This Week In Law 250 (Transcript)
Denise Howell: Next up on this week in law we’ve got Katie Fortney. She’s the copyright management officer for the California Digital Library – a copyright expert. We’re going to talk about guess what – copyright. Grab your popcorn because there is a new way to pirate. Should kids be banned from using handholds? Who own selfies and life logging photos; next on This Week in Law.
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Denise: This is TWIL, This Week in Law with Denise Howell and Evan Brown, recorded March 14th 2014
Slugs in the Popcorn
Hi I’m Denise Howell and you’re joining us for This Week in Law. I’m so excited that you’re here today. We’ve got a great guest and that’s Katie Fortney from the California Digital Library. Katie, it’s so great to have you on the show.
Katie Fortney: Thanks, great to be here.
Denise: I’m very excited to chat with you. Katie has a law background and a library background. You’ve worked in the UC system for some time. Maybe you should tell us first and foremost at the top of the show about California Digital Library and what exactly that is. I’m familiar with it since I kind of grew up in the UC system but we get folks listening from all over the country and all over the world. So can you fill us in on what’s going on with the California Digital Library?
Katie: All kinds of stuff. There are 10 UC campuses and each of them has their own library but then CDL (California Digital Library) is a central unit that does things for all the campuses and all the folks there. They do data stuff, data management plan tools and they do licensing to get better deals on content for everybody. They run the institutional repository where people can publish journals or post their articles and now we’re supporting the new UC open access policy.
Denise: Cool! We want to hear more about that but first we want to introduce Evan Brown my co-host. Hello Evan.
Evan Brown: Hello Denise, happy pie day. How’s it going?
Denise: Happy Pie Day, I’m so excited. I’m simply reveling that there are more pie pictures than cat pictures on the internet. I think it’s only today that that ever happens.
Evan: I hear you.
Denise: If we put a cat coming out of a pie maybe our heads would explode.
Evan: The internet would certainly explode if that happened.
Denise: Exactly. Let’s get to it. Lots of fun to talk about, good goings on, on, all kinds of copyright fronts, let’s start out with some that are more entertainment focused. There’s a brand new way to pirate movies. Taudit is perhaps the most effective and pleasurable way to pirate movies because it’s just so easy and convenient. We got something this week called popcorn time – they are it sounds like, sort of a loosely joined group of like-minded folks who have developed this non money making app that you can download to your Mac or PC or Linux or various other platforms that it runs on. What is does is goes out and finds torrents for you. Basically it aggregates a whole bunch stuff that you would need to do a lot of hard work on your own – that your Joe public kind of person might not go to such hard work. Using this application brings it all together very nicely; it makes what has been touted in headlines as the “Netflix for pirates”. It just makes it very easy to browse torrents and then play what you can find. In their application and the reason I bring up who is doing this and the whether they’re charging for it that this seems to be their legal cover. Aside from the fact that they’re not hosting anything on their own, they’re simply aggregating stuff that if you wanted to go through a bunch of work and do it yourself you could. They’re not charging money and they’re not pointing people towards any particular content that might be infringing versus other content that’s not infringing. What else in the case law did they seem to be distinguished from? I’m sure there is more. Oh also there is a big old disclaimer when you first download and run the application that says look; possibly you’re going to be seeing some copyrighted movies using our application and it could be illegal for you to view those movies depending on your country etc. and we accept no responsibility etc. for you doing that so be aware and click here to acknowledge. Evan you brought this to my attention. Do you have anything to add to how I’ve just teed this up?
Evan: No that’s a pretty accurate description. I think another story that has unfolded in the last couple of days is that this was originally stored on Mega kim.com’s newer service and it was pulled down and I think it’s back up, so there was a little bit to that drama as to what somebody like kim.com would even think of this service. I don’t know if there’s anything to be read from that but clearly when we think about this in the terms of the copyright issues that arise I think naturally we would think of the big Mount Rushmore of P to P, platform litigation. This is going back 13 years, however many to Napster and the granddaddy of them all – the Gromster decision. What is the liability here, what is the risk of 2nd liability for a provider of this service? So the things that you’re describing Denise, the things that they’ve done, particularly the disclaimer is probably the most obvious one; ways of separating, distinguishing the service and the way it’s provided from Gromster for example and having those indicators that providers are inducing the users to actually commit direct copyright infringement. It’s just interesting how well polished it is, what a nice user interface it is, how easy it makes this whole process which does require more than a modicum of technical ability to actually receive and continue to distribute files by bit torrent like this. It reminds me a little bit of the world coming to a place where you at least in certain states and certain environ of the United States you can go to a safe retail establishment to buy marijuana. It used to be a thing you’d have to do watching over your shoulder and always wondering what people are going to think of you. Here it’s just a nice environment for something that at its core is something that people still debate about – whether it should be done.
Denise: I don’t know that people can get too comfortable that they’re in as good legal shape as they would be maybe buying recreational marijuana in Colorado for example because certainly what they’re doing could still put the individual users in the legal gun sites. The MPAA has backed off on those law suits but if something like this really took hold there is no guarantee that we wouldn’t see rising from the fires the Phoenix of litigation against individual users. Katie, what do you think of this?
Katie: I think it looks really sweet. I know a lot of people who don’t want to dig into using bit torrent and find their own files and that scares them a little bit, but something that’s shiny and looks like Netflix they’re not going to be super concerned about the threats of litigation. People are willing to take their chances.
Denise: From the library standpoint I think it’s kind of interesting when something like this comes along because people come in often times to college libraries just to use the computers or one step removed – use the WIFI and perhaps fire up popcorn time and kick back in a big comfy chair and hang out for a bit. Is this something that would be on your radar as copyright manager or are you more concerned with the collections themselves?
Katie: I wouldn’t be concerned about that. Just for providing the internet access for it we would just wait around for someone to send us notices as they would do under the law but it’s not going to be a problem on library machines even though people walk in and use them because you’re pretty limited on what you can download there and those get scrubbed and refreshed daily.
Denise: I got a pretty funny email that at first I thought was from the developers of popcorn time after all these stories broke. But no, on further and deeper examination it’s from somebody called xbmchub and they very up in arms. They send out this blast email it looks like to the tech media in general because they want people to know that they’ve been doing this for a long time and if someone is the Netflix of Piracy it’s not popcorn time, it’s them. They’re really hurt that they didn’t get all the publicity.
Evan: What do you have to do these days to violate copyright laws and get some attention! It all just blends in. How did you get that email? I guess I’m not part of the official tech media.
Denise: I don’t know and it was a Dear Sir or Madame email also. It’s not directed to any particular person and it takes the approach that you have already written about this product and you should have included us. I haven’t written about anything and we’ve been chatting about it today and we are including you xbmchub and we’d be happy to tell folks about any other products that are doing what this does although we certainly wouldn’t encourage you to use such products in an infringing way. Evan, what do you think the bit torrent folks who’ve been distancing themselves from anything to do with copyright infringement, what do you think they think about this?
Evan: You’re talking about bit torrent as a commercial entity rather than the technology underlying it right? It’s just another reiteration of the same sort of concern they would have. This technology clearly lends itself to uses that infringe copyright. It’s the same legal analysis really. What is the potential liability for the mode or the instrumentality by which the infringement can occur? I really don’t think fundamentally their concern should be any different than what a manufacturer of a VCR should have been after 1984 with the Sony Betamax decision. It’s just a tool, it’s used and there are literally opportunities for it to be used but other than understanding those fundamental legal principles and where liability is going end with one party and attach to the next one is simply a branding and public relations and a marketing issue. At this point though I don’t know how the public perception of the word bit torrent is ever going to be separated from the notion of way bit torrent is notoriously used. That could just be a semantic thing – those concepts may never be cleaved from one another but there are always opportunities to put forth a brand and modify the brand and make sure it’s being put out there in the way that’s most useful to the brand owner.
Denise: Ok let’s move on and if we weren’t directly talking about Netflix let’s do it now because over at Wired there is a piece – let me see who it’s by here because I don’t get it and I need you 2 to explain to me. Markus Woolsen wrote a piece saying that Netflix is getting burned by Comcast because Sony has made a deal with Comcast where the 1st season of House of Cards is going to be available in Comcast’s xfinity store and Markus is trying to tee this up as something that is bad for Netflix or that this is just another way that cable companies are coming after Netflix. If it’s not net neutrality then it’s this. I don’t get it, I would think that Netflix would be perfectly happy to have the widest possible distribution of the show which shows people how much we don’t really need our conventional Hollywood structure and distribution to get good programming. Do you get this at all Evan?
Evan: I did how it can be a provocative way of introducing the topic and get page views to the wired stuff but it is what it is. That of course is ripe for being exploited in that way because of the dealings we’ve seen between Netflix and Comcast and the problems that we discussed was it just last week or has it been a couple weeks now when we talked about the Comcast deal, the whole peering arrangement. So the environment is ready for it to be cast in that way. It wouldn’t be nearly as intriguing if it was just an ordinary run of the mill – and that’s actually what Marcus’s piece said kind of in the larger scheme of things the way these things worked with reruns being broadcasted it’s not really that big of a deal. He seems to say it’s something particular because of the parties here so there is – like you I’m having a hard time seeing what the big deal is. When I first started reading the headlines about this and I don’t know if this is like you but for the first few hours in your twitter stream you just get new developments by osmosis. I thought that Comcast had stolen it outright, for them to have first rights for all the new episodes and stuff like that like it was totally moving from Netflix over to Comcast – that would be a big deal and would be a burn but we’re talking about past seasons here and you’re being very good I think about bringing that up Denise. It’s sort of the whole Ethos we have – isn’t piracy a good thing because the wider the distribution the more interest you’re going to generate. At a certain level there is that comparison to be made here. Like you said why wouldn’t Netflix want it as widely distributed as possible?
Denise: It’s not like this isn’t an authorized distribution. There is no suit against Comcast in the works over this, or against Sony. There are agreements in place that makes all of this happen just fine and it just seems like – I don’t know if windowing is the right term when things are released at different times in different media but it just seems like reverse windowing from Netflix out to wherever it’s going to be distributed. Katie do you have any different take on this?
Katie: Nope I’m with you. It seems like an odd thing to make a big deal out of. People are only going to be able to get it contemporaneously through Netflix; they can wait and get it on cable just like now they can wait and get Breaking Bad or Madmen on Netflix. So yes it seemed kind of like quick bait there.
Denise: Alright now that we’ve given it even more play…
Evan: Everyone should set their system for malware because that’s what it was all about probably.
Denise: One of the things I enjoyed clicking through in Katie’s twitter stream this week as we were getting ready for the show was this hysterical primer really over at tmz - which let’s see, I wonder who authored…oh it just says tmz staff. So we don’t know what their legal background was in particular but they go into the copyright ramifications of the famous Oscar selfie and point out that Ellen doesn’t own the picture even though it was her camera. Bradley Cooper does because he was the photographer. This is something that’s just a funny wrinkle and something that people – it’s not very intuitive for folks, is it Katie?
Katie: No, when I talk to students and normal people who are not lawyers that’s something that always surprises folks but you don’t expect to get your copyright education from tmz but you never know.
Denise: Exactly, sometimes you do. I’m spacing on the guy’s name now, the guy who was Mr. Tmz who is their overlord who sits at the front of the room and chats with everyone when you watch their show.
Evan: You’re not going to hear it from me because I would never betray that that’s the cultural layer I exist in.
Denise: Harvey Levin yes thank you spring rubber 8. He’s a lawyer. You often get some interesting legal wrinkles pointed out either by Harvey or other at tmz. Let’s see, it gets interesting I suppose because this is a very well-known photo. It’s everywhere. It’s being used commercially everywhere.
Katie: Right, nobody involved with this photo is interested in restricting its use so it doesn’t seem like any kind of litigation is likely. They want you to keep distributing it, keep copying it as much as you can.
Denise: Right, but let’s go all innocence of Muslims on this and decide if someone – maybe it’s Kevin Spacey in the back there has decided; nope not my gig, I never agreed to this. I’m going to put my foot down and go after all these sites that are reprinting this photo. Katie do you he’d have any basis for it?
Katie: Well it depends on who is reprinting it, if they’re reported on the news; the fact that it’s the most widely retweeted photo ever no but if they crop it down and try to imply that Kevin Spacey is endorsing Samsung – sure you could go there under certain state laws. Right?
Denise: Yes, I think you’re absolutely right. What do you think Evan?
Evan: I think there’s an easy entrée on the right to publicity there. The copyright issues are interesting and I thought where you might be going when you said let’s get all innocence of Muslims on this – that the participants in this photo, what did they have to do in terms of actual creation of the photo. I’m reminded of the first case that really validated the notion that there is copyright protection in photographs in the first place. It was the Sarony case; it was a photo of Oscar Wilde. There’s some interesting vocabulary that comes from that case. This is from the 1880’s – am I getting epochs and eras of literature right there? The whole idea of what the subject matter of the photograph may contribute to the copyright status of that photograph. Really in the Sarony case they were talking more about the creative elements of setting up the lighting and all of that. Whoa what is that! That really freaked me out. I have no idea what I was just talking about; something about contributing originality to a photograph.
Katie: Original expression of how they posed and held their face for that half second.
Evan: Right, Where is Liza Minnelli when you need her? The whole idea of it takes a little more than just appearing in a photograph to actually be what’s – to actually contribute something.
Denise: For those of you who may be listening to this audio only and have no idea – oh now he’s on my shoulder – Kevin Spacey has been photo bombing us for the last several minutes here as we’ve been chatting about the photo.
Evan: It’s been really weird; this has been a really weird last few minutes.
Denise: And he’s gone, he’s moved on. Alright, let’s do the same, let’s take our cue from Mr. Spacey. I did want to ask though – as long as we’re on this topic of permissions and selfies and just the flourishing of photos and the flourishing of sharing of photos…it’s not like any of this is going to grind to a halt. It’s going to get more and more rich and complex and I think the whole act of getting permissions is going to get more important and it’d better get more streamlined because I don’t know about you Evan but I am fairly regularly advising clients about the permissions that they need to get as far as sharing videos and photos. It’s not an easy process and it’s not a process that people want to go through. Really we’ve got to go to these 800 kids that we’re working with and then their parents and get permissions. Do you see this situation improving any time soon?
Evan: The whole notion of the higher awareness that we have about this because of the innocence of Muslims decision and the interest of this stuff because of Ellen’s Oscar selfie. That takes it in the direction of making it even more convoluted and more complex which is I think what you are suggesting. You’re right; people don’t like having to deal with this stuff. It’s kind of the same part of the brain that causes distain over having to sign or being asked to sign or asking someone to sign a non-disclosure agreement. It’s like oh my lawyers are so hard to get along with, they make me do all this stuff. Don’t we all hate lawyers so let’s make fun of lawyers and tell lawyer jokes and talk about how bad they are and all that stuff. It’s that part that just plays into it and makes it more complicated and makes business harder to do and all of that stuff. But it’s real and I don’t see a good way around it because these rights are important to the individual; whether they are rights of publicity which is the general garden variety issue that you’re dealing with and getting a release for having somebody’s kid appear in a video or something like that. With these types of issues and again the innocence of Muslims and the Ellen selfie that sort of brings in copyright notions into it at well which easily gets glossed over when we’re talking about releases and stuff like that. I don’t see a real sufficient solution to it other than just thoroughness and trying to be a good human being in your dealings with people when you’re asking them to sign documents.
Denise: I’m not sure if we’ve ever made selfie an MCLE passphrase on the show but now wasn’t it Webster’s who made it word of the year? Let’s make it our first MCLE passphrase for this episode of This Week in Law. If you’re listening to the show for continuing legal education credit or other professional credit we put these phrases in incase your oversight body needs proof that you’ve actually listened to or watched the show so that’ll be our first one. Let’s move on to the Ario case which a little over a month from now will be argued before the Supreme Court. We’ve discussed it a lot on the show back and forth over the last years since it has been percolating around the courts of the country and before it arrived at the Supreme Court. Mike Massick has an article pointing out that this isn’t just about how people consume television and whether the tiny little antennae’s turn out to be legally ok or not. According to Mike if the Supreme Court gets this what he would consider wrong, that you could have an astoundingly bad chilling effect on pretty much all Cloud computing and he goes on to explain in detail why he thinks that is the case. Evan, do you think he’s gone too far here?
Evan: No, because if you have the Supreme Court saying something then that is a very firm stamp on that statement of the law and that is the source from which you look for jurisprudence on the issues and very seldom do you get future factual scenarios that match up precisely with what the Supreme Court said. So you look to the Supreme Court to develop broad legal principles that will address as many issues as they really can. So if we did get a holding from the Supreme Court that said it is a public performance to do what Ario does and it’s not that difficult then to make leaps over analogically and factually to less technical cumbersome applications of technology e.g. Cloud computing and by saying it that way just a nod to the fact that Ario actually is quite cumbersome and sort of weird technologically – you have 1 little antennae for each individual, it’s just like you’ve got to do this crazy stuff to fit in with the constraints of the law. So the easier example factually is to just say something is stored on your Cloud drive or your service of choice; whether it is Amazon or Apple, Google or Dropbox for crying out loud. Anytime you have a copyrighted work stored on that server and it’s your copy that you perhaps lawfully obtained – or let’s just assume that you did lawfully obtain it; in the first instance if you’re going to have it up there – your own personal copy, just like your own personal copy of the over the air broadcast that you have the right to lawfully obtain if you’re going to be out there streaming that to yourself wherever you are using your device, that’s not much of a leap to make analogically over from the factual instance of the Ario case over to just a run of the mill Cloud computing, streaming content – personal copy stuff. I of course think that that would be disastrous if that’s the argument that started to be being made. It would certainly not foster innovation but there’s no reason to think that that’s what the argument the way the arguments would go. So you know Mike of course is quick to make big very provocative arguments like this and really stir up issues like this but I’m with him. It could really put us in a problematic situation if those arguments started to be made.
Denise: Katie is it all about whether the court finds Ario’s system to be engaged in unauthorized public performances and if it finds that way are you concerned that the scenario that Evan just laid out where your just simply storing something for your own personal use and streaming it to yourself that that to would be swept into this public performance rubric.
Katie: Yeah I don’t see a way around that, there’s a lot of amicus briefs that have been filed so far are saying that exact same thing. It’s very broad. I don’t know that that parade of horribles is going to be convincing to the court they might just look at the law and say well maybe the transmit clause is stupid but that’s congresses problem we’re just going to read it and they’ll have to revise it.
Denise: It would be fun if they actually put that in the opinion, the transmit clause is stupid. Or what do you think about cable vision is it on the blocks as they go through and consider this case? The decision that allowed for the remote DVR
Katie: Right I don’t know how you keep cable vision and say what Ario does is illegal, without writing a very twisted ridiculous legal opinion which is not out of the question in this realm.
Denise: Yep well okay so we have to wait a month. I don’t know that we will all be able to do that but there is certainly a lot to think about as the court… Well we will have to wait a month until its agued and then have to figure out what the courts going to do after that. In the meantime down under in Australia google has been making the case that piracy is not about people wanting to do nefarious things to break the law but that it’s an availability and pricing problem. This seems to be kind of a creaky ancient argument that google is trotting out again. It’s not any less correct for being old but Evan did you aside from the fact that there’s a very funny typo in this torrent freak piece that we have in our discussion points which what was that typo again?
Evan: Ant piracy.
Denise: Ant piracy.
Evan: I don’t know if the ants are pirates or if we are pirating the ants? I just don’t get it but this is the second week in a row where I am just sort of questioning googles motives and its policy pronouncements and the arguments it’s making. You know last week I was talking about how google argued in the innocence of Muslims case that it was a ridiculous proposition under copy right law. I was saying well google doesn’t want to be troubled with the administrative burden of policing it’s systems in a way that’s any more, that requires any more of it than what it currently does. They probably would like to have less involvement with the policing of copy righted works on their system. So in this kind of situation here you know googles interest also in seeing that there are not strong regulation, laws, frame works in place to combat piracy because they know that inevitably that’s going to put more work more burden on the intermediary. So there’s a very good business reason a very good non-copy right business reason for google to take the position that it’s taking here and it also just happens to sound good. Oh well we really should instead of going after people individually and trying to get money from them because they broke the law we should foster innovation. Doesn’t that sound nice and fluffy and who’s going to disagree with that and how are you not going to engender good will by saying something like that. So there’s a lot of bang for googles buck in taking a position like that and so but I’m by no means saying that this isn’t critically important. I’m certainly not saying that I disagree with what google is saying I just think that we’ve always got to be cautious about their motives. Not just google but anybody you know what are they really saying in these things here. You know it’s timely that this sort of thing is coming up again because I heard rumblings just this morning and by that it was the top story on the front page of readit that was a misleading entry in readit that Sopa is back. That’s an overstatement but they are starting to have discussions again in congress. You know the internet black out in Jan 2012 didn’t scare people or didn’t scare the pro Sopa contingency away completely. They may have run into hiding a little bit but you know that whole notion, that whole spirit of really cracking down on piracy at an infrastructure level is still alive and well and trying to raise its head at cocktail parties at least in forms of congressional discussion. So you know that whole idea of what Google is promoting to the Australian government goes right in line with all those concerns that we still need to be vigilant about. We've been given plenty of new stuff to worry about since January 2012 what with Ed Snowden and everything else and cyber security. We can't take our eyes off these concerns as well as the government just trying to wreck the whole fabric and infrastructure of the Internet for us.
Denise: It just seems like you know you would think as we sat here in 2014 that a lot would have changed from the days of Napster. But it really seems like those two polarized positions although they've come a little bit closer together the rights holders versus the users who really want to have access to everything with as little friction as possible. It's not that they don't want to pay they just want to be reasonably priced and more than reasonably convenient – that although the sides are coming together a bit they are still just duking it out as much as ever. We see Ario with its tiny little antennas we see popcorn time attempting to make bit torrent user friendly and then we see you know moves to try and clamp down and then we have on the other side of the coin here folks like Google urging look we've got to change policy and legislation to reflect that we can't have a law suit every time somebody comes up with a new way to infringe. Katie do you see any kind of resolution to all of this. It certainly has been going on forever.
Katie: It's going to keep going. I think as more services come out that work like when Netflix enters a new market. Norway saw their piracy rates drop something like 50%. As more tools are built they are slow. Very tech savvy friends of mine are still whining about how you know I tried to be good this week and pay for my content, support where it's coming from but now I can't watch it on the device I want to watch it on. So it's pricing, its availability and convenience because people want to watch what they want to watch when they want to watch it and the business models are trying to catch up.
Denise: Right, all right well I think we've pretty much exhausted our topics in the entertainment arena although there's all kinds of crossover of course when you're talking about technology and copyright. Let's look specifically at what's being discussed this week about orphan works and copyright. Orphan works is a huge problem. Katie why don't you first for people who aren't lawyers or copyright scholars and may have no idea what we’re talking about describe what they are and why it's a problem.
Katie: So they are works that you either can't tell who the copyright owner is or if you have an idea you can't find them. We see it come up in libraries a lot for books where publishing houses have gone out of business, old photographs that libraries have in special collections with no identifying information. If you want to preserve that stuff or help find a new audience there is nobody to pay because no matter how hard you look you can find them.
Denise: So instead of being usable these things wind up not being usable because folks are terrified that as we've been discussing copyright litigation against them is going to be the end result and someone will inevitably come out of the woodwork and say hey you thought that was an orphan work but it's not. We have the rights and will take you through the convoluted documentation that shows that we do. So it's a huge chilling affect under the law on our cultural heritage and so folks in Washington have been discussing this, this week. Katie have they come to any solutions?
Katie: No, not even close. I really wish I could've been at those hearings it sounds like it was an absolute zoo. You had library representatives there; you also had rights holder’s representatives there. Some of the folks that are really worried are say the photographer representatives because it is very easy to disassociate a photograph from information about who took it. Also the authors Guild rep was up in arms as a link I think you retweeted of mine threatened libraries with lawsuits which is unusual in a roundtable discussion to just say well if you sue this and they said it very broadly like not just you know. Libraries are very cautious they're not looking to just take their collections and put them online in a popcorn time kind of way for everybody to view but they want to preserve things that they can't buy anymore. The author's rep said you do that and we're going to sue you and apparently people kind of just looked around like what did you just, and woke up.
Evan: Oh no you didn't…
Katie: Yeah exactly! Get the librarians rowdy, said it again and when questioned about it a third time instead of acknowledging that maybe that's not the most productive way to work with libraries said well it's worked before. So that's fun and scary.
Denise: Have they read the Google books decision?
Katie: Yeah perhaps not. And then somebody else I think this was the photographer's rep compared recent decisions like Google books – trusts, Georgia state case which was about E reserves and a university library compared those the state of the law now with fair use to Percy versus Ferguson. It seems a little extreme.
Evan: It's better than the Boston strangler.
Denise: At least more obscure, people have to go if it's not right at the tip of their tongue they have to look up what was Blusey again.
Evan: Yeah they get a civics lesson in pursuit you know.
Katie: Yeah Google will help you out with that one.
Denise: Explain how this would play out, what exactly is it the someone like the California Digital Library wants to do in the way of preserving orphan works that has the authors Guild all hopped up?
Katie: so there's Howdy trust which a bunch of university library books have been scanned by Google. Google gave copies of the scans back to the libraries which put them all in one big pile and now everyone can search either a Howdy or Google books the full texts of all these books. You can't go read them you get displayed in snippets but you can do things like preserve them if your copy gets lost and you can't get a new copy you can take advantage of the library exception in use your old digital copy. You can make them accessible to print disabled folks also under the library exceptions and the authors want none of that. The state of things right now because of the length of copyright term it’s much easier to get hundred-year-old books than it is to get 40-year-old books on Amazon. Because you can't find or clear the rights for them so nobody wants to make them available. And apparently that's fine with the authors Guild.
Denise: Right so is it 40 years, is that the cut off? As far as where we start running into this gap of old still in copyright but not yet in public domain?
Katie: No I just picked that number out of a hat. There's one of the folks the works on the Howdy trust project John Wilkins has done analysis with very neat graphs and tables about how many works they've examined from the corpus are orphans by age. It starts surprisingly early I think even 20 years you find a huge percentage of orphans because we’re not talking about bestsellers here. We’re talking about the books in library collections which will sometimes be small print run academic titles worth preserving but not things that are mass-produced and people pay as much attention to tracking the rights of. But what orphan works legislation would do there I don't know. The last time there was a draft it got bogged down by trying to add rules about what exactly would constitute a diligent search for a rights holder before you took advantage of what you could do with an orphan work that you deemed an orphan. So most of the positions among the libraries that I know is that we don't need orphan works legislation we’re happy to go with what fair use allows us to do and go from there.
Denise: So folks in IRC are asking for links to the hearing etc. that took place this week. I don't have that in our discussion points yet but I will put them there after the show. If you check back into delicious.com/this week in law/250 we will have some good coverage of what exactly went on in the hearings for you there. Another issue I thought was pretty interesting because it's a different spin on something we discussed a lot on the show a different context than what we’re used to seeing it and that is DMCA takedown notices. Of course websites receive them all the time if there something there that someone claims was purloined or otherwise was an unauthorized infringing use. Of course video sites receive them all the time probably that's what most people think of but universities receive them to. Can you tell us Katie how the DMCA is affecting your ability to use academic articles?
Katie: Sure. So what's a pretty common DMCA situation for a university is somebody gets a notice about copyrighted content that a student has posted movie or music or something. What started to happen recently is academic publishers are sending notices for authors, professors posting copies of their own articles because along the way to getting the articles published they transfer their copyright to a publisher. Many of them for years have blithely assumed but I'm the author so they wouldn't come after me for posting it. In fact at least two publishers now are going they hired a company to crawl for their contents and send takedown notices.
Denise: Wow so the poor authors out of luck in that situation aren't they?
Katie: Well yes and no. We explained to them that they have a couple of options. One is to read what they signed and often what they signed says that you can't post the published PDF like the one that looks nice and shiny with the formatting and copyediting but if you still have your word version that has basically the same text you can post that and so we will work with folks to post that. Another thing is that I have heard that not all journals are equally diligent with getting authors to sign those publishing agreements. Or sometimes authors will ask the publisher specifically listen I know generally your rule is no posting but how about this one time you let me post this thing and so if they are in one of those situations to post what they've posted they can submit a counter notice and we explained to them how that works.
Denise: To what extent do you think that professors actually negotiate their arrangements with publishers does it ever happen?
Katie: It has happened I think it's exceedingly rare. I thought you were going to ask me how often they read the things that they sign. That’s also a small percentage.
Denise: Also answers my question if you're not reading your certainly not negotiating. It seems to me like that would be an issue near and dear to their hearts and probably something publishers are used to getting requests for now. We’ve certainly had the Internet what is it now 25 years and people use it as their CV. It's their window to the world. Especially for someone like a professor who has to demonstrate their knowledge and scholarship. They need to have a centralized place where they can do that and they need to have the rights to do it. So still not something you're seeing them be aware of Katie?
Katie: Oh definitely raising awareness especially over the past five years which is why a lot of places like Harvard and MIT and the University of California now have open access policies. That the faculty governing bodies adopt to govern themselves and they create a license in the University that the faculty can take advantage of to post their articles. That license survives the transfer of the copyright to a publisher. Unless the publisher requires the author to opt out of it, which some of them do, but it changes the default so that you don't have to wonder what it was exactly you signed. You can just know that as long as you didn't submit a waiver for that article you can post a version of it.
Denise: Right, open access is definitely something that is on your plate in your role with CDL isn't it?
Katie: Yes the faculty UC wide adopted a policy last August and it's been slowly rolling out and permeating people’s consciousness but again getting the faculty to read things that are not absolutely crucial to their work is difficult. So we’re just waiting for folks to see the benefits of being able to share their articles more widely so more of their colleagues can find them, so more people in other parts of the world can find them and we think it will catch on. So we’re supporting that and it's going pretty well. So far I think we only have one publisher who is requiring authors to opt out.
Denise: Which publisher is that?
Katie: That would be nature publishing group.
Denise: Okay so tell us how this works and whether there's been controversy about it not just from the publishers but in your University community.
Katie: Not yet there are little pockets of controversy here and there. There are folks among the library and open access crowd that think that we shouldn't takedown the articles when we get a notice like that. We should wait and insist that the publisher show us proof of ownership show us the copyright transfer that you have for this exact article. We didn't want to do that we went ahead and took them down at least temporarily as we maybe decide to reach out to the publishers later if the faculty want to do that. Whether individual faculties are going to get upset about this or not varies really widely. Some people to say oh whoops violated my publishing agreement my bad and others really do get up in arms this is my work and you're not going to let me post my work; because these folks are not paid for writing these articles. The publisher gets them for free and the editing reviewing services are generally volunteer labor of other faculty at other institutions and then they turn around and sell them back to those institutions. So some folks really do get riled up which is why we're seeing more and more action in this area as people get used to it start to assume that stuff like this should be able to be found for free online. Now there's federal policies the NAH has a policy and the White House has directed most of the other big federal funding agencies to develop policies. So the writings on the wall
Denise: Right that was my next question for you especially when you're talking about a government funded entity or at least partially government-funded like the University of California aren't there other considerations that come into play when you're talking about access to the work product of its employees?
Katie: So the University of California's copyright policy like most universities is that faculty are the copyright owner's in the scholarly articles that they create but funding bodies do create mandates, policies that unlike the UC policies you cannot opt out of. So the NAH policy you can't. There's a bill AB609 that's been floated for the state of California that would make state agency funded articles have to be publicly available and then a lot of other federal agencies are coming online but as far as University of California that's an ethical I think compulsion that you are a servant of the state of California share your research. I certainly talk to grad students who think that's absolutely crucial they do work on how drought affects farming in a central state and they cannot share these articles on a website where the folks who are actually doing the farming can read them because there publisher won't let them. They really have tried to negotiate those agreements.
Denise: Yeah, Evan any thoughts on any of this before we move on.
Evan: No, No I mean this is an interesting discussion and I'm just reminded of a tweet I saw Sarah Burstin she's a friend of the show that's been on before. She is an intellectual property professor. She tweeted two days ago something like she had a really cool publishing opportunity but could do the deal because of the publishers terms of they were offering and the hash tag was copyright prof problems. So there are academics that are aware of it especially if your copyright professor. You ought to notice these things I guess.
Denise: Yes, all right I want to get into some privacy stories in a minute but before we go there, there was something kind of making the rounds of social media early on in the week when I see sort of my non-tech friends who are parents retweeting something or sharing it on their Facebook page I know that it’s actually struck a public nerve. The article I’m talking about is by Chris Rowan who is a pediatric occupational therapist. He’s not a medical Dr. as far as I can tell but she wrote this piece called 10 reasons why handheld devices should be banned for children under the age of 12. She hits on various points such as delaying brain growth, epidemic obesity, sleep deprivation, mental illness and aggression. Various things that she thinks are contributed to by the use of handheld devices at a young age. Her solution is that you just don’t give these things to kids. It’s definitely controversial for parents. I bring it up on the show because it’s the kind of thing that I foresee people writing to their elected representatives about and perhaps wanting to get - the way we keep alcohol and cigarettes away from kids – maybe have some sort of laws around what children are entitled to use on the technology front. My own personal take on the article is that the occupational therapist has looked a bunch of data and reached a bunch of conclusions that I don’t think are necessarily supported; that yes, you’ve got some correlated things coming in here but you can’t say that your child’s use of his iPod touch is going to be a trigger for aggression without a whole lot more information. The woman herself wrote a book in 2010 that has the words “the terrifying truth” about devices and kids and I’m just wondering if book sales were down and she needed to publish an article to get back on the public radar again. There’s a whole lot of other scholarship out there including a friend of the show John Palfrey who has written about digital natives that take a much more optimistic of the use of technology by children. When people have gotten in touch with me about this I’ve kind of pointed them to some of that and said take a deep breath and make your own mind up because I think this particular piece is a little alarmist. Evan I wonder what you think and if we are headed towards folks lobbying congress for bans on tech for kids.
Evan: First of all I’m confused. I thought it was my job on the show to be cynical and say oh look at this author she’s just trying to sell a book. We’ve been hanging out too long haven’t we? We all want to be good parents and we want to do what’s best for our children and our children’s health and we also care about the contribution we make to the quality of the next generation. So there’s no doubt that we’re going to be obsessive on the issue regardless of how we come out on the decisions we make. We’re going to be obsessive on the issue of what are good parenting decisions to be made and how do we make those decisions, what’s good and right and healthy and all of that for our kids. There is some indisputable evidence, empirical science that suggests that too much media, too much screen time, too much use of high technology is bad but what thing on the earth taken in extreme isn’t bad for you? You can die from drinking too much water for crying out loud! So yes of course too much media is going to be bad and also the absence of time in nature and fresh air and the development of the brain from interacting with tactile things and just things that the outdoor experience and the self-reliance and all that stuff it teaches. So there is some real science here to support that handheld devices and other forms of modern technology and interfaces that we have can be bad for you but at the end of the day, at the end of the analysis I am With You Denise. Despite our sheer cynicism about all of this stuff we have to look at this objectively and like everything else we ever talk about it it’s a matter of balance and integration. And recognizing the relative dangers and benefits of these things and not going as extreme as to start lobbying Congress for. I mean good grief, what do we expect Congress to do to help us with this. Congress is the last place we should go to be trying to solve a problem like this. What else have they meaningfully, I mean recently, I mean am I being cynical.
Denise: (laughter) No, not at all.
Evan: When have they recently solved a problem for us I mean, this is a personal, self-reliance, family level decision. Where decisions need to be made on a family by family basis and then extend out the benefit and the harms to society at large. This is not, gosh I hope people don’t start lobbying Congress for changes on this.
Denise: Well, yes and I think there is scholarship out there and people crunching the same data. And coming up with conclusions, sort of exactly the opposite of this. That using technologies in the way that this particular OT would like to see completely banned for kids between six and 12, can be a springboard to greater creativity and higher aspirations in life. It’s certainly preparing them for life in ways that complete technological cut off would not. Katie, you are out there dealing with younger people, students in the university. What would you think about the notion of having them completely cut off from technologies until they are 13 years old?
Katie: Yeah, that sounds ridiculous. I had kind of the same reaction as you, I looked and whenever someone writing an article where they claim to be citing studies but don’t actually provide enough information to find them. And then you see she is citing her own work four times in one article. I kind of stopped reading.
Denise: All right, well, it is just something that hit my radar, I thought it would be interesting to bring up on the show. And I will recommend as a counterpoint and maybe I should put it in our delicious links so folks have access to it. John Palfrey has a great book called Born Digital: Understanding the First Generation of Digital Natives. I think this would be a nice are sent to this piece. Okay, let’s move on and talk some privacy.
Denise: Well, we cannot talk privacy without also talking copyright, of course. This story has both aspects, I think. If you watched TWiG this week, This Week in Google, and maybe in some of the other shows to this is where I saw Leo running around with his new camera. The little lapel clip camera that takes thousands of pictures of you during the day. It’s a life logging tool that was a kick starter project that is now shipping and people are using it. The idea is to keep a record of your day and everyone you have interacted with, everything you have done. And then rather than having you slog through all of that really noisy data, it has some algorithms that bubble up to the surface the best photos, the ones that either have people in them, or a lot of color, they are not blurry, things that you might want to keep. So life logging has certainly been around for a long time. I don’t know if people remember the Justin TV was one of the ways that we streamed the show. It started out at with Justin running around with a camera on his head. talking with people and interacting with them and having ongoing record of everything he was doing. So, certainly there are people who have been pioneering this for a while. There are certainly benefits to it but, the privacy aspect is very apparent. People get creeped out by Google glass, of course they would be creeped out by this too. It seems a little bit more culturally acceptable to have a little clip down early (indicates lapel area) instead of something that seems to be taking your attention and requiring your input as to the pictures that it is taking (indicates eyeglass area) that’s counterintuitive, but that’s kind of my gloss on that. Evan, what do you think about the privacy ramifications of wearing a little lapel camera all of the time?
Evan: Well, yeah, there are privacy implications and this is a great factual scenario. We can take this conversation in a lot of directions. Of course, the privacy ones and then the copyright one which I hope we can talk about as well. I guess one way we can start dissecting or analyzing the privacy issues is, first of all dividing this set of privacy issues two batches. The first would be the obvious, the self-inflicted privacy harm that one could occasion from this. For example, criminals do really, really, really stupid things with technology like Twitter. They tweet about crimes that they have committed and you know those types of very powerful evidentiary value. That is just an extreme illustration of the ways that you could disclose a lot of information about yourself and in so doing it would be contrary to your pecuniary interests. Actually, your penal interests, I really didn’t want to say. (Laughter) against your interests.
Denise: (laughter) We are so juvenile sometimes.
Evan: I finally figured it out, one of the reasons that society is degenerating is because people my age are now starting to suffer the consequences of having watched too much Beavis & Butthead in the early 90s. I apologize.
Denise: Yeah, but at least it wasn’t on a handheld.
Evan: Let’s bring this back up to where this conversation needs be. I’m sorry everyone. There is the self-inflicted privacy harms. And then of course there is the, and this is where I think most of the conversation naturally goes, or the thinking naturally goes on this. What it means when you are going around photographing everyone else. This is what creeps people out about people who are wearing Google glass is it they are surreptitiously being taped, my gosh are people taking my pictures with funny expressions on my face or doing something I wouldn’t want to be photographed doing in public. I think there is just going to be this constant conversation until technologies like this become normalized where there is just an understanding that you can do this stuff and that people actually do this. If you go back to 1890 and read that Harvard Law review article by Brandeis and who else was it, that famous 1890 Harvard Law review article that talks about privacy really as a common-law. Invasion of privacy is a common-law tort. Dividing it up some of the factual substrates that was going on there, the fact that, oh my gosh, there are actually cameras where you can take pictures of people, you can capture people’s images in a permanent medium. I’m just talking about ordinary camera. Like that existed in the 19th century. And so that had its normative resistance from the beginning, the fact that it was so invasive, the whole concept of having your image captured, even if you knew it, you are out on the street, or whatever. That demonstrates that in the past that we can look to where there have been resistance in the beginning then there is a normative shift where then nobody thinks anything about it. We probably aren’t just going to see the same thing with something like this and just as important as any legal development come around there is going to be normative adjustments as well. That will allow accepting this technology to begin to occupy space in our activities and in the marketplace.
Denise: All right, I’m back to my question about how we going to get permission from everybody, not just on the copyright friends but on the privacy front to use these kind of devices. One thing that occurs to me is, it is very easy to take something like this into a courtroom where cameras are prohibited the staff there. There’s going to be a window of time where the staff won’t realize that the thing on your lapel is a camera and photograph everything that is going on in there. Certainly wouldn’t have permission in that situation, you would probably be well aware that you were breaking the rules if you went in and did it; but out in public, just to your point Evan, is it going to be normative, is it going to be legal or are we going to have some sort of legal understanding in place that, just as we supposedly do now, you’re out in public you are fair game. I don’t think people really internalize that.
Evan: Yeah, I mean, you just need to see how people reacted to, it’s been a couple weeks now. I don’t have the facts and the actual rationale of the court right at hand. I just know that this was in Massachusetts. Did we talk about this on the show? The Massachusetts Supreme Court overturning the conviction of the guy who was taking up the skirt photos of gals in public.
Denise: I don’t think we did.
Evan: It all turned on, this guy was, you know, the evidence strongly suggested, I don’t know if he confessed to it or what. He was going around and surreptitiously taking photos up women skirts. And the Supreme Court held as a matter of law that it wasn’t unlawful because the way the statue was drafted. And it all had to do with the expectation of privacy. The whole point of me bringing that up is that, sure this is a complex question of what we think of as being private to us. If you’re out in public that certainly does change in those areas where, to the extent that our sensibilities will change about what constitutes something that is private and we have both the subject and an objective expectation of privacy. That is going to have to drive legislative activity in this, so what the law actually is starts to match up with what it is we actually expect. So, it’s weird things like that, those fundamental expectations, those fundamental notions that we have, to the extent to which those are challenged. That’s what’s going to drive the real shift in all of this.
Denise: Katie, reached an interesting conclusion that I am not sure I quite buy into and that these, you put this in our notes as we were prepping for the show. That these photos might not be copyrightable. Explain why?
Katie: Because you need human author to have a copyrighted work. And there is a rule published by the Copyright Office that says, that works not originated by human authors aren’t eligible for copyrighted protection and that includes works produced by mechanical processes or random selection without a contribution by human author.
Katie: And this came up, what I thought of when I saw this story was that, this story was from a while back with the monkeys that took the photo.
Katie: Right, and so if it’s not copyrightable when the monkey takes a picture it shouldn’t be copyrightable if a machine is automatically taking pictures and then algorithms sorts through them.
Denise: Yeah, interesting point. What you think Evan?
Evan: Well, there’s a couple layers where we need to evaluate the copyright, the copyrightable subject matter. What it is that we are claiming is being, is having copyright rights attached to i.t. first of all there is the copyright in the photograph itself. The copyright in the individual photographs and it seems it would be an easier argument to make that that is something that the individual wearing the device would be able to claim copyright because they position it in such a way. The second time we can bring up the Cicerone case from 1884. the picture with Oscar Wilde; You may know after a while subconsciously position yourself, or just having good posture so that you are getting a good view of whatever it is around you so that the photograph is well taken. I would posit that this rises to the level of the contribution to make that work original enough to be protected by copyright. And then there’s this other question about the compilation, the selection or arrangement, of what photographs are there. That the machine goes and this is creation done by artificial intelligence. So this is just a really interesting question, that I know and that we have been talking about on this show, Denise for several years. I wrote a paper about this in 2010, it was occasioned by the whole idea of the semantic Web and those technologies are always evolving. it’s like, if you have smart technologies on the web that are compiling information and creative work s emerge from this, is that who is the author? And we can start thinking about robots, and consciousness and should a ... But any way
Evan: That’s the more provocative question is the compilation copyright. The copy in the selection and arrangement, I get the sense that when discussions like this become so convoluted, that we get so out there, we get some pragmatic approach to this. Some kind of occums razor to cut right through this, and just say, well maybe it’s not going to ultimately matter. I tried to channel William James in times like this, what is the pragmatic solution to this? Maybe it’s not really going to matter if we can first establish that the individual has the copyright in the photographs, because even if you have a copyright in the selection on the arrangement and you’re a machine or you don’t have, or there is no copyright protection because of what the Copyright Office has said, has interpreting the copyright act it doesn’t matter if you can exploit that right to begin with, so. I would love to think that I have brought this back to some full circle but I have no delusion that I did.
Denise: Well, to me it’s like okay, let’s move from Ellen’s cell phone, handed to Bradley Cooper to somebody there that has a lapel cam that they turned on the group. It seems to me, making the copyright analysis different because of the technology, leads to kind of an absurd result. You get the same picture in either instance. It’s a valuable picture people want to assert rights on it one way or another but because one was taken with a camera and one was taken with an automated lapel cam, you would have different conclusions about WHAT could be done with the photo. Does that seem right Katie?
Katie: I don’t think copyright law is afraid of absurd results.
Katie: It seems weird for sure, and I think that you would have to, if there was a photo that came out of this process and somebody really wanted to assert their rights over it a court would have to look at it. Well, what were you, like what Evan talked about really holding yourself in a particular way to frame a particular shot or were you liked the article mentioned just slouched at your desk for six hours not paying attention to anything that you were doing. I don’t know, you were in the latter situation it seems more analogous that a security camera in a gas station that somebody mounted there, what the copyright status of the video it is capturing on a daily basis.
Evan: I mean why do we have to, need to, and the tone I’m using makes it sound like I’m trying to dispute you I’m not but I’m just discussing this. Why do we have to assume that the creative act actually has to be so proximate to the event of reducing the thing to a tangible medium of expression? Couldn’t we look at this as a very systematic ongoing thing of the fact that I established this and I was the first mover of this cause, the first mover, the first cause and I caused this series of photos that were taken over the next three months to be taken? And that decision in and of itself is the creative, the activity that constitutes or demonstrates the creative spark, that ought to entitle me to copyright protection. Even to the mundane photos of my desk that I took while wearing this being for six hours. Should we be so limited in our thinking that the creative act has to be the pressing of the button to open the shutter for that one particular shot?
Katie: Yeah, that seems reasonable to? I just don’t know if that’s where it would come will need me to see and I see him out what he and I will be will be for her gain far I have an and on a Monday finish this sentence here to Skip down if this went to court. I can see either way.
Evan: I’m all for the strong protection for security cam photos. I think that’s just the paradigm of human creativity, right?
Denise: All right, well, so we continue to push, both copyright and probably right of publicity and privacy fronts with our photographing and video capturing technologies. Let’s move on to what’s been more of a straight privacy story, although there has been a patent gloss to it because as we were discussing on the show, just last week, the personal audio case. A series of cases, this is the patent entity that claims to have the patent to technology covering podcasting. This entity subpoenaed EFF for information and EFF has been challenging the patent involved in these cases. Subpoenaed EFF wanting donor information, wanting identities of people who had donated to safe pod casting campaign on the pretext that that information was relevant to cases going on, thankfully a court has decided that no, that’s not going to happen, you cannot force a party to disclose who’s donating to their litigation efforts. Seems like the right outcome to me, Evan do you agree?
Evan: Yeah, I guess so. I mean, I have to confess the only coverage I have read on this is what the EFF said about it and so of course, They are going to say that it was the right outcome, but pulling as much objectivity out of it as I can, does seem like it was unrelated to the litigation going on in Texas, I assume. I think I read that somewhere. Isn’t most litigation over this stuff in Texas? What EFF had done, in connection with the activity in the patent office and given the whole purpose of that process in the patent office seems like those things fundamentally should be separated. And that is all separate and apart from privacy interests you can have. again I did not go and actually read any of the briefs in this but it sounds a lot like associational interests cases that go all the way back well in to 20th century about the right to be anonymous. And in as much as you are associated with a group of people this is a first amendment issue. There’s that whole concept of free association, free speech, freedom of religion, freedom of association, there are several different things that are packed into the First Amendment there. There was a well-known Supreme Court case, I guess from the 50’s, involving the NAACP where the identity of members of the NAACP was held to be protectable as anonymous. They can be anonymous because of this First Amendment of the right of free association. So it seems to comport with general notions that this isn’t something that your opponent in a dispute somewhere else in a different part of the country, and there’s a different set of rules; yet seems to comport pretty well that ought not happen, that this discovery ought not to be had.
Denise: Katie, this seems like something that must come up in the library context a lot. Certainly, it’s a sort of a prototype case, you know. You having first amendment interests in what you are reading and up to add a library. Is this an issue that’s close to your heart?
Katie Farley: Not mine personally, I stick in copyright but I do know a lot of librarians who. Who it is that do follow it closely and any library is going to protect a patron’s record like that. You are not going to get folks sharing what people have checked out. When I was in library school I remember reading a lot of coverage about the Patriot Act provisions for the government requesting library records, and when they did that the library was not allowed to say about it to anybody and libraries do not like that at all.
Denise: Alright, well Edward Snowden made some interesting remarks at South by Southwest, appeared on a panel there. Just wondered if either of you had some thoughts. His general message seems to be that it’s up to the technologists to really put security in place that’s going to make this kind of surveillance if not impossible than harder to do. Do you agree with that premise, Evan?
Evan: Yeah and we should expect that coming from Ed Snowden. Too bad the audio so bad on that thing at South by Southwest, kind of a letdown I think there would have been more attention after the fact. There weren’t any good sound bites for the mainstream media to use in Ed Snowden’s appearance because of the Skype issues that we all know too well about. But yeah, it makes sense the things he was saying, more encryption in the end that’s a technical thing. The whole theme is new ways of using; not new ways; new emphasis priorities on the way we use technology so more into and encryption. Then there’s this really intractable problem of the idea of, well, what it translates into at one level is the user of a platform, the customer or is the user the product. This is the idea of the data collection, and the economic importance of that, the financial reasons that platforms collect so much information about people in the first place. So he encouraged platforms to not collect any more information about people, users then is needed and not to retain that data for any longer. But you can see that there are cross purposes here; the interests aren’t aligned here. If there is the interest in the individual privacy, well, having not as much information gathered about you and not being retained for as long. It’s not nearly as effective for the advertisers and the platforms that provides the space for the advertisements on there. So, what have got to in a real provocative sort of closure on this discussion and this was expected from the piece by Chris Soughan, the ACLU guy, who was involved with the festivities with Snowden was rethinking our relationships with tech companies. Really get so extreme as to say maybe we ought to consider shifting our thinking about this so much; to Heaven forbid, hang on everybody here it comes. PAY. To use some of these services, like my gosh pay to use Facebook, pay to use Twitter. I know I am speaking blasphemy it so incomprehensible but that would be one way putting, aligning the interests a little better because the more we expect free stuff ,the more we ought to expect to turn over information about ourselves and thereby put ourselves at jeopardy of being swept up into mass government surveillance. So, I guess we got to pay for our civil liberties at some point
Denise: Yeah, I agree, that would certainly be a step I agree, Evan in aligning the interests. But even in a for pay kind of situation, that is not going to stop the government both from listening and subpoena the information. I see what you are saying there would be certainly and enhance interest in protecting the customers in that situation. Katie, we have been saying all along through the show that there is copyright in everything, do you think there is a copyright angle to these national security kinds of concerns. I always find it interesting when people assert copyright when their interest is really privacy and in the “is anyone up?” kind of context, for example that what they want to get is the information out of people’s sights and all their attention and what they’re using as their sword is the copyright interest in the photo, or the video. Do you think there is an opportunity to fight surveillance with copyright?
Katie: Hmm, I doubt it, based on what we all agree to in terms of service when we joined up with Facebook and Twitter and all. We pretty much give it all away, we don’t have a lot of power, as Evan says as the product not the customer.
Denise: Again maybe, Evan if there were a different economic arrangement in place maybe that would be the kind of thing that would change. We mentioned the Web is 25, Timber Nurse Lee wants us to have a Magna Carter, Katie, do you think this is a good idea?
Katie: Sure, I don’t know where it will come from and who will enforce it?
Denise: (laughter) exactly, just some sort of position paper that is aspirational, is the best that we could hope for?
Katie: Well, I think most folks, they see this whole environment as so huge and the big players are the big player, and they just deal with what there is and they don’t see a way of advocating for change that is effective.
Denise: What you think, Evan?
Evan: Well, I mean, there could be ways of making something more substantive than just, oh here is an abstract Magna Charta. We have things like the “U” in universal declaration of human rights. Which is really, I am no scholar on this point or an expert, or know anything more than what I know from being on the Internet about this I don’t think something like that have the effect of law but it certainly has the effect of influencing the way that policy decisions are made and perhaps influencing the way in which international treaties are negotiated and then entered into and what the critical points of negotiation are and those things. So, More than just being an aspirational, I suppose the way that, if we are moving into more global economy and globally governed system, at least as much as governments cooperate with one another, there may be ways to make this actual meaningful. Something to actually implement and influence the way regulation, law and policy goes.
Denise: As she often does, Sue, the writer in our IRC has suggested our second MCLE passphrase for this episode of This Week in Law and that’s “penal interests.” Penal with an “a” thank you very much. I’m sorry Katie, did I catch you off? Were you going to respond there for a sec?
Katie: I was just going to say as far as international progress this is where I decide to be cynical and say based on how international discussions to handle copyright have gone, I don’t have a lot of optimism there but I will try to scrape some up because that would be great.
Denise: All right,
Evan: I can’t imagine we are all totally cynical, I was still being abstract and just the suggestion that the avenue was possible. Yeah, all you need to look at is TTP and what other, I’ve lost track of all the different things we have talked about over the years where there is international. What’s that stuff that was in Dubai earlier this year about, large scale questions about Internet governments are often woefully disappointing when they actually occurs. It was discourage.
Denise: Well, it seems like Timber Nurse Lee is taking the occasion of his prestige and the anniversary of the Web to voice some opinions. he says we need do need to revisit a lot legal structure, copyright laws, the laws that put people in jail which have been largely set up to protect the movie producers so he’s a fan of copyright reform and keeping that issue on people’s front burners. Let’s move on to our tip and resource of the week. Our tip again, I caught this by watching TWiG, This Week In Google. I don’t think I yet had these Google Docs add ons appear in my account, although I am looking forward to them. They’re looking like cool additions to Google Docs. One of them is through an entity called Hello Sign. I bring it up they mentioned it on TWiG, too it’s an Easy way to, if you’re using Google Docs you can incorporate an e-signature add on in your documents. So if you are doing a contract and you want to send it off and you don’t want to have to go through the contortions that people still do these days, of signing a faxed copy and then sending that ink signature by mail so that you have an originals. There actually is an E-sign act that has been in effect in the United States for gosh, I don’t know how long but it is sort of more honored in the ignoring then in the use. But it is a way to do legally binding signatures and Hello sign is one way to do it there’s another entity called Echo Sign, that I will point you towards if you haven’t heard of them they were acquired by Adobe, I use them a lot.
Tip of the week: webpage for introducing a Hello Sign for Google Docs
Just a really much more streamlined way to get things signed. I am not aware of any litigation of one of these applications being used and having the contract struck as invalid. That’s not to say it couldn’t happen. Evan, are you using e-signatures in your practice pretty routinely these days?
Evan: Not really, at the risk of making it sound like I am some sort of Luddite or not wanting to embrace progress, that’s certainly not it. Just that, I have often, sure there are certain circumstances when e-signatures are good. When it is an international transaction or just the particular sensibilities of the situation warrant it, certainly do that. But for 90+ percent of the transactions there is nothing wrong with printing, signing, scanning, and returning by email. And people keeping copies of agreements that way, so again I hate to sound like I am sort of out of it or not willing to embrace the way things are going here. But this is not, I have not seen any sort of revolution by any stretch of the imagination since the E-sign Act was implemented or in the way that law is actually practices and contracts are actually entered between parties.
Denise: I know, it’s so funny to me that that’s the case because it is legal to electronically sign things and still I don’t know, when the last time when you did a mortgage for re-finance that requires those stacks of documents they use in real estate, but they sure haven’t heard of e-signatures in that arena. So I encourage folks who listen to the show to use them and give us all a break and it doesn’t have to be on legal documents too. I mean you can always feel good any time you are needing a signature I would think, you know school permission slips and stuff could be streamlined by use of this Google docs add on. And our resource of the week is something that Katie spotted. This is really cool and it’s at openculture.com and they have 15,000+ free Golden Age comics from the Digital Comic Museum. Want to tell us a little bit more about this, Katie?
Katie: I heard about it from a librarian. Yes, they have all these comics that they scan or they will scan comics for people or people will upload their own scans and their cutoff is 1959 and they’ve got some crazy stuff in there. It’s all public domain so you’re not going to find DC and Marvel and that stuff but a lot of the smaller publishers and weird government propaganda and good times like that.
Resource of the Week: Web page for OPEN CULTURE.
Denise: Looks really cool. Thanks for highlighting that and so if you’re interested in public domain comics really neat resource of that firstname.lastname@example.org. So I think that’s going to do it for this episode of This Week in Law. It’s been such a pleasure chatting with you, getting to know you a little bit better Katie. Anything else that you have been working on that you want to highlight for us that would be interesting to our viewers and listeners.
Katie: I will just stick in one last minute plug for libraries generally. Your library is doing all kinds of crazy stuff that you may not be knowing. There might be 3D printer in a maker space, there’s library PACs now every library that’s funding elections across the country, there’s guerrilla story times, there’s crazy stuff going on in libraries academic and public so go take a look.
Denise: Where have you seen a library with the 3D printer?
Katie: I haven’t been to one but I feel like that’s all librarians I know talk about. Do a search they are out there.
Denise: That’s really cool. Yeah, I mean I remember when you were young you would go to the library because they would have cool technologies that you might not have at home like a copy machine, for example. Make use of it so sure why not three printer that’s a great idea. What is story time?
Katie: It is less structure, must plan, people do this at conferences to exchange ideas and like different techniques and an organized kind of grassroots way.
Denise: Very cool. All right, I just can’t tell you how great it’s been to have you on the show, really a pleasure talking to you. We really appreciate all the great work that you do on behalf of the University of California library system. I was a student there way, way back in the day, and I’m sure the kinds of things people have access to today would just blow me away. I should head on over to UCI or UCLA and just spend a day in the library and marvel at how different it was from when I was in school.
Katie: Definitely thanks.
Denise: Evan, great to chat with you again as well. How are things going in Chicago?
Evan: Things are going great, you know, just keep staying at work in the salt mines here. Just really looking forward to spring and all the things coming up there. I have a couple of new speaking engagements coming up, I’m going to be talking about in April at John Marshall Law School about ethics. I had to hold myself out as an ethics expert. We’ll be talking about some of ethics of intellectual trolling, copyright trolling and of course sort of a different flavor but there are similarities of patent trolling. I’m going to be compiling new some knowledge for that so I’m looking forward to getting ready for that. That’s a new thing on my radar screen. Otherwise, just the trying to do good work for my clients so hope they make better decisions. It’s all good.
Denise: Super cool and I can’t believe we’ve made it through this entire episode without any sort of banana slug references, Katie. That is entirely my fault, I have been remiss I apologize. That’s because Katie for a while, a long time actually worked at UC Santa Cruz and their mascot is the banana slug. Do you have a lot of banana slug wear that you sport around?
Katie: Not a lot, I am a fan of the T-shirt that says “No known predators” which is a lie. The banana slug has plenty of predators, but it makes for a nice shirt.
Denise: That’s right. I love the Santa Cruz area, it is so gorgeous there. You are a lucky gal that you get to hang out there and commune with the slugs. They’re nice little critters, gooey and squishy and neon yellow often. So, with that we will go ahead and wrap up this episode of This Week in Law. Thanks everyone for joining us, if you have been watching us live, you’ve been doing so at 11 o’clock on Friday here, that’s when we always record the show live, 11 o’clock Pacific time, 1800 UTC. Please join us then, it’s always fun to have a live audience and jump into IRC if you are doing that @IRC.tweet.tv. But if you can’t do it, don’t worry about it you can always watch the show on your own time by heading over to twit.tv/twil. Our whole archive is there. Also on Youtube, Youtube.com/this week in law. We’re in iTunes on Roku however get this kind of entertainment we are there. You can probably get it on, what’s it called again? Popcorn time, I don’t know I haven’t checked that out yet. Be sure to sign that disclaimer when you start using it. What else should we tell, we should tell you to get in touch with us between the shows I am Denise@twit.tv, Evan is Evan@twit.tv we love getting mail from you or hearing from you on twitter he’s Internetcases over there, I am DHowell. We have a Facebook page over for This Week in Law. It’s basically Facebook/: this week in law, also on Google plus there’s both page and community there. Where we love to see your suggested links of things we should talk about, pay attention to. Love the guest suggestions, feedback on things we’ve already discussed, further information about things we have already discussed. Please keep it coming we could not keep the show going without all of your input, and we are really, really appreciative of all the folks that support the show. Thanks so much and we will see you next week on This Week in Law!