This Week in Law 264 (Transcript)

Denise Howell: Hi folks, Denise Howell, here and next up on This Week in Law, we’ve got David Weinberger, Nina Paley and me. We’re going to talk about restaurants that know you like scones and Facebook drones. See how I didn’t rhyme those. We’ve got lots more too, next on This Week in Law.

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Denise: This is TWiL: This Week in Law, Denise Howell and Evan Brown This Week in Law, Episode 264 recorded June 20, 2014

All in, All Out or All Wrong

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Denise: ( - @dhowell) Hi folks. I’m Denise Howell and you’re joining us for This Week in Law. I am so excited to have to of my favorite people in the world, and certainly favorite people online joining us today. Now, don’t get too sad Evan Brown could not join us today. He’s taking the week off, but we will see him next week. But we are going to have some consolation for you, because our guests are just phenomenal. First of all, we have David Weinberger joining us Co-author of the ClueTrain Manifesto, fellow at the Berkman Center at Harvard and so many other things. Author of many other things, since the Clue Train Manifesto. As well, one of my most favorite books ever, small pieces loosely joined, and just an amazing speaker, humorous person and wonderful human being. Hello David, it’s great to have you on.

David Weinberger: ( - @dweinberger). Hi. I feel like I’ve already disappointed you given that introduction. Thank you very much.

Denise: It’s impossible to disappoint. Also impossible to disappoint is Nina Paley. Very active on copyright reform, creative person herself with animation and quilts and various other wonderful endeavors and repeat guest to the show. So, Nina we are so glad that you could join us once again.

Nina Paley: ( - @ninapaley) Okay, I’m going to take that as a challenge to disappoint you.

Denise: Yes, okay, good. Now we’re all just going to shut up.

Nina: You say it can’t be done, it can.

Denise: It can, we’re, now that’s the show, we’ll wrap now and I’ll go home. (Laughter) I mentioned the ClueTrain Manifesto for folks who may not have encountered it before. I realize David, there are people that you have not been able to influence with this book simply by virtue of time. It came out in 2000 and you had the 10th anniversary of its, obviously, it would have been in 2010. Although it feels like it just happened. And, so for those who have not read it, I can’t tell you how current this book still is and prescient and basically, you know, foresees all of the social interactions that the web has enabled sense is publication. And still is very, very good advice to businesses and people who want to interact commercially in doing it in a genuine voice and avoiding the missteps that happen when you act like a corporation instead of a person. So, it’s a really, really valuable read for just about anybody, and I think it’s one of those books that’s timeless. And David I have to show you because I think I may be the only living human who has a copy of the book signed by all three authors. (Shows book) And that I still have it and haven’t put it on eBay, yet. But we will see how today goes, how about that? We can jack the price up,

David: Excellent. We’ll see if we can drive the price well over two dollars at this point.

Denise: There we go. Exactly.

(Webpage: advertisement: The Cluetrain Manifesto: The End of Business as Usual: paperback-January 9, 2001 by Rick Levine (author), Christopher Locke (author), and two more: prices listed)

Denise: Well, since we’re talking about the social web, let’s start there. And kick off this discussion.

(#Social Web law-music playing.)

Denise: All right, so, one of the topics of the clue train manifesto is how businesses communicate with customers. And, I think it’s kind of interesting to consider what are we now 14 years down the road, since it publication. And there’s recently been a study and a write-up in The Atlantic about online advertising

(Webpage: advertisement: The Cluetrain Manifesto: The End of Business as Usual: paperback-January 9, 2001 by Rick Levine (author), Christopher Locke (author), and two more: prices listed)

Denise: that, it probably doesn’t work at all. Which is probably something that you guys had in mind when you wrote the book, David. And so, this study I’m referring to is a new controlled study on search ads from eBay. And it goes through, the Atlantic article is quite good, explaining what sort of ads it’s talking about. It’s how you would get an ad for Nike. If you were searching for Nike, a sponsored ad from Nike, for example, and then just taking you to

(Webpage: A Dangerous Question: Does Internet Advertising Work At All? By Derek Thompson, June 13, 2014)

Denise: and then below that you would get Nike, Inc. and the point of this study and the failure that eBay found was that it is basically impossible to tell whether someone is going to a site. Because they have seen an ad or because they already intended to go there in the first place. It’s just getting harder and harder to know what is influencing and how, and so the upshot is, you just can’t reliably say, oh, they saw this ad and so ergo they bought the product. So the reason I bring this up, David is because of the Cluetrain backdrop and because of considerations that go into laws around online advertising, what you can and cannot do and what has to be disclosed if you are speaking as a person who is pushing a product. So I’m wondering what you make of this and , is it just kind of, duh we’ve known all along that online ads don’t work. And, thanks for us telling this again?

David: So, in your really lovely introduction, Denise, you said that Cluetrain foresaw the rise of the social web, and that gives us too much credit. Cluetrain was an attempt in 1999 when we were writing it to say things that we thought people on the web already knew, but the media in general and businesses in general did not know. Mainly that the web is social, the web was social from the very beginning. That’s what drove it forward. It looked like a publishing medium to the media, because that’s their frame for these things and it looked like catalog shopping opportunity and advertising opportunity to businesses because that’s their frame. But the reason so many people rushed onto the web, and were so excited about it because from the very first it was profoundly a social environment in which we got to speak with one another about things that we care about. Advertising almost always has been about what other people want us to see against our will, it’s what’s interesting to them, mainly to getting us to buy their crap. And so therefore ads from the very beginning have always seemed like an intrusion from another world. And the web is our world. We built its together socially, it’s about things that matter to us. Ads have always been a bit foreign in that. The difference between online and off-line ads, is that off line advertisements you had no idea what the connection was between the ad and the behavior of the markets, you could only guess at best that an ad was effective or not. On the web  we get closer because you can actually see the clicks, but you can’t, you’re right,  and the Atlantic is right; you can’t see the intention behind the click or what actually got the person’s interests, that still remains a human thing and not expressible by a simple click of a mouse. Advertisers continue to want to believe that ads work, I think, to a large extent in many ways they do. Especially branding ads they do work. Trying to establish the causality is extremely difficult. And the last thing to say is that we now have, thanks to the web, the ability to fight back against the attempts to control our desires and motivations by marketers and advertisers; so when an ad makes a claim and I think all of us do this all the time; an ad makes the claim in something that we are interested in; We will go online and check it out. According to people who have actually, other customers, other people. And so we no longer have the blind one way thrust that they used to, because we can countervail   that with human voices.

Denise: Yeah, I think that’s a really critical part of the advertising universe today and it’s why I think the FTC is so concerned about sponsored statements online. Of course, the FTC has guidelines and finds in place, although I’m unaware of someone having been hit with one of these lines, it’s always interesting to watch because having the proper disclosures made is still sort of a work in progress and people aren’t quite sure how to do them, even though the FTC has told people specifically. They have gotten so specific, it’s unlike a government agency as to say, if you’re on Twitter and you’re making a sponsored statement about a product, just put in #ad, that’s all you have to do, it’s three characters out of your 140 and then people will know. Well, even with that simple bit of instruction, it doesn’t look like people have gotten the message yet. And there was a particularly funny instance written up by Ginny Martin this week at Marketing Land that involved Mike Arrington being pitched by some marketer working for Microsoft and specifically working with the rethink IE blogger network.

(Webpage: Marketing Land: article by Ginny Marvin: Microsoft’s Internet Explorer Influencer Campaign Backfires: Another High-Profile Example of Why Details Matter: June 18, 2014)

Denise: Bloggers that were using that #IE bloggers, sharing sponsors post about Internet Explorer.  And, at one point or another the bloggers in this network, being paid for their chatty and positive things about Internet Explorer were putting #ad, then. It seems there must have been a memo, because then they weren’t.  Then they approach Mike Arrington, hey, would you like to be in our network. Talk about needing to get on the Cluetrain, (holds up a copy of Cluetrain). Someone missed it there. Because that’s how the story became public, that IE had a blogger network that were doing sponsored posts and not being it in the FTC way and so, you know, what happened then was the hijacking of the IE bloggers # and much hilarity and lampooning of the entire process and of course, Microsoft had to fire the agency. So, you can see how, trustworthy statements from people reviewing products are really at the forefront of what needs to be going on online advertising. Not just from the regulatory standpoint, but from the human standpoint, that’s how we all decide whether or not something is trustworthy. Do you have any thoughts on this, Nina?

Nina: Well, my cat, my cat just joined me.

Denise: Of course, when a cat makes a statement on online; that’s the most trustworthy thing of all.

Nina: Yeah, well, the Internet is made of cats. Yeah, I was thinking, first of all, it’s increasingly ambiguous what is an ad and what is not. I wasn’t even aware of all these laws governing advertising online. Because when I think about advertising, I think about the whole issue of what’s commercial and what’s not commercial, and nobody has really figured that out. So I am a little bit curious as to how they even define an ad. How is that defined?

Denise: Yeah, it’s, as far as the FTC is concerned whenever you are making a positive statement about a, and again I’m paraphrasing, but it’s positive statements about products or services, where you’re getting something in return for making those statements. But I see what you say as far as, how it can get, the line between ad and review is quite murky. But, it’s the quid pro quo that is the touchstone there.

Nina: I wonder for myself, because let’s say I have a movie or something that I want people to know about, or let’s say I have, merchandise on my online store that I want people to know about. If I tell people about that is that an ad or is it not an ad because no one is paying me to talk about this stuff and

Denise: oh, and then it’s

Nina: yeah, sorry.

Denise: If you had a network of folks, you were giving some kind of quid pro quo to promote your movie or product in your online store that is when you would get into trouble. It’s when it’s not transparent. That, hey, this is my thing and you should buy it or watch it.

Nina: Okay,

Denise: So, the whole IE blogger thing was sort of funny, and sort of one of those, again, you just slap your head and go, really? This kind of thing still happens? How have people manage to be so clueless?

David: It still happens. Well, except that it happens, it happens all the time.  We actually don’t know how often it happens successfully. I read last week there was a really interesting and exciting threat about wacky idea. Which was interesting. Which was to pave roads with solar jet powered generators, and there was a lot of discussion about whether this was possible or not, because you know. Some very fervent supporters of it, and it was only a few days later that somebody tracked back through the fervent supporters and looked at their histories and discovered yeah; these people obviously, pretty clearly were shells, were paid. So, we sometimes have the mechanism to discover the shells, but we don’t always and we don’t know how often we don’t. And so while Cluetrain says, yes corporations don’t know how to speak like humans, and shouldn’t try or should learn how to give humans involved in the discussion, which I still think is kind of right. The other part of it is the corporations have gotten very good at sounding like humans, or hiring human in ways that corrupt the system that make the overall network less trustworthy and less good. I think, for me there is a clear moral dimension here. Which is your behavior or the behavior of your corporation making the place better or worse, in hiring shells and Astroturfing, clearly makes it worse.

Nina: yeah And Astroturfing isn’t restricted to the Internet. That is something they have done decades.

David: Much easier to do on the Internet, though. Yeah, absolutely right. But you don’t have to hire college aged people to go into a bar and, good-looking guys go into a bar and drink Budweiser, you can do it a lot more cost-effectively now. So yay. And people want to corrupt the system, marketers who are engaged in systematic corruption of the system should go to hell; that’s what it comes down to for me.

Nina: (laughter) Well, here’s an interesting thing. So, I never get offers from anybody to pay me to shell something, but being a social person online. I get endless, like if I seem like I’m a nice person. I’m supposed to promote the kickstarter’s of everybody that I am acquainted with. And that that is happening, that is not really related to the laws of advertising.  But every day there’s this temptation to promote something, not because you actually believe in it, but because there’s, I don’t know a little bit of guilt or

Denise: social pressure?

Nina: social, yeah, social extortion almost and this is very common. And everybody has to make a decision about am I going to risk this person not liking me, or maybe people not liking me. There is this expectation of, support me, if I don’t promote something for somebody then I’m not supportive and I’m not a good friend. Everybody has to decide that. And I do feel like if I just start promoting everything just because it’s the project of somebody that I am somehow connected with; that also degrades the whole system. And I just don’t want to do it. So I end up saying no to most things.

Denise: You’re a good example. And I think that does help the credibility of the things that you do promote. I think that’s more of a personal decision that people have to make than a business or a legal one, although it certainly could have business and legal repercussions as well. But, the value of the endorsements that you do make, I think, is something that people need to pay attention to. Another thing to pay attention to is, you know, we are all fairly visible people on line and it certainly have, we can be located and things can be discovered about us because we all have sort of digital breadcrumbs that we have left over the years. So, I wanted to pick those of your brains on some overarching privacy considerations.

(Music playing, TWiL privacy advertisement)

Denise: There we go. All right, so this week there was an interesting article and one of several, probably dozens that have come out in the wake of the revelations of NSA surveillance. This particular one was in Wired, and some very good practical advice, mostly on using Tour. The article’s name was

(Webpage: Wired: How to Anonymize Everything You Do Online)

Denise:” How To Anonymize Everything You Do Online”. And it go through step-by-step, through various ways you can use Tour on various devices and its efficacy on all of those devices with the upshot that mobile browsing is still a work in progress from the privacy standpoint. And as I mentioned this is by no means and isolated bit of this kind of advice. We have highlighted lots of them were on the show, it seems to be something that people are very interested in that whatever digital breadcrumbs they are leaving, are their own business and they are going to decide or would like to be able to decide whether anybody has access to them. I think this particular take is showing you, hey, if you don’t want to participate in the system of being targeted with ads or being otherwise monitored online, this is how you can attempt to opt out. But, the push back then, and Robert Scoble on his Facebook page voiced it pretty well, is, but then you are leaving yourself out of all of the benefits when you are monitored and tracked and people are trying to customize your experience based on things that things that can be discovered about you online. Robert’s been on the show before and people are familiar with him, he lives very publicly and doesn’t hide much of anything about his likes, dislikes, his travels, his cell phone number is public online, he is described himself as “all in”. ’Take as much as my information as you want, because I am benefiting from that’. He posits that other people are either “all out”

(Facebook page: Robert Scoble via Wired: June 17 at 12:02 PM)

Denise: like perhaps if you are following the advice in the Wired article; or somewhere in between. And I’m guessing we’re all somewhere in between. And I bring this up this week because David has teed up the discussion quite wonderfully with a post on his blog. That is one of the funniest things that I have read in a long time. In reaction to news that there was a restaurant, was it in New York. David?

David: I have no recollection of what you are referring to. So please continue.

Denise: Okay, I will.

Nina: I saw that

David: Oh, I do. I got it, continue.

Denise: Yes, there was a restaurant that was Googling customers and, an attempt, a wonderful arttech write up about the fact that there was an employee at the restaurant whose job it was, I guess the only way this would work was if, if the restaurant, I guess it would work better if you had an online reservations service that was saying, okay, here is John Smith lives in this place, and here’s some rudimentary information that he has given us through the online booking service.  I suppose it could work if you simply had the person’s name, although the common name problem would wind up with some really funny mistakes, I suppose. If you were trying to Google a customer with the name like John Smith, you’re not going to find out much useful information. But David wrote up what I considered a one act play, of a hypothetical restaurant that was finding out information about the customer and writing to customize the experience of the customer in such a way that it completely creeps you out. So, I encourage people to go read it. It is at, David’s blog. It’s called ‘Reservations’ and I am so glad that I have the two of you on this show. Because Nina this thing screams to have one of your animations made of it, it just needs to be scripted out and acted out.

Nina: Well, I did that one for the EFF, a couple of years ago. About how all of your, I think they ended up calling it “Happy Birthday EFF’, but that’s not what it was really about. But it’s weird because the framing of this seems wrong. The framing seems off; it is not a matter of, oh, are all these companies these services monitoring me. You know, if I think that’s a bad thing. I will opt out and, but I’m getting so many benefits from being monitored that I will opt in. That’s not what the issue is, the issue is these services are monitoring everything. And if you opt out. It’s not that you don’t get the benefit of being monitored. It’s you don’t get the services and access to the online world that many people want and need. I mean, I would like to know that we are doing this connection over Skype. Skype is not really known for respecting our privacy, and I could opt out from this. I could be no, no, we have to use something that is not Skype but that means if I take that stance. I am not going to be able to do this or a number of other things. And the problem isn’t that, oh, I won’t enjoy the benefits of being monitored the problem is, I won’t be able to communicate with people, most of whom it’s just too much trouble to try to stay. Not even too much trouble, it’s, for me, for a normal person, it’s practically, I think it is impossible to do all the kind of opting out that I keep reading articles about. It’s possible, even the thing with credit cards; I got that thing from target and my credit card was compromised. My credit card is compromised everywhere. There is one hacking thing after another, it’s like okay cancel my credit card now call the credit card company. And if I did that I would be canceling my credit card every week and I can’t live this way.

Denise: Right, and if you are not doing it, they are. I mean, I’m constantly getting credit cards replaced just without my having to do anything but you get a new one in the mail saying ‘oops, we’ve had some sort of snafu and we needed to read issue your credit card.’ Which

Nina: A lot of times, that’s not happening. I mean, I guess the thing is, I really respect privacy advocacy is very, very important, but to leave the onus on everybody on the Internet rather than these large systems that are surveilling us all the time. I think, that’s not fair and not right. I think that these companies need to be responsible and given that we have, t and our government also, that’s clearly asking too much. So I don’t know what to.

David: Well, me neither, but I find privacy issues, really, really confusing and not because of the law, which I am not a lawyer, I don’t even pretend to understand. But privacy in the since that we are using it for a lot of the since in which we are using it is a matter of norms. Always has been a matter of norms; and they have always been very carefully calibrated social norms that govern, for example, how close we can listen and be observed listening to someone who’s, a couple walking ahead of you on the street. They are in public, so it’s okay to hear what they are saying, but you can’t follow them because he found the topic interesting and you cannot acknowledge that you heard them; you cannot go up to them and offer your opinion, it’s just not done. It’s the norm. It’s the same thing for a lot of things, elevator behavior around privacy. All of these are highly governed by very particular norms of privacy in public. And now we have this new type of public where they are initially there weren’t, it started without norms or strong norms. Norms are developing it an intersection of global cultures, the norms are different across cultures and so it’s two things. A: it’s really, really confusing. It’s extremely easy to go wrong. And, B: did I say one or two, okay, I think it’s B: got to keep these things straight, these norms are changing. And so the sort of comparison, the sort of the moral argument that one has where you compare what Amazon does with your data to what say a real-world store like Target would do with it, and what’s acceptable, they don’t apply. It’s a very, very different situation. I sort of not terribly exercised by the old norms of privacy online, I tend a little bit more towards Scoble. Although, I think, obviously we are all concerned when there are clear abuses of this. It’s a necessarily really grey area because norms take a long time to emerge and when they are changing. It is very difficult to even have a reasonable conversation about what is right. Because we don’t know, it’s a matter of norms.

Denise: Right, so I think if Robert Scoble walked into your hypothetical restaurant in your post, David? He would welcome the maître d’ with open arms, and shake his hand and say you know, right on, good for you having the initiative to find out when my birthday was and anniversary and what sort of food I might like. Although, go ahead.

David: Except when the waiter posts online Scoble’s porn preferences and pictures of him showering. I know Robert a little bit, I don’t know what his reaction would be that it is conceivable that he would not be as sanguine, that he is actually drawing, a second set of norms. Assuming a second set of norms; that is totally reasonable. But I also think it is important to recognize that this second set of norms is just another set of norms. That we are in fact moving to the ones that Robert is annunciating; and those are not norms of complete privacy; it’s just a different set of what we are allowed to hear and to acknowledge that we have heard in public.

Denise: Robert’s not a good example because he posts his own picture of himself in the shower, so. Somebody else might be more taken aback by that.

David: I clearly need to be following him more closely.

Denise: (laughter) Go ahead, Nina.

Nina: I figure anything that I put on the Internet, that I myself put on the Internet is fair game for into buddy; I am not interested in that kind of privacy. What gets me concerned is when surveillance of people I know, and interactions. I am having with other people. And I don’t know if this is just hearsay or why, but a friend of mine was telling me that Facebook; if you have the Facebook mobile app, it will examine your phone and triangulate data on people in your phone contacts that may not even have Facebook accounts. That I find, I continue to use Facebook, but I feel like there’s all kinds; I don’t think surveillances is like, oh, they’re going to use a picture of mine that I put online. I don’t care.  If I put my stuff online, I really don’t care. But there’s more than just me, there’s all the connections that I have two other people.

Denise: Okay, so let’s use a couple of Facebook examples, get your feedback or your reaction to them. News this week that Facebook has filed a trademark application in class XII, which is for physical goods and not services and it is perspective. So it is not something that is doing now, but expects to be doing in the future. It identifies the goods to be sold as ’drones’, let me get the exact terminology that they use. But the upshot is, let’s see. Unmanned aerial vehicles. So, Facebook like Amazon has drones in its future, so it thinks. And the speculation is that it plans to sell drone products, branded with its name. Do you have any sort of privacy reaction?

(Webpage: NameWarden: Facebook files for drones)

Denise: to having Facebook having unmanned aerial vehicles. At least they’re marked, you know they’re broadcasting that they would, again, that is just speculation, all we have to go from is the application.

Nina: (laughter)

Denise: But it’s, they seem to be wanting to associate the Facebook trademark with drones. What do you think?

David: Well, Amazon is weaponizing theirs so, it’s a little better than that anyway.

Denise: Exactly. (Laughter)

Nina: I don’t know what to think. It’s just, I just, the world is moving too fast for me to even think. It’s like, it’s just happening, what?

Denise: It’s a perfect marriage. People are so concerned about the privacy ramifications of commercial drones any way. It just makes perfect sense to pair Facebook up one. Then there is, it’s soon to be released, and I’m not sure if it’s available today or not, it was expected to be out this week. Facebook’s snapshot competitor, it’s called Slingshot or will be called Slingshot. And it’s also engaging in ephemeral sending of pictures and videos back and forth.  In fact, if I have read the coverage correctly. It’s only going to be photo and video based; although it will be possible, and I’m not sure how easily possible it will be to superimpose some texts over your images or videos. But the two kickers are, it will be ephemeral like Snapchat, it will go away when the user tells it to go away.

(Webpage: The Verge: Facebook Slingshot is much more than a Snapchat clone)

Denise: Let’s see, you can’t view an incoming message, though until you respond with a photo or video of your own. There can’t be any passive users, so again, you know, we’re talking about quid pro quos in advertising this is quid pro quos in communication. In order to see what’s someone has sent you, you have to respond back until you do that get a pixelated image. So, what do you think of Facebook getting into the ephemeral communications arena and also sort of hijacking you into participating once, if you want to see what someone has sent, David?

David: Well, so, I find, if, I find it hard to complain both that Facebook is holding on too much data; and moving into ephemeral communication. The, I hadn’t heard about the you must respond with a photo thing with sling chat or whatever the hell it is; which on one hand, it is back to the old original, I’m an old man, because I remember the original viral marketing. It was exactly this sort of marketing that requires the recipient to respond in a way that the chain continues just like an actual virus kind sort of sneeze this sneeze. And this is really brilliant marketing. I so out of there demographics that I’m not entitled to an opinion on it, and I actually don’t have one, whatever. People get used to people will find normal and do. So I would throw in this, 15 years ago; did I mention that I am old? 15 years ago, if you told people there would be surveillance cameras surrounding  entire cities hundreds of thousands of these surveillance cameras in London or your local town, people, it would have been pitchfork time. And it’s happened, and it doesn’t seem to have changed much behavior, nobody cares. It’s not an issue, is not a political issue, it just happened. We’re all just constantly having our photos taken by the surveillance cameras and basically no one except a handful of people care about it. Which I should say I don’t care about it. But this sort of change happens, nor are sent by usage and getting used to things and we get used to a lot.

Nina: I know people that care about this, it bothers a lot of people

David: Of course you do.

Nina: I’m not that young.

David: You are with, but, it is not a political issue. Surveillance cameras generally, there are some towns it has been. But it is not on a political agenda, it’s not that important apparently.

Nina: It’s not mainstream issue,

David: that’s true.

Nina, I mean it’s, my thing is, privacy and security issues are just sort of this, sort of this dark cloud that I don’t really know details about, and I personally don’t really do anything to protect myself or anything like that. It’s like a generalized sense of, wow, they’re just getting, “they”, “they” meaning not, there’s, it’s not symmetrical, it’s not like this data is accessible to everybody.  There are, whether it’s a corporation that’s collecting this or whether it’s the government there’s this real and balance of who has the data and who can access it and who doesn’t. I would feel better about all of this. If the data were accessible to everybody. But it’s not, and I just find it, it’s a background issue for me. But it’s like wow, large, powerful organizations and corporations have a lot more information than I and my peers will ever have. It gives me a real sense of uneasiness and there’s something not quite right about this, but I haven’t made in the forefront issue.

David: Me too. So I’m not saying, so I want to clear, because it probably sounds like I, let me be clear. I personally am not bothered by the collection of data. I’m not particularly exercised about it.  The American public and the world public has not reacted in a way that would say it’s a mainstream issue; nobody is campaigning on NSA, to control the NSA as a big issue. Even though, perhaps they should be. I share your discomfort, more than discomfort. In fact about it. I would very much like to see whatever sorts of genuine safeguards there can be against the blatant misuse of this information to round up people that the government doesn’t like, we haven’t quite seen that happen yet, but I would like to make sure that when some despicable administration gets elected that their hands are tied. I’m not a lawyer, don’t know how to do that. But it’s really important that we have these safeguards in place and we don’t at this point.

Denise: So, David, and Nina we have put some phrases in our show from time to time from, for people who are listening to the show continuing legal education or other professional credit and we have some listeners who do that. So I think we will make our first phrase for this episode of This Week in Law, “Slingchat”. And, if you write that one down and there will be another one to be named later on in the show. Then you will have an easier time demonstrating to whatever oversight board you are accountable to that you actually listened through the show, and didn’t just put it down on a form and say yes, I listened to episode 264 of this week in law; we can actually verify that for you by burying these little phrases in the show. If you need more information about watching this show for professional credit head on over to find the This Week In Law page there and we’ve got lots of information there for you on how that works. Let’s see, let’s talk about education. David, I know that you are doing a lot of work with the library at Harvard. You just gave the commencement address at Simmons College.

(Webpage: Simmons College webpage: in over our heads, my Simmons College graduate schools commencement address, thank you so much Simmons College, President Drinan and the board.)

Denise: Which, if folks, you know, is there a video of that David? I have read your media post, text.

David: I believe, there were video cameras, the school had video cameras at it, I assume there is but? The vague possibility that it was a newscaster then we can see?

Denise: David’s full address in addition to everything else that we have been discussing today you can get to quickly if you go to week in law/264. All of our discussion points for the show are there. And one of the points that you may in your address David is, is that the overwhelming amount of information that is out there and flows very well’s from what we were just discussing. You know, whether it is information about you that you have access to or not, or just information about the world and the entire body of knowledge, it seems to me that we are at a real turning point in the world of education. And David since you have done so much study and writing on that, I thought we would just get your take.

David: Well, okay, so, the point I was trying to make in that talk was, that portion of the talk was if you Google for cute kittens, you will get 27,000,000 photos of images of cute kittens and there’s apple pie recipes, you get hundreds of thousands or millions of them, and the like, but we don’t feel overwhelmed by those. We talk about Apple high overload or cute kittens overload, but we do talk about information overload. And so the question is why? The answer is simple, which is we don’t feel any responsibility to see all 27,000,000 cat photos or try all those recipes. But for some reason. And there’s actually a good historical reason; we feel that we have a responsibility to master information. The historical reason why is old media, paper, TV, and the like were so limited in what they could give us. They could maintain the illusion that mastery was possible. So, when I was a lad you had a civic responsibility to read a newspaper every day, if you were a good citizen if you did that because what that gave you was the world in 20 minutes. This one set of papers and that seems reasonable, but now we can see that that was a lie. It was an illusion, there is no possibility of mastering everything that’s going on in the world. Mastering the day’s current events or the day’s news because we could see how much there is, it’s the Internet, we can see that there is far more, we could spend all day trying to keep up with world news and still fail at it. And so, I think, in this equation what happens is that we feel overloaded because we feel a sense of obligation as if mastery possible. And I think what’s happening is, we are giving up on the notion of mastering. That we now are able to recognize that the world is far, far bigger and far more interesting than we ever thought it was. So much so that the idea of mastering even a relatively small domain of it is just not plausible. We are giving up on that illusion which I think is a very healthy thing.

Denise: What do you think about higher education? If we are giving up on the notion of mastery, where does something like

(Webpage: Simmons College webpage: in over our heads, my Simmons College graduate schools commencement address, thank you so much Simmons College, President Drinan and the board.)

Denise: Harvard University fit into that equation?

David: Well, so the last thing I want to do is to talk for Harvard University. So, I’m going to leave that to the side.

Denise: Pick a college of your choice.

David: it’s a huge, well, so I will speak a little more generally, it’s a huge, huge issue for education. It’s easy within some domains. If you are a medical doctor. There actually is a body of material the discipline correctly insists that you master, you can’t say, well, I didn’t get around to town depressors, or to cancer symptoms. There is a body of material and the same way with each discipline. Each discipline; if you are a chemist, you do have to know the periodic table of elements, you can’t say, wait, which one is hydrogen and look them up in Google will fast. That’s just not acceptable to be a chemist means you master that discipline. And that is not changing all that much, it is some, but the disciplines are getting messier, which is a good thing. So, universities, colleges still have a job to do in helping us to master sub domains, according to the rules of that subdomain, but this is occurring within the contexts, even within those domains, those disciplines; there are so many links in and out, so many discussions to have, of such a complete and persistence awareness of controversy and contradiction and the fact that, facts and facts don’t settle the way that they used to. That it is I think is changing the overall idea of what it means to be educated and the domain specific ideas about what it means a master or good citizen of that domain.

Denise: What do you think about things like Udacity and the notion written up in the New York Times of a nanodegree? Where perhaps you don’t have a traditional demonstration of mastery through college diploma. But you have taken a course, you haven’t had to go through the entire liberal arts education

(Webpage: the New York Times: The Smart Way To Skip College In Pursuit Of A Job: Udacity-AT&T ‘nanodegree’ offers an entry-level approach to college).

Denise: but you have mastered a particular area through something like Udacity and you are than employable?

David: We are so at the beginning of figuring out how to do online education, especially at massive scale in many instances, these new, these massively online courseware. Are repeating the early days of education where you had somebody on stage, frequently in these early stages, the best lecturers a college has. So these are great courses, but they are very much, initially they have been very much one way, not all of them, but many of them are the broadcast lecture model. We are right at the beginning of figuring out how to admissions and that, what the right balance is, how to manage its scale. I don’t think we are there yet, there’s some promising experiments. The badging or nanodegrees, seem to me to be pretty much inevitable. If you are say, in a developing world, a developing country or developing part of the world is simply don’t have the access to the great educational opportunities that we have had the privilege to have been to; getting a badge saying that you to these three computer science courses at MIT, why wouldn’t that count for something? Why wouldn’t somebody look at that and say, yeah, okay, that counts that matters. It seems to me a little bit inevitable that that would work.

Denise: Yeah, I hope so. I think we’re, we’re at a real crossroads in how people will obtain their mastery and that the whole higher education system is operating in a way that, if it continues on in the way that it’s done over the last several decades, I think that they are going to find themselves disrupted by things like Udacity, well, Udacity leverages, the higher education systems, but you know what I’m getting at. The whole notion that we are going to have selective admissions and charge a lot of money to get you here physically on our campus and that’s how we continue on with our business model.

David: One of the most amazing, sorry

Denise: that’s okay

David: One of the most amazing things to me that is going on  in addition to this new muke staff that is incredibly rich and provocative and interesting; is the assumption now, the norm, if you will, that education should be something done in public, so the public can learn from it. So a place like Stack Overflow. If you were a software developer, you will probably be spending some time at Stack Overflow where people asked question and get responses and get conversations around questions about how to do something with a particular, how to write a particular piece of software code. The assumption is that, if I have a question somebody else may have the same question and you might as well get it answer once, answered well and make it available for everyone. And this is so enriching for the entire ecosystem. This is the opposite of the corrupting influence of bad advertisers, and chills. On the other side of it, there is this idea of public learning that is just amazing. And we take for granted, it is wonderful progress.

Denise: Nina, do you feel like we are living in a better educated world based on the knowledge that people have access to on their desktop?

Nina: well, there’s a difference between education and you know, knowledge and learning. When I think about education. When you take talk about educational institutions, they seem to have a monopoly on learning and knowledge, but they really don’t and it is a strange thing for me to be in this world where people seem to, while there’s just so much emphasis placed on these institutions and here I am at the University of Illinois campus, this is where I grew up. My dad was a math professor, I myself am a proud college graduate dropped out, and I am self-taught. And, you know, being self-taught, I learned things that just simply were not available in college. I mean, I’m sure they are available now, I taught some of these things when I was into your Parsons; but the Internet certainly is amazing. Like I don’t even, yes, you need to go to one in these institutions to get a mark or a degree, but to get actual information and to actually learn things. There is so much available. And yes, it is an incredible time, to the point where I am almost forgetting about how I used to do my usual research. Now is just Google image search, it’s great. I used to have a wall of books that I had to slowly and painstakingly collect and just pictures of everything’s. And if I needed to draw a thing, I had to figure out where that picture might be. And that would take all day looking for it and now it’s just, ‘Boop.’ And that is learning. Anyway, I have sort of an anarchistic take on educational institutions, so in terms of what they ought to be doing. I really can’t say. There’s a whole world out there beyond them. And I also wanted to say that, what seems to me to be the value of a degree is not evidence of learning. Because there are many people that can demonstrate mastery of all kinds of things but if they don’t have that degree; they certainly won’t be hired by universities. So, to me, everything the value of the university degree shows that you can deal with the university, you can deal with that institution which is a very special skill. And I guess that’s what you master in a college, is dealing with the college.

Denise: Yes, and there will be lots of employers who for a long time will find that a valuable skill to learn to that you have managed to work within the system. David you had another post on Joho the blog that is right in line with stuff that we love to talk about here on this week in law on two fronts. This was about, this was your post entitled, and will your Google car sacrifice you for this safe of many and network road neutrality. So, we definitely have had several good conversations about the algorithms that will go into programming your self-driving car and deciding when it’s going to swerve, and who it’s going to hit and not hit, which is what the first part of the post deals with. And then the second part is a wonderful turn around because through the whole net neutrality discussions of late. We’ve been frequently bringing up

(Webpage: JoHo the blog: Will a Google car sacrifice you for the sake of many? (And Networked Road Neutrality)

Denise: highways and traffic and fast lanes and HOV lanes on the highway as examples of how an Internet fast lane would work, well, you’re kind of flipping that around and say, once these cars are all driving themselves. We are going to have to make those same sorts of decisions for the road. And how are we going to decide who gets to drive in what lane, when the cars are all driving themselves. So, this is just a fascinating post and wondered if you could expand on it for us, let us know more about network road neutrality.

David: sure, so the fundamental idea is in the post. What happens when cars are network and they swarm and how does that change in the first half of it of the post; as it’s changed the moral philosophy behind the programming. Because once they are all networked the network can decide the outcome; with the least harm in the case of some accidents about to happen, requires that the car that I in, the Google car that I am in needs to slam into a bridge abutment and kill me because that will save, the overall outcome will be less painful. And are we okay with cars deciding to kill some of their occupants for the greater good. And I would actually say yeah, I wouldn’t be too happy. But for the greater good. And so the second half is when they are networked and you need some type of rules to determine, who goes faster and if we are going to apply network neutrality, which I strongly support by the way, very much so. If we apply those to the rules of networked cars, we can certainly imagine that Google cars are all following some protocol and a Comcast car comes along and decides it really wants to game the system, it’s car gets more benefits if you can pay the Comcast car to go faster than, to violate the protocol and go faster than Google swarms and we other cars have agreed upon. And if that’s the case, first of all, how do you feel about it. And second of all, of course. This ink stamps emergency vehicles, they would probably let them through anyway. But this is some rich guy who wants to go fast and so pays to have his car violate the rules, and if they do. The post wonders if whether Google cars could be programmed to swarm in order to block out the Comcast car so simply physically it cannot violate the protocols that have been agreed upon. I have no idea. Of course, what this should be, but we are going to have to figure out protocols, much like the Internet protocols to govern this. I sure people are working on this, I don’t know about them. Maybe I should prefer wind, I don’t know if you want to pursue this, Denise?

Denise: sure.

David: The T-Mobile’s offer to, they will give you on limited, they will remove, sorry, songs downloaded streamed through them through approved streamers will not count against your data. Which sounds like a wonderful offer, but seems also a rank violation of net neutrality. And this is a case where I am a little worried that people will look at it and say. “Wait, I want that, why wouldn’t I want that.”

(Webpage: Crunchbase: T-Mobile stops counting data used with Spotify, Pandora, and certain other music services)

David: and the reason you wouldn’t want that is, because it establishes a precedent. A precedent, not a legal one, that yeah, we’re in favor of net neutrality when it’s our bits are going faster.

Denise: Yeah, exactly. And I think we are going to see more and more of this data cap not counting kinds of arrangements moving forwards. I don’t think T-Mobile was the first one, I’m struggling to remember what was. And I know we have talked about it on the show in the past, but I sense an opening of the dike along these lines, particularly when we hear in September what be open net rules are going to look like for good, or at least the current iteration becomes final. Nina, what do you think about — I think one of — that, exactly what David was describing — the cars all trying to broker their relationship with the road would make a great animated short.

Nina: (Laughs)

David: Oh, yeah. (Laughs)

Nina: I think you could probably do a computer-generated simulation of that. It's fascinating to think about. I love what David is saying. (Laughs) I was just like, Wow, that is so interesting. That is so insightful. Hmmm.

Denise: Yes.

Nina: But seeing that I've spent practically no time really thinking about this, I don't have much intelligent to say about it.

Denise: All right.

David: It doesn't stop me.

Nina: (Laughs)

Denise: No. Never.

Nina: I will say that I still don't have a driver's license. Moving back here after New York, I planned to get one, and then I got a learner's permit; and then it expired because the winter was so horrible. There was ice and potholes and huge lines at the DMV. So all the Google car news — I'm just like, Great. There'll probably be a Google car before I get a driver's license.

Denise: Right. You're the perfect use case for the Google car. (Laughs)

Nina: (Laughs)

Denise: All right.

Nina: It'll track all my movements, and I'll be like, Fine.

David: (Laughs)

Denise: All right. Speaking of using things and one's ability to do so, let's move on to some copyright discussion.

(Music plays for a few seconds.)

Denise: All right. Nina, you have done a great video that I'd love to be able to, with your permission, play in full, that is —

Nina: Do you need my permission?

Denise: Yes. (Laughs)

Nina: You do? Wait, what video is it? (Laughs)

Denise: No, I don't need — I don't need your permission because I know that it is a Creative Commons licensed for us to play it, which is wonderful.

As we're getting it ready, Nina, why don't you tell us, what was your idea in making this video? Why did you go to the Metropolitan Museum of Art and start taking pictures?

Nina: Oh, well, the idea is that — I think it was Lawrence Lessig that coined the term "all creative work builds on what came before." Or it was probably before him, right, because that came before, too. And I figure there's evidence of this all throughout art history; so you walk through the Met or any other museum, and you can — usually, things are grouped according to region, and you can walk through an exhibit and it'll move through time; and you can see very clearly how styles and conventions in art evolved. And clearly, people were looking at other things, and that's simply the nature of art. And you walk through a museum like that and imagine patents, copyright, and trademark law — none of this art could have happened. You would have a stick figure somewhere and then nothing else. So I was just trying to visually show the similarities between works. I did take some liberties, though; and for aesthetic reasons, it deviated from that occasionally.

(The video begins.)

Denise: So everything about this video's public domain or licensed for your use. Tell us about the music.

Nina: Oh, that music is by Todd Michaelson, who did the music for Sita Sings the Blues. It's actually a piece of music that was available for Sita Sings the Blues, but I didn't have a place to put it; so it just ended up on this. But I would love to talk about my current thinking on licenses and free culture because it's changed in the last year or two.

Denise: Good. Well, we don't have to play the video in its entirety. People who are watching our video are getting the idea that —

Nina: Yeah.

Denise: — when you take photographs of art and mash them together, you can get a wonderful animation out of it that leapfrogs through periods of time in the centuries. And it's very, very cool, Nina; I really enjoy the video.

Nina: Thanks. Yeah, like, with those Indian statues or Asian statues, they are so — there are enough statues like that that are so similar to each other that you can actually make an animated cycle out of completely different statues; but it reads as a single movement.

Denise: Right.

David: That is so awesome.

Denise: Yeah, it is.

Nina: Oh, thank you. Yeah, it's kind of a long one. It's from a series called Minute Memes where all the other ones were a minute; but this one is a whopping three minutes, which is very long. Oh, yeah — I was also thinking about the whole, like, there are certain postures, like the posture of Jesus that I have there. It's like, somebody could trademark this, right?

David: (Laughs)

Nina: "That's trademark. You put someone in that position. That's mine."

David: (Laughs)

Nina: Or the figure with the wings.

Denise: Yes.

Nina: A human being with wings. Those weren't everywhere; they were usually in regions where people were seeing that somebody else had put wings on a person and was like, "That looks really cool." Or animals or things like that. Right.

Oh, yes. So I was going to talk about licensing, unless you have any other questions about that.

Denise: No, tell us your current take on licensing and creativity.

Nina: Oh, right. Yes. So I have been a huge advocate of free licenses, but I realized that, in spite of using these free licenses, I get permission requests all the time for things that are freely licensed where I go out of my way to let everybody know that they already have permission for it. And the permission requests keep coming, and the paperwork keeps coming; and I'm in these situations where it's like, Well, you have to sign this paperwork before our lawyers will allow us to use this thing that you have gone out of your way to free. So the free licenses are not really solving the free culture problems that I care about because, to me, it's really important that people build upon other works.

Denise: So you're hearing from — even though you have something that's Creative Commons licensed that you've created that's out there for anybody to use for any purpose, you're still hearing from legal departments saying, "We still need her to sign something."

Nina: Yeah. And by the way, I have a little peeve about the Creative Commons licensed phrase because there's all kinds of Creative Commons licenses; it's just a brand of a number of different licenses, some of which are free, some of which are not free. That goes back to the whole non-commercial thing, non-commercial license, you know.

Denise: Sure.

Nina: Licenses with non-commercial restrictions aren't free, and they're all sort of lumped together in the popular imagination somehow. A lot of people assume that even though I was using a ShareAlike license, they assume that there were these non-commercial restrictions, which there never were. And Sita Sings the Blues I released under the ShareAlike license; but then there was this problem of some people — it's not clear what the freest kind of license is. Like, is it ShareAlike, where you can do anything with it except place copyright restrictions on it; or is it just Public Domain, where you are free to remove the freedoms of a free license? (Laughs) You can restrict this thing that is free in derivative works. So Sita was initially ShareAlike, and then I switched to just CC0 or Public Domain —

Denise: Right.

Nina: — because the National Film Board of Canada was insisting that I sign some fairly elaborate paperwork to allow a filmmaker to have an image of Sita somewhere in an audience in his movie which, even if it were copyrighted, that wouldn't be necessary. That would have been fair use. It was like a 3D animated movie, and he just had all these characters in an audience and Sita was one of them. That would have been fine; that's fair use. But they wanted me to sign all this stuff; and I was like, "Look, this is ShareAlike. It's fine." And they're like, "No, no, ShareAlike is viral, and you're going to make us ShareAlike our entire movie." And so I said, "Okay. fine, then. I'm just going to change the whole license to CC0 so I'll never have to sign any of these papers ever again." And they still wouldn't accept that, and they were basically telling the filmmaker that he had to go back to his film and take this picture of Sita's head out of his film because I wasn't willing to sign this paperwork for the thing that I had put in the public domain. And that was right around the time that Aaron Schwartz died, and I was like, This is, like, insane. This world is insane."

Denise: Yeah.

Nina: And it felt like a real moral affront to me that they were doing this and that I had to sign a stack of papers or they were going to censor this film. I mean, themselves, willingly. It's not like the government was doing it; this was the film production's own — this was — the National Film Board of Canada's own lawyers were going to make the filmmaker do this. So anyway, the issue with licenses — there's no license that's going to solve a problem. The issue is permission culture. So my focus now is, what do you do about permission culture and the fact that people are so obsessed with basically stifling creativity until there's some kind of authority that allows them to express themselves? I think there's something fundamentally wrong with people's thinking about creativity, where the first thing you do is talk to a lawyer. And that's in contrast to that short that you just showed where — this is showing, like, the history of human creativity and where it just flows very naturally. I feel like that is a human entitlement and it's part of the human experience to be ingesting and expressing culture and being inspired and sharing and all that. So anyway, licenses don't solve the problem. For me, the greatest hope and greatest inspiration is in people that are increasingly ignoring the copyright status of anything. People are very confused by licenses, and they're very, very confused by copyright itself. And that's fine with me because people are going ahead and putting things out there anyway; and that is actually what gives me the most hope. So I want to encourage that sort of behavior, which I realize is illegal in this world, but there is this concept called civil disobedience, which is a powerful force. So — yeah, intellectual disobedience. If it's intellectual property we're talking about, then intellectual disobedience is the solution.

Denise: All right. Well, that's very in keeping with what David was saying earlier about privacy and privacy law and norms, and the fact that our law develops and evolves around the norms that are applicable and widely accepted at the time. And I think that you've hit on something very important, Nina — that as people become more and more confused and more and more willing to just ignore, as you say, that the law will shift, that we're — it can go one of two ways. I mean, what we've seen in the last several decades is copyright terms becoming longer and longer rather than shrinking down to reflect things like patent terms of 20 years. Now we've got life plus 70 in the United States as the copyright term, which is very decimating to the public domain where you're trying to put works. There's some great articles discussing this. Derek [unintelligible] wrote one about all of the Disney works that are built on public — themselves built on public domain works but cannot be built on themselves because of the length of the copyright that Disney has advocated for. And something else to bear in mind is the proposed trans-Pacific Partnership Treaty — which is still out there and people are still hammering away on and possibly finalizing before too long here — let's see. We have some people proposing to extend the term under the  TPP to what Mexico does, which is life plus a hundred. So definitely something to pay attention to there. But I think people are paying attention. In Washington, there is a lot of discussion right now about copyright reform and whether our norms are properly reflecting what society actually deems proper and acceptable right now. So I think it's a really interesting topic, and I really appreciate your views on it, Nina, and of course your laboring despite armies of lawyers to contribute things to the public domain for people to use.

Nina: (Laughs)

Denise: David, as an author, do you have any thoughts on the status of copyright law and how our norms are possibly impacting it?

David: Well, right now, the norms are not impacting the law. As you say, it just gets worse and worse and worse, longer and longer.

Denise: Yeah.

David: The — one of the things that really bothers me — again, as an old man — is, I've seen the assumption about copyright change, at least within the circle; but I've been — I haven't studied this. From a belief that copyright is designed to enable arts and sciences to flourish as it says in our Constitution, in which case you tend towards much, much shorter terms. Because, as you say, 70 years after you're dead — we're not talking about enabling culture to flourish; we're talking about letting Disney flourish. And I don't actually care that much about Disney. I care much more about culture. So it has shifted from copyright as a mechanism for enabling a vibrant, robust, flourishing culture, to copyright being a moral right that authors and creators increasingly — it seems to me, in my experience — feel that copyright is giving them something that they have a moral right to, that it's their work, and they should be — it's wrong if somebody else benefits from their work. So copyright term runs out; the work gets republished; a publisher makes money from it; the author doesn't make any money from it. That now seems morally wrong. It didn't seem morally wrong 30 years ago in the — at least within the culture in which I moved. And I think it's very bad that it has shifted to a moral right because it forgets the very first thing that Nina said in quoting Lessig and — Lessig, who is in a long line of people who have understood — going at least — Benjamin Franklin didn't patent anything because he — explicitly because he understood that any idea that he had is just the latest little flourish on a long history of ideas that came before him. So it's really dangerous, from my point of view, that we've allowed copyright to become a matter of moral right instead of a primary way of enabling culture to flourish, which also means that we are losing the very first thing that Nina said: the sense that all of our great ideas — they're a little twist on what came before us, and they're not really our ideas. So it's a pretty depressing time. The people who are in a position to reform copyright, the people who are in power, the people who have the money to buy politicians, have, apparently, zero interest in reforming copyright. They instead want to enshrine it as a perpetual right that goes to an author on some specious moral ground.

Denise: Well, not to pile on the depressing note just stricken there, but if people like unicorns, they'd better pay attention to this issue and make sure that copyright is not too confining. That is the message of a little cartoon that one of our listeners sent my way on Twitter. We could show that, I hope. It's in French. It says, "Pour quoi les licornes ont disparu," which I believe means "Why the unicorns are disappearing." (Laughs)

David: (Laughs)

Denise: And here we have, for those who can't see it, a cute little unicorn with its horn and rainbow tail and mane; and then a narwhal swims up to it in the river next door and hands it a copyright infringement notice; and the final frame is the poor little unicorn in black and white, minus its horn, minus its rainbow mane and tail and looking quite sad. So we do have to be mindful of what happens when a copyright is too extreme.

David: Could I say something?

Denise:  YES.

David: Could I say something positive or encouraging?

Denise: Please.

David: Which is — so I'm a boomer. I'm 63. I went to college '68 to '72, so pretty much prime hippie time. My entire generation smoked pot, and there was no — still, even so — there was no movement towards legalizing marijuana until the next generation came along. And in the same way — I hope this is not the case, but it's better than nothing — this may take another generation to get copyright because we do have a generation whose norms have shifted, who —

Denise: Yeah.

David: They download what they want; they watch what they want; and culture is enriched because of it. It may be that it will take that long, but it may happen. May still happen.

Nina: Yeah. My —

Denise: Yeah. That's an excellent point. I think our second MCLE pass phrase for the show will then be "legalized sharing."

Nina: My current project that I'm doing is about the Exodus story. It's called Seder Masocism.

Denise: (Laughs)

Nina: And this whole 40 years in the desert metaphor is pretty apt when it comes to copyright. You have to have this whole generation of people die before you can get to the promised land.

Denise: All right. Well, I hope it happens sooner than that. It certainly —

Nina: I don't think it will. (Laughs)

Denise: Yeah. There certainly are competing interests in Washington. But this is the first time that I can really recall there being any kind of discussion and public opinion to the point where people are making cartoons about sad unicorns. (Laughs) That is an influence on people in Washington in an opposite direction, in the non-rights-holder strong copyright direction. So I don't know; I think I'm maybe a shade more optimistic that we don't need to spend 40 years waiting for it. But who knows? It's certainly been a while, and we're not seeing much movement.

So on that note, I think I'll give you all the opportunity to have a snack. Because, at least here in California, it's past lunchtime and you're probably getting the munchies about now, especially with David reminding us all that in certain places in the country, marijuana has become legal for recreational, not just medicinal, purposes.

David: (Laughs)

Denise: So you know what you might want to grab and have handy is something good to eat, and that's NatureBox. You know, it's easy to talk about eating right; but when you're starving, either at lunchtime or 3 PM or at 3 AM, whenever the munchies strike you — all cranky and lightheaded — you don't want the evil vending machine to be your only friend. You want to keep your eye on looking and feeling great. And that's why you want to go to Now, I'll tell you, my only complaint about this product is we can't keep enough of it on hand. One box a month isn't enough. I need an option where we can get two or three coming because we rip through it all so quickly. But you're going to want to start out with one of their subscription options. The longer you subscribe, the better pricing you get. Then, once you place your order, you can select which snacks you'd like in your monthly box. You can select by your dietary needs. There are vegan options, soy free, gluten conscious, lactose free, nut free, and non-GMO. You can also select by taste: savory, sweet, or spicy. And then, NatureBox is going to send you great-tasting snacks right to your door with free shipping anywhere in the U.S. That's healthy, satisfying snacks — poppyseed sticks, peppery pistachios, over a hundred more — all with zero trans-fat and zero high-fructose corn syrup and nothing artificial. NatureBox is the snack-happy gift that keeps on giving. That's available in a 3-, 6-, or 12-month subscription for that special someone, friend, or family member. And don't forget — it's June. It's — if you're not wearing a bathing suit, you know what? I am. Right now, after this show, I'm headed down to the beach. So I'm paying attention to what kinds of snacks I'm putting in my also-aging body. And they're not coming from a vending machine; they're coming from NatureBox. You're going to find really, really delicious food there, big island pineapple being one of the choices. So don't take my word for it, and don't pay full price. There's no reason to do that. You can get 50 percent off your first box by going to It's going to keep you full and strong and healthy. Thank you so much, NatureBox, for your support of This Week in Law. Hashtag, Ad.

Nina: (Laughs)

Denise: In case you needed any enlightenment on that front.

I think we will move on to our tip of the week, which is — we were talking about people who were all in or all out on the privacy front, how much information they put about themselves online. Part of our — it seems like our tips of the week are sort of a version of the Dumb Ways to Die app — you know, people who've done something just a little bit too far. I'd say this is maybe too all in, even despite — worse than Robert Scoble — exhibiting no judgment whatsoever, not just in his course of actions; but then sharing them all online. This would be a 19-year-old in Florida, of course. His name was — is — Dupree Johnson, and what Mr. Johnson did was get himself slapped with 142 felony counts. He decided to put his massive collection of stolen firearms on Instagram, and lots and lots of pictures of him engaged in illegal activities with his buddies and holding stacks of cash. He's nothing if not honest, though. Apparently, the police asked him his occupation, and he replied, "Thief." So the guy was very all-in, very transparent. Unfortunately, this was not a good choice on his part. So our tip of the week is, all-in works when you are behaving in societally acceptable, legal ways.

And then our resources of the week are twofold. Number one: we're talking about things like Fair Use. I think you could have a lengthy Fair Use discussion about a video I'd like to play for you now, a mashup of the Book of Mormon and South Park. Again, one of our listeners pointed me toward this on Twitter. Thank you so much for the pointer. Let's queue it up and play a bit here.

(The video begins.)

Denise: (Laughs) So I think what happened here is the animator decided that South Park and the "Hello!" song from The Book of Mormon would go well together; and, using clips from South Park, created this animation. I'm not sure if the Mormons were in an actual South Park episode, or if he did that animation separately. Obviously, some of the animation is right off the show, and he's used the entirety of the Book of Mormon song, but it's certainly transformative. I think you could have a really vibrant Fair Use discussion about that. So I wanted to give it to you guys as our resource of the week, just to ponder the nature of Fair Use. And the song is still up. It's — someone in IRC is asking if it's a possible takedown. It certainly is, I'd say, based on the music, but so far the video is up, and we'll just have to watch that one and see if they have to go through the "notice and takedown" process or not. Nina, do you have any Fair Use thoughts on The Book of Mormon mashed up with South Park?

Nina: Yeah. Well, Parker and Stone are not idiots.

Denise: Yeah.

Nina: And if they are aware of this, I'm sure they would do everything that they can to make sure it is not taken down. I could imagine an auto-takedown — you know, a robot doing it.

Denise: Right.

Nina: But I'm — they would not do something that dumb.

Denise: No, but the Book of Mormon Rights-holders might. JUST based on the music, it might trigger content ID.

Nina: Well, who are Book of Mormon rights-holders? They wrote the Book of Mormon. I mean, it's their play.

Denise: No. No, no, no. I mean the — right. The music and the folks who are responsible for the musical.

Nina: But they are. They are responsible for the musical. Parker and Stone — the same people that did South Park are responsible for the Book of Mormon musical. It's their musical.

Denise: Oh! I did not know this. This is news to me.

Nina: Yeah.

Denise: I'm learning something from our resource of the week.

Nina: (Laughs)

Denise: All the more reason I have to get out and see that show.

Nina: (Laughs) Yes, it's a good show. They —

Denise: And all the more reason the — the mashup is —

Nina: They collaborated with people that worked on Avenue Q, and probably many other people. But yeah, they're responsible for it.

Denise: All right. So that may explain why it's not getting taken down. That's wonderful.

Nina: (Laughs)

Denise: Well, yes. And again, it's a great commentary, then, by mashing the two together. So I — great little Fair Use brainteaser there. And then we thought that today we might be discussing the Supreme Court's decision in Aereo. That's not the case; the court did not issue that decision this week. It has a short amount of time in which to do so before the end of its term. We might see it next Monday; we might see it next Thursday; or we might see it the following Monday, June 30th. So of course, we're keeping an eye on that. And in the meantime — (Laughs) — and the beginning of this article that we're pointing to as our resource about Aereo by Matt Schruers is — he kicks things off by saying, "As the IP nerd vigil over Aereo continues ..." And he's done a great service to those holding that vigil by going through every possible kind of outcome that the court could give us. What happens if the lower court's decision is affirmed? What happens if it's reversed, either narrowly or broadly? What happens if the decision below is vacated or remanded? What happens if we can't get consensus from the justices? And some other even less likely outcomes; he's gone through them all, so if you're wanting your primer on what may happen in Aereo in the next week and a half or so, this is what you want to read.

It's been so fun to go through these big issues with you guys today. David, just such a pleasure to reconnect with you. Tell us more what you're doing at Harvard these days and — you must have a book in the works.

David: It's wonderful to talk with you as well. I sort of have a beginning of a book in the works. It has something to do with how we think about the future in an age of platforms. Until September, I co-direct the Library Innovation Lab, which is a little software lab that does — we have fantastic developers who do amazing things trying to think about the future of libraries and software. And so —

Denise: Very cool. We're so glad that you could take the time to join us today. Folks, definitely check out Joho the Blog, and David's books that are already published and available for you to read because they'll really help you think about information and the world we live in today.

And Nina, it's just a great pleasure to have you back on the show. You're so talented and so funny and such a great advocate for free culture and copyright reform, and we're thrilled to have had the chance to spend some time with you today as well.

Nina: Thanks so much. It was fun. And David's very cool. I really liked hearing what he had to say.

Denise: He is, isn't he?

David: Well, that — you are awesome. How about that?

Denise: (Laughs)

Nina: No. You're awesome. (Laughs)

David: No, you are. (Laughs)

Denise: (Laughs)

David: But actually, you are, so —

Nina: The word "awesome" is apparently passé, and here I am at the University of Illinois, where apparently we have, like, a fantastic library school. So I don't know if you ever —

David: You do? Oh, you —

Nina: — come through Champagne or Bana, let me know.

David: You have an awesome — your library school is fantastic. Seriously.

Denise and Nina: (Laugh)

David: Awesome. Absolutely awesome.

Nina: Come on by.

Denise: Well, since the Lego movie just came out on-demand and everything else, I've got "everything is awesome" on constant repeat in my brain. So everything is awesome, and you guys are, too. And it's been so fun doing the show with you today. We do the show every Friday at 11:00 Pacific Time, 1800UTC, so that's when you should tune in if you're going to watch live. If you can't watch live, don't worry about it because you can watch the show on your own time by going to — is where our archive of shows lives. Or you can head on over to the YouTube channel; that's at ThisWeekinLaw on YouTube. Yeah, is where you're going to find that. Our discussion points are at, and then the particular show number if you want to see more about what we have considered today or on any of the other shows. And one thing I should mention is: right after the show wraps each week, I always go and find a Creative Commons licensed image on Flickr. And I don't ask anybody's permission, and I don't make them sign extra paperwork. (Laughs)

Nina: Yay! (Laughs)

Denise: I just go ahead and use the image based on the Creative Commons license that —

David: Pirate.

Nina: (Laughs)

Denise: Yes. — that they have.

Nina: I think you need to cover your butt a little more.

Denise: That's right. It's funny. I mean, people do change their licenses from time to time, so you do want to pay attention to what license you're using and what it gives you the rights to do. But I'm always careful to use the one that has — that is available for commercial use. And we use those images — sometimes we use them on the show page while we're waiting to put up the video; or it might be the image that you see exactly when you're about to watch the video. We use them on our Facebook page; we use them on our Google+ page to change up the covers there each week; and I always tweet them out, too, so that's our way of supporting the whole Creative Commons universe of works, which has literally tens of millions of photographs on Flickr that are now under Creative Commons licensing. And we can always find something fun that fits one of the themes of the show. So just wanted to mention that; we hardly ever talk about the fact that we do that and that we rely heavily on the Creative Commons universe to help produce the show each week; and that the shows themselves, too. We should mention all the TWIT shows are under a Creative Commons license. And I'm wondering how much the business office — the studio in Petaluma — gets mail like you've described, Nina, of people wanting to use the show under the license but wanting to just belt-and-suspenders the whole process. I'm sure that happens from time to time as well.

Let's see. What else should I tell you? If you want to get in touch by email I'm; and Evan, my cohost who will be back next week is You can, and should, find us on Twitter, too. We put a bunch of stuff on the show today that came to us from people on Twitter. I'm dhowell there; Evan is internetcases there. We also pay attention to our Facebook page and Google+ page and community, so if you need a little bit more space and don't feel like emailing us, that would be the way to go. And we will see you next week on This Week in Law! Thanks so much for joining us today.

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