This Week In Law 245 (Transcript)

Next up on this week in law, we've got beer and data flying everywhere. Don Harris, Evan Brown and Dan Provost join us next, on This Week in Law.

Netcasts you love, from people you trust, this is TwiT. Bandwidth for This Week in Law is provided by Cachefly, at This is TWiL, this week in law with Denise Howell and Evan Brown, episode 245 recorded Feb 7 2014.

Pirate Bay or Google?

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Denise Howell: Hey everyone, you're tuning in for This Week in Law, our weekly show where we look at all the most cutting edge issues at the intersection of law and technology. As usual, we have an amazing panel of folks here today, to consider those issues, and a bunch of great things to discuss. Without further ado I would like to welcome them. Joining us from Neat Studios is Dan Provost, a founder of Neat Studios where they design and sell a whole bunch of interesting products, including the Glif, which had a very successful kick starter campaign. It is a mount for your iPod or iPhone or other device, correct Dan?

Dan Provost: That's correct. It's actually Studio Neat.

Denise: Studio Neat – I'm so sorry about that. What did I say?!

Dan: Neat Studios – close enough.

Denise: Well I'm bass-ackwards today, that's probably going to be a theme for the show! All kinds of interesting products you guys are doing, including a stylist called Cozimnot, a couple of great apps, video enhancement apps I guess you would call them, slow/fast/slow and framogorapher, which look really fun. And given that you're Studio Neat, you're also working on an Ice project, correct?

Dan: Correct, yes. It's basically an ice kit to make clear ice at home for your at-home cocktails.

Denise: But if you're drinking things neat, that's without ice, isn't it?

Dan: It's kind of a play on words, because it's a “neat ice kit” so the ice is so clear it almost looks like your drinks are served neat.

Denise: Got it. There's a whole thing with gourmet ice these days, isn't there!

Dan: It's definitely a thing.

Denise: It's definitely a thing. We'll continue to monitor the situation on the gourmet ice front, but in the meantime, I'd like to also welcome to the show, a professor at Temple University, Don Harris. Don teaches commercial law and intellectual property law at Temple, we're thrilled to have you, Don.

Don Harris: Pleasure to meet you, thanks for having me.

Denise: Wonderful to see you and looking forward to a fun discussion. Also joining us is Evan Brown from Chicago Illinois and the Infolog group, Hello Evan!

Evan Brown: Greetings Denise, great to see you, and I've got to tell you, I've missed out so far on the gourmet ice thing, I'd like to think that either I need to elevate the crowd I'm running with, or I'm remaining imminently sensible, I don't know, but I'm glad to hear about it today! More importantly, I'm looking forward to our conversation, should be a lot of fun today.

Denise: Dan, isn't the idea you have to use super pure water and – why don't you, for anyone such as Evan, or anyone else who might be watching or listening, why is there a “thing” about ice?

Dan: It's just kind of a fun way to add a bit of a ritual and process to making cocktails at home, kind of having a fun way to get a little bit fussy about it. The science behind it is not the purity of the water, but in the way it freezes, so the Neat ice kid basically has an insulated mold that freezes from the top down, and that kind of pushes the gas, that impurities to the bottom, so you're left with the clear portion on the top, that you can then chisel off and put into your drink.

Evan: That is cool, very interesting.

Denise: Right, so yes, tons of patent and trademark and other intellectual property issues related to how one might prepare one's ice. One thing that I've seen is that round ice cubes are supposed to be better than square ones, right Dan, because they melt more slowly?

Dan: Maybe, the thinking behind that is the surface, there's – a sphere has the least amount of surface area to volume, so they melt slower, which is true. We decided to go with a cube shape just because we kind of liked it better, and the cube is so large that it gets that same kind of property, instead of having multiple smaller cubes with lots of exposed surface area, it's just one large cube, so you still get that benefit of it melting very slowly.

Denise: Good, so I should just let people know that Dan is not a lawyer, and as I was telling him before the show, that's always a plus, I think on This Week in Law where we can get an actual business person in there and they can give us their prospective on the legal issues that we discuss, and since you've been down the road in a very successful way with kick starter and crowd funding and are in general, sort of a startup leading light at this point, Dan, we're thrilled to have your prospective and insights on the legal issues that we'll discuss today. So thanks again for being part of it.
  Let’s start out on the copyright front. We've got a lot of good stories on this, I'd like to start with something that Don wrote a while ago, comparing the copyright wars, specifically the wars over file sharing and trying to squelch illegal file sharing, with the alcohol prohibition laws that we saw in the earlier part of the last century, and why there's a parallel there, and why that continues to be relevant, as copyright issues play out today. Can you give us the overview on that Don?

Don: Sure, no problem. The thought was really to take a look at alcohol prohibition during the 1920's and 30's, and to see as you said, whether we can draw some parallel's that can help us resolve some issues that we are having now, particularly the file sharing issue. So I took a look at what happened during alcohol prohibition, we had the government saying “No more manufacturing, no more alcohol, we've passed a constitutional amendment”... and what we had hoped was that the land would be dry in a short time afterward. We saw that was not the case, in fact, alcohol consumption continued, it increased, and within 10 years we realized that alcohol prohibition was a horrible mistake and we amended this constitution and allowed people to drink. So what do we get from that? Legitimacy is talking about procedural fairness, participation in the system that passes the laws, and morality is talking about our own sense of right and wrong, do we believe in the laws. If we don't have of both of these, we're going to have non-compliance. In the alcohol prohibition context, we saw that people did not morally feel bad about drinking, it meant that people were immoral. In terms of legitimacy, it was passed by state legislatures, it wasn't passed by national memorandum, so it wasn't as if we put it up to a vote for the nation to decide, and then it became a constitutional amendment. Those are the parallels that I look at when I'm talking about file sharing. So file sharing, we can see in terms of legitimacy, we really have – the copyright industry, huge lobbying efforts to have congress pass laws with their idea of enforcement of copyright. In terms of morality, we have a whole generation of kids initially, but others who believe that file sharing wasn't illegal, and even when they found that it was illegal, they did not find that it was immoral. We try to further enforce it by imposing criminal penalties, by increasing fines, we still saw the same level, in fact we had a higher level of infringement than we had before all of these efforts by the recording and music industry. Similarly, in the alcohol prohibition context, when it was clear that people were going to continue drinking, the government imposed further fines, so instead of a $1000 fine, it was a $10,000 fine. Instead of 6 months in jail, it was 5 years in jail, and that did not abate the problem. And so what is my take away? Perhaps we should look to what happened in alcohol prohibition, and no longer make it illegal to file share. Now that's going to have a number of consequences that we're going to have to address. The reason that's most often stated for having file sharing laws, is that artist won't continue creating music if their music is not protected, if they are not getting any revenue's from that, so that's an issue we have to address. But as I said, what we could draw from this, is that when we have this miss alignment of social norms and legal norms, one of them have to give. We have to try to align them. So we do increase laws so that that society now changes their norms, to coincide with the legal norm, or do we change the law, the legal norm, so they more coincide with the social norm. That was really the thrust of the article.

Denise: Got it. Just a distinction that I would throw in, when we're talking about file sharing being illegal, of course there's a whole opportunity to use file sharing services, whatever flavor you prefer, for legal purposes, as long as the files that you are sharing are authorized to be shared in that format or in the public domain, or otherwise not subject to someone's copyrights that they're not attempting to enforce by keeping them out of that format, right?

Don: Sure, that's exactly right. What I'm talking about are copyrighted files that are being shared, books, movies, music, but you're absolutely right, we use file sharing, people do use file sharing for legal purposes.

Denise: So as you've pointed out, Don, we don't actually have a law, a part from the copyright act, here we're talking about how that act is enforced, and what you're saying is that there is a disconnect between how people think that the law should be enforced and the way that the rights holders are in fact forcing it. Do you think that we have that situation in other kinds of context, besides file sharing, as we sit here today?

Don: Sure, one of the criticisms, so to answer your question first, yes, I think we can see it in the debate about whether we should legalize marijuana. We see a large portion of society believing that marijuana should be legal, and laws still prohibiting it. And I think even there, we start seeing some movement, we see Colorado, Washington, saying “yes, we should legalize it”, we see the federal government saying “no, it's illegal”. But it's that tipping point, that where if we get enough of society that believes that “yes, this is something that want to do”, you see those norms again, those legal norms that are different than those social norms, and at that tipping point, I think that not necessarily that we should change the law, but at least that we should take another look at. So one of the criticisms that I got from the article, was that I was promoting civil disobedience, and encouraging people to continue file sharing and engaging in infringing activities, and that wasn't my point. My point was if that is the case, so IF we have people who are continuing to engage in infringing activities or continuing to engage in illegal conduct, then maybe it's encumbered upon us to at least look at the law again. We have examples in the 1960's, for example, the civil rights movement, a black person could not sit at a lunch counter, that was illegal, and yet we had protestors who went and sat at the lunch counter. They knew it was illegal, they knew they were going to get arrested, and they did. The next day they came back with a dozen more people, the next day they came back with more, so we see again people saying, people using civil disobedience as a way to say “perhaps we should change these laws”. That was really my point.

Denise: And it's a good one, and there certainly is a move toward reforming copyright law and attempting to make it conform more to people's norms particularly on the fair use front. Evan, what do you think about this notion of file sharing as civil disobedience?

Evan: Well, you certainly see it, you see wide spread file sharing as an act that is done even with the understanding – presumably – individual file sharers knowing that it is an act of infringement, so I think there's a lot to be said with what Don is talking about, this notion that the changing of the norms presenting the questions, bringing it straight front and center for us to evaluate whether or not the law should change to match what those societal norms are. I like the comparison with prohibition of alcohol and I think there's a lot to be learned from it, and I think that there are some things that we could even extract from it, I don't know if you discussed, Don, in your paper, but it would be fun to talk about today. It's this issue here, I know that one of the driving forces for the enactment of prohibition, the Volstead act in the early 20's was kind of this moral sense of the evils and dangers of alcohol, to the body and to human relationships, and all that stuff, you had the Woman's temperance movement, the Methodist Church, etc, really pushing toward the drive for a national prohibition against alcohol. And then apparently the sensibility started to change when you saw so much crime arise from it, especially here in Chicago, you've got all the great stories of the gangsters, Al Capone running bootleg operations, and there's so much violence and crime across the country because of that. And there was also this changing norm that recognized that maybe alcohol wasn't as bad as what everybody thought – true or false, whatever the science is on that. One of the real commercial factors was in all this, was the tax issue, seeing that the 21st amendment that repealed prohibition, and so I'm wondering if there are any parallel’s to be drawn in the file sharing context, where we can see that it's different than the prohibition on the sharing by a peer to peer copyright material is more of a commercial interest, that's what's driving the prohibition, at least ostensibly. And then there's this moral sense that well it ought to be ok, this is something in the minds of the individual file sharer to think “I'm going to do this and even be civilly disobedient about it”. Is there some kind of analog we can make to the commercial reasoning for the repeal of prohibition or enactment of a later - to be more precise - enactment of a constitutional amendment that dealt with prohibition, is there some kind of commercial argument to be made for file sharing that would sort of also drive the shift in the law, other than just the sense of “well, everybody thinks it's ok, therefor we ought to change the law”. I'm wondering if you would comment on that, Don.

Don: That's a great point. As to the first point, that yes, with the alcohol prohibition, we did see all of the evils of alcohol, so it led to lawlessness, it led to crime, it led to poverty, all of these reasons why we should not have alcohol. And what we saw, just as you said, of it, even when we outlawed alcohol, we had all these same things, we had crime, the speakeasies, the bootleggers, the tax issue was a big issue because not only were we spending money in enforcing the prohibition laws, but we were losing revenue that we would have gotten from selling alcohol. In the file sharing context that commercial aspect that you're looking for, I think it's a little tougher to --- one as artist who are losing money who aren't getting paid for their work, but we can think it about it also as society benefiting from file sharing. Society benefits a number of different ways from file sharing, just the ability to participate in culture, the ability to share, but the commercial part of it I think is a really tricky one. II think your question is there analog to if we legalize file sharing, is there some commercial benefit to legalizing file sharing, is that right?

Evan: Right, and I hear what you're saying, and I struggle to find what that analog might be, it just seems like if we could find one, that would be a very effective point to make in the argument of the loosening of the restrictions against file sharing, just like money talked in the enactment of the 21st amendment, because it was this tax issue - there are different views of history in the review of how prohibition came about, but I just know that a big reason was “Oh my gosh, we're losing all this money” and that had a way of really being a way to persuade those who were on the fence about prohibition to see that we really ought to make this legal so we can tax it and have more revenue coming to the government for the greater good – especially in that time period of history, with the great depression and the economic stresses that were facing our country at that time.

Denise: Right. Well here you've got artists who are arguing that it's impossible to make a living as an artist, and if the government were taking in an additional chunk, I think we'd be – the parallel kind of breaks down there.

Don: We certainly have a parallel in terms of the morality issues, the recording industry, the recording industry, they compare file sharing to theft and they say it's burglary, worse than robbery, worse than all these other crimes, and so we should enforce it a lot more forcefully than we do. There's a quote by the then president, that would be Motion picture association, who said the VCR is to the entertainment industry what a Boston strangler is to a woman home alone, because …

Denise: Jack Valenti famously said...

Don: Exactly, that's right, thank you. And so we see those comparisons how file sharing is – you know – but I think your question is to the commercial aspect, and so there is one that I've thought of, but just from the other side, just from the artists complaining – and not so much the artist, it's more the recording industry saying that they're losing money and the money should go to the artist, but the money never really went to the artist anyway. How could file sharing...

Evan: The best idea I have is maybe we could think of some sort of compulsory license where if you want to pay an organization like Sound Exchange or like the Askapper or BMI, a certain amount of money – I'm not advocating this, I'm just throwing it out there as an idea to fit in this notch that I'm talking about here, what could be the commercial analog to this, maybe if you wanted to have a license to freely engage in file sharing and share a certain number to tiered files in the course of a year, you pay a flat fee for that tier, and have at it, and there's that source of revenue. Kind of like if I go to the liquor store and buy a 12 pack of Budweiser I'm giving however many cents on the dollar to Uncle Sam and to Governor Quinn here in Illinois, the local authorities, and what have you.

Don: There are some commercial – there are some proposals that are just what you are talking about. One proposal is a levy proposal where you propose a levy on the types of equipment in recording devices that are used to file share, so you tax computers, you tax blank DVD discs, and then the extra tax you get – you collect all that and then you give it to the recording industry, the movie industry, the artist. That's not a bad approach, another approach is voluntary collective license, kind of like you mentioned, so every month I pay $5 and I pay this licensing fee and with this I'm now able to have access to all the music that I want. Now that we collect this licensing fee from everyone, put it in a pool and redistribute it to the artist based on the music that's being paid. I think those are good proposals, but they still, at least from my view, miss the point, because they're still saying that we believe that there is something – at least they don't address the point that we believe that this is illegitimate or we don't believe that this is immoral, it still starts from the premise that we should be paying artist, and this is just a way that we can compensate artist. I think that they're great proposals and I think that they address what you're talking about, but it doesn't get to this asymmetry between legal and social norms.

Evan: Gotcha.

Denise: Do we have to get there though? I think there are things – alcohol, smoking, other things that have caused people trepidation over the years as to whether they should be legal, that are without there being a blessing that they're also moral.

Don: I think that's right, so I mentioned the war on drugs for example, marijuana, we have incarcerated millions of people, we have increased fines, and it really hasn't slowed the use of marijuana, so we have this “non-compliance”, do we believe that the laws are immoral, do we believe they are legitimate, maybe, maybe not. I'm not suggesting that every time we have non-compliance that means that we automatically means we must change the law, I think that means that we should take a second look perhaps, so Denise, I think you're right, even if we don't have – there are some laws that we are going to enforce whether if there is non-compliance, so we need to look at the factors that make people not comply with laws, it's when we have – the motivation not to comply with the law is because we have some kind of fundamental misgivings about the law, then I think that's the stronger case that we should look for change, but it's not simply non-compliance that we're going to change the laws or that we should try to make the laws more consistent with social norms.

Denise: It would be super interesting if – taking this sort of down the road we're going – some state or more than one state decided to address this in its ballot initiatives and take a stance that it's contrary to federal law, as has happened in the case of legalizing marijuana. I don't know that this is such a hot button issue that you could get people to pass a law, where in California it's going to be legal – certainly NOT in California with the entertainment industry primarily based here, it's going to be legal to freely share copyrighted files, but it's interesting to think about if a state were to go that route. Dan, I'm interested as you've been listening to this conversation, as a business person and someone who's concerned with intellectual property issues around the products you're putting out, if you think that copyright laws are just fine the way they are, or if they are in need of some reform – where do you stand on enforcement?

Dan: Definitely not fine the way they are. But yeah, it's definitely a tricky subject as has clearly been spoken about just now. We're kind of a strange company in that we're so small and we operate in a way that perhaps naively – but we try to – ignore is not the right word – we try not to focus on these kind of things, so none of our hardware products have patents, and that was a conscious choice in just understanding, again naively, how the patent system works and how it doesn't really work for us, and the little guys and the kind of bottomless pit of money and sadness that you go down when you are trying to legally protect things that you've made. The Glif has been knocked off, there have been knockoffs made of the Glif and obviously that sucks but we've kind of decided that it's just not something that we're equipped to go after, it's not what we want to spend our time, energy and money doing. So we have kind of an incredibly lax prospective on how we use these things for ourselves, so it kind of goes on down the line, like the ebook that we self-published, doesn't have – it's in the iTunes store and Kindle store, but we also sell it as a digital file bundle and it's DRM free because the chance that someone is going to share it with a friend does not matter in terms of adding that little bit of friction that DRM can add, so we just focus on making great products and making customers happy, and trying not to let these things get in the way of us doing that. So I don't know if that really answers the question, but that's kind of our perspective.

Denise: That's really interesting, it seems like you've decided that intellectual property laws are not your friend on a number of fronts and potentially an enemy, and that they are not really necessary for your success, that stringent enforcement isn't something that you are interested in pursuing, or is something that you think isn't necessary to the economic health of your company.

Dan: Exactly. So we do little things, like we have a trademark on Glif, so if someone is posting a knockoff of it on amazon or Ebay, and they're using the word Glif, we can prove that and have it taken down. That's a pretty painless process to do little things like that, but in terms of going full boar with design or even a utility patent is just so intense and it just seemed not designed for our situation at all, so we've just made the conscious choice not to even deal with that.

Denise: Evan were you going00 to chime in with something?

Evan: The point of this was made pretty persuasively made, Dan, when you said it was a bottomless pit of money and sadness, you had me at that point, I was persuaded.

Denise: You had me at bottomless pit!

Don: I think that for many, getting a patent isn't for everyone. You can certainly use reputation, lead time, but at some point it might be a concern, Dan. I think it's wonderful, I think that if we could live in a world that was IP free and everyone would play fairly and no one would rip off other people's products and use their names, we wouldn't need this, the market would take care of it. Unfortunately I don't think that's always the case. And I hope it works out for you, because I do think that the patent system needs some work, if we are charging people the thousands and thousands and thousands of dollars it takes just to get a patent, we want to make sure it's not all hollow and useless, it needs to actually work. For many industries, a patent isn't really necessary. I think the one industry that's the paradigm for having a patent is the pharmaceutical industry, and you can see why it makes sense there, because they're spending hundreds and millions of dollars on research and development to successfully bring their product to market, and once they bring it to market they don't want to be copied by a generic drug, so patents make sense there. A lot of other areas it makes much less sense. I applaud you and I wish you luck

Dan: Thanks.

Denise: I think we'll go ahead and make “Needs more ice” our first MCLE passphrase of this episode of this week in law, just because it's been on my mind as we've been having this conversation about various boutique ice products and prohibition and everything else, everything can benefit from a little more ice. If you are listening to the show for mandatory continuing legal education credits or other professional education credit, or if you need more information about that over at the TWiT wiki, at, go to the This Week in Law page there and we'll give you some more guidance, because we know there are some folks out there who do listen to the show with that in mind, and we're glad you do. Let's move on if we could, to some things that Evan has been writing about on his blog this week, I always think it's interesting, Evan, when we have something that has a definitive statement about the copyright ability of short phrases, particularly in the age of Twitter, so why don't we discuss the fact that a decision just came down that said a 2 word phrase is not going to be subject to protection.

Evan: This is a case that came in sort of a weird procedural posture. It was right before trial and the defendants in this case were getting tired of the plaintiffs saying that they were going to introduce evidence saying that the defendants were infringing copyright by including on its product packaging “Unsurpassed performance”, which the plaintiffs claimed was copyrighted. What I really think was really going on here, at the end of the day, was that the plaintiffs were mistaking copyright with trademark. But what do they say, “Bad facts make bad law” just like bad legal arguments can make – well actually bad legal arguments can actually give some clarity to the law here, so that's what we see. The defendants, what they did here was file the motion in lemony, which is a motion to exclude evidence, saying Judge, let the other side introduce any evidence about this at trial, and the judge agreed with the defendants here and says I'm not going to let any evidence in a trial here that the plaintiffs would put forward to say that the defendants are infringing the copyright on this 2 word phrase “Unsurpassed Performance”. So the court talked about the copyright act, the language and actually some regulations that the copyright office had promulgated section 202.1 of the federal regulations, that deal with the copyright act and what's copyrightable, and words and short phrases such as names, titles and slogans are not subject to copyright, that's coming right out of those regulations. Like I said, I think the real issue here was some sort of unfair competition sort of like trademark infringement going on here, which I think incidentally would have been a looser here as well, than the term “Unsurpassed Performance”, trademark law is very clear that laudatory terms like that, like “Super Deluxe” or “Unsurpassed Performance” for that matter are not subject to trademark protection, because they merely describe some attribute of the goods or services and merely descriptive terms cannot be distinctive and cannot rise to the level of being protected by a trademark here. So this whole argument was a looser all around, and it was interesting to get that confirmation a pretty self-evident point, especially when you think of copyrightability, and it really has to be something original in as much as it arises from an originating source, the creative spark in the human mind, and 2 word phrases just don't reach that bar, don't surpass it.

Denise: So I think you just answered “Beef's” question in IRC who's wondering about a 3 word phrase like “Keep on trucking”, that's different from something like “Unsurpassed Performance” and probably would be trademarkable.

Evan: I think so. With the trademark issue, there's 2 different issues here. I mean there's different issues in terms of copyrightability, if it's not copyrightable, it's because it's not original, it doesn't have that creative spark, that “first notion”, first is that supreme court case. And when we're talking about trademark, we're talking about the ability to be distinctive, to distinctively designate the origin of the products, and that could be a very, very simple designation, one letter – W - for hotels, I think that's distinctive enough to be a trademark, beyond doubt. I think it's very easy to get into discussions - an apples vs oranges where the issues don't map well to one another. There's no question that very, very simple monarchs can be trademarked, whereas copyright, there's just no circumstance at all anywhere in reality that would allow just a very short phrase or just a few letters or words, or a couple of words to be copyrightable.

Denise: And it doesn't sound like this decision would really impact anyone who was concerned about the copyrightability of their tweets, because a tweet is longer than 2 words and has every possibility of being a creative expression that could be subject to copyright, or so we have concluded. Anybody, Don do you have any thoughts on the copyrightability of short things?

Don: I think that Evan hit it on the head when he was talking about the fact that there's no originality, one of the things we want when we're talking about copyright, we're talking about creative expression, and as he said original work of authorship. Originality is not a high standard in copyright, we just need it to be independently created in some modicum of creativity. Short words and short phrases, they don't get there. And he's also correct in saying this is what trademark is for, trademark we're thinking about something that's source identifying, so words, letters, phrases, if I said “Don't leave home without us” or if I said “Just do it”, you would, or at least most people would think of either American Express, or Nike, so it identifies a particular source. So as long as we have that, then we should protect it. With copyright we have a real danger of allowing people to monopolize words, and that's not what we want. We don't have that same danger in trademark, because again, it's tied to identifying a particular source, and if it doesn't do that, then everyone is free to use it. So this seems like a pretty straight forward application of short words, short phrases are not copyrightable, and it makes a lot of sense.

Denise: You know, our friend Derek Khanna had a really interesting article over at Forbes, as long as we're on the topic of copyright reform, one of the areas that's the most right for that but perhaps the most least likely give history to achieve reform, is the notion of how long copyright lasts – it's term. Derek's article is highlighting 50 Disney movies based on the public domain, this is a project I guess that started on medium that was crowd sourced to put these together, and the list is evolving, but it's quite an impressive list of things that Disney could not have done but for things that were in the public domain, it includes everything from White Fang to Treasure Island to the 3 Musketeers to the Hunchback of Notre dame, all kinds of fairytale related stuff. Fascinating too, he highlights the money that each of the movies has made, the various tens or hundreds of millions of dollars that have been made on these things that were grounded in the public domain, but ironically Disney of course was the company that was the driving force in extending the copyright term to what it is now, and can we get your confirmation, Don, of what the is? I know it's a mind boggling number and there's emphasizing and clarifying for the folks who watch and listen, how long copyrights actually last now.

Don: Copyright's last the life of the author, plus an additional 70 years, so once an author passes away, we add another 70 years, and that's the term of a copyright. We can distinguish this from its original term, which was 14 years. After 14 years, you got another 14 year renewal. The copyright term has simply exploded in the last 100 years and it's gone up for a number of reasons. At least 3 primary reasons, one is heavy lobbying from the industry, one is international concerns, and one is presumably technological advances, because people are using words in different ways, it makes sense to some people that we should extend the term of the copyright. The term of life plus 70 years seems to be a pretty long time. It was recently increased in 1998 from life + 50 to the additional life + 70 years, and people derisively refer to that act, that term extension act, to the Mickey Mouse act, because it was Disney that was spearheading the effort to extend it because they had works that were about to fall into the public domain. The public domain, as you mentioned, is really a critical and indispensable part of copyright, we want works to fall into the public domain, because then people get those works and get to create new works, and so the longer we keep the longer we keep works out of the public domain the argument goes, the worst we are as a society because we’re not going to then allow people to use those works and create.

Denise: So then from your perspective, do you think there's a chance of scaling this back because I know that there are copyright reform efforts underway in Washington, but the term of copyright seems to be continually extended rather than dialed back.

Don: I think that is going to be a real unlikely event. Yes there are copyright reforms going on, but none of those reforms are talking about decreasing the copyright term. I think the best that we can hope for is that it's not going to be increasing it. I think that even that is unlikely. We seem to determine increasing roughly every 25 years. So it went from, as I mentioned from 14 to 28 to 56 to life of the author +50, to life of the author +70 and if we think about the core purpose of copyright than I think that one might argue that this further extension is actually doing harm to copyright. The Constitution requires that copyrights can only be granted for a limited time and the Supreme Court has had a number of opportunities to talk about this limited time within the last – 2002 – 2004 and each time they've said that this extension is limited. I think one might legitimately question whether life +70 years after the author is limited. We're certainly no longer talking about benefiting the author but now benefiting the author and the author's heirs and then perhaps a generation after that. I think many would argue that that was on the original intent of the fathers of the Constitution when they thought about copyright. So the straight answer to your question is no, I don't think that were going to be pulling back on copyright. I think it would be a great idea. I think we would, society as a whole would benefit if we could somehow rein in the term, but in light of the Supreme Court over the last couple of terms, I think that's going to be a tall order.

Denise: I've got to apologize; we've had bottomless pits of money and sadness, we've had endlessly enduring copyrights and soon we're going to be talking about torture. But before we get to that I want to lift us up with something much more exciting, interesting and optimistic. And that is our sponsor for this episode of This Week in Law which is I really want you to check this out. It is a great way to boost your web design skills or your photography skills, to master new software, to learn about topics that you're interested in, but you haven't really gotten around to going deep on them yet.  Whether you're trying to improve yourself personally at you are going to find easy-to-follow tutorials where you can learn at your own pace and on your own terms from top industry experts. You need a subscription, and without subscription you're going to get unlimited to thousands of online video courses covering a wide range of technical skills, creative techniques and business strategies. If you've not yet gone over to I encourage you to do that. Up at the top you're going to see a down menu option that has all the different subjects that you can look up. If you're interested in learning particular software you're going to find a huge list of different software that you can get tutorials on. Me as a parent, I thought I would check out the education section and there is so much useful stuff here that I cannot wait to get into. Whether you're a teacher or student or parent that wants to help your students along and give suggestions to your teacher, there are some really wonderful resources here. There are apps that can be used in the classroom that are suggested, like using Google apps in the classroom, getting all kinds of wonderful insight into the flipping the classroom which if your parents and you haven't heard that term you will soon, which involves doing more sort of video learning at home. So really some amazing resources here for both professional people and personal people who just want to improve themselves. Whatever skill you want to improve I'm pretty sure you're going to find a way to do it over there. You can even use the site to just keep up with technology. There are over 2000 courses, with courses added daily, including marketing tips, building confidence, Google analytic tips and Google ad words essential training. Instructors are working professionals at the top of their fields and expert teachers. You're going to get high-quality video production here in the videos at, from state of the art studio videos; these are not the homemade kind of videos that you'll find on YouTube so there's definite curation and quality control going on here. Each of the course content areas is curated, it's carefully structured so that users can learn from start to finish or jump to a specific chapter for quick answers. The videos are easy to follow; they can help you find the answers that you need. There are also searchable transcripts that allow you to search inside of video, to save you time and find exactly what you're looking for. Of course it's for all experience levels, it covers a wide range of technical skills, creative techniques, business strategies and more are there. Watch from your computer, a tablet, a mobile device, you can switch and pick up on the chapter where you left off. I loved that. You can learn at your own pace and on your own schedule. So when you check this out you're going to go to and it's only $25 a month for access to the entire course library. Or for just a little bit more $37.50 a month. That's going to get you the premium plan and with that you get actual exercise files that let you follow along with the instructors projects using the exact same assets. I just love this concept. Education for $37.50 a month; I did not know that the world would yield such a wonderful opportunity when I had this advanced stage of my life. I'm happy that it has. So you can try right now for a seven day free trial, visit, you'll access the entire library that's over 2000 courses for free for seven days. They've also created a playlist with some suggested courses to get you started. It's  all at Thank you so much for your support of This Week In Law. Well I promised you torture, I hope we haven't been torturing you thus far. What we haven't been doing and we'll play this little transitional bumper for you because were moving on to a more entertainment related topic here. Although copyright and entertainment law have so much overlap in general this is a very specific story about the band “Skinny Puppy. They sent a royalty check to the US government, now this is news to me but it appears that apparently it's not an uncommon thing for industrial music of various kinds to be played to torture prisoners. Apparently that was going on at Guantanamo, Skinny Puppy got word of it, didn't like it, wants it's royalties. Evan what do you think about all this?

Evan: Well obviously it's a big political statement here because they're asking for $666,000 so there are some sinister overtones to it as well, so from the copyright perspective we can think about it like they didn't have an ASCAP license. That's so strange I don't know who Skinny Puppy would be licensed through, ASCAP, what have you, so there's that interesting thing to talk about. They sent that invoice for the $666,000 to the feds so as if to go through any licensing clearing house, circumventing clearinghouse what have you there so there's also this interesting notion of whether or not- what the remedies would be for an unauthorized performance happening there. Is it in Cuba or is that actually part of the United States, I think that's pretty clear that it's actually US territory but they're still this interesting question as to whether the copyright act would extend their rights and remedies that are afforded an artist there. So you know you can't avoid the fact that this is all political to make a statement there but there are a couple of little things that we can discuss those issues and I'm sure that there are some others about the copyright aspect. That stem from it.

Denise: Trent Risner has had the same kind of issues with 9 Inch Nails other acts including REM Pearl Jam, Rage against the Machine have protested Guantanamo in general but the whole notion that music would be used for torture is just sort of adding insult to injury. Do you have any thoughts on this Don?

Don: No this is the first I'm hearing of it. So the idea is that there is infringement because you are using my music without my permission, I suppose it would be violation of the performance rights. It is a bit disturbing I think Evan's point about the territorial effects - I think they'd be the result saying we are the US, in terms of the remedy, do you get damages? I don't think you're going to be seeking an injunction at this point. What music were they playing? How do you choose the music that you play? This is an interesting thought here.

Denise: I don't know why they couldn't solve this problem by simply using a service like Pandora or Spotify, set up an appropriately industrial playlist and at least there's a pittance coming back to the industry and artists, or so they would call it a pittance. I threw that one in the rundown just for the show because it struck me as interesting and something I'd never heard of before, so learning something new every day. Let's learn something new on the privacy front. I like this photo metadata case that you wrote up at Internet cases Evan. Let’s talk about Exit files and how companies might have to manage those.

Evan: Well this case was a criminal case. This was a child pornographer, the guy who confessed to taking a picture of a four-year-old girl that he was babysitting for in his couch. So we've got to make a few steps of regression or progression to talk about a commercial application of all this. So like I said this was a criminal case, so this was a fourth amendment issue. The guy took a picture with his iPhone and evidently left the geo-location setting turned on and uploaded it to the web. And actually it was the secret… or whatever that's called you have to use TOR to access it, and so this guy had some sophistication. So it's really a little bit confusing or confounding as to why he would have looked over this aspect of failing to strip that metadata off the image. But the Feds saw this image online, they realize that the IP address associated with it having been uploaded was obfuscated through TOR and what have you. A real windfall for the federal agents investigating this, they saw that the data was still intact for this, and analyzing that they saw the GPS coordinates and kind of a little interesting wrinkle in the story, they went to the house closest to the coordinates and knocked on the door and some folks who were like oh it wasn't us, we don't have a couch that looks like what was there, we've never babysat for little girl, you can imagine sort of the nervousness that they may have been experiencing. And you can imagine the feds with the sunglasses flashing their FBI badges. But they said no there's a guy 100 feet away who is a registered sex offender, go there. So they found a guy there, and he was arrested and this was a motion to suppress, so the question before the court was whether or not they should allow this evidence in that they got from looking at the data. He claimed that he had a fourth amendment expectation of privacy in that data because he didn't know he was releasing it and he wanted to stay anonymous. He conceded that he did not have an expectation in the photo itself, because hey if you put it on the web… He even wasn't an idiot to say that he didn't have an expectation of privacy in the actual picture, but he claims that - what he tried to do was to split his privacy rights in this digital file between the exif data, the metadata and the image itself in the court said that's bogus and very interestingly they compared it to DNA. They actually wrote a whole paragraph which was hypothetical, dicta of course, but you can imagine a guy commits a crime in 1981 and leave some of his clothing at the scene, in 1981 that was long before we had the DNA technology to allow identification that way. There is no way we would suppress that DNA evidence just because the guy in 1981 didn't know that he was disclosing it. And of course he wanted to stay anonymous in connection with the crime so he said this is a silly argument you're making about your privacy interest in this metadata, this geo- location information and so I guess where we can start to extrapolate into a larger context in the commercial one as well. From a normative level there is little we should expect to stay private if we want to extrapolate this way. Again I'm just talking here. I don't know if I necessarily have to advocate this position but if you're putting it out there on the web and there's this information that shows where the photo is located there is at least in the criminal context not an expectation of privacy that the courts will recognize in connection with that. That's what we learned from this case.

Denise: I do want to extrapolate it out from this case because it seems it could be a bad law situation simply because the court was dealing with the sex offender. I think you might have to go take some online courses to figure out how to get the exif data off photos if you're not a sophisticated technology user. Certainly as you point out in your piece Evan, there are privacy interests that are implicated in that people do not want to give up, as far as where they are and where they live etc. Do you think that this case is a hallmark for what other cases not dealing with sex offenders would do with that kind of privacy interests?

Evan: Well, I think that a good advocate could make sure that the court is limiting the analysis to the criminal context, in particular, the Fourth Amendment. I think that if we were to talk about things like consumer privacy, and what a company’s responsibility is to its users – if you had for example, the Attorney General of a state or the FTC coming and saying “Company, are you somehow tricking your users by taking this information and putting an application to it, giving some use to it, for your commercial benefit that your users didn’t expect (that you didn’t disclose to them, that you didn’t give the opportunity to opt-out)?” I think that analysis could very easily be different. There’s no reason to think that this court should dictate that, in that commercial context, the FTC or the Attorney General would be a loser in trying to advocate on behalf of the public interest here. So, I don’t think that it’s anything to necessarily be afraid of, but it’s at least something to be an indicator that this issue is out there. But it’s by no means the first time, something like this has happened. That’s how I started the post, talking about the host for Mythbusters posted a picture to TwitPic – this was almost four years ago – and it had the metadata that inadvertently disclosed where he lived. John McAfee – did an interview with John McAfee last year, or back in 2012, and disclosed where he was someplace in Guatemala.

Denise: Right.

Evan: But there’s this—

Denise: No longer an “undisclosed location…”

Evan: [laughs] That’s right. So, there’s this – taking it back to the commercial context, the thought I was having, you know – we’ve had this rash of incidents (I don’t know if you’d call it a “rash,” there’s been two of them that Cashill has written about) where companies have mined so much data about someone and then they’re marketing to them in ways that are offensive. The most recent example is Bank of America and the National Honor Society offering this woman a personalized credit card… The envelope was addressed to Lisa, and then there was an unflattering moniker in the field of her middle name, and then her last name. There’s this creeping notion that companies have all this information about us, so I think that would be a counter-veiling force, to use to regulate companies (and the information that they have and the way they use it), that would be really encouraging a pro-privacy standpoint. I think there are some observations to be made, bringing in both of those stories, to recognize some issues that are arising here.

Denise: Right. Dan, as a founder of a company who makes products, particularly for smart phones, I’m sure that the “bottomless pit of money and sadness” that we were discussing earlier, you can choose to opt out of that when it comes to enforcing IP rights, but I don’t know how much you can opt out when it comes to consumer privacy. What’s your take on this whole situation, and what’s your company’s approach?

Dan: Right. Well, again, we’re kind of lucky in that we, to a degree, did opt out of it because our apps aren’t even doing these things. Both of our apps that are photo- and video-related are completely sandboxed, and they’re not tied to a network, or sharing, or anything like that.

Denise: Mmm-hmm…

Dan: So we are not even getting their data, to do anything with it, in terms of location. So we’re pretty safe, in that regard. That’s partially a design decision, and partially just the luck of “Oh, this isn’t Instagram, these aren’t being shared through a network that we’re providing…”

Denise: Mmm-hmm…

Dan: So in that regard—

Denise: But it’s – let me stop you there, and ask you, though: Suppose someone makes a video with one of your apps, and then they clearly would have the ability to export it and share it themselves, right?

Dan: Mmm-hmm.

Denise: But, so—

Dan: Yeah, the exported video doesn’t have any information.

Denise: No metadata.

Dan: Yeah. No metadata. Yeah, correct.

Denise: Well, that’s smart.

Dan: So, yeah, I guess we haven’t had to make hard decisions in that regard because our apps just don’t do that. But in the future, if it did kind of become this bigger thing where there’s a network and we are wanting that information to do cool things with it, definitely there need to be some serious considerations in place to make sure we’re not making these catastrophic errors. And I’d say, at this point, we’re kind of too scared to do anything like that, because the possibility of something bad happening is a real deterrent for a small company to try to do something that ambitious.

Denise: Alright, and I think you just gave me my second MCLE passphrase for this episode of “This Week in Law,” which is going to be “chilling effect,” because that seems to be what’s going on here. You’re taking a really wise approach, Dan, and that’s good to know. Let’s move on to some issues on the Legislation & Policy front to wrap up.

[Section intro music plays]

Denise: So Evan, before the show, you were telling us about [how] you stumbled upon someone who had driven into a snow bank… I don’t know if the Department of Transportation’s recent announcement would have helped that poor person, but they do want cars to start talking to each other. I don’t think they have the “talking to snow banks” provision in the anticipated law, but the Department of Transportation does think that, if cars are talking to each other, this is going to lead to enhanced safety on the road. This is good news for smart cars, right?

Evan: Well sure. It seems like a natural step along the way for freeing up these types of technologies widespread implementation, and there are two benefits of it: If truly it’s going to make vehicles safer vis-à-vis one another on the road, that’s a good thing, inherently. And then, as much as we want to get all “futuristic” like we did – or “futurist,” like we did – last week on the show, and start thinking about the future, this is going to open up much more robust opportunities for autonomous vehicles, self-driving cars, what have you. So the fact that a government regulating body here – stereotyping a bit, but government regulating bodies move at the speed of pond water in going forward – but to recognize these technologies as beneficial is certainly moving in the right direction, moving down the highway of self-driving vehicle progress. It will be so exciting to see what happens in the next twenty years on this front.

Denise: Right. Transportation Secretary Anthony Fox compared this biggest step ahead as adding seatbelts and airbags to cars, as far as life-saving achievements go. Vehicle-to-vehicle technology, he’s saying, is equally important, from a safety standpoint. Don, any thoughts on this?

Don: It sounds like a great idea. As you said, we’re just simply talking about safety, we go from the safety belts to airbags, and now we’re not talking about (in the cases of crashes) that we reduce the harm, but just preventing them in the first place. I think that’s great. I do think that there might be some issues. One of the issues – we were just talking about privacy, maybe privacy issue might come into play. It sounds like there’s going to have to be some kinds of GPS systems on the cars so that they know where they  are… I guess we could also think about issues relating to problems with the technology, what happens if it breaks down. When you were talking about this, the thing that popped into my mind was I, Robot. Do you recall that movie, with Will Smith?

Evan: I don’t.

Don: He’s in the car, and the car was driving, and he took the wheel of the car and the person who was with him said “What are you doing? You’re driving! Why are you driving? Let the car drive by itself!” [laughs]

Denise: [laughs] “You fool! Don’t drive!”

Don: But it sounds like a great thing.

Denise: [laughing] “You’re putting us all at risk! Get your hands off the wheel! You should be in the back, drinking your gourmet Ice, and doing some video editing, on your remote device.”

[All laugh]

Don: Allow for more texting now? [laughs]

Denise: Yes. Alright, well, if the Department of Transportation is doing some good things for the future of transport, the FAA is more concerned [about], and sadly has decided to put the kibosh on, a company that attempted to deliver beer to ice fishermen by remote-controlled, or remotely-operated, drone. The company was based in Minneapolis, not too surprisingly. Lakemaid Beer. It put out a video – who knows if this was actually happening, or if this was just a promotional kind of thing – of a twelve-pack floating across the frozen lake to the ice fishermen via drone. The FAA was not wild about that, and sent it a letter telling the beer maker “Nope! Sorry, that’s very much against our rules for use of commercial drones as they now exist.” As we’ve talked about previously on the show, the impact of using non-military commercial drones is not something that’s really teed-up before Congress for the FAA to change until 2015. I could not do an episode of “This Week in Law,” though, without talking about the FAA and the beer drones. Evan, you’re up in that Great Lakes region, and I’m sure this is coming hard to those in your neck of the woods.

Evan: Sure… I guess, first of all, it’s encouraging to know that the FAA is policing YouTube to make sure that we’re not doing anything dangerous in the wild, to put our safety in our airspace in jeopardy. There are just a little bit of growing pains here. Hopefully, a sensible balance will be stricken between the innovation (and the desire for innovation, and the benefits that we’ll obtain from that through the use of these unmanned aerial vehicles), and the safety concerns, on the other hand, that the FAA is charged with dealing with. I think it’s interesting — I certainly am no expert on aviation law, but it’s interesting to see the commentary on this, where a lot of commentators are accusing the FAA of overstepping its original mission in getting down and regulating these vehicles. I don’t know if there’s much merit to that, because the FAA has said stuff about model airplanes plenty of times, and nobody has challenged the FAA as acting ultra-vires in that respect. So, there’s that aviation law, wonkish issue to it as well. I think there’s an interesting social component, and public safety issue, to this particular beer story. Earlier in the episode we were talking about Prohibition, we were talking about some of the reasons why, culturally, we collectively thought, apparently, it was a good idea to prohibit the use of alcohol because of the lawlessness and the violence… Of course, when Prohibition was enacted, I guess the automobile was around – 1919 was when it was voted in, so yeah, there were automobiles (so who knows how bad a problem drunk driving was) – but look at the way safety could be enhanced if you don’t have to get onto the road to go buy beer. You’d just have it delivered to you. So there’s a real benefit.

Denise: [laughs]

Evan: I’m certainly overstating this, at this point.

Denise: Yes.

Evan: But maybe there could be a point, one of the bullet points in the arguments, to say “Aw, come on, FAA!” The thing is, this will really take off in Colorado and Washington: “Beer delivery? Big deal Send me some pot by drone.” That’s when we’ll really be talking.

Denise: That’s right. And then, in the real ground-breaking states, your illegally-downloaded music could somehow be delivered to you by drone… eliminating the need for broadband altogether.

Evan: Yeah. You have your server up there, floating around. I think people – didn’t Pirate Bay talk about being a server in a blimp, or maybe it was Google… I don’t know, something like that.

Denise: [laughing] It was either Pirate Bay or Google. One of the two.  [laughs] I think they both had various experiments along those lines. Let’s wrap up the show by talking—

Don: [indistinct]

Denise: Well, hopefully the beer bottles weren’t leaking… Companies certainly seem to be leaking data these days. The Senate is not happy about it, and keeps sending out letters to people like Target and Yahoo and Michaels and hotel management company White Lodging, because their data has falling prey to hackers. I love that, in the Target instance, I read that that was actually pulled off through the company’s HVAC system somehow, that there was some kind of point of weakness there. How on earth can you extract customer data through some kind of hole in the HVAC system?! That’s… I was to watch “Security Now!” and get the whole rundown on that one. Obviously, lawmakers are up in arms (customer data being a very sensitive issue these days), and want companies to take more precautionary steps. Evan, is this just an instance of lawmakers playing to their constituents, or is there a real problem here?

Evan: Obviously, a little bit of both. Lawmakers like to act like they’re solving real problems, and this is a real lightning-rod issue right now, it has a lot of currency. I think that I would leave it to smarter folks than me, that look at the best way to handle data breaches, to evaluate whether or not there should be some sort of federal framework for dealing with this. Given the fact that commerce is truly interstate, I think there are a lot of facts that lean toward that inclination. It’s easy to poke fun at politicians for getting interested in something like this just because it’s a current hot-button topic, but at the same time, why should we accuse politicians of not addressing important issues? It’s a good topic to be talking about, one way or the other.

Denise: Dan, speaking of chilling effects, it seems like your company has made a decision that data is something you want to stay away from.

Dan: Yeah, more or less. We still have an online store, where we’re collection people’s credit card information, and addresses. But, because we’re so small and that’s not our forte, we’re using other companies to do that. We have a Shopify store, and PayPal, and all these things… So, in some ways, it’s off our plate, but it’s still our choice to use those services. If something were to be breached, we’re still on the hook, even though it’s not “our fault.” Yeah, whenever you’re collection that information, even if you personally are not collecting it( but you’re using a service that is), there’s always a scary aspect to that.

Denise: Don, do you think people are getting sort of immune to this kind of issue? It happens so frequently, and I don’t want to say that there are no negative effects to it - because certainly people’s identities get stolen and they don’t want their data out there being compromised - but it seems to me like it’s not the hot-button that it might have been, say, two years ago. Do you agree with me on that?

Don: I do. There was a survey recently that said at least a third of the people –36% of the people – have had some kind of either credit card fraud or identity theft. But it hasn’t stopped people from continuing to use credit cards or debit cards. I think that people think of it as, certainly as an inconvenience, but they’re not going to no-longer shop online, for example, or no longer going to use credit cards. They’re going to continue doing so. In terms of the legislation, or what Congress can do: I think Congress is concerned about two different things. One is that there are proper procedures or security precautions in place so that we can limit the incidents, but then also notifying customers. We could say that they market is going to take care of this. If you’re a Target, if you’re a Neiman Marcus, if you’re a Michaels, then you want to take care of this. You don’t need government telling you that you need to notify customers, or that you need to invest in better precaution. But if you’re not one of those companies, if you’re a small company, then maybe you’re not going to take the same kind of precautions, and so maybe – maybe – the federal government steps in. I’m not sure where I fall there. I do know that the United States is falling behind in protecting this type of information. So Europe uses… they’ve moved on to using computer chips in their credit cards, advanced security measures, while we’re still using these magnetic strips. So it’s not a surprise that we see the incidents in the United States double over the past decade. We’ve got to catch up, as a country, and the big problem that’s stopping us is “Who pays for this?” We’re talking about billions of dollars to change technology. Who’s going to pay for it? Are the consumers going to pay for it? Are the banks going to pay for it? Are the merchants going to pay for it? We have to figure that out.

Denise: Yeah, we sure do. And the Senate is deepening its probe, in that regard, so hopefully they will learn some things that will help the situation. Let’s move on to our Tip and Resource of the Week. We were talking about trademarks a little earlier in the show. Our Tip of the Week involves trademark hacking. If you are someone who wishes to engage in that, you should be aware that the USPTO (of course, I’m saying this tongue-in-cheek, please don’t engage in trademark hacking), but someone did, and they were thwarted by the fact that the USPTO actually does not let you masquerade as the CEO of a company, and write in and ask that that company’s trademark be abandoned. That’s what happened here. Ubisoft makes a really interesting-looking game, called “Watch Dogs” (speaking of NSA-style hacking and spying). In that game, (I’m reading from something at the Washington Post, at “The Switch” blog) “Aiden Pierce, a vigilante who uses his cyber skills to steal bank data and interfere with traffic systems in a futurist, computer-controlled Chicago.” (Evan!) So it looks like a pretty fun game to check out. “Watch Dogs” is the name of the game, and someone decided that Ubisoft should have its trademark abandoned over this, and pretended to be Ubisoft’s CEO, Yves Guillemot (if I’m saying his French name properly). [That person] masqueraded as him, submitted a request to abandon the trademark, but what he did not take into account is that the USPTO actually will send you an email if you are the trademark holder, saying “Hey, we got a notice to abandon your trademark. Is that really what you want to do?” So Ubisoft learned this, and was able to put a stop to it, and thwart the hacker. So good on you, USPTO! This would be a trademark hacking fail that they thwarted. Our Resource of the Week is something that Evan pointed to, a really good article called “Don’t Get Screwed: The Contract Provisions Every Creative Needs to Know.” Although it’s focused on people who freelance, whether by writing code or text or anything else, it’s a really good article to look at if you’re a business person putting services out there in any form. Great ways of thinking about not just having an oral or “handshake” agreement with someone; how you can have a straight-forward agreement that puts your understanding out there, and makes it so that you reduce the chance of disputes (especially over money, most disputes are over money) down the road. Evan, this actually made me rethink some of the provisions I put in my own retainer agreements and consulting agreements. So thanks for finding this, this was really cool. Did you have anything you wanted to add to it?

Evan: Well, I didn’t write it, so I can go ahead and sing the article’s praises. It is very comprehensive, very common-sense on some of these things. I would just tack on the issue that I see a lot in my practice (and I’m sure you see it as well, Denise) in helping folks with agreements here, whether they’re a freelancer or a firm who is developing something for someone else (whether that be content, media, or technology), is to make sure the agreement is clear as to who owns the work. It’s such a common misconception that, if a company hires an independent contractor to develop something -and that “something” rises to the level of being protected by copyright - absent a provision in the agreement that says that the company owns that which is being created, the independent contractor owns the copyright in that. That can really cause some difficult issues down the road, which are contrary to what the parties’ (or at least the company’s) expectations often are. Money, and ownership of the deliverables, I think, are the top two issues in these freelance agreement[s] like this.

Denise: Yeah. So this is by Vinay Jain, at 99U. We’ll put the URL in our discussion points for the show. You can find links to it, and everything else we’ve talked about today, at, and that (and everything else) will be right there for you to check out after the show. Guys, I’ve really enjoyed our conversation today, although it’s involved pain and torture, it has not been a torturous conversation to have, thankfully. [laughs] It’s been a real pleasure to meet you, Don Harris. Tell us if there’s anything else going on with you, or things we should pay attention to with the work that you’re doing, or anything at Temple that you’d like to promote.

Don: Well, first of all, thank you for having me. I’ve really enjoyed it. In terms of issues, we’ve got copyright issues. The big copyright issues that are going to be coming up are, “What do you with internet service providers? Should they be liable for the infringement of their users?” If you think about Yahoo or YouTube, for example, we have millions of people who are posting videos, and some of those videos are infringing. Should YouTube be liable for the infringement of their users? That’s the big issue. We’ve had a number of court cases that have been discussing that, and I think that for the time being – at least for the next year, or two years – that’s going to be the big issue. In terms of what I’m doing: I’m writing copyright issues. I also have a number of international intellectual property articles that I am writing. Come on down. Come on down to Temple. Sit in a class; it will be fun.

Denise: Alright, love to do it sometime. Thanks so much for joining us.

Don: Thank you.

Denise: Dan, it’s going to be great fun to see what happens with Studio Neat, and everything that you guys are doing.

Dan: Thank you, and thanks for having me on the show.

Denise: We really appreciate you giving us your insights here at the beginning of the show. [phone rings] I’m sorry… I’m supposed to turn off things that might right, and I forgot to do it myself! So sorry about that! Let’s get back to Studio Neat. You’ve got your Ice product coming down the pipe. Anything else in the skunkworks that you can disclose?

Dan: That’s pretty much it. For now, we’re just hard at work, getting that rolling. We hope to release it within the next couple months, hopefully by April or May. Head to to check it out, and to sign up for a list if you want to be notified when it’s ready.

Denise: Great, and congratulations of your successful Kickstarter campaign. Are you still using Kickstarter, and crowd funding, to do your projects?

Dan: Totally, yeah. We’ve used Kickstarter four times now, but we’ve also released products not on Kickstarter, so it’s more of kind of a “gut feeling,” if it feels right for that specific product we’re trying to put out there.

Denise: Great. Well, it’s been a pleasure speaking with you today. And Evan, always a pleasure, ending out the week with you.

Evan: Yes, the same, I feel the same way. It’s been a lot of fun, and lots of issues… Seems like we covered a lot of different ground today, which is always fun. I really appreciated the different perspectives, and I’m looking forward to next week, to do the same thing.

Denise: Yep! We’ll get ourselves out of the snow bank and off the frozen ice and hunker down, and have a beer between now and then, and get ready for the next show. Between now and then, you should get in touch with us. If you want to talk about anything we discussed today, if you have any questions or comments, you should hit us up on Twitter: Evan is @internetcases there; I’m @dhowell there. Also, dan is on Twitter. You probably saw that throughout the show, if you’ve been watching video. He’s @danprovost over there. You can also email us: Evan is; I am Or, you can go on over to our Facebook page, or Google+ Page, or Google+ community. Drop your thoughts, or suggestions for guests, story ideas — anything at all you want to talk about related to the show. We’d love to hear from you. We couldn’t do this show without all of you, so definitely keep us in mind as you’re going through your week and you see interesting issues that you’d like to see discussed or clarified on the show. We’ll try and get around to them when we can. Until the next episode of “This Week in Law,” if want to watch some of our older issues, you can do that too! Go on over to Our archive is there, and also on YouTube at We’re on Roku, we’re in iTunes… However you like to get this kind of entertainment, we’re going to be there for you. If you head on over to that page, there are all kind of ways to subscribe to the show, so please do so. If you are a person who enjoys listening to the show, we love it when you give us reviews and ratings on things like iTunes. That’s always fun to see, to get your feedback there. So until next week, we will see you then on “This Week in Law.” Thanks so much for joining us!

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