we'll also talk about copyright litigation by the data; and six-fingered law enforcement; and Ross Ulbricht, all next on This Week in Law.
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Denise: This is TWIL, This Week in Law with Denise Howell and Sarah Pearson, episode 293, recorded February 13 for February 20, 2015
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Hey, folks, Denise Howell here; and thank you so much for joining us for This Week in Law. We are thrilled that you could do so because we've got an excellent panel who are going to help us understand all of the latest developments — or the ones, at least, that we found interesting this week — at the intersection of technology and law. Joining me is my co-host, Sarah Pearson. Hello, Sarah.
Sarah Pearson: Hello, Denise. Glad to be back.
Denise: It's great to see you. How are things going?
Sarah: Pretty good, pretty good. I'm headed to Toronto next week, which is not a great place to go in February; but it's my first time there, so I'm pretty excited.
Denise: Yes. Well, we've got to get you to a warmer destination one of these days.
Denise: I've been feeling for you in the cold winter you're undergoing. So yeah, Toronto's not where I would have picked. What are you doing up there?
Sarah: Our whole Creative Commons staff is meeting up there, actually, because we're all remote now and kind of all over the world; and we're gathering in Toronto. That's where our CEO lives.
Denise: Very good. Face of the modern company right there. And in case you are not up to speed on Sarah's background, she is a lawyer for Creative Commons and helps that wonderful organization continue doing its wonderful work. Also joining us today is Associate Dean for Academic Affairs and professor at Richmond School of Law Jim Gibson. Hello, Jim.
Jim Gibson: Hi, Denise. Thanks for having me.
Denise: Great to see you there. We were joking around before the show, wondering whether the books behind you are real or perhaps a green screen in the trailer out behind the Wal-Mart where you're secretly recording the show.
Jim: Yeah, I'm going to invoke trade secrecy on that one.
Denise: (Laughs) Exactly. Jim writes and teaches on intellectual property in technology law and contracts as well, which is great because we have an interesting contract issue to discuss just a moment from now on the show. But before we get to that, we'd like to also introduce Rob Walker. Rob is a Bay Area lawyer with Donahue Fitzgerald. He's a research fellow with the University of California Hastings Technology and Privacy Project; and he, too, focuses on IP and tech law. Hello, Rob.
Rob Walker: Hey, Denise. Thanks for having me.
Denise: It's great to have you on the show.
All right. We are going to launch into, speaking of the Technology and Privacy Project, some privacy stories.
(The intro plays.)
Denise: All right. So on my mind this week — and I'm hoping it's been on your guys' too — is the fact that some poor lawyer from Samsung got him- or herself royally in trouble and probably fired. (Laughs) And that would be the lawyer who inserted the language that Samsung had to back off of in the terms of service for its smart TVs. That language freaked everybody out by implying as it did that your TV was listening to what you were doing in your house without you having to switch anything on to activate its voice recognition features. Lots of hand-wringing about TVs that could hear things going on in your living room or, God forbid, your bedroom; and Samsung was quick to — I have no personal knowledge as to what happened to that poor terms of service authoring lawyer. But they were quick to change that language and make it clear that — and there's a really good piece detailing what the language was changed to over at Tech Crunch and the problems that it still may undergo. But the change makes it clear that you're actually not going to have your ambient conversations picked up by the TV; you have to affirmatively activate voice recognition for it to work. You can opt out of voice recognition altogether if you're really paranoid about it and know that what's going to get captured is your commands to the TV and not much else. There is some wiggle room in the language still, but it seems to be a much better situation for everyone who was worried about what the Samsung TVs are going to be doing. Have you looked, Jim, at the old language and the new language; and do you feel, as I do, for the poor lawyer who was not very concise with the original wording?
Jim: Well, I think the really remarkable thing about it is not so much what the terms of service said, but the fact that they got caught. (Laughs) That someone actually recognized that the language is in there and made a big enough stink about it that they felt they had to change it. Because I think these things bubble up to the surface once in a while. Instagram had one maybe about a year ago where they had sort of similarly crazy terms of service. And I think those are sort of the tips of the iceberg that get spotted and taken care of; but by and large, most of the draconian terms in these contracts, no one ever notices; and they sort of sail on through. So I think it's not so much what was in there as the fact that, finally, someone noticed and it bubbled up to the surface enough that they were forced to change it. I think it's the exception rather than the rule.
Denise: Right. You've actually paid a lot of attention to the extent to which people ignore terms of service and other agreements with fine print and boiler plate that none of us ever read. Tell us why you bought four computers.
Jim: (Laughs) Well, I started out mostly studying intellectual property entitlements and the balance between fair use and private incentive and a lot of the stuff that IP scholars look at. And I came to realize that what happens is, we set up sort of this very intricate balanced system of public law; and then, as consumers, we end up giving a lot of our part of the balance away in contracts. And so I decided to actually look at whether those were sort of conscious decisions, or whether that was something that we weren't really aware we were doing. And a lot of the cases in this area that set up the law about the mediation between contracts and IP actually take place in the context of buying a computer. The Pro CD case is about software; the HILL v. Gateway case is about a consumer buying a computer. So I decided to mimic that experience, buy a computer, and sort of measure the sheer tonnage of terms you agree to in the course of basically just turning the thing on.
Denise: Right. So that's one of the issues that this smart TV language catch has really highlighted, is the fact that people don't read through the stuff. I guess more they do, these days. I mean, we do find that there are these gotchas hanging out in terms of service like this one that, when they're made public, really give people pause. Rob, I know it's no surprise that TVs can have this kind of functionality and the lawyers, in an effort to protect their clients as much as possible, are going to try and draft broad language that winds up warning people that the TV's going to do something really awful to them; but we're covered now because we've told you. Is there a better approach than that?
Rob: Yeah. I mean, certainly it's hard not to feel sympathy for the lawyer in this case because again, as you said, it's the design, it's the engineering decisions that went into the product, that ultimately are determining what is and isn't captured and sort of what level of privacy exists. And I think that this is a great example of why privacy by design — which is sort of a buzz word, but I think it's a really great concept that more companies are coming to realize is important to consumers. Because, from Samsung's perspective, they made a lot of decisions here that led to a real black mark on them, at least from a public relations standpoint, that didn't need to be the case. I mean, if the functionality had been, Well, yes, you have to push the button for it to start recording; or if they'd just built in some other safeguards, then we wouldn't kind of be discovering that all these sort of little tricks were built into the system that only come out when somebody decides to scrutinize the legal language which, as Jim points out, nobody reads. And I draft terms of service agreements for various clients, and you just kind of always go, Well, is anybody actually going to read this? Well, yeah, they do; and that's what's scary. Yeah.
Denise: Right. That's the thing, isn't it? I mean, I draft them too for clients; and even though it's sort of a thankless job when you find yourself put in the role of drafting terms of service —
Rob: Oh, yeah.
Denise: — but at least in my case — and I assume in just about everyone's case who's knowledgeable about the fact that these things come to light — you're trying to draft something that both protects your clients and is not going to send the public into an outrage frenzy when they read what it is your client is up to. And oftentimes, it prompts discussions with the client to try and clarify exactly what is the function? What do you reasonably anticipate it doing? What do you unreasonably anticipate it doing? And what do we need to cover here? And definitely, the client has to be involved in how you're going to cover it with language that conveys clearly what you're doing. I don't know, Rob. I —
Rob: Yeah. I think that's a —
Denise: Go ahead.
Rob: Yeah, I think that's a great point. I mean, in one sense, as lawyers, we're all associated to looking for legal risk; but in this case, this is really more about business risk or about public relations risk. I mean, this contract may have covered Samsung for all the potential privacy law violations that could have come out of this; but the question is, it's really about the optics. And that's, in some cases, a lot more important from the client side than whether or not they're actually going to incur any liability from this, particularly in the U.S., where our laws are not nearly as draconian or really as enforced as they are in some other places with regards to privacy. So I think, in this case, yeah, the takeaway would be that you have to really weigh all the various ways that this can shake out. And I think mostly the court of public opinion is the one that you have to draft for. That's going to be the ultimate trier of fact in these cases.
Denise: So not only does this smart TV gaff allow us to talk about terms of service and how nobody reads them and how they need to be drafted clearly in an ideal world, but it allows us to talk about the DMCA and how we go through this every-three-years exemption process where people who want to be able to — say, for example, alter their Samsung smart TV so that its functionality to record them is turned off in ways that maybe they can't access just from the menu structure, you could actually be engaged in a felony under the DMCA if you're circumventing controls that have been put in to prevent you from doing that if there's no exemption granted to allow you to do it. And we're in the throes of that exemption process right now. Sarah, have you been paying attention to the exemption that might enable you to alter your TV?
Sarah: Yeah. So it was found by the SFLC; and I think it was, in part, to ensure interoperability with other systems but also to expose security flaws because, as we have seen, there are a lot of creepy things that could go on with smart TVs, whether or not it's real or imagined. And the ability to hack into it and kind of figure those things out is really to everyone's benefit. Because people are going to hack, and you want the good hackers — (Laughs) — able to do it just as much as the people who are willing to just break the law. So I think that was kind of the nature of the DMCA exemption there.
Denise: Right. And it's kind of a strange situation to be in because, if people aren't going to read all of the terribly dry and boring boiler plate language, then they might not even know what the TV's doing. But assuming that they do, are they really going to go to the trouble, Jim, do you think, to try and alter it?
Jim: I think probably not. I mean, there's really two responses if you don't like what your TV does. One is to return it, which is essentially sending a signal to the marketplace that you don't like either the technological capability or the contract terms that have been drafted. It's not usually sort of the decision people make, right? They buy the TV because it's big or because of its resolution, not because of the legalese or the minor technical issues. Technologically, your option, of course, is to hack it; and it's a little crazy that the legality of your hacking is essentially something dependent on whether there's some sort of copyrighted good lingering behind the DRM. That's the way that it becomes an anti-circumvention problem under the DMCA.
Jim: But of course, the reason you're hacking it is not because you want to make copies of the firmware and sell them on the market, right? It's not a classic sort of copyright injury. The reason you want to hack it is because you want that one particular piece of technology in your house to do something slightly different from what its manufacturer designed it to do. So it's very strange that this ends up being a copyright issue in the end.
Denise: It is strange, and we've certainly been talking about it in the privacy context here. I'm going to put our first MCLE pass phrase into the show. We put these phrases in for lawyers and others who are listening to the show for professional education credit in their field. This one is going to be "TL:DNR," which stands for "too long: did not read." And we'll put another phrase in the show later on. This helps you demonstrate to whatever oversight board you might be working with that you indeed listened to or watched the show and didn't just put it down on your log list. So we appreciate the folks who do listen to the show for professional or legal credit; and if you want more information about that, there's more about it on our wiki at Wiki.twit.tv/thisweekinlaw. So check it out there, or you can email me with any questions you have on that front.
So in addition to the eavesdropping TVs, Samsung had another little blip this week. This one did not seem to be a drafting error but some sort of technological error. According to Samsung, they weren't quite sure why this was happening; but some folks in Australia who were using the Plex device to watch movies via their TV found that they were seeing Pepsi ads in the middle of a movie that they had on their Plex, with the upshot being that the Samsung TV seemed to be — this was the conspiracy theory approach to the story — it seemed to be using ad technology, inserting ad technology, into programming that did not otherwise have ads and not giving the user a choice on that front at all. Samsung has said, No, no, no, no. This was an error. We did not mean to do this. But it showed that Samsung and others have the capacity to actually do that, to mess with your TV-watching experience in that regard. Jim, do you think that there could be — well, first of all, I think that someone who writes the terms of service for companies who are anticipating taking that kind of step are definitely going to put some sort of broad language in there notifying you that this could happen, whether or not it actually does and whether or not you actually read it. But notwithstanding that there's some broad language that's likely to be there already or inserted in, do you think this could trigger a lawsuit based on consumer expectations being thwarted?
Denise: Rob, what about — the TVs are just sort of the topic in the news this week. As homes become more and more smart and connected, the smart TV eavesdropping problem is certainly not one to be looked at in a vacuum. We've got the Amazon Echo that's coming our way soon; we've talked before about the JIBO robot assistant here on the show; and those are just the tip of the iceberg as to devices in your home that are capable of learning a lot about you and phoning home to their manufacturer with that data. You were talking about privacy by design. How should we tackle this problem?
Rob: Yeah, I think that's a really interesting question because as you see the evolution of the Internet of things, as people will sometimes call it, and sort of the Internet enabling of a lot of different devices in your home — some of which make sense and that you would understand, like a smart TV. Other things, like a smart refrigerator — I mean, I'm not sure exactly how I'm going to use that one, but I guess that's in the works by some places. But yeah, I think what we have to have is sort of a two-prong approach. One is companies really thinking about privacy at the incept of the design process and making that one of the requirements that go into the evolution of these products in terms of their research and development. But in parcel with that is that we really need a better sense of what the norms are around this; and this is sort of a debate that has raged since time in memorial, practically, about what does privacy really mean and what does it mean for American consumers versus maybe for Europeans or for Asian consumers who have a different cultural understanding of privacy and a different background there? And there's been a lot of really good scholarship into what privacy in the law means and how, say, Western Europeans think of privacy in very different terms than Americans do. But as we're talking about kind of the development of devices, we really do have to try to find some middle ground or some sort of common ground that then designers and engineers can go, Okay. This is what people expect, and build on that. Unfortunately, that's kind of saying, Well, yes, we have to reinvent everything in order to move forward. I don't think it's that big of a challenge; I think the problem is that there haven't really been any major device manufacturers who've really wanted to step forward and say, Yes, we're going to do this. This is something that's important to us on a cultural level, and so we want to take the lead there. Maybe there are some that I'm not aware of; but certainly a lot of the big players that we kind of come back to again and again seem to kind of always treat privacy as an afterthought and as a drafting challenge for their lowly legal departments, not something that's really actually baked into the DNA of their product line.
Denise: In just a moment, we'll move from talking about companies eavesdropping on you to the government doing so and developments in the lawsuits that challenge that activity. But right now, we're going to thank our first sponsor for this episode of This Week in Law; and that is Harry's. I love Harry's because Harry's fixes a problem that so many of us have: paying too much for overpriced razors and razor blades. Let's admit it: Shaving is fun. You love the feeling after you've shaved; I know that. Sometimes we cut or scrape ourselves with dull blades, though; you don't love that feeling. So you want your blades to be absolutely the best quality, sharp as can be every time when you're shaving. And razors are expensive. They run about $4 a blade. They're sort of the poster child for the notion of up-selling you. You buy the cheap little razor, and then you have to buy the expensive blades over and over again after the fact; and that's where a lot of razor blade companies make their money. Someone who shaves every day, you wind up spending hundreds of dollars a year just on razors. The Gillette Fusion, for example, comes to mind. And when we go to the store to buy blades and razors, sometimes we have to deal with those pesky locked up Plexiglas cabinets. I know that every time I have to go and refill what used to be my husband's shaving system down at Target, I had to schlep up there with the big plastic thing and have it unlocked. Not only does it slow you down at the check stand, but it's just a pain. Harry's fixes all that. They're wonderful; they give you high-quality razors at about half the price of those big-brand blades, and they make their razors in their own factory in Germany. They engineer them for sharpness and high performance, and they ship them to you for free to your front door. Because they make and ship their own blades, Harry's is a more efficient company, which means they can give you factory direct pricing, and they guarantee your satisfaction. In each kit, you get a razor with a handle that looks and feels great. It's just got wonderful balance to it. You get three razor blades with your starter kit and foaming shave gel. You can see all those by going to Harrys.com/products. The Starter Truman set is an incredible deal. You get all this for just $15. Now, I've been using Harry's for a while, and I liked it so much that I turned my husband onto it. Now we both use Harry's. It gives us both clean, close, and comfortable shaves. Of course we shave differently, but that makes no never-mind at all. It's a product that works just as well for women as it does for men. I love the look and feel of the set. As I mentioned, I love the balance of the razor. The blades are wonderfully priced and just — they function great. I mean, I have absolutely no complaints. If anything, I would never go back to the store-bought blade because I'm so happy with how Harry's works. They give you a clean, close, comfortable shave. The price is half as much as the razors at the store that I used to be buying for the both of us. They also have a new aftershave moisturizer that protects and hydrates the skin. Again, wherever you shave, that is an important thing to bear in mind. So don't just take my word for it; you've got to try it yourself. Go to Harrys.com and get $5 off your first purchase with the code "TWIL." That's Harrys.com; and you're going to enter "TWIL" at checkout. Thank you so much, Harry's, for the wonderful, clean shaves, the great products, and your support of This Week in Law.
All right. So one of the cases that's been pending about NSA surveillance for some time is the Jewel v. NSA case. And that one is one that was filed before the recent Snowden leaks and information that came out in those papers about what exactly phone companies were doing to intercept customer data and share it with the government. It, like many of the cases before it, had a standing issue that may be dealt with in some of the post-Snowden cases. So this one, like a lot of the other ones, the court looked at it and said, I'm sorry; we just can't see how the plaintiffs in question here have demonstrated that they know they were spied upon. That was a big issue for the court here. District Judge Jeffrey White also threw in that there was a trade secret issue that would have precluded him from ruling on the case even if the standing issue had been satisfied. So EFF had a couple of blows dealt to it in this case, and you can read more about it on their site. But I wanted to poll our panel here and get their take on the Jewel case. Robert, I'll start with you.
Rob: I'm actually going to defer on this one because I'm not as familiar with this issue as I am some other things.
Denise: Okay. How about Jim? Do you want to talk about the Jewel v. NSA case?
Jim: Well, I think there's a theory in constitutional law that standing was specifically invented to keep certain kinds of merits of certain kinds of cases from getting to court. And it was invented sort of back in the '30s, probably more for liberal causes than for conservative causes when a lot of plaintiffs wanted to challenge Lockner era legislation that attempted to regulate work conditions and that sort of thing. I think, if that was a liberal invention, it's probably come around to bite us in the butt all these decades later because it's incredibly difficult to know, before the suit is filed and discovery occurs, whether you're in fact somebody who has suffered from the spying. And so it almost just turns into a political question rather than a question that could be resolved in the court system, and that's not good for individual rights and privacy.
Denise: Do you have much faith that these post-Snowden era cases that have been filed will fare differently?
Jim: I don't, really. I mean, there's sort of two problems, one of which is sort of the discovery problem — establishing standing, establishing injury on the part of any particular plaintiff. The other is that — it sort of ties into the point I was trying to make before I had the technical snafu, which is that there's not really a substrate of privacy rights under which you can bring a cause of action. The hook here is really, the government's intruding on your privacy; so then there's constitutional issues. But given that there's sort of private plaintiffs in the mix, there's not necessarily a right not to be spied upon by anyone other than the government; whereas, as Rob was saying earlier, in other cultures your privacy rights are almost regarded as intellectual property in the sense that they're owned by you and you have to affirmatively give them up in order to give anyone the right to invade them. Whereas here, except for tax and medical records and student records and some very narrow areas, there's not actually a pre-existing right that's a basis for a suit, which is why we see these things mediated by contracts and by technology so often rather than by some sort of publicly granted entitlement.
Denise: Were there any other thoughts that you wanted to flesh out regarding our prior discussion about devices and privacy and privacy by design? We did have to drop your video there for a second, and I'm not sure you got to finish the thought that you were trying to express.
Jim: And to follow up on Rob's comment about Europe, take what in America we'd probably view as a pretty extreme example of the European conception of privacy rights; that's the recent "right to be forgotten" controversy, right, the notion that you can sort of order data aggregators and search engines to forget about an individual. I think in the U.S. that's a non-starter because we don't think about the individual as the one who's sort of initially in control of one's online information. But in Europe, it's not that weird because, in Europe, you start with control over your identity to a great extent because of the sort of omnibus privacy conception that Rob's talking about; and then you give away parts of it from there. It's sort of the reverse here, which is why something like the right to be forgotten just sounds crazy to the American privacy conception.
Denise: All right. Well, we've been talking about copyright sort of obliquely in the context of needing to be able to alter your devices if they are not adequately respecting your privacy. Let's talk about some other, more direct copyright issues.
(The intro plays.)
Denise: So last year, Jim did an interesting article where he didn't have to access any private data that had been obtained via eavesdropping televisions. He was able to go to the public record and look at — was it over 900 copyright cases, Jim?
Jim: Yeah, something like 983 altogether.
Denise: Oh, my gosh. That's —
Jim: It was a fun few months of coding.
Denise: (Laughs) Yes, exactly. And looked at them, really, from a meta level and tried to find out what we could learn, what sort of trends were going on, in copyright litigation in the U.S. Can you tell us what you discovered?
Jim: Well, this is the sort of thing that, in patent law, they've done to death, really sort of docket-level research. Who sues? who wins? how long do the cases last? where are they filed? what kind of works are at issue? But in copyright, the only empirical work had really only been done at the publish decision level. What do courts say about copyright when a case gets to court? So my colleague on the Richmond faculty, Chris Cotropia, and I decided to just kind of roll up our sleeves and look deeply into copyright dockets to see what we found. Now, the era we studied was 2005 to 2008, which meant that over half the cases we found were filed by the recording industry against individual users who were engaging in file-sharing. That was the big era, if you'll recall, when that was the kind of case that the recording industry fought in the thousands. So those weren't that surprising, although that era has somewhat ended. What was really interesting was that, of the other kinds of cases, they weren't really the kinds of parties and claims that we would expect. A lot of really small firms or individuals brought the case rather than, say, a big multi-media conglomerate. A lot of the kinds of works that were sued over were not the classic works that you think of as at the core of copyright, like books and movies, but were stuff like industrial design, textile and fabric. So it looks like the kind of stuff that filters up into court in copyright cases is not necessarily the kind of stuff that we think about as being at the core of copyright's purpose, sort of creating an incentive for commercial exploitation.
Denise: Sarah, I know you took a deep dive into the article. Did anything strike you as particularly noteworthy?
Sarah: Yeah. I guess it's interesting, that particular takeaway from the article about how these industries that are kind of at the periphery of copyright are really involved in copyright litigation. Initially, that struck me as kind of surprising; but I guess the more I thought about it, I think it kind of makes sense in a way because it's at the edges where there's more uncertainty that you would have a need for litigation. So where the claims to copyright are stronger and more established, you arguably wouldn't need to go to trial. So I guess I kind of came away thinking that maybe that initially surprising or seemingly counterintuitive takeaway actually kind of makes sense.
Jim: Yeah. I think that's exactly right, and I also think that a lot of the industries where copyright is more the bread and butter are industries with a lot of consolidation, a lot of repeat players, where a lot of the action probably takes place outside of the courtroom through sort of established relationships and licensing schemes. It's important not to look at copyright litigation and think, This is what happens in copyright everywhere.
Jim: Because a lot of the action obviously takes place outside the courtroom.
Sarah: Absolutely. Yeah. I mean, there's the whole permission culture in Hollywood and some of the really entrenched copyright industries where the default is just to ask for permission for everything, whether or not you need it; and that's probably part of it, too.
Jim: Yeah, I think that's right.
Denise: Jim, I know we're talking about 2005 through 2008. Creative Commons was in existence then; and, as Sarah mentioned, permission culture is becoming more and more of a factor in being able to reuse copyrighted works. Do you think that — did you see that impact in the data that you looked at at all, or do we still need to wait for that?
Jim: Well, I think actually one of the beauties of Creative Commons' approach or an open-source approach is that it actually doesn't bubble up into litigation very often. I mean, open-source software licensing schemes have been around for a very long time, but there's very, very few reported cases involving disputes over those kinds of licensing schemes. If they're working well, you shouldn't see them bubble up into litigation.
Jim: Sort of to Sarah's point that it's only the real troublesome cases that get heavily litigated. I think Creative Commons and open-source is really part of this — what they call operating in the shadow of the law, right?
Jim: The clearance culture, the permission culture. And I think it's done a lot of good work there. Absent those sorts of licensing alternatives, what we see is everyone always asking for permission for everything all the time, which means eventually that circles back into the doctrine because that's what courts come to expect as the rule rather than just as the practice.
Sarah: Right. And I was going to say, from Creative Commons' perspective, we definitely don't want to be kind of perpetuating permissions culture with Creative Commons licenses. And it's an interesting issue that comes up sometimes is, how much do we push CC licensing on things that are kind of at the edge of copyright because, on the one hand, you want to clear up any uncertainty; but on the other hand, you don't want to kind of reinforce this notion that everything requires asking permission when really it doesn't. So it's an interesting dilemma, interesting thing to think about.
Jim: Yeah, I definitely feel for Sarah in that respect because think about the fair use inquiry, for example, which is where we often mediate these questions at the periphery of the entitlement. The most important factor in a fair use decision is what? The impact on the market for the copyrighted work. Well, if everybody is asking for permission and paying even small licensing fees for a relatively minor use, then when someone finally stands up and challenges it and says, No, this should be a fair use, I shouldn't have to license it, the court turns around and says, Everybody else has been paying for this stuff; what makes you so special; right? There's a market impact there.
Jim: And so even a well-intended, prudent approach that a good attorney will advise its client to take — eh, get a fee, don't bother litigating; it's much cheaper — can eventually circle back around and feed back into fair use doctrine in a really constrained way.
Rob: Yeah. And I think that that's a really interesting point, Jim; and I know that you've written on this before. Actually, we've both written on this topic.
Jim: That's right.
Rob: And yes, it's sort of a — we have a really interesting sort of externality problem here because what's going on is that — yeah. If somebody comes into my office and asks me to do a fair use analysis, you can walk through the steps and you can tell them the risk and associate that; but at the end of the day, you're going to say, WELL, the risk is not zero of litigation, so how do you feel about this? And with the statutory damages provisions being what they are and just litigation in general, and not only the financial risk there but the emotional risk and all the things that go into being a defendant in a lawsuit, a lot of people say, Yeah, I'd absolutely just rather spend some money and make this go away, or at least hedge my risk there. And so it's really difficult, on an individual level, for anybody not to want to kind of buy into permission cultures. But you're absolutely right — on sort of the normative level or on the broader societal level, we see these things creating markets that frankly just shouldn't exist. But again, how do you tell that to any specific client who says, Oh, my gosh, I got a nasty letter from somebody who's claiming copyright. What should I do?
Denise: yeah. And that's something that I would have expected over the period that we're discussing, 2005 through 2008 and on up through today, to see something of a reduction of the silly copyright assertions on the plaintiff side that, with the Internet and the Streisand Effect and the bad PR that you get when you're firing a shot across the bough that is not well founded in law and is just intended to achieve an end because you're betting on the fact that the person on the other side either doesn't have the information or doesn't have the access to legal resources to fight you — I would have expected to see a reduction in that kind of knee-jerk reaction on the part of rights-holders. And then, as we discussed on the last episode of This Week in Law, we're repeatedly proven wrong on that. What we discussed was the left shark from Katy Perry's half-time show at the Super Bowl and the fact that Katy Perry's lawyers saw fit, even though they're on extraordinarily tenuous legal ground — as Professor Christopher Jon Sprigman has pointed out in representing the person who is making a 3-D model of the left shark — they really don't have much of a flag to fly there on the copyright side. And yet the knee-jerk reaction, when you're someone like Katy Perry with a big law firm, is, Oh, there's someone out there using our property. We're definitely going to fire off a letter on that. What do you think about that? We'll start with Rob.
Rob: Yeah. It's really unfortunate because it is certainly an idea that's not original to me, but a great quip is that being right is free; proving you're right takes legal fees. And the way that a lot of these letters are structured — at least the ones that I've seen — is that the demand is very specific, and it's at a price point where somebody just is not going to lawyer up. And there are a number of really big players in various markets who have made a very good business of just doing this, of going out and making unfounded demands, but making them at a price point where it's not worth it to retain an attorney even to respond. And so yeah, I'm not surprised that this happens. The Katy Perry one is really a little bit bizarre to me because I'm not sure what her counsel was thinking there, particularly given who she is and given the very public nature of that event. I mean, is there anything more public than something that happens at the Super Bowl? I mean, no, there isn't.
Denise: (Laughs) Yeah.
Rob: So the fact that you would kind of make a very tenuous copyright claim in that context is weird. But in smaller cases, or ones where there's a slightly colorable claim that somebody might step forward, I mean, it makes a lot of business sense. And it's unfortunate that it does. And how you combat that — there's no way to combat that as an individual unless you're willing to do what, say, in the Sherlock Holmes case earlier this year, where you have a defendant who's really willing to go the distance to fight against what they see as an unreasonable, unlawful claim of copyright — in most cases, someone's just not going to do that. It doesn't make financial sense. And again, the risks, if you lose, are too high. But yeah, the shark is a curious one. (Laughs)
Denise: (Laughs) Yeah, exactly. Jim, what do you think about it as indicative of trends in spurious cease and desist letters?
Jim: Yeah. I mean, the left shark one is kind of a funny joke; and I think they made a bad mistake in messing with my buddy Chris Sprigman, who's obviously been taking them to town in a really public way. But two comments on sort of whether the Internet has a moderating effect on these sorts of claims. The first is, I think we've got to be really careful about sort of this availability heuristic. We see a couple cases like left shark, or like the Samsung case we talked about earlier today, that make the company look really bad and have to retreat. I hope that's where the left shark case is going, anyway. But that's just what we see, right? My sense is that there's actually a ton more cases where that doesn't happen and that people do roll over. And so we sort of comfort ourselves by looking at the few victories on the part of the folks who are resisting the ridiculous claims because we don't observe the vast majority of times when, in fact, that's not the outcome. And the second thing, I think that the Internet, in making so many people empowered to be creative and share their creativity — which is great, which is sort of — you can sit, like we're doing, in separate rooms and put on a cool show.
Jim: That's great. But I think it also gives people an opportunity to feel a sense of entitlement about doing that. You're a lot more exercised about someone exploiting something that you view that you've created if it's something you've already shared with the public through the Internet. And so I'm not sure that, overall, spurious claims fall because I think there's a lot more potential for spurious claims to arise in the first place given that anybody can be an author or publisher in today's digital world.
Denise: Yeah. Excellent point. And teeing up our next story along those lines, I'm going to go ahead and put our second MCLE pass phrase into the show; and it is "Take down that purr." And that refers to our story here. Every now and then, we like to highlight how it's not only waiting around to get the spurious cease and desist letter from a lawyer; human lawyers don't even need to get involved when you've got the content ID system over at YouTube deciding that your one-hour video of your cat, Phantom, purring — which, according to Ernesto over at TorrentFreak who wrote this up — never went viral but had its own niche audience. There are people who really enjoy, might be soothed or entertained by the one hour of the cat purring. It was cranking away, doing all right, the kind of thing you would expect to populate YouTube — in fact, precisely the kind of thing you would expect to populate YouTube — until the content ID system got involved and decided that the cat purring actually matched something that had been uploaded to content ID and needed to be taken down. So I really put this in the show to be able to put an entertaining MCLE pass phrase in and give us something entertaining to talk about.
Denise: But it is indicative of the fact that content ID continues to not be a perfect system. Rob, do you have any thoughts about that?
Rob: Yeah. I mean, I just think we need to be very careful in cases like this about the considering salience because YouTube — the amount of content that's put up there versus the number of incidents where we have ridiculous stories like this occur — the system itself actually, I would wager to say, is actually really, really good. But it's not perfect, and it can't be perfect. I mean, I don't know of anything that is, even when you hear engineers talk about 5-9s and all these sorts of various phrases for reliability. But I do think that perhaps there's some value in the fact that it's not perfect insofar as discussions about this do continue to raise copyright issues to the level of public consciousness. They do kind of have a shaming effect, at least in this case, on the, whomever made the DMCA takedown notice — or, excuse me. I guess this wasn't a DMCA takedown notice; this just was content ID flagging it.
Denise: Content ID, yeah.
Rob: Yeah. But it does sort of keep the — maybe keeps some spurious claims at bay in the sense that, if you have a system that isn't perfect and there is the potential for people to have some embarrassment that comes out of that, I mean, it really does kind of keep us on our toes. But yeah. I mean, it's always fun to talk about these things; but it's hard to really think about them as being anything more than pretty extreme outliers, at least so far as I can tell from what Google's released about the data on content ID.
Denise: Right. And you —
Rob: Maybe Jim has something different.
Denise: You could look at this story as a story of the failure of content ID, or you could look at it as the story of the success of it because, while we wish that it wouldn't flag purring as copyrighted content, at least here, the maker of the video was able to file a dispute and notify both — EMI, I guess, was the rights-holder whose content was matched — and YouTube that a mistake had been made; and ultimately, it was rectified. But like I said, maybe it should never have happened in the first place. What do you think, Jim?
Jim: Well, I think the two of you — combining your two comments, I think, is exactly the right way to think about it.
Jim: Like Rob, I have some sympathy for managing this massive process of trying to take down infringing works and some sympathy for trying to do it technologically through the sort of content ID system. And so the cost of errors in that system, I think, if it's low enough, makes the system tolerable. But when the error occurs, it's extra important to make sure that it's easily correctable by the person who uploaded the content in the first place; and this goes for technological content ID type solutions as well as DMCA takedown notices. The problem with the DMCA notice and takedown system is that it creates great incentives on the part of the intermediary to take down the content because they avoid copyright liability by doing that; but even though it has a counter-notification process that's on paper, there's actually no incentive to engage in the counter-notification process and put the content back up because all that gives you is liability against the consumer for suing you for, what, wrongful takedown? I mean, there's no liability to be mediated there. So I think that part of the DMCA really needs to be fixed.
Denise: All right. Well, that sounds like a good time for a snack, or at least to start thinking about a snack, or maybe thinking about dinner because we're going to thank our second sponsor for this episode of This Week in Law; and that is Blue Apron. And Blue Apron always makes me think about dinner and look forward to it. Of course we all love to eat, but it's hard to find a meal that doesn't compromise somewhere. You want it to be a good value; you want it to be quick to prepare; you want it to be healthy and delicious. And those are all big challenges. Well, Blue Apron is here to help you meet those challenges and conquer them. Blue Apron makes delicious eels — meals — easy and fun. (Laughs) They don't make delicious eels, as far as I know. No eels have come to my house yet. But they make meals delicious and easy and fun by delivering fresh, ready-to-cook meals right to your door. They're less than $10 a meal, people; and I can tell you that these are restaurant quality meals. So you want to [inaudible] your spouse [inaudible] the money that you would spend at a restaurant, Blue Apron is absolutely the greatest thing for that. It sends you fresh ingredients perfectly proportioned with step-by-step recipes, including beautifully printed pictures, making cooking healthy meals really, really easy and fun. In fact, your kids can even do it. Turn them loose in the kitchen with the recipe card so they know what it's supposed to look like and all the ingredients and the proportions and the step-by-step instructions, and also instructions from you on how to not burn down your house or slice off a finger. (Laughs) Really, if you've got responsible children, they will be delighted at what they can accomplish for you as well. Each meal is balanced and has merely 500 to 700 calories per serving, so yummy that you'd never know that they were that calorie-conscious. Cooking takes about half an hour; shipping is free; and the menus are always new. They won't send the same meal twice, and they will constantly, I've discovered, work with ingredients that you might not purchase or think to put together in your own cooking. Coming up this week, for example, we're going to have, among other items on their menu, things like orange beef lo mein with gai lan and napa cabbage. I now know what gai lan is, having cooked another Blue Apron meal that we've talked about on the show. It's an Asian vegetable, very much like bok choy, that is delicious and tasty and cooks down in a really, really yummy way. So we've got the orange beef lo mein that incorporates that. They also have chicken and sage biscuit pot pie, very warm, yummy comfort food for everyone enjoying cold Februarys here in the U.S.; and also farro jambalaya. Again, farro's not something that I would think to pick up. It's something I've only had in restaurants before; but it's a delicious and really, really healthy food. Again, I think of it as Italian; but here, they're making a jambalaya dish out of it mixing it with crispy — now, I don't even know how to pronounce this mushroom — maitake mushrooms, perhaps. So again, they really mix up their flavors and give you just a delightful selection of things to work with. You're just going to love it. You have to try it; there's no better way than to try it and see for yourself. And guess what? You're going to be able to get two meals for free by going to ghlueApron.com/twit. That's right: two meals absolutely free just for going to BlueApron.com/twit. Blue Apron: It's a better way to cook. Check it out. Thank you so much, Blue Apron, for the delicious food and for your support of This Week in Law.
All right. Now that we've gotten ourselves hungry, let's talk about some red meat, I guess — for lack of a better transition there — to talk about Ross Ulbricht, who was convicted last year — sorry, last week — of all seven charges that he was indicted on. The jury had very little trouble in finding that he was indeed Dread Pirate Roberts and convicting him as the mastermind of Silk Road; so I wanted the chance to bring that up. We didn't get the chance to talk about it in either of our other two recent shows, so it is noteworthy. I think there were people who wondered how the evidentiary issues were going to play out in that case and whether the government was going to be able to use the information that it had obtained on servers belonging to Ulbricht. Ulbricht's defense team never really raised that Fourth Amendment challenge in an effective way, made a decision that it would be detrimental to him to actually have to say, Well, yes, we owned those servers; and so therefore, we can assert that they should not have been unreasonably searched. That may have tied their hands a bit; but regardless of what happened here, what happened here is Ulbricht is going down. So Jim, any thoughts on this or the state of the dark web in the wake of Silk Road?
Jim: I'm certainly not an expert in these sorts of prosecutions. What it brings to mind for me, as an IP lawyer and an IP scholar, is the real importance of keeping criminal law and civil law separate. If it turns out that a guy is running an online anonymous drug distribution network, I have a lot less sympathy for him. And the means by which the prosecution and criminal investigators get their hands on information are, and should be, very different from the way one gets one's hands on information in a civil suit. But there have been pushes to make copyright law, for example, a lot more of a criminal law matter than it has been in the past — you know, the Net Act from the late '90s was maybe the first real salvo in that direction. And when it comes to the government doing the job of copyright owners by making a case criminal rather than civil, then I start to have a lot more misgivings about the investigative techniques that might have been used here.
Denise: All right. Robert, any thoughts?
Rob: Yeah. I think the — well, one, I think that this is just a really fun case in the sense of just the absolute orgy of evidence that they stumbled upon when they caught him on the laptop which logged in to the master account and all these various things. But for somebody who's not engaged in criminal activity, I think that what this really brings up as a question is, where do your servers live? I mean, this is something that I've increasingly seen in a lot of different contexts where, as we've talked about earlier, as the Internet of things becomes more prevalent, as more services are provided through cloud computing systems and more companies move their IT operations outside of the walls of their building and out into data centers and out into other places, who has access? who can search there? under what jurisdiction will you fall, particularly if you, say, have a data center that's located outside the U.S. or, if you're a European company, maybe you have one that's located in the U.S. Does that violate European privacy law? I mean, there are all sorts of issues that come up as data migrates out into the cloud; and I think this is just a really interesting case to kind of put that in perspective: the idea that somebody could get a search warrant on your servers that are located somewhere that you may not have in your possession, you may not actually know that the servers exist. Or even if you know that they exist, you don't know exactly where they are. I mean, it's a lot of questions that legitimate players need to take into context. And so this isn't just a question for the criminal masterminds of the Internet, but probably something that a lot of companies should be paying attention to.
Denise: Sarah, what do you think about the notion that all of — I mean, obviously we have a long-standing system of justice in our country where, unless there's a darn good reason to put something under seal, everything that happens is publicly available. When I read about Ulbricht's conviction, I just see in my head all of the other dark web operators of drug trafficking and other illegal black-market-good-trafficking sites taking notes and making sure that they now have a handbook for what to do better so as not to get caught. Do you see any solution to that?
Sarah: I mean, I certainly don’t think the solution would be to make the litigation not public if that is what you are implying.
Denise: Not really, I just am wondering if there is a solution.
Sarah: Yeah, I don’t know if there is a solution. Probably not. I mean, I was thinking one of the articles that you put in the notes about this case mentioned the idea that maybe this case in some ways backfires for law enforcement because it gives publicity to the dark web. So many people don’t even know that it exists or that it’s out there. So it could actually lead to more people using it and going there and I thought that was kind of an interesting take away. That is probably what you are getting at here and I don’t know. I just don’t know if there is a solution to that and if there is I am not creative enough to come up with it.
Denise: Yeah, I always feel like when we read and discuss these kinds of cases that we’re sort of talking about things that have happened in the past and in the real world things have moved on and these kinds of sites are already, you know, out and learning from the mistakes that have been made and as have you’ve said, you know, perhaps the point that one of those authors made getting greater market share because of the publicity.
But be that as it may we will go ahead and if you are not as Rob pointed out a criminal mastermind attempting to exploit the dark web or even if you are there are certainly lessons to be had from the Albrit case. So our tip of the week comes from a great article at PC Magazine, sorry PC World, by Joab Jackson there. Five technologies that betrayed Silk Road’s Anonymity. Joab went through the record and the evidence that was put in against Guss Albrit and picked out the five ways that he went down evidentiary wise and the things that were really able to sway the jury. Some things that people might consider quiet secure, and I think Guss Albirt probably did, things like thinking that bit coins can’t be traced back to you. In this case that we saw the prosecutors found it trivial to track profits from Silk Roads as they were transferred to wallets used by the online market to wallets on Ulbricht’s laptop. Really it was kind of follow the money thing and using bit coin didn’t shield him and again none of these particular items might have been enough to convict him on their own but all together they created the evidence that the prosecutors needed to show that he was guilty to the standard of proof that was required. Guss Albrit kept the chat logs from Silk Road on his computer even though there was an option in tour chat to keep the logs from being saved locally on your computer. That option was turned on to save them so we will never know why that was the case. It seems like a silly thing to do if what you are trying to do is have your conversations be secured. The encryption as Rob pointed out you might be lulled into a false sense of security if you are saving data into an encrypted hard drive but here the law enforcement officers who apprehended Albrit working away in a public library got him with his computer open and logged in before he could shut it! He had his back to them, as he so frequently admonished people who worked with him, they shouldn’t do, they nabbed him and they got right into his computer because of course he was logged in. Also, people, the prosecutors, were able to draw connections between his personal both email accounts and Facebook account. Things that Dread Pirate Roberts had been known to do they were able to match up travels in Thailand with travels in Thailand that Ross had actually posted to his personal Facebook page, etc. So things not to do if you are trying to stay secure is what is the take away from this trial in the PC World article that you can find at delicious. com/thisweekinlaw293 along with everything else that we have discussed this week. Our resource for you this week has kind of been keeping with eavesdropping TV’s and everything else. I got this from Doc Searls who shared it with the VRM discussion list and it’s a great article. It is not brand spanking new it was initially published by Pro Publica on June 13, 2014 and it was updated last year but it is a comprehensive piece on everything we know about what data brokers know about you and it goes through and looks at what sort of information is being gathered by data brokers, how is it being gathered, who are you interacting with in your daily life, who is selling your information to data brokers, the special treatment that health data gets and how health data, nevertheless, can still be collected about you. So it is a really nice piece if you are interested in just kind of knowing what is available out there about you and having I guess a sleepless night over that. You can go ahead and check out this Pro Publica piece. Anybody have any final thoughts about anything we’ve discussed today? Sarah, I will start with you.
Sarah: I was just thinking that I have to read that article but I might get even more depressed than I already am after today’s show and about the privacy. The state of privacy in the US in particular. I think we have a lot of work to do.
Denise: After you do that make sure to queue up a video of cats purring because it will help.
Sarah: That is true, that will help me sleep.
Denise: Yes, even know the fact that you watched it is logged and registered somewhere.
Denise: Jim, any final thoughts before we go ahead and wrap this show?
Jim: Well, I have to say that your talk about Ulbricht being caught with his laptop opened and logged in strikes me of the 21st Century equivalent of the old ruined criminal procedure don’t get arrested in your car because if you get arrested in your car everybody in your car, everything in your car, is as screwed as you are. I guess the 21st Century equivalent to getting arrested while you are logged in your laptop because then all the hope you have of protecting all of your private information from law enforcement is pretty much shot to hell.
Denise: Good point. Rob, how about you?
Rob: Yeah, you know I am just kind of sad that he really didn’t live up to the Dread Pirate Roberts moniker. I mean, I had just had so much higher hopes for somebody that would take that on as their name and be actually the criminal mastermind that he claimed to be and he seems like he wasn’t. In this case but you know I guess joking aside it is a good point for anybody who is involved in using the internet that your activities are not private and there are lots of ways into getting that information that you might think is private and it is a pretty scary world out there in cyber space. Unfortunately, that is where we are at this point of time but I hope that things will be better in the future.
Denise: Yes, and I just feel for all the parents and kids out there who having watched princess bride decide that their online screen name should really be Dread Pirate Roberts and they have no idea about Ross Ulbricht and that that might not be a good idea at this point .
Rob: Well and the fact that he picked as you wish for his password didn’t help either you know.
Denise: No, not at all.
Jim: Rumor has it that one of the arresting officers had 6 fingers on one of his hands.
Denise: Alright on that note we will go ahead and wrap this episode of This Week in Law. I so enjoyed spending time with you Jim Gibson. Anything coming up in your plate or at Richmond that you want to let folks know about before we go ahead and sign off?
Jim: Well, Chris Catopry and I are doing a follow up article on our big Imperial piece that is going to drill down a little more into this issue on what’s going with these sort of at the periphery copy right claims in federal court and you know is there anything that can be done about it. So it will be coming to a state SSR site near you soon.
Denise: Good, we will stay tuned. How about with you Rob? Any talks that you are involved with any article you want to plug?
Rob: Yeah, I have one coming out here I guess next month with the Northwestern Law review which I am sure everybody at home reads cover to cover every month
Denise: That’s right
Rob: Yeah why wouldn’t you but it is on aesthetic judgments in copyright law and sort of how courts use art and art history to kind of wave through the tangle of copyright doctrine and what we think they can do to do that better. So it is coming out here and it should be good it’s with my co-author Ben Deporter who is also at UC Hastings so it is a fun piece.
Denise: Wonderful thanks for letting us know about that. Sarah, it’s always great to chat with you. I am so glad you could join us today.
Sarah: Thanks. Lots of fun!
Denise: Lots and lots of fun. Alright, well if you have been joining us today we actually recorded this show, pre-recorded this show in advance of 220 I think. If you didn’t join us LIVE when you will be watching the show or seeing it come through on your RSS feeds. We do record the shows LIVE every Friday at 11 o’clock Pacific 1900 UTC generally so that’s when you can tune in and join us LIVE. Jump into RIC with us and play along at home. We love it if you can do that but don’t worry if you can’t the show is also available after we record. It’s posted up at the twit site at twit .tv/twil our whole archive of shows is there. We also have a YouTube Channel and there’s just a myriad of ways you can get your smart TV to pull up the show and hopefully not insert additional ADS into it. Let us know if that’s happening please. So check out that twit.tv/twil page and it will tell you all of the various ways you can enjoy the show whether it’s on your phone or TV or your tablet your computer. However you would like to there are ways that you can do so. We’re just happy that you join us however you choose to do so and happy to chat with you about the shows. Between the shows you can get in touch with Sarah she is email@example.com or with me I am firstname.lastname@example.org if you’d like to email us. Otherwise just shoot us a reply on twitter let us know what’s on your mind what news stories you’d think would be interesting for us to hash through with our illustrious guests that never ceases me to amaze me. The people who make the time and share the great insights with us here on this show. If you have ideas for additional people that I haven’t spoken with or thought about please do get in touch with us. Let us know who you think we should invite in this show. You know, I have no problem with taking a flyer and asking you know the most busy famous people to come on the show and sometimes they actually will say yes! There’s no harm in trying. Just you know when you have an idea for someone or what’s even more fun someone who you haven’t heard about who’s doing great work and sort of laboring in obscurity we get the chance to put them on the show and really go deep with them and figure what’s going on and have them help us understand what makes this all tick. That’s why we do the show! So we are so thrilled you joined us today and we will see you on the next episode of This Week in Law.