This Week in Law 263 (Transcript)

Denise Howell: Next up on this week in law. We’re going to talk about books scanned, banned and no man’s land. We are going to give you actually two undizillion reasons to listen all the way through the show. Because there is a great discussion to about machine intelligence and the law. We are going to try and unravel Ravel for you. Next, This Week in Law with Christian Turner, Joe Miller, Evan Brown and me.

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Advertisement: This is TWiL: This Week in Law with Denise Howell and Evan Brown, Episode 263 recorded June 13, 2014. “More Bodies on Blackacre

Denise: ( - @dhowell) Hey folks, it’s Denise Howell and you’re joining us for This Week in Law. Welcome, we are so glad that you are here this week because we have an incredible panel joining us to talk about some really fascinating issues, great stories and great way to close out the school year. We have two professors joining us today. Both from the University  Of Georgia, School Of Law, both from their own wonderful show, which I think is only five or six episodes old at this point. Called Oral Argument.

(Webpage: Oral Argument: A podcast about law, law school, legal theory, and other nerdy things that interest us. A product of the collision of Joe Miller and Christian Turner. ITunes, RSS feed, email, Twitter; episode 22:9 brains in a vat (guest-Dahlia Lithwick)

Denise: Highly recommended it, these guys are hysterical, and funny, and erudite and you’re going to love them. Here they are. We’ve got Christian Turner joining us. Hello Christian.

Christian Turner: ( @christor). Hello, thanks for having us.

Denise: Oh my gosh, it’s so fun to have you, I have discovered do shows a few episodes ago when we had one of your colleagues of yours on our show. And she had just been on with you, Christina and so now we’re thrilled to have you both on, including Joe Miller. Hello Joe.

Joe Miller: ( @getmejoemiller) Hello.

Denise: Great to have you, tell us, each of you starting with Joe, what you teach at University of Georgia.

Joe: I teach patent law, antitrust law, an IP survey class, you know, and things in that wheelhouse.

Denise: Christian?

Christian: Man, so I teach property. I teach land use, I do a course in regulation reformation, one in modern legal theory, you know, kind of a grab bag.

Denise: Yeah, so, all over the board. Lots of stuff right in our wheelhouse on TWiL. Also joining us, of course, my cohost Evan Brown from the infolawgroup. Hello Evan.

Evan Brown: ( - @internetcases). Hi, Denise how are you today? It’s really, looking forward to this conversation as usual. We do have some fun topics on the list to get to this. So it will be a good one.

Denise: We do. Joe and Christian are you guys’ schools out for the summer yet or are you still winding things up?

Christian: No, schools out, grading is done. And now it’s writing, researching, podcasting, taking care of kids, take care of dogs, it’s a different kind of busy.

Denise: Yes, exactly. Well, it’s been a busy week for things to do with books. We have lots of stories on things to do with books. Some of them are in the copyright arena. So let’s start there.

(Picture of VCR with music playing in the background, tape pops from machine and hand-written, on binding is copyright law, and copyright law with FBI warning in background)

Evan: I thought we were supposed to provide the audio there.

Denise: I know, I was waiting for you to chime in with the bass, Evan.

Evan: We usually do anyways. So I guess it was kind of joke on me.

Denise: Right, let’s talk about the latest decision in lawsuits related to Google books search the Hathi Trust case. The Second Circuit has held to the way it has found in the other offshoots in this case, and in favor of fair use and the libraries. So, the Authors Guild, although it’s probably frustrated that it keeps losing these cases, it’s really, you know, not such a bad thing. One of the things that came out in this particular decision is that you’re able to search the entire Hathi Trusts database for topics. Not necessarily to see the full text of what an author has written but just to see whether they have written on this topic and that’s in the Hathi Trust database. So, that’s a good thing for authors, even though the Authors Guild would have rather seen the case come out the other way. Pamela Samuelson from Berkeley has a good article on Why authors win even if the Authors Guild lost; is her title. So, throwing it out there to our esteemed panel, I guess there are no surprises here. But all good news? What do you think Joe?

Joe: Well, maybe not a surprise, but, the Ninth Circuit, a different court has done a lot more with the fair use search engines, things like image-based search using thumbnails  of photographs for image based search. So, I don’t think the Second Circuit has done anything as clear as they have just done in this Hathi Trust case, and it’s interesting because it’s not really the main event with respect to Google, and these books scanning projects.  So, Google with book search shows you some snippets from the book; it doesn’t just give you a datasheet that describes your query, I looked for this word, and this book, that word appears on these pages. Google actually shows you snippets. And so that is most like the photograph thumbnail in the Ninth Circuit cases. So now the Second Circuit is agreeing with the Ninth Circuit, hey, this search engine technology is highly transformative. And that’s really the buzzword in fair use analysis; is the thing the accused infringers are doing is transformative. Does it take the copyrighted work, and make use of it in a new and interesting way that adds value, so that, yes a search engine does add a lot of value I think that is the right answer, and it is great to see.

Denise: Christian your take on this?

Christian: I, you know, I agree with Joe. It is not, and I’m not the IP expert that he is but my students would probably be surprised to hear it, it seems to me like an easy case, I don’t see how it could come out the other way. I normally say any time people are fighting about something, it’s usually because they have different interests in it, and it reveals something difficult to decide. In this case, I don’t really see it, I would rely on Joe to help me figure out why I should think it should have come out any other way.

Denise: Yeah, we’re going to talk in a little while about the data and machine analysis and the law. And it seems to me that that’s before we can even get to a point where the law is truly transformed by what technology can do for it. We need to have some fundamental getting copyright law out of the way to allow copies to be made and searching to be done effectively. Evan any thoughts? Go ahead

Christian: Yeah. It’s funny. No, I was just going to say, it’s funny, isn’t it. That’s the fair use test, which is statutory now relies on this idea of the use being transformative, among other factors. And that’s really not, that’s the wedge into which the issue was kind of pushed but that’s really not the thing, right? That’s not what makes it seem totally reasonable to have this capacity, despite the ownership of the copyrights of the authors, it’s so useful, it’s useful and it doesn’t hurt too much the authors.  And in fact, as you said, there’s evidence that it is helpful to the authors. But it’s insanely useful and that’s, to rule another way would expose one of the huge cost of copyright because we have the technology to make all of these books, I say this to the students sometime, everything ever recorded, everything ever written. We have the technology to make this available to all of us instantly whenever we wanted. And if we’re not going to do that because law says we are not going to do that, there has to be some really good reason, right, to deny people what we can easily do. And in this case doesn’t seem like there is anything close to that kind of reason.

Denise: Yeah, I agree, and it seems to me, aside from the mere utility for people doing research to get back to Prof. Samuelson’s point, that search is integral to keeping an author’s book alive over time. That you can write, you know, a wonderful piece of work on a topic that just gets lost in the ether for decades. Unless you are able to search it and find it down the road, at which point, once again, it not only is  beneficial to the author, but to everyone with whom the author shared that creativity, or knowledge. Evan do you have any thoughts?

Evan: Well, just to pick up on one point, right there, it doesn’t even get lost in the ether it gets lost in the moldy stacks until somebody happens to be literally walking through there. So, just a couple of points. Also to pick up on what Christian said, yeah, at this point almost a decade later, it does seem like an easy case because we have had so many times to rehearse it, think of the fair use factors in our mind as we are thinking about it, and it is also helpful that we have language from the Second Circuit in this opinion saying that the making of the digital copy for the purposes of search is a quintessential, I think that was the term they use, quintessentially transformative use that makes it easy for us to go along with. If we take a longer view of history, though, I guess what we really need to do is go back to recalling the first time we heard about what Google was doing, sometime in 2004 or 2005, we never would’ve first gotten the news.  Try to rekindle that sense of awe, and amazement; it was like my gosh, this is an enormously ambitious project, this is really going to change things, and with that mindset, I think it is more difficult to see it as an easy case. Realize, that was a strange thing to say, more difficult to see it as easy; but you can recognize that it’s becoming easier analysis for us to make because we have had the time. Sort of allow those neural pathways in our brain to become well-trodden to see this as a fair use such an ambitious project. Wow certainly it is going to present some copyright issues and no wonder it has taken a long time to start actually some real resolution now. So, it’s really watershed no doubt about it, certainly one of the big milestones in the history of copyright law, which with the way that technology has occasioned such an innovative use to be so disruptive to the traditional notions of what we think to be copyright.

Denise: Yeah, just this morning on Google book search, I found this quote that hopefully Joe and Christian will appreciate from Erica Jong, 1973 book, Fear of Flying.   Which is the funniest book, I kind of miss the window for reading that book because I was eight, at the time, but someone in our book club that I attend from time to time, tossed into the ring. And I’m listening to it on audio now. It is hysterical. It is like a Woody Allen story. I’m told from the Diane Keaton’s characters standpoint. Anyway, her quote was, “it occurred to me that graduate school seriously is interfering with my education”. And, you know, she is full of little witticisms of that and the only way for people to surface them these days, so many decades down the row is to either have someone say, hey, this book from 30 years ago, 40 years ago is worth bringing back.  It is 40 years that is just frightening. And, or if you are searching for things related to wasting your time in graduate school, you might just stumble on this in Google book search.

Male voice: and wasting more time.

Denise: Right, exactly.

Joe: But you know, Cory Doctorow, who we might talk about for another story, he says look an author’s problem for the most part isn’t piracy it’s obscurity. So, the power of these search tools that resurface things as you just say, you know, it is so vital. And I agree with Evan, that when the Google book search project first got announced (Frozen screen. No audio)

Evan: that’s too bad because he was agreeing with me.

Joe: that was an impressive thing.

Denise: (laughter)

Evan: you drop out Joe.

Joe: Oh, shoot,

Evan: the best part, by the way because you were agreeing with me. Is he coming back?

Denise: Yes nothing better than being in violent agreement with the hosts.

Christian: What I was going to say while we are waiting for him to come back, someone who has been through grad school and law school and now teaches and a little bit of work too; that quote kind of resonates because it shows that it’s not enough to go through the motions, kind of hitting the marks in school. If that’s what you’re doing. It’s about learning and unless you learn new things and uncover new ideas. It’s really wasted. And so, school is not necessarily just about learning a syllabus; it’s about uncovering new ideas together with the class, with the professor, learning things that no one thought you were going to learn in the beginning. And this whole process of learning what we want to do as a society with copyright is kind of like that. We are reminded we talked about it just the other day, like Larry Lessig’s Mea Culpa after the Eldrid decision. That he felt like he lost that case, as the Copyright Extension Act Case because he couldn’t get the justices to feel it, to feel what the harm was with these very long copyright. It’s they just didn’t have the experience with, what would be wrong with it. And I feel we have been through a least a couple decades, maybe three where more and more people are interacting and heating up against copyright directly and gaining experience with how that law works. Whereas maybe back in the day when the audience for most people, was there immediate neighborhood and family, you know, you could pass thing around and copy things, make mix tapes and you just never ran up against the sharp edge of the law. And so there’s a lot of learning as a society that we have been through I think to get to this point; to make it as Evan chimed in as well, to make it seem like an easy case, but it was hard work to get there.

Denise: Right, well, the more we learn, the more

Joe: This is Joe.

Denise: Oh, good. Joe you’re back.

Joe: if I could just jump in, just as a practical matter, one thing that made the case take a lot longer than it might have taken; and I think it’s turned out for the good for Google is that they were working on a settlement agreement for a long long time. And then that settlement agreement got reviewed by the courts and they couldn’t ever make it stick. And so there was a lot of time spent not actively working through in court what the issues were and who should prevail. So that would turn out to be the hiatus to try to settle the case as again all kinds of other cases with fair use got decided and now when Google finally presses its advantage in the Second Circuit, it’s scoring what now looks like easier victories.

Denise: right, the more we learn about and how it should work. And how people need to be able to access copyrighted works.  The more we seem to still find things to stumble over and I forget if it was you, Christian or you, Joe, who tweeted about this. I think we may have even talked about this on our show last month when it was in the headlines, but it was an academic publisher called Aspen; who was attempting to follow the Amazon Kindle iTunes model for their hard copy text books. Where what the student would get when they bought, I think these were legal casebooks; they would get the physical book to use during the school term, and they would get unlimited access to the online resources that went along with the property casebook. But at the end of the term, they would have to turn their book back in because really all they were buying was a license to use the book temper rarely and this raised a lot of eyebrows, and I guess they wound up updating their policy after the brouhaha took place and what they told kids was they could buy a physical book to keep or by a digital virgin and a print version and return the latter. So, it’s a weird kind of business model very are trying to pursue here and of concern because they may not be alone as the publishers try and respond to things like, say, losing the Google book and antitrust cases; and they back and fill an attempt to do everything they can to protect copyrights, maybe this is the kind of model would think would be a good idea. What you think of this, Joe?

Joe: Well, a lot actually. One thing that I need to just say, in the interest of full disclosure is that I’m actually the cofounder and co-owner of a casebook, a law casebook publishing company. I’m a competitor of Aspen as a fashion and so people should know that and take what I say with a grain of salt or a pound of it accordingly. But, because you could say I have an ax to grind. Now, I will proceed to grind it. I think this, so yes, they changed what they are doing as it was unfolding. So, at a bare minimum, they had a rolling disclosure that was pretty awkward and pretty fumbled.  How things have turned out recently, and the law props listserv’s in IP continue to churn through this issue. So this is an issue for the professions that hasn’t gone away. And what it looks like now is that the price of the paper book plus web, where you have to return the paper book at the end of the semester. It looks like that is priced at about $185, and the book alone with no electronic resource that you can keep forever. If you want is about $225. So, it’s about a $40 difference.

Christian: US dollars, US dollars $225; US dollars.

Joe: Correct for this Debonair and career property book by Aspen probably the leading property law, traditional casebook law that is out there. So yeah they are making both available, you have a choice. This is a student consumer when your professor pics this title for you to use, and that will be your choice as a student, but you will be able to buy one of these two versions. And it will be up to you which you want to do. And I do think it is fairly clear what a lot of publishers want to do is to draw in the college or professional school textbook market is to dry up the supply of used copies. And this strategy, may help them do that over a course of years when they roll it out to all their titles, right now it’s a very small number of titles that they are trying this with. Okay? And I just think all of this, and a lot of other things about it too is a sign that the casebook publishing market, for law schools anyway, just isn’t particularly competitive right now, it’s got a small number of large players, they are kind of sclerotic, they do weird things that are sort of hostile toward students, and this sort of thing you would this affect people to do in a thriving competitive market with lots and lots of suppliers. And again I say this as someone who is one of the supplier since 2008, with a very different approach, which we don’t need to talk about. It would take too long here, but you know, I think it is a weird strategy, but until you remember, well, there’s this thing called for sale, and when you buy a book you get to resell it. That’s why we have libraries, used bookstores, yard sales, and all sorts of other things that culturally we’re very accustomed to.

Denise: Right. And, it strikes me as weird to even be talking about physical casebooks, in this day and age. They weigh 30 pounds, maybe, I mean they are just these enormous things they are impossible to move around with you as you try and find a good place to study. So, it seems to me that digital resources have got to be part and parcel of how people learn in the future, especially in law school, just because of the amount of material, you’re expected to review for a course is so vast.

Christian: Can I put in a plug for something here, please?

Evan: yes,

Denise: yeah

Christian: So Joe and I talked about this on Episode 20 of our show actually spent most of the show on textbooks because they are terrible. And, in my estimation, no student should have to pay for a textbook. In fact I have not assigned a commercial textbook that students have had to buy since 2007, I think. Joe’s model, he says he’s a publisher.

(Blog page: Oral Argument: Episode 20: Twelve Billion Dollars).

Christian: as if he’s a fat cat publisher or something like that. But in fact he has got, his publishing company works on the Radiohead in rainbows’ model, where the students can pay what they want for the text and I think they suggest 30 bucks. Right Joe?

Joe: Yes, we suggest $30, but that’s just a suggestion, most people pay it. But they, we think the most important thing is for the students to have the educational materials that have been assigned to them. So if they decide to pay zero just download the PDF they are welcome to do that.

Christian: and I, for my part around in 2007 I built a rails app that allows professors to make a casebook, kind of like you make a playlist in iTunes or Spotify or whatever. People can upload snippets of contents, whether they are cases or short descriptions, but the bits of content than are ordered like a playlist and it outputs using Latech and other things.  It outputs PDFs box and the professors can share these and copy chapters, individual units. So it works, I think it works very, very well, but getting adoption of something like that. You obviously need a network affect to drive it. But I have been using it to make my own textbooks now for about six or seven years. And you know, saving a lot of money for the students in the process. And I think if everyone adopted a system like that, and I think Harvard, the Berkman Center has this H2O project, which is trying to do some of the same stuff, you did get better books not cheaper books, but better books. So that’s, I hope we all know that direction.

Denise: Along these lines, let me ask our two professors something about I guess specific to the world of law school casebooks that’s interesting to me because published legal opinions are, well, I mean we could go back and forth to the extent of they are copyrightable. But if you are simply accessing the published opinion of the court, through the court’s own or the state’s own or the federal government’s own resources; generally, there is no copyright involved. And you are able to part and parcel of how we make law in the country and you’re able to access that and we’ve decided it’s a good thing for everybody to access that freely.

Male voice: yep

Denise: So, I’m wondering if you have seen professors or if either of you have ever thought about, you know, we don’t need a casebook all the law is out there, will just tell you what cases to go read.

Christian: Well, I do some of that with my, with my classes, with my project; which is also called Hydratext. That’s where the name hypertext got started, that’s how things are made, they are bits of content, stitched together and a lot of that content in law school is cases, not entirely. There are narratives, bits of statues small snippets of articles.

(Webpage: Hydratext: Atom Smasher article by Christian Turner)

Christian: So it’s not all cases, but one of the, I think, hardest parts about making a traditional law school casebook is, well, there’s one is picking out the best cases which best exemplifies the principles that you’re trying to teach. But also excerpting  those cases, because the cases can be quite long, you know, 80 page Supreme Court opinions are not all that unusual these days and you just can’t ask students to read, two 80 page opinions for a one-hour class typically. And that takes a lot of time. I do a lot of, it takes a lot of my time as I prepare materials for students to do that excerpting. And the copywriting question is interesting, because excerpting cases may be just creative enough to say that an excerpted case is copyrightable. My view is, you know, shoving that all to one side, I think that’s if it isn’t a correct statement of current law, it ought to be through statute or otherwise, but I think it’s arguably true nonetheless. When you use a piece of information or a written work that was not intended or education itself, I think that it should be considered a fair use. And I think our country is shooting itself in the foot, when teachers have to use less good substitutes because they don’t want to go through the rigmarole of clearing copyrights, which would probably be cleared anyway. So, I think there’s an easy statutory fix for that, for most materials.  But yeah, cases are the big ones and cases generally aren’t copyrighted, but excerpts of them and arrangements are copyrightable, like other comments of compilations.

Denise: And my favorite bit of reading on this topic was from Prof. Grimmelmann, who of course is also the go to expert on to all the Google books and Hathi Trust stuff. In writing about, if you want to call this DRM for physical books. His big beef was, it’s all well and good if you’re giving someone unlimited and lifetime electronic access to whatever your platform is, but then he says, “We know from sad experience that gerbils have better life expectancies than DRM platforms”. So, he’s not putting a lot of faith in what kind of access you’re purchasing.

Joe: Nor should he. And it is disturbing that you know, when you think about, I know that some law professors inquired of Aspen, what are you going to do with these books that get return? What are you going to do with them physically? And the answer was, in not so many words, we’re going to destroy them. We’re going to pulp them. So all the notes that the students have written in the margins, to the highlighting a have done to try to remind themselves of something, to the ways that a student makes a book his or her to, to make it usable to them. That will all get eliminated, trashed literally, put in the trash and so it’s just bizarre you’re in a situation where you’ve got the company that’s all about providing educational materials saying, we take the actual concrete embodiment of your learning and we pulp it.  That’s just weird.

Denise: yep

Evan: What an environmental outrage, right?

Denise: Yeah, definitely. And, you know, feeling for the poor students. My favorite thing, when I was a student was to buy the use textbook because, you know, sort of Allah. Harry Potter in his potions class, you are getting some helpful notes from those who came before you.

Christian: Or misleading notes, yeah, you don’t know what you can get and until you get halfway into the class.

Evan: I always noticed there was a lot of highlighting and margin notes and underlines in the first five pages then after that you can tell the student lost enthusiasm for that semester.


Evan: It’s like, oh boy I’m going to get all A’s this semester and then he loses interest.

Joe: And Denise, I will blame you for bringing up James but let me put a plug in for him. James Grimmelmann, is one of the people whose publishes his casebook through my publishing company. His Internet law casebook. So he really is, he is terrific, a great author. His Internet law case book is great very popular. So, James doesn’t, just doesn’t talk the talk; He walks the walk. So I think that’s great. ,

Evan: Joe, what is the name of your publishing company? You might as well go ahead and plug it.

Joe: Sure, Semaphore Press. So Semaphore like the signal flags; Semaphore Press.

Evan:  Very cool.

Christian: Because all the books are printed on flags. I think

Denise: Recycled flags.

Christian: Yeah, that’s the other gimmick, that’s the other gimmick yeah. Bits of cloth.

Joe: Sure.

Denise: Well, you know, from time to time during the show we put some phrases in for people who are listening for MCLE credit in their jurisdiction. If you need information on doing that head over to our wiki at Go to the This Week in Law page there and we’ve got some information for you.  We put these phrases in incase your oversight body needs to see that you actually watched or listened, we can verify that if you know these phrases. And the first one for the show is going to be “ancient gerbils”. So write that down, if you are listening for legal or professional education credit. Let’s do one final copyright story before we move on to more things about books and other things. And this is a follow up to our last week’s discussion of the AMC series Halt and Catch Fire. Which now, having seen the second of the so I can happily say that they have done a little bit more explanation of the process of reverse engineering and the legalities of what’s going on in the show, still not a whole lot, but at least you can follow along and know what is going on there.

(Webpage: AMC: Halt and Catch Fire advertisement)

Denise: So we got an email from listener, Greg, who had just been each watching both the Halt and Catch Fire show and our analysis last week. And was very curious why Phoenix, which was the company that we mentioned as someone who famously reverse engineered an IBM PC and did it in a legal way. Why Phoenix writing a new bios based on a functional spec is legal, yet Google writing a new Java library based on published spec, is not; and we are talking about the lengthy litigation between Oracle and Google concerning Java here. They both seemed to me, I’m a programmer by profession, writes Greg, to be the same thing. So, what’s the legal difference? And Joe promised us he would take a crack at that.

Joe: Well, I think, one important thing to do, for Greg is, we have to put patent law entirely to the side. Because patent law complicates this a lot,

Christian: Ya, I’m all for that.

Joe: (laughter) if you just focus on copyright law, I actually think, if it were true that the only thing that Google did was right, a brand new job a library of its own, based on a published specification, I think Greg is right there wouldn’t be any difference. The clean room procedure, the multistep cleaner and procedure that you all described last week in your episode, which I watched. I mean, that sounds like what you, all you are doing. You are getting an understanding of functionality and then you are writing your own code. So you are writing your own copyright protectable work, which is the expression of the code in the particular programming language that you decide to write. And all you are doing that you are catching the right functionalities. That would be the same thing that Google does in Greg’s question. Writing their own brand-new Java library based on a published spec, but my understanding of the Google/Oracle case is that’s not the only thing that Google did. So some of the allegations relate to actually copying verbatim the software code itself. For some of the Java related items that Google wanted to use, now there are additional argument about why that, even if you copy verbatim that is in copyright infringement, it’s a fair use argument or an argument about the fact that the Java code is not copyrightable because it is a function, a piece of functional equipment in essence; and therefore simply falls outside the scope of copyright. Which so far, Google has not been winning on those arguments, at least not at the Court of Appeals. So, I think it’s back to trial court with that stuff. How’s that, how’d I do?

Denise: Good, far better than I could have done with that. I really appreciate that.

Evan: Yeah it was quite a relief. Part of the biggest difficulty that I have as a speaker of English, is when I wander off into talking about the idea expression dichotomy. So it was a relief to hear you talk about something that gets to that issue, to have somebody else doing the talking and doing it so well. So,

Joe: Well, thank you.

Denise: All right, let’s stay with our book theme. You mention Corey Doctorow’s book, we are getting a little far afield from technology law in talking about this, but we have had Corey on the show, people who listen to our show, no doubt familiar with Corey and have probably   read

(Webpage: theguardian: Cory Doctorow novel pulled from school reading for ’questioning authority’)

Denise: a lot of his books, including Little Brother, which has the distinction now of being Corey’s first book to have been banned by educators at any institution in this case a high school in Florida. And, I’m not terribly clear on why this happened or what happened, but, initially the book had been assigned as summer reading and then the administration apparently took a look at the book and decided no, no, we’re not actually, we’re going to scrap the whole program that involved having children read this over the summer and then talk about it at the end of the year. Which is sad and unfortunate, although I think Corey no doubt will wear it as a badge of honor, and I’m hoping that he will even take the ban of his book and shrink it down to wallet size and carry it around with him along with his tiny version of the Bill of Rights. It deserves that kind of treatment. I think. And he did take the great step to of donating 200 copies of the book that was banned to the school for its library. He and his publisher did that that was awesome. I guess we could talk about the legalities of banning books, what sort of latitude schools have to do this.  If there are First Amendment considerations that come into play, or we could talk about anything you would like relating to Corey and his book. What do you think Joe?

Joe: Well, I’m going to let Christian take a crack at First Amendment issue, but I just want to say. I’m going to give him a little time to think about it. Because I want to say that, I have read the Little Brother, I read it when it first came out. I love Corey’s work. I read most of what he writes and I think he is such a powerful and interesting thinker about copyright, about IP policy, for someone who is not an IP lawyer or law professor, I think he leaves so many IP folks in the dust with his creativity, and his energy. So I think it’s great. And then I love that he donated the 200 books,

(Webpage: Los Angeles Times, jacket copy; Florida school pulls Cory Doctorow’s book, he sends it to the students)

Joe: I think that’s exactly the right answer, you know, okay, you don’t want kids to read it, I’m just going to make sure they have is many copies available to them as they want.

Denise: Right. I was just going to say, here’s our Techlot tie in, and the subject of Little Brother is very foreshadowing of NSA surveillance and everything that has come to light about that even. I know the book was written in 08. So there is definitely national security, and privacy issues that the students would have been thinking about and analyzing it and discussing if they had been able to do so in their academic contexts. So I’m sorry I interrupted you.

Joe: No, I think you’re right in terms of, you set the clock back six years, and it’s amazing how many things he sort of foresees that we are currently grappling with. And if you pick up the book today, you read it  and think oh yeah, this is taken right out of the Snowden staff, and all these other things, yeah but he wrote it six years ago. So, none of that had happened yet that we knew about, it was all happening, but of course we didn’t know. But now I’m just so eager to hear Christian’s first amendment take on schools managing what students read in their libraries.

Denise, Yes.

Christian: Well, I am not a First Amendment expert, but I, it’s hard for me to say that there is a strong First Amendment right of a student to have educators not make content decisions about books. It sounds like, and I have not read the book, but it sounds like kind of a dumb decision. It sounds like the kind of thing that communities ought to discuss.  You know, one could easily imagine a book that we would all agree that is not appropriate for assigning a summer reading to a whole school district, it’s certainly possible to think of such a book. It just sounds like it was dumb to think that this was one of those kinds of books.

Denise: Right, Fear Of Flying, maybe? I could see that not being such a great idea.

Joe: I was just thinking that (laughter)

Denise: There is a little bit of, sort of teenage romantic life going on in this book, but that is not what I think drew down the objections of the administration.

Christian: Yeah, and I have, blogged before about what I think are some of the excesses of First Amendment triumphalism. You know, turning everything into a First Amendment case and Joe and I have talked about it on the show to. That said, Bongheads for Jesus case and other student speech cases, which I don’t have at my fingertips, I remember them a little bit. I have discussed them with my students Supreme Court groups right here in the house, actually. I would like to see stronger protections for student speech. But this is something else. This is about educators selecting materials to assign as summer reading, as I understand, not to just appear in the library, which might be a somewhat tougher issue. And as to that educators invariably going to have to make decisions about content. And so it’s hard for me to get exercise as a First Amendment issue, but it’s very easy for me to say this is probably a really dumb decision that people should, again, not having read the book, but for those that have an think it was a really stupid decision; protesting this decision is absolutely warranted. If that’s the case. But that’s what our society is about, it’s about people kind of arguing about how we really teach our kids, what kind of community we’re going to have. So I think maybe the first amendment angle may have obscured rather than help; to illuminate what is really difficult about this.

Denise: Well, you know, this is the first time I have really thought about this story, side by side with the one that it side-by-side with in our rundown today. Which is the topic of trigger warnings. And this is the first time I ever really thought, well, okay, maybe there’s a, better to have, even though I am not in favor of trigger warnings in general. It’s sort of just smacks me as something that we don’t need to put on educators to have to decide when one is appropriate and when one is not; but better to have something like that in this kind of instance than to just ban the book out right. If you have concerns about the book having themes of questioning authority or if you have concerns about the romantic content of the book, or whatever else, you know, maybe let parents know that, let students know that and still assign the book. So, let’s talk about trigger warnings since I’ve gone ahead and brought it up. My theory on the topic after having watched all of the debate rage over the last few weeks is that, the whole thing was manufactured by the writing staff at Portlandia  so that they could have show fodder for next season. But, so assuming that I am wrong about that. And there are a lot of people certainly exercised about the issue for anybody who is not heard about the topic. What it is is several universities and let’s see, there’s a handy dandy list here in one of our links

(Webpage: NAS webpage, June 2, 2014, trigger warning contest)

Denise: Santa Barbara in the wake of their shooting, I actually don’t know if there discussion was tied to the shooting, or if it was going on before. Rutgers Overland and George Washington University have called for trigger warnings on their syllabi and courses that deal with potentially triggering material according to the New York Times, I guess wrote this. So, this is caused, on the one hand, people saying yes, this is good, people who have suffered from traumatic events that could have their entire psyches up ended by being exposed to that material again, they should at least have some notice that that is coming their way; and at the same time folks on the assigning side of the equation are going, hold on, what exactly you want us to give trigger warnings about because that’s what universities and other academic institutions are for to assign things that are provocative that we can discuss and teach us something about society and ourselves. So it has been very controversial, and the funny silver lining of it all is the National Association of Scholars, actually held a trigger warning contest.  Encouraging people to write in with the funniest trigger warnings they could think of for various works out there.

(Webpage: NAS, NAS article: trigger warning contest)

Denise: including some example that they gave when they announced the contest. The Iliad; warning disturbing scene for those suffering sports injuries, things along those lines. (Laughter)  So what do you think about trigger warnings, good, bad, in the case like Corey’s. Maybe better than the alternative?

Christian: Um, I think it’s easy to make fun of and I certainly have never seen trigger warnings in academic context, per se. You know, it’s not, this is not as big an issue as it is portrayed to be, but under lying it is kind of the evidence of some serious social change. I would like to think we are becoming a more and more compassionate society and we certainly, I think empathetically, we are welcoming more and more people into our community of equals. And that necessarily is going to have some friction that goes along with it. Where people in those different group are going to have experiences which are influencing in a way that the majority has not appreciated before. And I get the essence of being a privileged majority is that there is all kinds of experiences in life that you kind of don’t have to think about. As a male, I don’t think twice about walking across campus at 11 o’clock at night, I don’t fear for my safety at all times, and that is just not true of a lot of especially young women on our campus. So there are a lot of things they think about that. I don’t have to think about. Now, that said, I think it is a nice thing to do, a compassionate thing to do.  To warn people if there is a violent rape scene in a book that you are going to discuss, it seems to me not unreasonable to kind of say that, especially if it comes up unexpectedly. You know, mandating it is a different thing, trying to avoid it, you know, this is, rape is an element of our society. We are trying to expunge it as much as we can, but, so I don’t think it’s a topic to be avoided or censored, but I don’t necessarily think there is anything wrong with warning people that it’s going to come up. I think there may be something wrong with mandating that everything has to be labeled for every particular sensitive group. I don’t know, that’s kind of a rambling answer, but, this is a, there is a silly side to this, and a somewhat more difficult side. And I think the whole label of trigger warnings kind of trivializes the more difficult problems.

Denise: Evan, I keep coming back to section 230 of the communications decency act, and the communications decency act in general, much of which does not exist anymore, maybe all of it, except for section 230, I’m not like clear on that. But this whole notion in the law of encouraging people to do good things and not penalizing them should they fail to do good things. And I, that tension comes up for me in thinking about trigger warnings. I don’t want teachers, professors to be penalized because they, no pun intended please people, because they choose not to, to give a warning in a certain situation, but they do in others. Am I making sense with where I am going?

Evan: Yes, and I think that plays in very well with what Christian was saying, it’s one question to consider whether it’s nice and it’s compassionate and it’s a polite thing to do to give a warning that there may be some content or episode in this literary work that may be offending to certain sensibilities; and another question altogether to mandate it.  Because once you put that mandate in place, the failure to meet that mandate in the natural course of things gives rise to liability and the basis to ostracize and to have professors lose their tenure and all these parade of things, in this parade of horribles here. So, just also sort of knock the ball on something that Christian teed up here, it’s very easy to make fun of this. And I’ll go ahead and take the bait, I’ll make fun of it. Mandating a trigger warning thing is incredibly stupid. It’s because we’re on this spectrum that leads only in one direction to absurdity. It’s the same spectrum that we see that we have all these product warning labels because of the active plaintiffs’ bar for personal injury see incredibly ridiculous warnings on certain products. That, warning this coffee is hot, you’re kidding right? So, with this. We are going to regulate or set up a system where there is no alternative except to give these types of warnings, but this type of metadata on a piece of work, on a literary work, or whatever type of content you’re consuming there, you know, where do you stop? It’s a slippery slope. I guess because everybody has a certain sensibility and you know, it’s you would have no way of taking the whole range of different peoples sensibilities into consideration when doing something like this, so you will just get this absurd result that will be in inevitably incomplete or so overly comprehensive that the trigger warnings are longer than the Iliad itself. So? It’s pretty silly.

Joe: but you know, as bad an idea of mandating it may be for the reasons that. Evan stated, I think it’s a good idea to encourage people like me and educator to say, give some thought if this stuff you have assigned in your syllabus, if there is anything in here. If you took the time to think about it, you might want to fight for people as an unexpected place, that they might encounter something that is, that could remind them of a traumatic experience that is a good idea for me to think about. I welcome someone reminding me that I could take the opportunity to think about that. And having said that, as someone who teaches patent law, as someone who teaches antitrust law and those sorts of things I’m not likely to encounter in my syllabus those kinds of material. But, and so maybe one of the reasons I feel okay about it is because I don’t think it’s going to have much bite in my day to day existence. But I do think it makes sense to ask educators, you know, give it some thought, maybe there’s something you want to flag and the good thing about flanking could be that it signals to students that you’re, that you are thoughtful about this kind of thing and. Denise’s point about the value. Bringing these things out into the open. So that we can talk about them and engage with them in a productive way. Well, the flag warning can be a way to say, hey, I’m open to talking about it, I recognize it’s an issue. So I think it could be helpful.

Evan: But, come on, isn’t that what the substance of the course is usually about. I mean, What is the, where’s the distinction between this hand wringing that underlies the ability of trigger warnings versus actually talking about how the rape scene fits into the overall literary tool? What’s the meaningful distinction?

Joe: The distinction is simply that, you could, with anything rich enough to teach from there is probably almost an infinite number of things that you could emphasize; you can’t emphasize everything you have to highlight some things and low light some other things. So you are making choices and it’s just a way for you to seek no what your choices are. And so, I don’t think anyone should handwringing any of this. I think people should just engage in this. And this is just another way to engage. At least that’s how it strikes me.

Christian: I mean, I think, when you teach a significant number of students. One thing you learn pretty early on, is there’s always someone in the room who has some experience with respect to the hypothetical that you are working from, especially in law, where we deal in a lot of hypotheticals. In a class of 100 people, there is going to be somebody whose brother just died, or whose mom died last year or who has been sexually assaulted or has been burglarized. And, not taking account of that and being at least sensitive to the fact that it is going to be hard for some people, it’s easy in the abstract, I think. Just, it’s easy in the abstract to want to throw the book at criminals in the abstract and sometimes people get really frustrated with juries who seemingly let people off too easy. But the juries are the people in the room who are looking at the actual people, and as a teacher you are in the room looking at actual students who may have told you that they have had these experiences, traumatic in one way or the another. But the distinction I would make, the name for a professor who makes a hypothetical, somewhat careless and on thoughtful hypothetical about rape in order to make a certain point, that person is kind of a jerk. But I don’t think we should say that they have done anything illegal because we have to, that way lies madness. For the same way that you guys have said, but it is a very different thing in the abstract to think that giving a warning or being sensitive about a topic is too politically correct or too far down the road than any state; it’s very different to do that than it is to actually be in the room with people that you talk to, that has had these traumatic experiences and realize that you have an obligation to teach them in a way that meets their needs. And that way is not necessarily to avoid any discussion of things which, that they have had personal traumatic experience with but you do so in a way that they can learn from. And it may also help others realize that this has to be done in a sensitive, in a sensitive way. So I am not adverse to that as a norm, but I think like the rest of you, as a law, I think that’s maybe going too far.

Evan: And at that point, I agree. Christian, from what I hear you say it’s essentially just try to be a decent person and have basic sense of respect and politeness. So yeah, make it a law, I think it is really kind of incredible here, because if you actually do make the law, and I think I’m just repeating what I said earlier, there is nowhere to go, except to absurdity with this because unless it is really going to be fully comprehensive. If there’s content about, I don’t want to make it to controversy. You, but religious sensibility. Say you have a Jewish person in the class and there’s a story that just mentions Islam, or if Muslim students in the class and it mentions Christianity, the Crusades. Oh my gosh, how on earth can you comprehensively get that done. I think the only way of doing it is in a meaningful way, which I think is what you’re suggesting, Christian of just sort of having general common sense, and human courtesy, respect of dignity of the persons that you are interacting with.

Christian: Yeah and you’re pointing it kind of two-dimensional the problem. One of them is what kind of things do we think are ridiculous that people are sensitive about. What kind of thing should people be exposed to. Even though they would rather not. A Jewish student who doesn’t want to be exposed to any information about Islam, it’s somewhat absurd example, you know, in law. We deal with absurd examples all the time. That’s one that we say, okay, if you wanted to be cloistered away from another religion, this university is not the place for you because that’s not what we do here. That’s one dimension of the problem, but I think it’s a very different dimension to say. Look, anyone who has been raped is going to have a visceral emotional reaction to, especially vivid discussions involving rape. That’s very human, and a reaction that is totally compatible with being a student in a university. And I think, you know, it’s very tricky as a professor to figure out how to kind of view, the line and figure out what you are going to, what difficult issues  you are going to push on the students to think about and which issues, need a lighter touch. But the very fact that it’s such a very difficult decision, and a difficult art, counsels against any kind of law, which I don’t think any of us is advocating.

Denise: Yeah.

Joe: Can I share a personal example that might show that this issue can come up in some unexpected places?

Denise: Of course.

Joe: yeah, so, you know, one of the things we have to do as law professor is right exams in the traditional law school exam. You create these fact patterns and students have to analyze the facts using the legal world that they have learned. And so one challenge for me when you teach patent law and who wants to welcome into the class people who have all kinds of different levels of technological education, including very little technological education. Because, for patent litigator, you don’t need to have the technical background. If you find science and technology fun and interesting, patent law could be something you could really thrive in as a litigator as I was. I was not a patent prosecutor I was a patent litigator. So I am always on the lookout for technologies in recent patents that people across the full range of experience will be able to understand. So in other words, I often wind up using simple mechanical inventions for my exam questions. And a few years ago there was this really fun and interesting patent, and there’s a bunch of technology actually in this area because it is something that is pervasive in human life. And it was about a casket system, that you put the dead body in the casket and you align the system so that the person

Evan: Wait, you didn’t tell me you are going to talk about this. (Puts hand up to signal stop, also covers both years with hands and looks away)

Joe: (Laughs) Right, exactly.

Denise: (Laughs)

Joe: I hope no one's experienced a death in the family recently.

Evan: Right. I knew somebody who died ... once. Okay, sorry. Sorry. (Laughs)

Joe: Right, right. No, but this — see, this is the point. So this great casket patent which shows — it has the outlines of the bodies in the casket, the caskets are — the invention was about orienting the casket so that the person is basically sanding underground instead of laying down underground. But —

Christian: Oh, my God, Joe.

Joe: Yeah. There was — but there were a bunch of other things about it, too. But — so there were these images of dead bodies in — not gruesome images, outlines, stick figure type outlines. And I thought to myself, Wow, this is really understandable, it's really fun; but I decided not to use it. And I decided not to use it for the reason of the joke Evan just made, which is if — I've got to give an exam, and that's a very stressful experience. And having someone who just lost a family member thinking about that while they're trying to take my patent exam, they don't need that aggravation in their life. (Laughs) And I can avoid creating it very easily by just doing something else, so I did; and I felt —

Christian: But you totally — you totally would have talked about that in class, though, right? I mean, it's — that's —

Joe: Sure.

Christian: It's a close judgment call because during exams, students are all keyed up.

Joe: Right.

Christian: And you want them just to show what they know and do their best. And something which is, for some students, so emotionally — you don't want that to enter into it, right? But during class, it'd be appropriate, I think.

Joe: So even though it's highly improbable that there is someone in the room who had a family member die recently — although it's highly improbable — for the person for whom it is actually true, it will be really bad. So just avoid it; it's easy, right? And so it's the kind of thing where, as an educator, I'm just making Christian's point a different way. If you're trying to be a decent, compassionate person with common sense, you're going to — you're not going to have 999 out of 1,000 of these issues because you're just — you're thinking it through and you're going to do great.

Christian: Yeah.

Denise: I'm glad I'm not a law professor because I try too hard to be funny. (Laughs)

Christian and Joe: (Laugh)

Denise: I wouldn't be able to give up teaching the funny patent about the standing corpses because someone might be sensitive to it. I think I'd just forge ahead. So good for you.

Christian: No, you would teach it. It's totally — it's totally okay to teach that, I think. I might not teach that if I had a student who came in very upset after the death of, say, a sibling the day before. That might give me pause.

Denise: Yeah.

Christian: But we talk — I do classes, we talk about sex and we talk about death and — I don't teach anything where we talk about sexual assault. But these things have to be talked about, and you can even be funny about them; but you have to do so in a way that is, I think, sensitive. Like Joe says, it's kind of common sense. Don't be a jerk.

Denise: Yeah.

Christian: But — and you want people also to listen generously just like you're talking generously, and it's tricky. It's like the rest of life. (Laughs) You know?

Denise: Yeah.

Joe: (Laughs)

Christian: Being a decent person is not always — it's — you just try your best.

Evan: It's great because you could use that standing coffin thing in a real property course as well. Because you could fit a lot more bodies on Blackacre than they were laying down.

Denise: (Laughs)

Christian: Oh, absolutely.

Joe: You can. You could just pack them in there.

Christian: Right, right.

Denise: Oh, my God.

Evan: At least three or four times as many.

Denise: That's hysterical. All right. Well, Joe, just bear in mind, there are a lot of people out there who've been scarred by patent trolls and copyright trolls, so don't think you're safe as an IP law professor.

Joe: (Laughs)

Joe: Fair enough.

Denise: And before we leave — yes. Before we leave this topic, I think we should give the winners of the National Association of Scholars a trigger warning contest. They picked three; here they are. The trigger warning for Lolita: Disturbing novel, narrator does not recycle. (Laughs) Number two, the warning for One Flew Over the Cuckoo's Nest: Warning: may contain nuts. And finally — and this is my favorite — Green Eggs and Ham: Glorifies GMOs.

Evan: Hmm.

Joe: (Laughs)

Denise: So there are a lot of funny ones. There's some honorable mentions and some that their staff made up that they just could not resist putting on the site, even though they're not giving out prizes for them. This one's good — Confessions of St. Augustine: Narrow-minded treatment of Carthaginian hook-up culture.

Evan and Joe: (Laugh)

Christian: That is good.

Denise: (Laughs) So go check those out at And let's make "Glorifies GMOs" our second pass phrase for this episode of This Week in Law if you are listening for MCLE or other professional education credit. And let me just write it down so I don't forget it.

Christian: Or if you're playing This Week in Law Bingo.

Denise: That's right.

Christian: If you have that on your square —

Denise: Bing bing bing!

Christian: I wouldn't say — I won't say drinking game because no one does that. Just Bingo. Just Bingo.

Denise: Right. Bingo. Let's talk about — we were touching on this with our story about the HathiTrust case and how people's access to the law and analysis of the law and the traditional role of lawyers in society is changing in response to technology. One thing that has been in the news for the last week or so — Wired did a story on Ravel, which I'm happy to remind folks was our resource of the week back in November of last year on episode 234. If you want to hear about — more about Ravel, you can go re-listen to that episode. But Ravel was written up in Wired; and for those who didn't listen to episode 234, it's this really cool legal visualization tool that, if you go to, you can run a few searches and see. It gives you sort of a graphic scattering of how much information in response to your query comes up over time. It's really fun to play with. I put in a search for "cell tower data" before the show and got a lot of interesting things. I think it's a great example of how you might — hopefully, you will find exactly what you were looking for that's on point, but you will also find a lot of stuff you may not have known you were looking for. Great use of serendipity in search. And the Wired piece interviews the founders and talks about — and this was really funny to me — how one of them had been an intern in a family law firm years before they had gone to law school and were appalled to learn, when they started using modern legal research tools, that nothing had changed in the intervening years. People were still using the same tools, doing the same things. And they both decided that needed to change. So Ravel is out there to change how you think about the law, visualize the law. And that's just the tip of the iceberg, right? I mean, once you start applying machine learning and big data to the conundrum that is trying to both locate and then analyze and then apply legal principles, you wind up with some serious alterations to the way law has been taught and practiced in the past. So I thought we had a great panel of folks to discuss this topic. In fact, Christian has written an incredible piece over at the Hydratext blog that we referenced called "The Information Law Crisis" that is all about this. So why don't we start with you, Christian?

Christian: Yeah. I mean, I'm doing work on law and information in a couple of different areas, and that piece was about how the law that we have is ill adapted to what's valuable. I mean, a lot of what law does is to protect value, assign value, make clear property lines. And we take a lot of those lines for granted; which is why in property class, sometimes we'll start with whether we own our bodies, what does it mean to own something? And it turns out it's much more complicated than a lot of people suspect initially. So what the law does is it creates those kinds of lines. And like I said, we take a lot of them for granted; but a lot of the problems that we see today, I think, are just ill suited — or the law's ill-suited to aim at them. And one of the ways I kind of motivate that little blog post is by just noting that the phone that you carry around, it may be valuable to you — they're certainly valuable. But all of the information on that phone, if it were to disappear — if it weren't backed up — may be a lot more valuable to you than the thing which holds that information. The information on a computer, if it isn't backed up or if you only have a few backups, is, in some sense, irreplaceable. The computer can totally be replaced. And you see this throughout law. Whether it's privacy from corporations or for the government — and you have other topics in the rundown, which touch on these same topics — the law's having a really hard time figuring out what is valuable to people. What does privacy mean in a world where we think it extends beyond the walls of your home or your car; where it's possible to detect where people are all the time; where it's possible to track what they're doing on the web. So that's kind of one aspect, and that was the main point of that blog post, is just that we — the law isn't really aimed at what — there's a mismatch between what people consider valuable today and what people considered valuable and worth incentivizing at the time that the law we have developed. But there's a more general point here; it's kind of what I'm — my bigger project now is, if you think about it, law is a computer itself. Law is a distributed mechanism for computing. You have information flowing among institutions, whether it's legislatures, the president, administrative agencies, courts — they all are in the business of taking in information and processing it and sending it out again. So in terms of just legal philosophy, I think there's a real advancement to be made in understanding law in kind of informational, theoretical terms. And then there's the other piece — I don't have it in front of me, and my memory's terrible — which just pointed out the — and this new initiative of visualizing cases is emblematic of it — that are just an increasing ability to manipulate information and process it cheaply is going to — is already working and will continue to work in information in law's practice. You know, how we go about actually doing on a day-to-day basis what we conceive of as the law; and that's going to change. I think the informational perspective, I think, really hits on all three of those areas: law's practice, law's design, and law's basic philosophy.

Denise: Do you think that — as you were talking through it, it occurred to me that maybe the problem that you identify in your piece — the fact that a lot of our laws were built, as you say, "to draw compromise lines in a world of skilled labor, consolidated media companies, ample self-help opportunities to preserve privacy, and very limited means of mass distribution of intellectual works." With those things no longer being true, is having law be a more effective computer the answer to that problem? (have it respond more in real time to the norms that are current then.

Christian: Yeah. I mean, law evolves — in some ways, we can work around the edges and we can change individual laws and it's adaptive in that way; but in a lot of ways, in the broader perspective, it's a really kind of clunky mechanism because there's a lot of updating that needs to occur. A lot of people — I think me included — think we should basically get rid of patent law. The copyright law, the best research out there is that it should last for about — what is it? — about 15 or 16 years and not life of the author plus 70 or 95 years. So we have a lot of problems which have developed because we've conceived of protection of ideas and information too analogously to physical goods; and at a time when that law was developed to protect physical goods and land when those were the most valuable assets. And where — so long as we protected your ownership of your home, we protected your livelihood because you could make your money off of your land. And the law went through crisis when the Industrial Revolution upended that, when most people who lived in cities or suburban areas were workers who were more or less interchangeable; and housing and land for them was just the place where they lived. And it was a commodity, could be anywhere. And so we saw some major updates in the laws governing landlords and what they had to provide. There was a time where, if you were renting a place and the whole place burned down, you were still on the hook to pay rent; or if something broke, it was on you to fix it. And a lot of that's been updated. As people are living, people are essentially consuming housing services rather than arable land to farm; and that took a long time. And worker protections — you can debate the minimum wage, but there are certainly a bunch of workplace safety regulations and the minimum wage. Other things which were maybe perceived as more necessary, and are more necessary, in a world where workers are a factor of production in industrial processes. And these days, we're all — lots of us are producing informational goods. A lot of what's valuable in our lives today are informational goods. There are our photos, our music, the writing we do or the writing that we consume. These are the valuable things, perhaps even more so than land. And the law's not responding to that. Copyright is, like I said, terribly long. It makes it really hard to use the cultural raw materials we have to engage in the most valuable form of production that we have today, which is the transformation of information.

Denise: Yeah.

Evan: Is there a point, though, when the question has to become, though, is the reason that the law isn't responding to that is because of the mechanism by which the law is enacted and enforced. And I'm not trying to indict the American way of life and the way that democracy works and all that stuff; but what I'm really trying to indict here is special interests affecting the legislative process in a way that's not appropriate. We've got —

Christian: Well, that — I mean, that's clearly — yeah.

Evan: Go ahead.

Christian: I was going to say, that's clearly the lesson that Larry Lessig took from the Eldred loss, right, is that —

Denise: Yeah.

Christian: — that was — the copyright extension was a clear giveaway to big media companies like Disney. It was the Supreme Court opinion, but all the economists' papers make clear that the value in terms of spurring innovation was zero for that extension — I mean, statistically zero. So it was only really explained as a benefit to existing copyright holders and existing valuable copyright holders — or holders of valuable copyrights. And so I — in the blog post that I mentioned earlier, one lesson he took was that he couldn't help the justices understand why it was so valuable, right? Why the public domain was valuable, and why insults to the public domain were so harmful to society. BUT I think, at the same time, he took the lesson that this corrupt legislative system — we can't rely on courts for everything. we rely on our legislatures to legislate in the public interest, and that clearly failed here. There's — and I think he, over time, saw that as a deeper and deeper sickness within American society; and now he's got this new pack, and he's trying to do all sorts of things to make progress on the legislative front rather than relying on the courts, his kind of heroes, because they won't always be. And I think both things are right. I think that law on the judicial front is somewhat slow to change because that process of — we talked about this earlier in the show — of getting people really to feel that a larger public domain, a shorter copyright period — that that is valuable to them in their everyday lives. And this is something to be — that's a long process. Certainly, people of many — especially the retired justices generation — they weren't uploading a bunch of YouTubes, I don't think.

Joe: (Laughs)

Christian: I don't think they were making their own podcasts. And I think, actually, you can look back to the Sony/Betamax case for another example of this. People forget that it was — the vote of a single justice was between us and a world in which it would — was basically illegal to make the VCR. And in the dissenting opinion in that case, the ones who would have said that this was an infringing product — for them, they said, "The difference here is" — they pointed to totally okay activities, like clipping out newspaper — making newspaper clippings and sending them to friends to put on their bulletin boards. And the — to me, the kind of common thread between that and what we saw in Eldred is that people have reactions to the value of public domain and copyright that reflect what they're already doing in their lives; and copyright was not infringing on activities the justices engaged in, right? Which was not recording Prime Time TV shows on their home VCRs; but it was a typical, maybe, Supreme Court justice activity: clipping out newspaper columns and sending them to friends, which — so I really think there is a long period of adjustment that has to occur as more people take advantage of, and are involved in, things which are butting up against the sharp edge of the maladjusted laws that we have.

Denise: Yeah. I keep waiting for the Supreme Court and staff to do the ultimate lip-dub of Pharrel's "Happy," but so far — yeah. (Laughs)

Christian: (Laughs) And I was just — actually, I was just talking to Dahlia Lithwick this morning about this because she — well, she was saying she objected to the idea — I don't want to — I don't want to put words in her mouth. But I agree with it, so I'll just adopt this as my own, that —

Denise: (Laughs)

Christian: It's not that the justices don't understand technology — I just don't want to take credit for this observation — but it's not that they don't understand technology because by the time they decide the cases and have gone through the briefs and the clerks — I think they understand it well enough. Maybe not as well as true nerds, and I admit to being a big nerd. But maybe not as well as people who work in the field or who are constantly geeking out on this stuff. But they understand it probably well enough to render legal judgments. What they don't do, though, is feel the value of these things; and a lot of judging is weighing competing values. Now, whether we like it or not — and I think it's unavoidable — judging in these kinds of cases — whether it's copyright or other areas of interest to IP people, or any other area — is about choosing between possibilities, which are, in fact, open. And that's a value judgment, so ...

Joe: And if I could jump in at that point. Because I think it's important —

Christian: Yeah.

Denise: Yeah.

Joe: — to — and Denise's comment before about, can we make the law more efficient? How can we do that? In a way, it's — the law is — in part, it's found; but in part, it's made. And it may even be that, in more significant part, it's made. So that we discover — part of how we discover what we value is by going through the process of trying to create a legal regime that reflects that. And so there — you can't rush people through that process of figuring out, based on their daily life and experiences, what they care about; they have to have those experiences, and it sort of emerges from those experiences.

Denise: Yeah, I agree. And I don't think — it's a really interesting thing to talk about. I don't think there are any easy solutions to the disconnect that Christian identifies in his piece.

Christian: Well, I — let me jump in, if you're —

Denise: Go ahead.

Christian: Yeah. I think that what — one thing that moves the needle is a bunch of people breaking the law. So there's actually a pretty rich, and increasing rich, literature on the value of people breaking the law. Sonia Katyal and Eduardo Peñalver wrote an influential book called Properties Outlaws, which is one — maybe a key element of this genre. Which just shows the — that this has always — maybe always is too strong — but has often been a way that the law has changed, is by people breaking it. Whether — we have adverse possession and property law, which a lot of students are surprised to hear exists. This is where you can trespass — if you trespass long enough and flagrantly enough, eventually the property you're trespassing on can become yours legally, which is somewhat surprising to people. And so, too, I think, the Napster era changed things, people's expectations about what they can do, the anger against DMCA takedown notices. I mean, people constantly agitating at the edges and transgressing legal norms is what changes them. And it — there has to be a critical mass of that kind of desire, that kind of — like I said, it's people kind of brushing up against and hitting and sometimes passing through the sharp edge of the law that causes us to think, You know, maybe the problem is not the people here; it's the law we have. So —

Joe: And that would be true even if there weren't, as there are — as Evan pointed out — even if there weren't interest groups agitating constantly for their own preferred outcomes, the things that Christian just described would be happening. And moreover, there are some of these issues, like the cell phone data from the tower and getting a search warrant — there's some issues that it's not really presented in the interest group conflict way that a copyright statute that extends copyright term is presented.

Christian: Yeah.

Joe: A court has to decide, "Well, does the Fourth Amendment require a warrant for that or not?" That's not something lobbyists are going to be — well, maybe; I suppose they could. People who make phones might have a lobby position that relates to that. But I think in search and seizure, it hasn't worked out that way; it's been more province of the courts. But — so the interest group problem, as big as it is, is not the entire story.

Denise: Right. And I guess we're all progressing, perhaps, toward the day when — we had James Barrat on the show not too long ago, and he writes about super-intelligent artificial intelligence systems and their pros and cons, mostly cons or risks. (Laughs)

Christian: (Laughs) Yeah.

Denise: But at some point, if we're going to look at the pro side of that, we — our laws do such a hack sometimes of, as you've pointed out, Christian, actually bringing current values into conformity with the laws that are on the books or vice versa.

Christian: Yeah.

Denise: That some sort of AI might do a whole lot better job. I mean, one of the articles in our rundown here is this very fascinating piece about machines vs. lawyers and how the legal profession is getting disrupted. I think, here, the parallel to people effecting change through breaking the law here is people effecting change of the legal profession by simply rebelling against how they're able to receive legal services, the price that they have to pay and what they actually get for their money. I think there's a lot of dissatisfaction with that. And the article highlights five areas most ripe for disruption. These are all very discreet things. I think we would all agree, yeah, the law's kind of broken there, and technology could help — discovery, search, legal forms, simple briefs and memos, and query: what's simple enough to let a machine handle? And then, hunch-based decision-making — and I guess the biggie, right? — where you're putting big data into the equation and potentially an AI to crunch it and decide, Okay. We've got all these variables, and what's going to be the right outcome here? So I think maybe we shouldn't be too leery of our robot overlords when it comes to the law, I guess is what I'm aiming at here.

Evan: (Laughs)

Denise: What do you think, Evan?

Evan: When you say, "not being too" — or "not being too leery of them," are you saying because of their capacity to maybe do the right things in some instances?

Denise: Yeah. To maybe get it better than we've been able to get it ourselves up to this point.

Evan: Yeah, yeah. I mean, we can certainly see pretty easily how that is a positive because we're subject to human foible and subject to the pressures of time, of the pressures of attention, the pressures of political influence, bribery, what have you. All the things that could corrupt the integrity of the legislative process, of the judicial process, of the advocacy process — all of the different, I guess, software applications that are running in this computer that is the law, to stay with Christian's metaphor here.

Denise: Right.

Evan: So yes. I mean, it could be a pure form; but this — it all just gets down, to me, with sort of fundamental questions of what it is we're trying to accomplish here.

Christian: Yeah, yeah.

Evan: When I say that, I mean us as human beings organizing ourselves into society, a culture where we have collectively decided — or it was decided for us when the Republic was established — to go about governing ourselves in this way. Governing, putting restrictions, making decisions, putting ourselves in certain categories of conduct that is acceptable, outside of which is not acceptable and is subject to liability or criminal culpability or what have you here. So it becomes the fundamental question of, Is this the way we want to do it? Do we want to turn it over to machines? Because yeah, it's great in terms of the efficiencies that would be gained, and you can almost hear the collective cheer of the vox populi when they would hear that, Oh, you don't have to deal with lawyers as much anymore.

Christian: (Laughs)

Evan: That's just — isn't that a win-win for everybody? Well, sure, right? But when you get — and let's say you get a notice from the IRS that you owe such-and-such dollars in back taxes; and the decision was made to do that, to send that notice to you and the enforceability of all — that whole process is done with ... [Audio fades for a few seconds] ... about it. Is that the kind of society that we want to live in, where it is — where we have just turned things over? Because it's all good when we think of positive aspects of it — the efficiencies, speed, all that stuff. But when it comes to that point where we're pressing up against the edges of that box that governs us or that is legislating— I mean, not to get too pedagogical or whatever — but to get into the etymology of — I just said "pedagogical," and there's two professors on the show.

Christian and Denise: (Laugh)

Evan: The law and the idea of legislation is the same root word as ligaments, to bind or to tie us to certain concepts here. It's not very pleasant when we're stretching those things that bind us and all that stuff. And at that point, I just don't know that anybody wants to be subject to the whims — well, let's not say "whims" — but the determination, the decisions, of a machine system. In those situations, it'd always be nice to know that you can appeal to a human; wouldn't that be — right?

Christian: Yeah.

Evan: Wouldn't you — wouldn't it be nice to have a person?

Christian: That's really great. I want to pick up on that. I mean — and this previews some of the stuff I'm working on. But one of the most famous law review articles ever written starts by saying, "The fundamental thing law does is to decide, in a situation in which two people have conflicting desires, which shall prevail." I mean, that's — ultimately, if no one's ever fighting, you don't need law; but when two people in a society want — each want something which conflicts with the other, they both can't win. And you have to make a decision, and that decision, that social decision that we make, is basically the name that we give to the law. And I think that, fundamentally, law is an apparatus. It's this sea of institutions exchanging information; and the fundamental thing that we do in that system is to push to one of those institutions or sometimes create a shared system. But ultimately, someone has to decide that question: Who shall win? There's an irreducible political decision which has to be made to resolve any dispute; and perhaps you can give that to a long-dead legislature and say, "Oh, they made the decision; the decision has been made." Maybe you decide that, through the common law method, this is the kind of thing that a court should make on an instantaneous basis, using data from other decisions before, and maybe some legislative ... [audio fades for a few seconds] Or you could decide — I'm frozen there; am I still on? Okay.

Evan: Yeah.

Christian: Or you could decide —

Evan: It happens.

Christian: — that you — we're just going to wait on the legislature. So there are lots of institutions which can make these decisions; but the point is that, to resolve any case, you've got to make a decision between open alternatives. And law sometimes complicates our understanding of that basic obligation, I think to its detriment. But we have to keep in mind that's what's going on. So the machines, maybe we could give them the authority to make those decisions; but I think they'll be most effective, at least in the short run, at helping cut through the complexity and helping institutions communicate better. But it's harder to see that they would be making that irreducible political decision. For instance, one of the examples that article uses is some people want to have — some people want to make noise, and some people want quiet, right? Maybe I want to have a loud party and I think that's a wonderful thing; and my neighbor wants peace and quiet at night. Both of those things can't happen at the same time. It's somewhat of a tragedy that we're located next to each other in that scenario; but there we are, and we have to make a decision. So the law has to decide whether to privilege quiet or partying; and in what measure, at what times. And there's a political decision to be made there; and no matter how we obscure that — if you say, "Well, we are compelled by this statute, which is a hundred years old, to decide in this way," that's fine. But you've — recognize that you — what the law has done is to privilege the preferences of a hundred-year-old legislature there. There's — the decision is still being made by people; and no matter what you do, that decision will be made by people. So I think that's a — I think I agree with Evan; I think it's — I would be uncomfortable with — and I think it's almost a category mistake to think that the machines can make that decision. But, as with everything else in — that the Internet has made better, I think one thing it can make better is the way we communicate, allowing ordinary people to participate in the life of the law and to participate in law's kind of resolution function without going through expensive lawyers. I think that's a good thing, and I think it would force kind of our definition and understanding of "lawyer" to change in a very positive way. I would love to see lawyers evolve into just general problem-solvers and translators because nothing we do is going to make conflict go away. People are going to have competing desires; and lawyers are an easy kind of target to point our fingers at because they are representing people who are fighting, and so they embody conflict. But that's not the only way we could organize ourselves. We could do it differently. And I'm kind of excited to see what that will be, and especially how the network and competing resources will shepherd that along.

Evan: It's just going to be a hard-wired ontology of trigger warnings.

Christian: (Laughs)

Evan: That's how we'll solve the problems.

Joe: Egads.

Christian: I hope not, I hope not.

Joe: You know, an issue that's sort of separate from what Christian's been talking about is — and that — but has to operate with it — is there's — where does the rule come from? But there's the difference between stating a rule and applying a rule to a given set of facts; and that's what strikes me as incongruous about the notion that AI could take care of all of the issues we have. I think what it would do is it would change the boundary — the location of the boundary — between hard cases and easy cases. But there will always be hard cases because there will always be instances where the rule is either on the underinclusive side or the overinclusive side, a bad fit for the set of facts that have now been brought forward in a given dispute. And that's where human judgment will always be required because it's other humans that are going to see, Well, this was the reason we have the rule. That reason informs what we do in the situation where the rule doesn't fit very well with the facts. And so in the — the sense in which all rules have this unwritten thing at the end of them that says, unless it would be absurd to apply this rule. That's where we come in, is at the — if in no other place, we come in where we have to apply that unwritten caveat at the end.

Evan: The thing is, well, by the time we recognize that we've got to step in there, it will be too late. And I'm only sort of saying this in a tongue-in-cheek kind of way. I'm sort of subscribing to a James Barrat view of the future here, where it could be kind of sinister if we allow AI to play such a role in making those decisions and drawing a distinction between the easier cases and the hard cases or whatever. At a certain point, the AI is going to become so intelligent that it'll become self-aware, self-referential —

Christian: (Laughs) Yeah.

Evan: — and then start directing the law in such a way that it will look out for its own rights and its own consciousness. And I'm putting that in air quotes because phenomenologically, it doesn't matter whether it's real consciousness, like what we experience; or just a machine consciousness that passes the touring tests and all that. The point is, if we get past a point — past the singularity where the law — machines are putting too much of an influence, they're going to start looking out for their own interests and then just recognize that we are better as nutritive than as —

Denise and Christian: (Laugh)

Evan: — agents for which they should be concerned in their decision making process.

Christian: Let me — can I try something, maybe concrete, although constitutional issue. Let's imagine we haven't yet reached the singularity —

Joe: Yes, please.

Christian: — and there's still stuff for people to do.

Joe: (Laughs)

CHRISTIAN: So we have an Equal Protection Clause in the Constitution, right, so that no state can deny equal protection of the laws. And what does that mean? It means everybody has to be treated equally. And you can do some funny things with parsing textually what equal protection of the laws means versus just equality, and — but ultimately, it seems to be a kind of equality mandate; and yet, it can't mean everything that it says because the very nature of the law is to make distinctions. Every law treats people unequally. The law against murder treats murderers particularly badly, right?

Joe: (Laughs)

Christian: And so — but not in a way that we think is offensive or offends the — what we think is really behind the Equal Protection Clause. So what does that mean? Well — what does the Equal Protection Clause mean? Well, it means kind of what we've said it means in an over-hundred-year now elaboration of that principle; and rethinking the principle of equality that was embedded there and turning it over, that is one of the jobs of lawyers and judges, to help us make, in a judicial context — because we think this is the kind of decision which is better made in a judicial type institution than in a legislative one. And I can bracket whether everybody agrees with that or not. But to decide — to reach this ultimately political question, which groups are in the community of equals, with respect to this law? And I think that is irreducibly political. And when it's — like gay rights and gay marriage. I think that what we see is not a discovery of what the — that the Equal Protection Clause is always meant to protect gay marriage or to protect gay rights; it's — I don't think that's even sensible. I think that what we see is a social evolution toward understanding that gay people, as a category, are among the community of equals and are entitled to equal treatment. And the Clause's principles reach that group. And that's a political determination, but one that we make in the courts. And then you start to understand that law's about deciding what kinds of institutions should make what kinds of decisions. And we can argue about whether the court or legislatures should make those kinds of decisions about who's in and who's out of the community of equals. But that — it's hard to imagine — where is a machine — how is a machine going to help with that basic question?

Denise: Ah. Well, [unintelligible] in IRC, I think, has nailed it because he's — he or she — has managed to mash up Game of Thrones, "I choose trial by combat" with real steal; and thinks we should just have battle bots resolve everything, all disputes. (Laughs)

Christian: Yeah, I'm not going to spoil anything, but I watched the Game of Thrones episode that features that; and I — that seems — maybe not the greatest way. At least it — I won't be a lawyer in that system, I think I can say.

Denise: Yeah.

Evan: If people can't even feel uniformly good about arbitration, how on earth are they going to feel good about something like that?

Denise: Exactly.

Christian: Arbitration. Fascinating topic.

Denise: Yes. All right. Let's go out, before we get to our tip and resource of the week, and fork over our air here to other shows. I'm going to just mention — because we don't have much time to discuss, but they're both newsworthy events — that Tesla has taken a non-patent enforcement approach. Elon Musk has basically been his own Ronald Reagan to his own Gorbachev and said, "Bring down this wall." (Laughs)

Evan: (Laughs)

Christian: That's good.

Denise: And taken down their patent law.

Evan: Yay!

Denise: Yay! So basically saying, "We're not going to enforce" — I guess this is what he means — "We're not going to enforce our patents anymore. We've got a bunch of them, and we think that we want competition in this area to thrive, so have at it." So good for Elon; definitely — it made me think of — I know we talked about last year, Evan, the Twitter approach towards its engineers and designers patents and how it wants to make people in that position keep more control over the patents that they work on.

Evan: Right.

Denise: And they call that the IPA —

Evan: It's very hoppy.

Denise: — not — yes, very hoppy. The Innovators Patent Agreement.

Evan: (Laughs)

Denise: So just — another great and probably more public example of people taking a more open-source approach toward their intellectual property, Joe, I'm sure we could do a whole show on this with you. (Laughs) Any quick comment before I mention our other newsy item I don't want people to ignore from the week?

Joe: Well, two quick things. One: I would encourage folks to go read the very short blog post that Elon Musk — where he makes a statement because there's one interesting caveat in it, which is that he says, "We won't enforce them against people who, in good faith, want to use the patents in technology." That phrase "in good faith" — it's not clear to me what that means.

Evan: Yeah.

Denise: Yeah. (Laughs)

Christian: Yeah.

Joe: And so time will tell — but time will tell what it means. I'm sure people will ask him. I'm sure that in the company — it's a publicly traded company — it will have to make Scc filings, maybe they'll make some comments that shed some light on that. The other quick thing is simply that this example — you mentioned open-source, a great phrase that people know. A newer phrase to try to get at some of this stuff is called "patent pledges," and that's basically what this is. It's a non-enforcement pledge for his patents, but it's not in a standard setting body; it's simply Tesla's desire to make its technology more widely available to try to leverage network effects. And there's a law professor named George Contreras at American University Law School who's doing really interesting new work on this field of patent pledges. So I would encourage folks, if they're interested, to just go look for George's papers. Once again, George Contreras. And he's doing really interesting stuff with this.

Denise: Great. And then the other thing I just wanted to mention, because I know it's an issue near and dear to our viewers' and listeners' hearts, is there was an important Eleventh Circuit Federal Appellate Court decision on not being able to access cell tower data without a warrant, finding that a cell site location — body of cell site location information — is within the subscriber's reasonable expectation of privacy; and obtaining that data without a warrant would be a Fourth Amendment violation. Now, this is the Eleventh Circuit, which applies to only a small bit of the United States; but obviously, this is important, that a federal appellate court has found this. Jennifer Granick, the Head of Civil Liberties at the Stanford Center for Internet and Society, points out why it's so important. She writes that because the ruling involves stored cell site data, it undermines the NSA's phone metadata collection program, which the government has argued is allowed because customers relinquish their right to privacy when it comes to a company's business records. So she goes on to write that the ruling found that the defendant in this case had an expectation of privacy, despite the fact that the cell data was also the company's business record; so it could be important in that whole constitutionality of surveillance discussion. Just another piece of the puzzle there to keep an eye on.

So let's move on to our tip and resource of the week. Our resource, we're just going to — I'm not going to play it for you because we've already gone long today, but I am going to point you towards the trailer for The Internet's Own Boy. I know that folks are watching for this to come out. It's been at Sundance and CON and is obviously very emotional and tied to the Computer Fraud and Abuse Act and its application. So go watch the trailer and look for the film; it looks like it's well done, just based on the trailer.

Then, to leave — that's obviously on a sad and tragic note. To leave us on somewhat more of a lighthearted note, this is absolutely hysterical. I don't know if it's hit everybody's radar; but every now and then, people like to keep track of, what is the biggest award ever asked for in a lawsuit? And that — the bar has been lifted in that —

Christian and Joe: (Laugh)

Denise: — to stratospheric heights. The Au Bon Pain bakery chain is being sued for 2 undecillion — that is 2 with 36 zeroes after it. And over at XKCD, they have done a whole "what if" on this that explains to you what an undecillion is and what two undecillion are —

Evan and Joe: (Laugh)

Denise: — and puts it in perspective to how much more that is than everything that's ever been — all sellable stuff in the world, the economic value of all goods and services provided by humanity since we first evolved. If you were somehow able to monetize the entire galaxy or solar system — I think it was solar system, not galaxy — how you would still not be to two undecillion. And then, if you hired every Ted Olson in the galaxy to defend every one of these lawsuits, you still wouldn't even be there. So it's really, really funny. And all of this resulted from — I believe it was a dog bite and having a photograph taken by a Chinese couple. So, you know, you could really get up into the stratosphere of —

Evan: Yeah.

Christian: Sounds like big bucks. Sounds like big bucks for that, yeah.

Denise: Yeah, exactly. I query whether photography by any other ethnicities would have triggered such a high award, but I guess we'll never know.

Evan: But it was Au Bon Pain, so it was French.

Christian: There you go.

Denise: That's right, that's right. (Laughs)

Evan: My favorite line from that was, "The Earth's crust is comprised of a bunch of atoms." And then it had the bracket, "Citation needed." I thought that was brilliant.

Denise and Joe: (Laugh)

Christian: That's what law review editors would tell us. Yeah, they would make us cite that in a law review article, for sure.

Joe: Totally.

Denise: That's right. What If is about to become a whole book, by the way. So if you like this kind of humor, that would be up your alley. I know I enjoy that humor quite a bit.

Anyway, guys, it's been really, really fun chatting with you. We covered a lot of ground and some difficult and really, really fascinating issues. I was completely behind the times in how many episodes of Oral Argument you've done. You're now on episode 22 with Dahlia Lithwick, the Supreme Court writer, very well-known Supreme Court writer. So definitely check that one out, and the whole body of shows. You guys have had some wonderful guests — Tom Goldstein; Christina Mulligan, who we had on a while ago — lots and lots of great stuff. So keep it up. We're thrilled that you're out there doing your show and love the vibe that you guys achieve with it.

Christian: (Laughs)

Denise: It's very laid back and funny and cool, just sort of like you're a fly on the wall, overhearing a couple of really entertaining law professors talk about really interesting things. So enjoy Oral Argument.

Christian: Thanks a lot.

Denise: We have enjoyed having Oral Argument on the show today.

Joe: Thank you.

Denise: Joe and Christian, just couldn't be happier. I know you guys are on break now, but if there's anything going on at the University of Georgia Law School that you want to let people know about or something to pay attention to in the fall, now would be the time.

Christian: Well, we're looking for a new dean.

Denise: Oh, there you go. (Laughs)

Christian: There's a dean search underway, yeah. So that's — we — if you think you can be the dean of the law school, send in an application.

Joe: (Laughs)

Denise: Oh.

Christian: Yeah.

Denise: We should get some good responses from that. (Laughs)

Joe: Sure.

Denise: Yeah.

Christian: But I —

Denise: Evan, what do you think? You ready to move to Athens, Georgia?

Evan: I would love to move to Athens, Georgia; not sure I'm quite qualified to be the dean of the law school, but I'd go down there if there were some other gainful opportunity. (Laughs)

Denise: Yeah. (Laughs)

Christian: Well, just like the law itself, the qualities that make for a good dean — who knows, right? So I don't know, Evan; I want to see your resumé and hear your thoughts.

Evan: All right. I'll ship it to you.

Denise: All right.

Christian: (Laughs) Thanks so much for having us, though. This was super fun. Really appreciate it.

Joe: Yeah, it was great.

Evan: Good times.

Denise: It's been our pleasure. I wonder — does Speedo modeling count as any sort of points toward deanhood? Because then Evan's got it —

Christian: (Laughs)

Evan: Yeah, that's my most recent experience. That's at the top.

Christian: There is quite a bit of fund-raising involved in being a law school dean, I think; and I've never heard of a Speedo method for raising funds, but who knows?

Joe: There's got to be a first time eventually.

Christian: Exactly. There's —

Evan: I would definitely wear it in the dunk tank. People pay, you know —

Christian and Denise: (Laugh)

Joe: (Laughs)

Denise: We're all about innovation here. Got to bring that about.

Evan: That's right.

Denise: All right. (Laughs) So folks, we record this show at 11:00 Pacific Time, 1800UTC, every Friday, so join us then if you'd like to join us live. We love to have you do that and jump on into IRC with us if you're watching the show live. If that doesn't work for you, look for us on iTunes and Roku and on YouTube. We're going to be in any of the channels where you like to subscribe to netcast entertainment. You can also just find us — gee, on our show page at The whole archive is there. What else should we let you know about? We love talking to you between the shows. Please email us. I'm; Evan is We love hearing your thoughts and suggestions and responses to things that we have discussed. Dean applications, though — those should go straight to the University of Georgia School of Law.

Christian: (Laughs)

Denise: (Laughs) Check us out on Facebook and Google+, too, if you need more than 140 characters to interact with us. If all you need is 140, then find us on Twitter. I'm dhowell there; Evan is internetcases over there. And so we look forward to hearing from you and to seeing you next week on This Week in Law! Take care.

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