This Week In Law 254 (Transcript)

Denise Howell: (bag and baggage.com – at dhowell) Next up on This Week in Law we have copyright librarian Nancy Sims joining Evan Brown and me. We’ve got trolls, we’ve got copyright trolls, we’ve got patent trolls, we’ve got geckos fighting trolls. We are going to get away from some trollishness as well. Talk about George W Bush as a potential warrior for their use. We’re going to talk about windowing, and lessons to be learned in e-book contracts, also a bit of heart bleed for you. All next on This Week in Law.

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Denise: This is This Week in Law, with Evan Brown and Denise Howell, episode 254, recorded April 11, 2014

Girl Scout Cookies in September

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Hello, you’ve tuned into This Week in Law. I’m Denise Howell, I’m here with my cohost Evan Brown. Hi, Evan.

Evan Brown: (InfoLawGroupLLP - @internetcases HI, Denise, great to see you on this Friday afternoon.

Denise: Great to see you too. We have a great guess with us this week to talk about everything new and exciting and interesting at the intersection of technology and law. And specifically, we are going to focus on a lot of copyright stuff today because we have an infamous copyright librarian joining us from the University of Minnesota. We have Nancy Sims. Hello, Nancy.

Nancy Sims: (blog.live.umn.edu/copyrightlibn - at copyrightlibn) Hello, thanks for having me very excited to chat.

Denise: Great to have you. So Evan and I have followed you on Twitter for some time. Give us your background for those who haven’t yet been following you.

Nancy: Sure. I am an academic librarian. I call myself a lawyerbrian because I’m not a law librarian. Which is a pretty big distinction for me. I got into libraries actually primarily out of the background and loving to play around with computers. So, my first library jobs were all technology oriented. I did a lot of work in my first job of helping people understand how to use software. It was at an academic library, so how to use software in various application in their academic works, getting pictures, preparing conference posters. And things just coming up, like hey, I want to use a video clip in my class. Well, if you rip it out of the VHS tape; we only have to worry about copyright. If you rip it off the DVD. We have to worry about copyright and then this thing called the DMCA. So with all of that stuff. It kept coming up in my work, I decided to go to law school and I finished law school in 2009 and have been working specifically on copyright issues  ever since.

Denise: That’s wonderful, well I guess we’ll start out with some copyright issues to kick off the show.

Advertisement: display of VCR recorder, Copyright Law on label of VCR popping from recorder. Copyright law with FBI warning in the background.

Denise: (laughter) wiki-wiki-wiki, I always love the scratching there at the end of our bumper. Let’s start off talking about something that I first spotted in Nancy’s Twitter stream this week. And that has to do with creative Commons licensing, and Flickr. Which has been a big champion of creative Commons licensing over the years. And one of the best implementations of creative Commons licensing, I think. For people to be able to choose a license, and apply it to their photos, and communicate that their photos are license and make sure the license travels with their photos as people go ahead and reuse them around the web. But recently there was a little bump in the road there, Nancy can you tell us what happened?

Nancy: Sure. Yahoo redesigned the Flickr interface recently, and they really did top to bottom. They have been doing some major redesigns of photo, photostreams, basically, for a while. But the most recent thing they really, really overhauled was the individual photo page. And one of the things that happened was that it became much less clear what creative Commons license was being applied to any given picture so this is actually an image from my own photo stream. (photostream: ckr: Nancy Sims-showing photo of a milky-white kayak). I use Flickr a lot and I used creative Commons licenses, anything that I share on Flickr is creative common licensed. When they first did this redesign, it just showed some rights reserved, there is also some, you can see on the screen, they are not using standard creative common icons or which license is chosen. This image is licensed with a creative common attribution only license and you can’t tell that just by looking at this. Another thing that changed in the redesign is that it’s a lot harder to figure out how to download the image. If it’s creative commons license, I want you to be able to download it, but it’s a lot harder to do that with this redesign. They have changed some things. They have fixed some things based on the feedback from people who use Flickr and so now if you click on the some rights reserved link it actually does take you to the full creative Commons license. If you mouse over it. You can see that it’s an attribution only license so you can actually tell now which creative Commons license is being applied just looking on the page. (Webpage: creative commons, attribute 2 .0 generic) (returned to photo stream with white kayak) One of the other things that broke though was the meta-data surrounding the image. There’s lots and lots of sites use the common creative meta-data that Flickr provides for image search engines and also some very nifty various types of applets that create attribution or citations for you. So all of those broke when Flickr redesigned because they dropped the standard meta-data. As I understand it, they have put that meta-data back, but I haven’t tried any of the citation applets, yet to see if they’re still working right.

Denise: Okay, do you know if Flickr’s own search was impacted by this at all?

Nancy: As far as I could tell when I tried searching through this, you could still search by creative common license.   Their search doesn’t actually let you choose all of the combinations. Their advanced search lets you search for creative Commons licensed images, for images that are commercially releasable and I can’t remember what the third factor is but,. So their search continued to work, but the challenge is, you couldn’t tell what specific license was granted on a particular image. Some of those searches return images with different licenses and you couldn’t tell which one of the licenses was available and you couldn’t easily download it. I will say the new redesign still makes it very difficult to download a picture. I expect to be able to right click on a picture and save the image file. (Webpage: ckr: Explore/creative Commons). In order to actually get to the picture in the new redesign, you still have to find which of the random icons on the page is for more and then from the more page you can download  it so is still a light bit harder to use  then I want for my creative Commons images. But there are not a whole other photo sharing sites for it to support particularly well either, so.

Evan: Yeah, it is totally random. You have to click on the ellipsis. And let the little three dots and then it brings up, a lot of choices that, I don’t know if many of those choices are new in the redesign that they certainly are another layer and a rather opaque layer at that. Isn’t it to get to the interface where you can actually download the images, Right, isn’t it were that little ellipsis is?

Nancy: It is, it’s the little ellipsis that I had to click around on all of those icons before I figured out what the download option (photo stream of white kayak). So there’s the download/all sizes thing on the old individual image view/ all sizes as a link you could see on the basic page, and right clicking on the image on the basic page unless the user had chosen some options that are incompatible with creative Commons licensing, I think. Right clicking on the image to download that image to. So, they had disabled the right clicking on the image.   And you have to find which of the random icons leads to all sizes, page in order to download the image. Still, even though they’ve fixed it.

Evan: I wonder if that was intentional? To make it a little more difficult. You could see countervailing arguments where for one thing, they may be trying to.  It’s a great idea. It would still be a mistake. If they’re doing it to restrict downloading of creative Commons images. Because the assumption is people who license their work through creative license commons want it to be downloaded, so that it can be reused in the way that the license granted. But, from a more general standpoint for images that aren’t protected by creative Commons, you wonder if there’s an attempt here to nod towards having Flickr be a service where it is primarily used for people to go online to look at the images not as a place to go and find images to look at later. More as a general cloud service or a video streaming service, would be a change in the mindset, trying to force a change in the mindset of the users as to where the images are stored, what the location is going to be. Seems that it could be some good design sensibility about this in the larger sense. Do you agree or isn’t totally bogus, all the way around?

Nancy: I think Flickr is trying to serve a couple of audiences that may have some really incompatible interests. Flickr for creative Commons photos has been, that was part of their early design. I’ve met some of their early designers and early people who were working on the interface and they were really into open technologies, and that was part of why they built in support for creative commons license it so early. I think with the Yahoo redesigns lately. One of the things that’s really clear is that they are looking to be more graphically compelling, they have all these really cool tiles, things where you can see your image and some control of them. (Webpage: crk-explore/creative commons) This thing that you’re seeing right now is the old-style Flickr, but the newer style. If you click on someone’s photo stream. You’ll see it soon. Waterfall look, it’s much more responsive design and that kind of stuff is definitely going to appeal to photographers who might be using Flickr for less to share and more to provide access to their work, but not necessarily full downloads of all their work. (Webpage:ckr: Nancy Sims: photos of white kayak). I think that’s a split of the photos that Flickr has been supporting fairly well for a while because in the previous iteration. One option that people could choose was to disable right clicking on their pictures. If you want to use Flickr to share picture, but you don’t really want to use Flickr to let people download your pictures, they had an option that already existed to disable right clicking. You know, disabling right clicking only works as far as the users understand how not to rat around it. So it was only a limited option, but that’s certainly something that some photographers did choose to use on Flickr a lot. So I think they do have some competing audiences in this redesign might a sign of them choosing to go towards a direction that is away from some of their more creative Commons minded users and towards some of the people who are more interested in limiting access to their works. But it may also just be that they are being managed by a different group of people and the folks who originally started Flickr, and they may not as aware of how compelling line creating Commons parts of Flickr. So it just might be that they’re not as aware of their audience there.

Denise: Yeah, I think that Flickr definitely has that tension in its user base and that the feature where you could turn off downloading entirely is still there and it would seem that that would be enough of a draw for those who don’t want their images downloaded, it seems like disabling the right click might be overkill, especially because they’ve got such a strong contingent of people using create commons licensing on their photos, I know I do there too. I think there’s a lot of.

Evan: Do either of you have any data about what the percentage of photos on Flickr are license by creative Commons?

Nancy: I know. I looked at that a couple years ago, but I really don’t remember if I could find the details. The creative Commons page on Flickr that we were looking at a couple minutes ago does say how many images they have in certain categories, and the numbers are astronomical. I mean, us photographers are right to feel a little threatened by creative Commons photo licensing. But I don’t know percentagewise, what percentage of Flickr is open license.

Evan: Even more importantly, then trying to establish the importance of creative Commons on Flickr. It would be more important to just know how, really  historically Flickr has been good for creative Commons, making it easy, allowing third-party development that Corey guy, not Cory Doctorow, but that Corey Dodd, that Cory Doctorow talks about in that article on “Boing Boing” who created that script, that applet, ”The Tributor”, that’s what it was called. I mean, that seems more important than just looking at the raw data of how many photos are on Flickr in proportion to it, just to recognize that Flickr is so pro-creative Commons. Such a good avenue for

Denise: All right, let’s move on from Flickr and talk about trolls for a moment. Check in with what’s been going on with Prenda law, you know, it lost a bunch of lawsuits on a number of fronts and got the lawyers, you know, the lawyers. They got sanctioned and definitely nothing good has been happening for Prenda. That trend seems to be like it could be continuing there was an oral argument in the appeal of one of the Prenda cases recently and while it’s dangerous to try and ballpark an outcome from the oral argument apparently the justices of the, the appeal judges of the Seventh Circuit were not having a whole lot of sympathy for the Prenda side of things. (Webpage: ars technica: Law & Disorder/Civilization & Discontents: “Copyright troll” Prenda Law completely bombs at appeals court.”) Evan, this is in your neck of the woods, are you paying attention to this printer case getting argued?

Evan: The only attention I paid to print them now is just as entertainment, back in the glory days, starting in 2010 when John Steel and Company started actually filing these crazy lawsuits, I represented a lot of the John Doe defendants in these, so now it’s sort of lost its luster for me.  So I just look at it and sort of enjoy seeing where it’s going.   And what we get from the arguments in front of the Seventh Circuit is just more of an illustration of how the shell game, it’s not my term, that’s what I think what the court used that or certainly what Joe Mullen, who is a friend of the show. He’s been on before used in the ars piece talking about that. I mean, it was such a, it’s looking more and more like it’s just this amazingly complex system of evasiveness that Steel, Hans Meyer, Duffy, Mark Lutz. I guess he was a paralegal. It was never clear what his role was with all of this. But he did a lot of communication on behalf of the firm Dejour. Whether it was Prenda Law, whether it was Steel, Hans Meyer, or AF holdings, I guess was the name of the plaintiff. It looks like it may have some legal relationship with Prenda Law, which is one of the things they are trying to unravel here. So, it certainly does look bad when these issues, they don’t relate necessarily to the underlining merits of the case, but the court, the Seventh Circuit Court of Appeals, making inquiry as to the business structure of the different firms and their relationships of the attorneys to the firms; when the lawyer representing Prenda Law can’t even explain the legal relationship between all of those things. That looks pretty bad under any set of standards that you’re going to evaluate the situation. And we know that where there’s smoke there’s fire, which the analogy would be that were there are indications of fraud, there’s probably is fraud. So, I’m just saying that in the abstract, we don’t know exactly what all has gone on here, but certainly doesn’t look good for Prenda & company and it just sort of, starting to fill in the gaps of the, put the color in the picture that we been able to sketch out of these guys over the past few years and some of their business practices that don’t look all that scrupulous. So, good stuff, it’s entertaining.

Denise: Yeah, I think this is the first time a Court of Appeal has gotten a hold of some of the rulings adverse to Prenda, so we will have to see what exactly happens following the argument with the Court of Appeal, what the Court of Appeal actually decides here. I don’t know if we’ve talked about someone who doesn’t like to be referred to as a copyright troll but sometimes is Malibu Media. Which runs an adult site called Xart. They have sued over 1000 Internet users and the fall in the category of copyright trolls, if we could call them that, who might be able to use intimidation tactics based on the nature of the content that they have under copyright that people might be embarrassed, be identified as someone who is guilty of infringing their copyright. So, in fighting the copyright troll label and trying to justify the merits of their lawsuit. There over, there at the copyright blog, some documentation came to light that they have filed. That talked about the due diligence that they are doing, such as administering lie detector test to defendants to see whether or not they had actually downloaded any of the copyrighted material. That seems like something that is not part of standard discovery Evan and I’m curious to get your take on that.

(Webpage: Ars technica: Law & Disorder/Civilization & Discontents, “Porn site that spews copyright suits uses lie detector on defendants”).

Evan: On lie detector tests?

Denise: Yes, and these tactics in general.

Evan: That seems like some civil litigation that can be pretty darned exciting. We need to get a piece of that, right? Sounds pretty cool. Yeah, on this whole issue of Malibu Media. This is another company that I have had a lot of exposure to representing  John Doe defendants who’ve gotten letters either from Malibu directly or from the ISPs, who are the subjects of Malibu Media’s discovery efforts here. So, on the whole question of the semantics of troll or what constitutes trollism, what have you here. That’s kind of a silly discussion to be having you can be understand why Malibu Media might want to distance itself from the negative connotation that the word troll engenders. But it doesn’t change the fact that the underlying motivation or the underlying sensibilities is causing Malibu Media to engage in widespread litigation against unknown defendants over subject matter where if it is made public that these defendants are accused of trading this content. It’s going to be embarrassing to them, this is pornography. We can’t forget, but it’s embarrassing to a lot of people. If that’s made a matter of public record or even just if their family or friends find out that they are accused it, of trading pornography online. The whole point doesn’t change the fact that there’s something that’s unsavory about those sensibilities, that strategy and those tactics that they use. So, the fact that they are using lie detector tests just plays right into that, lie detectors tests plays right into that as a tactic, oh, this crazy, slimy plaintiff is doing this stuff and we’ve got to stop and put this in proper perspective. They are not getting court orders requiring these people to undertake lie detector tests, these are things that defendants are doing probably from a sense of desperation, “hey, I’ll take a lie detector test, I didn’t trade this file” so it just plays into the narrative really well, just adds to the story here. So, with all that said, you can kind of see the point of what Malibu Media is trying to make.  They are not trolls in the same sense that a patent troll is.  Purportedly, if they truly are a real pornographer, if they are actually out there putting, generating content and putting it in the market place, it’s a little bit different than what we see with patent trolls who just barely hold those rights and don’t do anything. So, you can sort of see the differences. I stand by what I said earlier, it doesn’t change the fact that the underlying motivation is like, we don’t like to see that kind of stuff.

Denise: Right, and Joe Mullen wrote over at arstechnca a piece on Malibu Media and is quoting from the FCT blog, which estimates that Malibu Media may have gotten up to 1,000,000 in settlement from the 174 settlements. It has reported in the range of $2000-$10,000 apiece. Nancy, do you think copyright troll problem is getting better or worse?

Nancy: Well, it depends on what you call a troll. Copyright owners or at least alleged copyright owners, Prenda has had some trouble proving certain elements of that even. Copyright owners suing consumers is, it seems to have been kind of going in waves a little bit. Music industry tried it for a while. They got a lot of settlements out of people, they also got a lot of negative press out of that. And then the music industry has moved away from that model. Then we saw some attempts to do that with movies. And we’ve also seen this sort of troll model with Prenda, of we think, maybe, and this is just been alleged, I don’t know all the details or facts.  Where there are some people who we think are seeding torrents and then going after the people who download the torrents. That’s a little different than what the music companies were doing, they are definitely legitimate content producers who were suing their users. But it’s an interesting development in the law and really one of the things that when I am talking with people. I’m often talking with K 12 teachers about copyright, and they are really worried about it. One of the reasons people are so much more scared about copyright issues is because content owners are suing content users now. That’s a new thing and it’s partly because technology enables content donors to see what individual users are doing in ways that analog technologies never used to do. It’s a really interesting social revolution were the technological change has actually led to some changes in legal practices that really affect how we feel about the law in our daily lives. And I think that’s one of the really negative outcome of these troll cases and of any system of copyright enforcement were content owners are mass suing users that, people feel a lot less good about copyright. Individual consumers who are also creators, by the way, feel a lot less good about copyright and overall it undermines the system.

Denise: Yes, excellent point. Let’s move on to another area that can be really problematic as technologies come online that might not have existed when contracts were drafted. We’ve seen over and over again that digital rights may not have been contemplated when somebody originally authored a work. And our former intern, Franklin Graves has written up a great post on his blog, which is called” A Lost Student’s Digital Mark”. About an eBook deal that involved that very issue, had to do with a book called “Julie of the Wolves”. eBook rights were granted, I think, to one party, but the original publisher claimed no, no, we have those rights under our publishing agreement even though it wasn’t specifically spelled out. In fact, e-books didn’t even exist in 1971 when the contract was drafted. (blog: Franklin Graves: “A Lesson In Contract Drafting: -eBook Deal Violates Publisher’s Copyright.”) So, they wound up in court over this and the court decided that something called the doctrine of new use come into play in interpreting the contract here. So even though e-books were not around, and they were not specifically mentioned in the original publishing agreement that was determined to be not a problem, and that the rights were under the original HarperCollins original agreement, swept that in. Nancy, is this problematic?

Nancy: I think actually as the blog post points out, this is an example of a really well drafted contract. I’m not actually familiar with the doctrine of new use. But the words quoted in this blog post anyway are that the contract transfer the rights to publish the book in book form and in electronic means now known or here in after invention. And that kind of language in the 70s was not terribly common in contracts, but is increasingly really common in content contracts. This case made me think of another one from a few years back which is the Tacinee case. This was when the New York Times started licensing its contents out to database aggregators like Lexus and ProQuest and folks like that. People who had independently contracted with the New York Times over individual articles. So not staff reporters but independent contracts, who provided content to the New York Times. They said hey, hey, wait a minute, we did not give you the right to do this and the New York Times in examining their contracts. I don’t know the details of the actual language of those contracts, but those contracts didn’t have a forward-looking clause like that. So, the argument that the New York Times ended up relying on was the argument that you gave us the rights to put it in a compilation and compilation copyrights usually extend to new additions of the compilation. And these databases are new additions to our compilation. So, the original contracts didn’t grant electronic rights to the New York Times. So New York Times had to argue it’s part of a compilation and the electronic version of the compilation is just the same as the paper version the court didn’t buy that partly because electronic versions of these articles were not compiled, they were individually researchable.  So in that case, actually the New York Times had to go back and negotiate with the individual contractors from the past. Whether this is good or not, it really depends on your perspective and depends on the individual situation. One of the really negative outcomes of the Tacinee case for libraries was that there was content. We had paid for in our databases that had to be removed from our databases because people had put it in didn’t have the rights to do so. There were articles that went missing from the online of those news publications that have never come back because they couldn’t go back and get the rights. That’s a pretty negative outcome. In this case with the Julie of the wolf’s book, it sounds like it could be a negative outcome. Julie of the wolves is a classy piece of children’s literature, it’s not one that I have actually read recently, but the librarian in me goes oh, I know that book. If the result of this is that the e-book is no longer available because HarperCollins hasn’t gotten around to end this other company that was going to make it available doesn’t have the right to do so, that’s too bad. I’m always up for more content in more form available to more people. So really, it depends on the individual situation. What the outcomes of these are, but it really highlights the need both from the side of people acquiring content and from the side of individual authors to really see what’s in those contracts and to think ahead about with the long-term implications might be.

Denise: Right, and that is Franklin’s message of this point. He says the language in the contract is what caught my eye and provides an important lesson in contract drafting - think ahead. So we’ll make “think ahead” our first MCLE passphrase for this episode of This Week in Law. If you are listening to the show for either continuing legal education credit or other professional credit. We’ve got some information for you over on the TWiT wiki at wiki.twit.tv, it would be under the This Week in Law page there. You can find everything you need to know about doing that. Evan do you think it would have made a difference if the contract, really in 1971. It’s pretty amazing that it did say it could be published in book form and electronic means now known or hereinafter, and then. What if it just sit means not electronics, do you think it would’ve altered the outcome at all?

Evan: Well, it may have made the court’s decision a little more difficult because right away they were able to focus on whether or not e-books and we all know the ease and e-book stands for electronic right? Unless I missed something. It made their analysis on that point, quite easier there and they were able to focus that right together. I’m not so sure it would’ve made a difference if it just said. You’ve got the right to publish in book form and in all other means now known or later developed, and guess where I got that language now known or later developed. It comes right out of section 102 of the copyright act in the provision talks about those things in which protection will subsist. Now granted, 1971, was before 1976 when this was enacted by they were drafting, the process of drafting the 1976 Act started way back in the 60s. So, it’s safe to assume that this whole concept of forward-looking rights was at least in the air at that point, whether it had started becoming more codified in what was to become the 76 act, I don’t know. Travel back in time and see, may be read some legislative intent and some Congressional record on all of that but with all that said. I mean, yeah, that really was forward thinking on the part of the lawyers representing the parties, probably the lawyers representing Harper Collins, or Collins and Row, whichever one it was that got those rights to” Julie in the wolves” in 1971. Because, yeah, that was only like two years after Al Gore had invented the Internet, and so this was really early in the whole idea of content communications not just data being transmitted by electronic means. So as a side, isn’t it great to see Franklin blogging like he is. That was a great post.

Denise: Yes, and  I’m going to have to check with him to see if he knows more about the lawyers who drafted this harbor Collins contract and dig deeper because we may have just have found evidence of time travelers. If they were able to be that forward-looking in 1971.

Evan: Right, right.

Denise: All right. I don’t know if George W. Bush has done any time traveling, although he is a Renaissance man these days, and has been pursuing a lot of painting in his post presidential years; and like Shepard Fairey, we are wondering if he may well become a poster child for fair use. Because it has been revealed somebody doing a little digging, discovered, and I’m not sure if it is this animal New York site that turn this. That’s where I first saw it.  animalNewYork.com, did a little googling of images of people that Bush has made paintings of are now on display at his presidential library. (Web site: animalNewYork.com George W. Bush scourged all his paintings from Google) and discovered that often times the very first Google image result for someone, such as, say Vladimir Putin would be the image that George Bush chose to model his painting after. So much like Shepard Fairey in the famous iconic image of Pres. Obama. It seems that George Bush was using often, often use photographs as the creative muse for his paintings. So, we are left with the question of whether there’s a copyright issue here, and perhaps George Bush becoming the champion of fair use. What do you think Nancy?

Nancy: Well, I’ve had unsurprisingly, I have friends who talked about this stuff on social media. Some of them are lawyers and some of them are artists which have led to some really hilarious conversations in the last couple of days. One of my artist friends has sort of suggested that these are not, basically, it’s like these are not worth the findings because George Bush is a jerk. Another artist friend said, these are not worth defending because they are terrible paintings. But the copyright lawyers fender away towards the, well, these are interesting copyright problem. I think it’s worth pointing out that is are actually two interesting copyright problems. The copyright question of “can George Bush as an individual make paintings based on news photos?” It’s of various question that to me appears very obvious. Yeah, I can make paintings based on news photos. Can I go to an art gallery as a student, sit in front of paintings and copy them, yeah, that seems to be something we expect people to do. How much you transform it or not doesn’t even usually come up in the question of things like students going to galleries and copying from that. It’s actually an established technique of learning to paint; It’s either to follow techniques of the established painters and copy their techniques, or to work from, established images and work on your photorealism. So, I don’t know: Can he make the paintings is a particularly challenging question, but we have a different question here; which is can he do a display of these paintings, and these paintings are in a gallery show. And I think that’s a much more complicated question, because it’s a gallery show. Are they acknowledging the AP photo as sources, are all of the photo sources AP photos that’s another question, I don’t think given the way people have been talking about “ oh, he copied from news images.”  I don’t think they gallery show is giving any credit to the originating photos. Credits not direct a copyright issue. Most of the time, but it certainly affects how much of a jerk you look like if you ever get sued about copyright. That’s how I often talk about it with people when their excited about credit and fair use issues. So, they’re not giving credit to the original photos, there’s another way to credit that does sort of affect the copyright. First of all, should they have to pay for a license for their display of the derivative works that may be one fair use question. Then there’s also the fact that they are commercially benefiting, or somebody’s benefiting some way from this display. I don’t know if George Bush is himself but somebody’s who’s putting on the display is either getting economic or at least attention benefits, and they are not passing on the benefits of that attention to people who are visiting their display. So if you wanted to make and argument that this is causing market harm, they are using my image for commercial purposes or perhaps not commercial. I don’t know the details of the display, but they are using my image for a public display in a way that prevents people from finding my original and paying me for my original. So there’s a couple of different ways you could make an argument about market harm for the display. Then of course there’s for the display, there’s still the question of are these transformative uses.  And transformative use tends to lean towards, even commercial uses may be okay if they are transformative. I don’t know. That’s where we get back to my artist friend going, “but they’re so bad”, and other people saying “are they transformative because they are bad?” (Laughter). There’s been other cases like this, there’s lots of art based on photos, some licensed some not. Its kind of a challenging area, you can make transformative arguments, but sometimes you’re thinking, well, it’s not always fair to the photographer who’s not even getting the attention that they might get if they got credit.

Denise: Okay just to add to some detail to the commercial aspects of the display. These are being exhibited at the George W. Bush presidential Center in Dallas. One can purchase tickets to go see them, so it’s not free to the public. One can also purchase this vivid booklet online or in person. So there is definitely revenue coming in to the George W. Bush presidential Center over the display of these paintings. Evan what’s your take?

Evan: Well, Condoleezza Rice told me that George W had Donald Rumsfeld negotiate a license for all of these, so it’s no deal. So we’re all good. No issues here. No. Everything that Nancy said, I think that’s a really good analysis of some of the different issues that play into this especially the market effect and all of that stuff. Where I see some interesting commentary and analysis to be that is on that question of transformative nature of all of this. And this sort of picks up on a thread that Marty Schwimmer was talking about last week, more in the trademark, and that boundary area where you can sort of straddle copyright and trademark issue when it comes to parity and fair use when it comes to that. I was immediately, of course I thought about the Shepard Fairey case and I think Shepard Fairey had a much better fair use argument than what George W has here. At least in that case, he had change the color and made it appear different and sort of conveyed a message that the original photograph did not. Here we just have sort of a slavish copying of the photographs in the best way that the new artists like former president can do. He was trying his best. So, I also thought about a case from more than 20 years ago out of the Second Circuit Court of Appeals called Rogers versus Coons. This is a case that anyone taking a copyright class in law school, you get to know this case and victor in the show notes, that’s what we were talking right about just before the show. I put a link in the spreadsheet to an image of the subject matter in Rogers versus Coons. (Photos: two images beside each other: first image, black and white in color shows woman and man holding for puppies: second image: colored images of two human statues, one female and one male blue puppies). There you go. So, on the right is the, sorry on the left is a photograph. This was a photograph that the plaintiff Rogers took and they used this on greeting cards and postcards and stuff like that. And on the right is a sculptural work that Jeffrey Coons, a pretty well-known artist and he was able to fetch 3 almost $400,000 for selling three copies of this sculptural work you see that he made over here on the right. That was clearly a copy of the photograph that you see on the left. For those of you just listening to the audio, this photo is not hard to find online. If you search for Rogers versus Coons.

Denise: It’s a couple sitting on a bench with a bunch of dogs, puppies.

Evan: That’s right, so Coons wanted to make a commentary on the banality of everyday life, and he instructed his assistants who did the work, I think this is a wooden sculpture in wood painted so it is multimedia. He instructed them to copy as closely as possible the photo graph, they did a reasonably good job better than I could do with a pocket knife, or a Swiss Army. So, and then, you know, just a couple of differences: the puppies are blue, the photograph is black and white, so maybe those puppies actually were blue in real life, I don’t know. Probably not. But so they made the puppies in blue exaggerated their noses and put flowers in the hair of the people. The photographer sued Jeffrey Coons over this, long story short Jeffrey Coons lost. He had argued this was a parody, commenting on the subject matter of banality of everyday American life in the court didn’t buy this because it wasn’t too much of a commentary on the work itself. So, you know, now we could switch back over to the George Bush painting scenario. I don’t see any sort of commentary, I don’t see this as human beings nearly as close of the case as what Shepard Fairey had or what Jeffrey Coons had who lost. There’s not nearly as much commentary going on here, which would fall under that analysis of the transformative effect. Which of course is only one of the non-exhaustive fair use factors. I just don’t see it at all. Here were there’s any transformative thing going on here, unless you can somehow say that, these are the perspectives of world leaders through a former world leader himself who got to know them. But man, you’re just really getting out there on the periphery of how this could be viewed as commentary. So, I think that a fair use argument is pretty, would be pretty heart in something like this. Based on some of the things we have seen already, particularly if the court were to follow the line from the Coons case, which of course has a factual touch point to this one, of this one being a subsequent work. That’s based on a photograph. So, George W, I’m sure you’ll figure out something. If you’re called to the mat, but hopefully this will just stay academic on this.

Denise: Yes, good law school exam question this one. All right, I think there’s something real interesting that has come to light about dropbox. And Kyle Orlan wrote on it at Ars technica. And it not only implicates copyright issues, but it illustrates how in the era of stringent enforcement in which we live, that copyright issues can also begin to raise, I would call them privacy issues. Although we can discuss in a moment whether, if you are sharing something that infringes you haven’t any sort of privacy interests. Typically when you are doing something that violates the law, any other rights you may have in pursuing that activity would go away. But here what we are talking about is for files being publicly shared on Dropbox. What happened here is, someone named Darrell Whitelaw tweeted a picture of an error. He received when he tried to share a Dropbox file via IM. And what happened was he got this error message immediately after publicly sharing the file which caused him to think, well, Gee, I getting, the file. I publicly shared is getting automatically and immediately scrutinize for copyright issues because what the Dropbox page warned was that files in his folder might be subject to a DMCA notice. So, what developed here and there is some nice journalism that Kyle did to really flesh out the details of this story. It turned out that Dropbox is keeping records of data on files that it has removed for, pursuant to DMCA notices. It has hashes of those files and if something that you shared matches one of those hashes, then apparently, this seems to be what happened to Darrell Whitelaw, it’s going to be for there’s even a DMCA notice filed as to the specific thing that you shared, it’s going to match it to your hash and proactively say that it can’t be shared. So, this seems to be what Dropbox is doing in order to take care of its compliance issues. Now understandably, this has people concerned, because people put all manner of things and share all manner of things via Dropbox. And I guess, a law-abiding, non-infringing person might be concerned that the moment that something is shared with another user of the service that a scrutiny that file is being done there could be some privacy concerns to be talked about there. So, Nancy. I wonder what you think about all this?

Nancy: There’s a quote in the article that says “I think of Dropbox as my hard drive” and I’m sort of, there’s a part of me that goes,” why on earth would you think of Dropbox as your hard drive. It’s networked, it’s networked and it enables public sharing” There’s also part of me that is very sympathetic to this. I actually don’t use Dropbox, partly for those reasons that I know it’s not actually my private space. It’s just a super convenient tool for people who are on the go, having files that are networked is really important, being able to travel around and do different things. So I have sympathy, but I’m a little bit surprised people, I’m not surprised. If you haven’t been paying attention at all, I’m a little bit surprised if you’ve been paying attention to content issues online and you are surprised that online services are running hashes against your file. It’s not, they’re not actually required by the DMCA to police their content that way. There’s been a lot of fighting in the agreed portion of the content industry who talks how the DMCA processes don’t ever work. That there should be a notice of stayed down requirement, not just a notice of takedown requirement because the takedown requirement let’s people just, it’s like playing whack-a-mole because everybody just re-uploads the file. Okay, that is a problem for people who are independent content providers. It’s not a big problem for massive corporations because they have these business relationships with a lot of the online hosts where through the business connections that they have they’re getting hosts to implement proactive policing technologies. Most of that is through private arrangements. There have been a few cases here and there were courts have been a little bit more, the DMCA 512 service provider liability provisions they give you sort of isolation from liability hosting other people’s stuff. There’s been some back and forth on whether those hosts have a duty to police files. As read, and in the initial interpretations, they impose neither a duty to police nor a liability if you do police. They’re actually supposed to encourage either one of those paths. A few courts have read in some duties to police, some related to “knowing” what’s on your server, but most of the hashes and the Youtube contents system are really more on the sword of private ordering side of things. It’s just that it’s been a growing part of the private order inside of online content postings for quite a while. It’s an interesting thing that affects me in my daily work in a very odd way, which is, I deliver about copyright online and in my workshops about copyright. I often use copyrighted content to illustrate things related to specific cases. My institution has until recently, well currently still does hosts some online conferencing services for us, but we have also signed up for Google, for Google apps. And so there’s, I see a day coming when I will be encourage to use Google hangouts for all my workshops, I love the technology of Google hangouts. I know YouTube content ID is run on hangouts, I can just see coming down the pipe some time when I’m teaching a copyright workshop and my workshop gets cut off because the algorithm matches my content against content ID hashes, and even though mine is fair use the algorithm can’t recognize that kind of stuff.

Evan: Just don’t use Grand Theft Auto in any of your presentations. That harkens back to what we were talking about a couple weeks ago there was like, what was it Denise. It was like a record label like jazz artist, right who heard the sirens? The video casts from Grand Theft auto and took it down.

Denise: Yes. It also harkens back to Prof. Lessig and his presentation were he used the oh what’s it called List-O-Mania, the Australian Artist. So yeah, absolutely. So I think you’re right, Nancy.

Evan: Yeah, they’re friends the record label was Australian but he makes his friends, I don’t know why I had to stress that point, go ahead.

Denise: S s’il vous plaît. Yeah, I think you’re absolutely right. As more and more people start adopting Google hangouts that you’re going to see that problem, especially in the academic arena where fair use is unnecessary part of getting your point across. You know the other really interesting name. I thought reading through this is the discussion here about not only is Dropbox keeping hashes of things that have been subject to DMCA takedown, but it has been using file hashing algorithms. It says for a while now as a means of de-duplicating identical files stored across different user’s accounts. That means if I try to upload an identical copy of a 20 GB movie file that has already been stored in someone else’s Dropbox account, the service will simply give my account access to a version of that same file, rather than allowing me to upload an identical version. This not only saves bandwidth on the user’s end but significant storage space on Drop boxes and as well. And of course it makes perfect sense from an efficiency and bandwidth choice but on the legal side, it’s pretty problematic. That would put MP3 tunes out of business years ago and this is file lockering and enabling people to use a server based copy potentially across many, many users. Does this set off your copyright red flags, Evan?

Evan: Yes, I mean, there’s obviously a privacy issues of it, and I think those are pretty self-evident. Like, wait, I uploaded this file, and Dropbox you’re going to allow somebody access to this file, that I think I uploaded myself, and what it’s there is there some error in the hash matching and instead of this file that this other user is going to see home videos that I didn’t want anyone else to see, for example, something like that. There’s that. And I can also just imagine let’s take this out a year out where we have a decision from the Supreme Court in Aereo. In the Supreme Court comes down on Aereo’s side and says it’s all right, it doesn’t. How do we articulate this, it’s all right, transmit clause allows you to do this because it’s one copy one person, one user. What have you there. I can just imagine Aereo and its lawyers, “Dropbox look at all this work we did for you going to the Supreme Court to validate this business model and here you go, doing stuff like this where it’s one copy multiple users, we placed this path for you and you have to go mess it up and even though we saved the cloud Dropbox go and mess it up like you done.” So, there’s that whole side of it, I that as an interesting copyright, more like going 18 months into the future. Looking back, but maybe we can look back at this and say we were pressing interests.

Denise: So, Nancy, what do you think about the one copy multiple users for Dropbox?

Nancy: Yeah, I was thinking pretty much exactly the same way about the Aereo comparisons and then Youtunes. This issue of like how, who has so many, how many copies, when are you doing something like digital for sale, do you have to erase the one that’s already in your hard drive shared with someone else. This is an area where the law is so completely out of touch with the technology that it results in these absolutely bonkers things that, I think it totally makes sense to hash against your storage for minimizing storage. It totally makes sense to say we only store one copy of that file and we traded off to everybody but copyrights wise, The courts have been pretty consistent in saying,” sharing out one file to everybody is much more of a problem than sharing out the file to the person who uploaded it and sending it back to that one person. That’s counterintuitive, but copyrights counterintuitive in a lot of different ways. I think this is an interesting way of doing one thing for copyright compliance, if the was DMCA notified were not going to let you share with other people, but at the same time they’re applying the technology that may actually expose them to liability in the future.

Denise: It’s almost one of those rare instances   where being old is an assistance to you in having an online business or some sort of forward-looking.com start up that, I think the people at dropbox weren’t just around when MP3 got shut down and don’t remember that it resulted in, in the largest damages awarded.

Evan: Like $70,000,000,000,000 or something like that.

Denise: It was a lot of money. I don’t remember how much it was, but at the time I just remembered it was like never before have we had.

Evan: More than what Michael Robertson had in his bank account at that moment.

Denise: Definitely that, yes. All right, well, since were already talking about some entertainment related issues and have touched on Aereo let’s actually play our bumper and go there.

(This Week In Law: Entertainment Law bumper with music)

Denise: All right, I just wanted to see if anyone has any current thoughts about Aereo, I put an interesting article in our rundown and folks can access everything we’ve been discussing that has been inspired our discussions on the show today at  delicious.com/thisweekinlaw/254. Good piece by Matt Schroer’s called cloud denial as it precedes the area of case, the area case is about to be argued in the Supreme Court within a couple of weeks here before the end of April and there has been as this article points out some seeding of the environment from the entertainment industry side of things.  To try to point out the disasters that will befall if the Aereo case goes the way that Aereo wants it to. And how cloud computing is not truly on the block here so Hollywood wants us to think. So, Nancy, do you have a take on this?

Nancy: I don’t ,I haven’t been following Aereo quite as closely as some of the other cases because it’s not directly tied to my work, but I’ve been really interested in this question about the cloud computing threat here is related to the fact that the files are being streamed back. And it’s sort of conflating a couple of different things that traditionally have been different things in copyright. Like cloud computing isn't actually anything new. It kind of makes me annoyed when people are like “oh, cloud computing is a new thing!” I’m like, no it’s just servers, you know. But, and servers and clients have been around for a little while, most of my life. When you’re using a server in a more sort of traditional way, when you put a file on it and you take a file back off of it, there’s no real argument that could be made about public performances there. You’re making copies, there’s not a public element to the transmission. But somehow streaming has brought in this idea that even if you’re streaming to an individual, or multiple individuals across multiple different streaming accounts, that’s a performance. So I’m really interested in the way that actually streaming technologies are playing into this. Obviously we don’t want to undercut streaming content from a cloud and I really do think that the way the case is being argued there could definitely be president coming out of it that could make cloud streaming services way harder to do legally.

Denise: Evan, what do you think?

Evan: Yeah, I buy into that, I mean, you know that if the decision in Aereo comes out that way then the stakeholders that would benefit from its broadest possible interpretation will indeed make the argument that it could. So it almost seems like one way or the other there’s going to be a legislative fix that would need to come about from this to match up the legal framework for all of this, to match up the legal framework and the modern technological reality. If cloud computing is killed then maybe congress would step in and say something appropriate to amend the transmit clause. If the Aereo business model is validated and that means the end of over the air television maybe, even though this may not be what we want to see, maybe there will be some sort of framework, some sort of compulsory licensing framework put in. You know, something to keep that from dying off, from being killed by the validation of Aereo as an acceptable non-infringing means of the distribution content. So I’ve said it before, I think Aereo is pretty watershed and something is going to happen one way or the other that we’re going to look back on the Aereo decision and you know, I think It’ll make the hall of fame of copyright decisions. You know, we spend a lot of time talking about cases like Grokster, Sony, you know, if we get back into the old days of, I think it was just last week or fairly recently, we were talking about Baker vs. Selden and Saroni, you know, some of the hall of fame of copyright cases. I think that Aereo has the potential to be up there, if the court decides to truly take the issues on and not do something strange procedurally with it.

Denise: Yeah, alright, so we’re still waiting on that one. A couple of weeks ago when Popcorn Time was mentioned in the news Farhad Manjoo published an article that is primarily about windowing. He titled it “Why Movie Streaming Sites so Fail to Satisfy”. It’s in the New York Times and he highlights the fact that “Netflix Instant Thinking About Adding a Good Movie” was an Onion headline recently. So, you know, running joke that the online streaming services are doing the best they can with what they have to work with in going through the proper channels to licence everything. But something like Popcorn Time comes along when people can get what they want when they want it, and that’s why it seems so compelling. So the message of his article, basically, is Hollywood is going to have to rethink this whole windowing thing if they expect to compete with piracy and free. But there doesn’t seem to be much movement toward that. I would say that the one thing I’ve seen recently is there seems to be a move toward putting movies, say on Amazon Instant, on the day that they have their DVD release, but they have the DVD price. In other words, you can’t rent them until the window expires and they’re available for rental. So people are still being held hostage for the 15 or 20 dollars that they need to pay to get the HD quality streaming right when the movie is released on DVD. Which, do people still buy DVDs? I’m not sure. So I thought it would be interesting to just talk about the future of windowing, whether we will be living with it for much longer or not. And Nancy, you were telling us before the show, you were just at a conference where this came up.

Nancy: Yeah, on a side note, I actually still buy DVDs because I like to have physical content that doesn’t have licence restrictions on it. But I don’t know how long I’m going to be able to keep doing that. I don’t know how long physical DVDs are going to continue to be available. I was at a conference last week at Berkeley where we were talking about legislative copyright reform. There were a lot of conversations, there were a lot of really different points of view represented in the room, which is one of the things I love about this conference. And at one point, one of the people from the music industry, or the movie industry, who was there, was talking about a different issue said “but we couldn’t fix that, because then windowing wouldn’t work.” as if windowing was this sort of set thing that had, I think it was completely not on his radar that windowing is a created thing. It’s a way that the movie industry business model has worked. But the way he talked about it, and this may have been intentional, but it may be just so ingrained in his mind, windowing has to happen, so we can’t do these other things. I was at a table with a bunch of librarians, and there were a lot of other people who represent public interest groups related to copyright. And a lot of scholars in the room who have a fairly nuanced view of copyright, and there were a lot of small noises around the room as he said “well, windowing must exist.”, because, you know, windowing doesn’t have to exist. It’s something that the movie industry cooked up to allow them to charge different prices in different markets. So, you know, they release in movie theatres, they don’t release on DVD the same day. They release in movie theatres in the U.S. and then the poor people in other parts of the world are having to wait for six months before the movie is released there, so that they can price differentiate. A very related concept is the region encoding on DVDs, it’s a way of separating markets so that you can price discriminate. Well, I mean, the movie industry managed to make region encoding not just an industry standard but to make it actually a violation in law to circumvent region encoding. I mean, that’s one of the things in the DMCA that sort of, you know, your DVD playing software will maybe let you switch regions a couple of times, but not after a long time. And it’s really hard to buy hardware that can legally play multiple region DVDs. So, while I think that windowing is something that is actually encouraging piracy in a lot of markets, you know. If you know that a movie exists, why would you wait six months until it’s in a theatre in your market, like I do think that windowing is probably encouraging piracy, but at the same time, if we think that the movie industry is just going to give up on this model, they haven’t in the past, and they have managed to make legislative changes that require technologies to enforce some of the business model decisions that they have made and are trying to stick to, even though they may be out of date.

Denise: Evan, do you think that tools like Popcorn Time, if not Popcorn Time itself, other tools that come along and make torrenting simple for the masses and may be comforting for the masses, thinking that they are somehow more insulated in some way, even if they’re not, for direct liability for infringement, do you think that that will have an impact on windowing?

Evan: Well, you know, it would almost have to. And, it’s sort of like the same analysis that would go into a government’s thought process as to whether to change some policy because of outrageous, outrageous isn’t the right word, but very strong, very vocal, very widespread civil disobedience. From a market standpoint, eventually the content industry ought to fashion itself so that it’s meeting the demand, and what better way to perceive that demand than through activities like widespread adoption in the consumer base of technologies like Popcorn Time. I’m sure we’ll see many others of its ilk come into existence here in the near future. I think the best similarity we can point to is the way that music piracy changed the, well, well, I don’t know if music piracy changed, but certainly the manner and means and economic circumstances of the consumption of musical files changed with itunes, that was a huge shift there. We ought to expect something similar if the content industry is going to see the demand through this way. At the same time I think we need to be a little bit careful in critiquing the content industry's model on this. And I know this is what people love hearing me say, is, there is a certain real economic benefit to them creating scarcity in this way, of commodities that they distribute. And I’m sure we don’t have to go too far afield to find industries creating scarcity themselves when it comes to the distribution of other goods that don’t necessarily directly involve intellectual property. You know, like companies will have seasonal promotions all the time and you know, that’s a certain kind of scarcity. Same question is, why can’t I get Girl Scout cookies in September? You know, I love Girl Scout cookies, I’m entitled to them, but you know what, the Girl Scouts only sell them in the late winter or whenever that is. I know that we’re out of our supply so I’m jonesing for some Girl Scout cookies. So you can think of all these kinds of different examples and so we’ve got to be cautious before we just say that it’s a priori a bad thing for a market to be able to fashion it’s distribution modes in ways that bolster scarcity, so that’s just got to play into the analysis somehow.

Nancy: If I may does another benefit to price description is very real and very worldwide. The ability to window means that they can charge different prices in different parts of the world. If the movie industry is forced by technological developments into releasing movie sort of once, what region is going to set the price for that? The region that can pay the highest. Set a price that US consumers can pay. And consumers in other parts of the world or less economically advantaged consumers in this part of the world will be able to buy the one price one purchase copy. This is something we think about in the library world because we really are one of the only places that is the only way that certain people contact access technology even in our relatively rich economy in the United States.

Denise: Is that necessarily true though Nancy because couldn’t they release at different prices just at the same time?

Nancy: Well there will be a lot of questions about what kind of discrimination that can be and can’t be supported. Right now the reason that windowing happens really is about price discrimination. There is some degree to which they would be able to offer sales and different countries at different prices. But if you really want to combat piracy you really want to try to get out there at this price point for the places where you do lease work to segment your market. Sorry, I don’t know if that made the most sense, but I think they could probably price discriminate summits that but I do think the possibility of much lower price copies for certain markets is a lot harder to achieve if you are not windowing if you are not region encoding.

Denise: Right, and the only way for the message to get sentence for that you know high-priced market to but with its wallet and if they’re not quick to buy into windowing, if they’re going to be able to weed out until something is available at a lower price, ensure that many people do do that. Being a woman of principle I would like to do it’s with the second installment of the hobbit but Benedict, batch just did me and you know. I couldn’t wait. I didn’t get to see it in the theater and when it came out on Amazon was available for $15 I plunked down. You know there though my principles. I think since we’re talking about movies this would be a good time for intermission and a snack. Because we have a new sponsor for this episode of this week in law. and it is nature box, and I’m really excited about it they sent me a box and for those who have listened to the show a lot and have it up on the various aspects of the way we run our household you know that I enjoy in fact could not live without having certain necessities of life delivered to the house. I’m not one to go spend a lot of time at Costco or the supermarket.  This is a great thing for people who like me love to have healthy snacks around. You know I have a little kid running around and in my weight have the Twinkies there for him or her language just something that is tasty and healthy. Well, I’d rather have the latter and that’s a wonderful perk of nature box. It’s easy to talk tough about eating right but when you’re starting at 3 PM and you’re cranky and lightheaded, the evil vending machine can seem like your only friend. And of course you don’t want to resort the evil vending machine, and there it is got teeth is going to grab you because it’s got some nasty stuff in there.You don’t have to give in though you can keep your eye on looking and feeling great. Head over to naturebox.com/twit. If you click on the continue button there, you’ll have three different subscription boxes, then you can place your order once you’re a member you can snacks you’d like in your monthly box. You can select by your dietary needs, there’s vegan, soy, gluten free, lactose free, nut free, non-GMO, you can also select by taste, savory sweet or spicy. Great tasting snacks right to your door with free shipping anywhere in the US. We’re talking healthy and satisfying snacks like barbecue kettle kernels, French toast granola, chili lime pistachios over 100 more. All with zero trans fat, zero high fructose corn syrup and nothing artificial. Nature box is the snack happy gift that keeps on giving. You can order a three or six or 12 month subscription for a special someone, a family or friend. A wonderful way to give a gift and don’t forget swimming suit whether it’s almost here it’s time to start snacking smarter. Forget that evil vending machine is time to get in shape with healthy delicious treats like honey Mesquite almond. So go ahead and sign up for this you won’t regret it you can get half off your first box by going to naturebox.com/twit. Stay full stay strong and go to naturebox.com/twit. Thank you so much Nature Box for your support of This Week in Law.

Evan: They sent me one too and it really is awesome. Our six-year-old is like the pickiest eater on the face of the planet and he loved the whole wheat raspberry fig bars so I’m just jumping in here we’re totally ordering this this is good stuff.

Denise: Absolutely you must’ve gotten sweet, I think we had savory because we had more nuts and spicy things, but they’re all delicious. so check about naturebox.com/twit. All right, we cannot end this show without talking about some of the privacy developments that happened this week so let’s go there. So the scary thing about heart bleed, hopefully you’ve heard about heart bleed, if you haven’t, you like me, have been burying yourself under a rock and on spring break. But even I’ve heard about it. So heart bleed is apparently a problem with openSSL and what I’m gleaning about it is that it’s so terribly frightening because sites can have been compromised and they never will have known about it. The compromise happens through a layer that just can’t even be tracked, so certain sites have been compromised, Yahoo, Imgur, Flickr, various others. Hidemyass.com is probably one of my favorites to just talk about, but in any event, it’s a security hole that’s capable of being exploited, there’s no way of knowing how much it has been exploited. Your password and other information can be out there. Sites are being very proactive in letting you know whether or not they’ve been compromised. Or they think they have been capable of being compromised. So the Gizmodo piece wraps up by saying “you can put on a tin hat but sometimes the best solution is to just keep a close eye on your credit card statement”. This one is so deeply tied into the way that secured data is sent over the web, that, again, there’s no way for sites to know what kind of leakage has happened. So it’s a big deal and I know that you’ve been paying attention to it too, Nancy, any thoughts or takeaways on this particular security breach? It doesn’t seem to have been an exploit of any kind that someone consciously did, it was just a coding error.

Nancy: One thought from the copyright and computer geek side of things, you know, I am a huge fan of open source solutions to all kinds of problems, and a couple of people have said “well, this is highlighting the weaknesses of open source in correcting itself”, other people have said “well, no, I mean, open source is actually really good at correcting itself, it’s kind of surprising that something this big has gotten through, but you know, but the amount of coding that’s done in open source communities, this kind of error has occurred before and has gotten caught before.” So you know, there’s been a little bit of discrediting open source because of this and I’m definitely not on board with that. I do think it’s a good argument in investing more support in open source, you know, get more people looking at this stuff and the more likely you are to catch these things sooner. Another perspective from which I’ve been thinking about this, because I’m known by my librarian friends as being a paranoid person, I think I’m not at all paranoid because I hang out with people who, you know, hack computers for a living. So I don’t use the same password anywhere and apparently this is an unusual practice, which upsets me. But a lot of my friends have been talking about using password managers, so there’s been a lot of discussions about how you avoid problems from things like this. Either from generating different passwords for every site you go to or using a password manager to do that. At least one of the most popular password management was compromised or was open to exploit under this bug. So it’s been an interesting point of discussion I was like the xkcd comic about password strengths from a couple years ago. just the idea that there’s ways of making yourself less vulnerable to these bugs when they come up in the future but they’re not things that everybody knows about so I always like to make people aware of that.

Nancy: Good point, Evan, are you going around changing passwords or adopting a password manager and do you think that, I mean, this has got to be frustrating for law enforcement because there’s no paper trail here.

Evan: Right, I mean you haven’t heard much about investigating some of the fallout from this. Any responsible parties. So that has to be frustrating. Yeah, I was kind of freaking out, I had to go change my credentials at Us Magazine subscription so you know the first thing I did when I heard about this. When I try to figure out what was, or try to understand sort of from a technical standpoint what is actually going on here, it looks like it could be bad I guess the assumption is that a lot of credentials are out there and orders of millions of millions of information that people wouldn’t want out there, is out there. it really sort of came into perspective when you read Bruce Schneier, he’s really, in my book, and I think for many others the be-all and end-all on statements about security and think about these issues. And he says on a scale of 1 to 10 this is an 11. So take that at face value that is pretty bad, even not necessarily being to point to particular reasons why not, or why it is bad. But he did make an interesting addition to his blog post on it yesterday. and you know so far heart bleed has been out for a while, right, more than a week. And you know we don’t see any evidence of anything truly catastrophic having happened yet. he comments of whether there’s going to be some backlash from the mainstream press and public if nothing bad happens. Isn’t that like no good deed goes unpunished. Comparing it to something like the Y2K bug you know is this going to be something within the security industry is going to be accused of crying wolf. So sort of a strange proposition because you know as proactive measures are being taken to prevent any fall out you know it’s sort of like the problem is solved and that’s why there’s no backlash. The same thing happened with Y2K, companies spent billions of dollars preparing for the turn-of-the-century and the disasters we were all concerned about did not happen and you know, get accused of crying wolf but wait, what, you wanted something bad to happen? Would that have been better? Certainly not as sensational for the reporting on this kind of stuff so I see that meta phenomenon of the reaction of this as something pretty interesting that certainly we need to watch and see you know, because I’m optimistic nothing bad is going to happen. Just because it’s better to be optimistic in that way, so we should watch for this accusation of crying wolf phenomenon. That’s pretty interesting.

Denise: alright well we generally expect people exploiting technological weaknesses to be black hat hackers, someone that law enforcement would be coming after if they could. this week there was a story that showed us that even law enforcement will take advantage of vulnerabilities that they discover. it came to light some Los Angeles police officers were sabotaging their own voice recorders, they’re recorders that are automatically activated both in the car and on an officer’s person when they are in the process of engaging with somebody and these actually are protective measures oftentimes for the police in case of a passerby or someone they’re actually engaging with, making their own recording. The police can have their own version to show what they think happened or say happened. some officers apparently didn’t like being surveilled in this way so much. And they figured out if they removed the antennas from the recorders that this seriously degraded its ability to pick up what was going on and so some antennas were removed and there was an internal investigation and it’s just coming to light now. I think there was a lot left to be desired income is whole thing was handled. But it’s not always the hacker exploiting the technological vulnerability apparently the police will do it too if they figure out that they can. this was more just kind of a sad comment on society and a bit of comic relief for the show. Evan do you have anything to add?

Evan: Well, can you blame them? I mean geez, do you want a recording to be made of everything that you were doing in the course of your work in the course of a day? So you know you can see where the cops are coming from they’re human. You know, they shouldn’t be doing this because part of the reason that this technology is there to protect them and their prospective. You know, if somebody’s going to say that they were the subject of brutality at the hands of the police, this video evidence could be exculpatory. Or wait, exculpatory, what’s the word I’m looking for? Yeah, exculpatory.

Denise: yes exculpatory.

Evan: Yeah, whatever. and so maybe that’s just why we need to have robots replace all law enforcement. So robots going out there policing everyone. That will solve it.

Denise: Yes, because if they’re following the three laws of robotics apparently, they would not remove their antennas. Any thoughts on this Nancy?

Nancy: I’m not so perhaps convinced of the police always having the best motivations as you seem maybe to be. I’m not surprised at all the police officers removed their antennas. I’m not so worried about them needing the exculpatory evidence as I suspect that some of them removed the antennas because they intended to do things that they knew they didn’t want caught on tape. I really have a lot of respect for law enforcement but I have seen far too much abuse of power to expect that law enforcement always has the best of intentions on any technological developments.

Denise: Okay and on the NSA surveillance front, just a quick update on the case that we have discussed before, it is the only district court case in the United States where a judge has come out and said at the phone data gathering practices they violate the fourth amendment and do violate the reasonable expectation of privacy. It’s called the Klayman vs. Obama case. There was some effort by the lawyers there to launch a case directly from the DC district court where it was heard, Judge Leon was the district judge there. That was unsurprisingly unsuccessful, what generally happens is there has to be an appellate level review before you get to knock on the supreme court’s door, and ask them to hear your case. And that’s what’s going to happen in this Klayman case, the DC circuit is going to get it’s crack at looking at these issues. Also on the NSA front, and speaking of windowing, Edward Snowden has given this exclusive interview to Vanity Fair, which seems distinctive in how much about it is known before it’s actual release. At least as the week has been winding on here. I think it may have been released, today is the eleventh right? So I think it came out yesterday. And I think we’ll probably talk about it more next week. I don’t have too much that I wanted to delve into it about it, I mean, some interesting insights from Edward Snowden. Evan I don’t know if there’s anything you want to delve into, or maybe we should just shelve this one and move onto our tip in resource, what do you think?

Evan: Yeah, well let’s talk more about it in the future. I think the interesting thing I’m going to be paying attention to when I’m actually reading it is the comparison that Snowden draws between himself and Julian Assange, you know he says that unlike Assange he himself, Snowden, is not anti-secrecy, he’s just pro accountability. So that’s what I’m going to find interesting when reading the article, is how Snowden thinks of himself in relation to WikiLeaks founder, Julian Assange.

Denise: Absolutely. So let’s go onto our tip and resource of the week. Our tip of the week is also, you know, a current event, and that is that Newegg in house counsel, Lee Cheng, not someone you want to mess with. So if you are a patent troll, if you haven’t already gotten the memo, and you go ahead and go after Lee Cheng, who we’ve had on the show before, you’re going to have to just take your lumps, ‘cause he’s going to be there to dish them out. The most current troll that he’s made some headway with is called MacroSolve. They have managed to get 4.6 million dollars in payments from over 63 defendants, but Geico and Newegg drew the line in the sand and said “if you’re going to come after us, we’re going to fight back.” And in fact they’ve formed a consortium of all the defendants in the MacroSolve cases just to make life more difficult for MacroSolve, and they’ve filed…

Evan: Is it true that Geico sent the little gecko? Because I have this image of that little gecko sitting on Lee Cheng’s shoulder, going “no trolling.”

Denise: Yeah, you know, geckos are well known for their ability to take down trolls, I don’t know if you’ve come across that in your fantasy literary readings, maybe Nancy has, with her vast knowledge of library contents, but yes. Geico the gecko and Newegg have decided to stand up to MacroSolve, they’ve filed an ex parte reexam with the USPTO which prompted MacroSolve to withdraw all of its pending lawsuits. So that’s a big deal. MacroSolve hasn’t said it’s going away, it’s going to see what happens with the re exam, it is flustering about potentially refiling. But it did go to Newegg some time ago and say “Hey, you know, no harm no foul, we’ll go away, we’re happy to dismiss you from this case”, but Newegg said “not so fast, you know, we’re not willing to waive our cost in fees, so if you’re going to do this don’t think you’re going to get off scott free, we’re going to come after you for our cost in attorney’s fees, as we are entitled to by law if we’re the prevailing party in the suit.” So don’t mess with Lee Cheng. Our resources of the week also relate partially to patents there is a great piece by Derek Khanna over at Politics that is how to really fix the patent system and why congress unfortunately is unlikely to do it. It’s a great history of the patent system in the U.S. and a great delving deep into why we are where we are withe the patent system, and how it’s not just patent trolls you need to be concerned about, but the large body of patents amassed by companies that you don’t think of as trolls. The actual practicing entities companies that have lots of technologies but just amass their patent portfolios really as a legal strategy more than anything else. So check out Derek’s piece. Also, there’s a great YouTube video, maybe we could roll just a bit of it Victor? Called “The Rise of the Patent Troll”. That is terribly educational for anyone who you need. Starts with Adam Carolla there.

So if you find yourself needing to know more about patent trolls, or explain what they are, this is a really valuable resource. It and everything else we’re referring to today will be at twit.com/thisweekinlaw/254. Also courtesy of a guest who unfortunately couldn’t join us this week, we hope to have Gabriella Coleman join us sometime soon. She is an expert on hackers and their ethics and ethos and a scholar and author on those topics. She pointed to an SSL server test from Qualys SSL Labs that forms a deep analysis of the configuration of any SSL web server on the public internet to tell you whether it is vulnerable to the heart bleed issue. So if you have not yet checked your server, I can’t imagine there is anyone who, there is anyone who has not. Or if you are curious about a server that you may not be responsible for but frequently use you can check it here at Qualys SSL Labs. And with that we’re going to wrap up this episode of This Week in Law, Nancy, it’s been such a pleasure having you join us, tell us about anything that’s going on in MN or anything else you think our listeners need to know about on your front.

Nancy: I don’t know if MN itself is in a particularly good or bad place, we did have one Prenda case that’s come up here and there’s been some weird developments with how that’s proceeded procedurally. Proceeded procedurally, oh well, that was a very lawyerd thing to say. In the world of education and libraries and how we deal with copyright, there are a lot of interesting and kind of pressing issues. There’s been a lot of discussion in congress lately about copyright reform, and the copyright office has been inviting lots of commentary on things. One of the topics that they’ve invited commentary on is this problem of orphan works, and I don’t know if you’re familiar with that, but that’s from the perspective of libraries, orphan works have a pretty specific definition. It’s works for whom no author can be found. No rights holder can be found. And the most common situation where we’re dealing with those is archival material. You know, the author died in 1974 and then their son inherited it and we don’t know where the son went, and the son seems to have died in 1989 and who inherited it after that? There’s been a lot of commentary on this. There was a proposed legislation a few years ago that failed because there’s been a really really negative response from independent photographers and illustrators, among others. And right now there are comments open from the copyright office on that topic. So we’re working to file on some of that. There’s also been just lots of different hearings about how to reform copyright and all the new ways to reform copyright and at least from the library world perspective, and I know, I’m not always limited in my perspective all the time, we’re a little worried about how that’s going to go because generally the voices that get heard the most on legislative issues are the ones with the largest wallets and libraries and other public interest issues do not have very big wallets behind them. So if copyright reform is something that’s really on the table, that’s something that lots of people should be thinking of as a public interest issue. I do take heart from the SOPA and PIPA protests, I do think there are a lot of people who are more aware that copyright reform really could be something that affects individual people in their daily lives in negative ways. So I’m sort of hoping people are paying attention to that on a democracy and public interest level.

Denise: It seems to me like more than ever they are, but that doesn’t mean that we shouldn’t keep talking about it, because it definitely is important for people to keep that on the front burner of their attention. I’m realizing that I did not drop a second MCLE passphrase into the show, so I’ll do that right now and I’m going to make it “notice and stay down” back from our discussion on drop box. So that if you have to demonstrate that you in fact listen to or watch our show, now you have two ways of showing that yes, indeed you did. Evan it’s been great chatting with you as well. Lots of Chicago stories in our rundown today. Hotbed of legal developments there where you are.

Evan: Yeah well it’s a great place to be, always interesting things going on. It was a pleasure to participate in the conversation. With you about, Nancy, really nice to meet you. Like I said at the start of the show. Great to put a face with the twitter presence and look forward to staying in touch.

Nancy: Thanks. I was really happy to be here.

Denise: Yes, and Evan and I are going to go off and do some snacking now, go and find our Nature Box boxes and go nom nom nom. I really am, it’s right over in the kitchen and it’s calling my name. Alright, everyone, we have so enjoyed spending this time with you. We do this every Friday at 11 o’clock, if you’d like to join us live. 11 o’clock Pacific time, 1800 UTC is when we record the show live. You can jump into our IRC at irc.twit.tv if you are joining us live. If not, never fear. The show is going to be available for you on demand with no windowing whatsoever, it goes right up as soon as we’ve got it ready for you. And that’s at twit.tv/twil and also at youtube.com/thisweekinlaw. On iTunes if you subscribe to things there, it’s on your Roku box and many many other outlets if you’re interested in other ways that you can subscribe to This Week in Law head over to our show page and there’s more information for you there. Also, between the shows we love hearing from you, in fact we really couldn’t do the show without your suggestions and heads up for things that have caught your eye and guests that you think would be interesting for us to talk to. so do get in touch with us, I’m denise@twit.tv, Evan is evan@twit.tv, we’re both on twitter, I’m @dhowell over there, Evan is @internetcases there. And we have google + and Facebook pages for the show, where it is a little more easy to have a conversation though we do that on twitter as well. So we’re really glad that you could join us, we look forward to seeing you next week on This Week in Law! And until then, please take care, bye bye.