This Week in Law 266 (Transcript)
Denise Howell: Hi folks, I’m Denise Howell and you’re joining us for This Week In Law and thank goodness you are we have Randal Schwartz from Floss Weekly joining us as well as, Deidre Keller, Evan Brown and me. And please, help us were being repressed. We are going to talk about extreme Lennix, we’re going to talk about fair use, popcorn times, the latest from Aereo and what the heck is the IRS doing to open source nonprofits. All next on This Week in Law.
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This is This Week in Law with Denise Howell and Evan Brown, episode 266, recorded July 11, 2014
Porncops and Popcorn
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Denise: Hi folks, it’s Denise Howell, and you’re joining us for this week in law, thank you so much for joining us this week! We took off last week, so it’s great to be back after the Fourth of July and I hope you had some good celebrating if you’re here in the US. I know one of our guests has definitely been celebrating this week. Randolph Schwartz is joining us from Floss Weekly, and you just had your 300th episode
(Webpage: TWiT: Floss Weekly)
Randal Schwartz: (twit.tv/floss - @merlyn) We did, in fact. It was really a privilege. It has been a privilege to do the show all along, but it was really fun also to have a celebratory show. 300 episodes long we actually had Chris DiBona who actually created the show with Leo, way back in 2007. 2006, I think actually, come on the show midway through as sort of a mystery caller. I brought them on, and I said, we have a caller, who is this? And it turned out to be Kris it was real fun, and so we got to talk about how he created the show, and he was happy for us that we had gone all the way through. And it was a good time to reflect back. It was a lot of fun. Glad I could do that.
Denise: I’m glad you did too, that is a great show to catch. Floss Weekly of course, is a sister show of ours here on the TWiT network. And since open source software is all about pursuing a different kind of legal licensee strategy towards software and marketing and sales or if there are even sales involved. We thought it would be a great complementary thing to have Randal come on the show, I actually wanted to have you on the show for a long time. It’s great, you could join us.
Randal: Well, thanks for having me on.
Denise: Also joining us is Deidre Keller from Ohio Northern University law school. Where she teaches a number of subjects that touch on intellectual property and the Internet, Deidre great to have you.
Deidré Keller: it is very nice to be here. Thank you.
Denise: Tell us about your background, how long have you taught at ONU and what are you teaching next term?
Deidré: (@onulaw) Sure, I been here at Ohio Northern since the fall of 2010, in the fall this year I will be teaching property to first-year students and intellectual property, the survey course. Before I came here, I worked in trademark and copyright in law firms in Atlanta.
Denise: Very fun, we’re thrilled to have you on the show as well. And coming off his Fourth of July celebration, my cohost Evan Brown, hello Evan.
Evan Brown: Hey, Denise, yeah glad to be back. It was a nice break, but good to pick up the conversation again. Randal good to finally meet you. Enjoyed the show as long as you have been on Floss Weekly. Deidre really nice to meet you. So we ought to have some fun today.
Denise: We will, in deed. Let’s visit the technology and law intersection from last week’s Fourth of July celebrations in the US. Let’s take a look at some video, I don’t know about you guys but as I was watching the fireworks in our community, we did spot a drone that was up, it didn’t fly into the fireworks, but it was definitely taking video from right next to them. And we thought that was pretty gutsy, about not just from the legal standpoint, but putting your drone in jeopardy. So there was a good story and a follow-up story over at Forbes about the legal ramifications about doing this. Let’s take a look at what we’re talking about
(YouTube video: Fireworks filmed with the drone by Jos Stiglingh)
Denise: so, this particular drone, as I understand it from the coverage at, and I’m going to pull that up for you so I can tell you exactly who wrote those articles, one second here. As you can see, and you probably saw last week after the fourth because this video was making the rounds, this and others. They are was not just flying by but into the fireworks involved, you know, the streaks of light going right by the drone and obviously, it made for some spectacular video, but, as Gregory McNeill, who himself is a law professor. He teaches at, let me find his school, scroll more quickly here, he teaches, I’m not sure where, but he teaches law and public policy. I’m going to pull up his background for you. He did a great story on this and the legal ramifications and also got a follow-up from the FAA, who commented they were going to be investigating. I’m thinking this is the first year we have had a good deal of drones in or near fireworks. He has a long bio here. We are actually going to try and get Gregory McNeill on the show to talk more about this. Oh, here we go.
Evan: are you sort of fighting with the Forbes bio over this, what I’m trying to do is?
Denise: he’s a Forbes contributor, assistant director for the Institute of global security for the US Department of Justice,
Evan: That was in his previous life, right?
Denise: (bagandbaggage.com - @dhowell) lots of law review articles. I’m not sure where he’s teaching these days. We will, you can follow him on Twitter @Gregory McNeill. So hopefully it will be more apparent there. He’s all over the media in various places. Anyway his point was that even if this particular fireworks display, that we are watching seems, it wasn’t involved in the Fourth of July it happened earlier this year in May down in Florida. But there are all kinds of federal and possible local regulations that would prohibit you from flying your drone into fireworks because of the safety considerations. The drone could get hit, and obviously splinter and harms someone. The fireworks could get knocked off course and go somewhere where fireworks should not go including sideways rather than up. So there are lots of reasons why drones and fireworks might not be something that you would want to do. His point was that you could find yourself committing a federal crime under various laws. If you went ahead and did this thinking that it would just be fun to get the great footage. So, the FAA, has actually responded to his request for comments, told him that are looking into multiple incidents in which unmanned aircraft flew into fireworks displays to determine if there was any violation of federal regulation or air space restrictions. They seemed to be more flights into fireworks than flights near fireworks so Gregory concludes that’s good for people who hoped to safely create stunning videos of the displays. So I just wanted to toss this out and see what you guys thought about it, see if I am the only one who saw a drone buzzing around fireworks this year. Evan in your neck of the woods?
Evan: (infolawgroup.com - @internetcases) No, I was in southern Indiana and watching fireworks display down there. Didn’t see any drones there but I did see that video that was going around it turns out it was actually filmed in May, right? Down in Florida. But it gained popularity over the Fourth of July weekend. That one that we were showing there. Certainly an interesting issue, and yeah, a lot of these observations are pretty common since. I think that Gregory’s point was this could be a violation of different regulations in as much as designated as a protected space and so there is a certain period of time which that space has a bit more sanctity or what have you. You’re more restricted in what you can do there, flying a drone through their. So, I think that’s all well and good, and it’s intriguing and maybe the law is a little unsettled it would vary from jurisdiction to jurisdiction. I’m sure not every space would be cordoned off as federal protected. But there is also the risk that an individual would have with civil liability on this. I mean, good grief, you don’t have to use your imagination a whole lot to see how this could go bad. The firework could hit the drone in itself and cause debris to be strewn about, or it could cause the pyrotechnic itself to go off course. Those are things that you talked about. Seems like even the percussion of the shells exploding could do some damage to the drone here. To the extent that that causes injury, I don’t think you’re going to have much of a difficulty as a plaintiff in a tort case to say that the person flying the drone wasn’t only reckless, but, wasn’t only negligible, but probably was reckless. Consciously disregarding the substantial risk that that could happen, and that people could get injured there. So, I think that is one point in the legal commentary, I haven’t seen anything about that, but it is sort of self-evident. I believe that doing this, you could land in federal prison, but you could also find yourself being the defendant in a very expensive personal injury or worse, a wrongful death lawsuit as well. And that’s nothing that we need to get on novel and evaluate too many novel legal issues to get to.
Denise: Randal, I suppose there is an open source spin to this as I imagine there are a lot of open source software that must power drones out there?
Randal: Yeah, actually we interviewed a couple people who are doing the open pilot project. But I was going to come at this from a pilot’s perspective, I’m a 270 hour in the left seat and I’m sort of wondering if there was a TFR out, tipper flight restriction rule, around this firework area. And if there was then that would automatically make any flight of the drone a violation of the federal rules. The other thing is that the chat room said this was less than a mile from one of the airports and I know that also from reading the FAA reading on this so far, that if you are doing any drone flying within 5 miles you are supposed to notify the airport control tower. And so I am wondering if there are a couple aspects of this already that was just on its face wrong from that perspective. Because I would hate to be trying to land the plane and have a little drone fly in front of me, either destroy the drone or have the drone be enough of a distraction that I would also fail my land. So, these are becoming more commonplace; back to the open source aspect of it. Stuff like open pilot allows somebody who has almost no flight ability, no. Back in the early days when you were running a Quad copter, you had to actually be about as good as a helicopter pilot in terms of managing the flow and the balance, and all that. But now you got stuff you just type in a command. You can go: go to 50 feet, now go to this GPS coordinates, and the thing has its own GPS, and its own leveling, and it can just fly wherever it wants to. And they are so cheap now. For less than 500 bucks you can buy the drone probably that video was taken with. And I’m concerned that we are going to see a lot more of these happening, we really have to get the rules down.
Denise: Yeah, and it seems like the public really needs to be educated about what those rules are. One of professors McNeil’s points was in one of his articles, there are already a lot of laws on the books that are going to arguably apply to and make this activity, actionable or possibly criminal without even enacting laws that specifically apply to drones. So, I just don’t think people pick up this,, there drone at the hobby store and launch it into the fireworks or other areas, I don’t think there is a real connection between what people are able to do and what the law would prefer they not do. Deidre, you have any thoughts on this?
Deidré: I can’t say definitively there were no drones at fireworks celebrations here in Northwest Ohio now that I saw.
Denise: Yep, that’s good. Although we saw a lot of interesting stuff lying around this year. Not just, we live on a strange sort of precipice between two communities. One where fireworks are illegal and one where they are, so all you really have to do is walk over the border and you completely entered another universe where things are flying around that clearly are not legal. But I think law enforcement is just so overwhelmed on the Fourth of July that they can’t squelch every bit of the illegal activity. So, the more drones that are flying around that gets even more complicated. Let us move on to some copyright stories in the news this week.
(Advertisement: music playing: VCR machine with tape popping out that says “copyright law” on tape, on binder of VCR tape ejecting from VCR machine; FBI warning label behind Copyright Law)
Denise: Let’s talk about their use briefly. We are coming up on yet another presidential campaign era. And Deidre has written in the past about using copyrighted political content in political campaigns. This is something that seems to come up every single time the politicians start running national ads. There is often times music or news footage used in those ads that is important for getting the message across in varying degrees, and invariably somebody comes along and decides that has violated our copyright and you don’t have permission to use it.
(Website: JETlaw: “What he said.” The Transformative Potential of the Use of Copyrighted Content in Political Campaigns –or- How a Win for Mitt Romney Might Have Been a Victory for Free Speech by Deidre A. Keller.)
Denise: So, Deidre I wonder if you could kind of set the stage for us for what you think the state of the law is on this issue. And what you think we might see happen as the campaigns started to ramp up.
Deidré: Sure, I’m happy to do that. You’re right. Denise, that this happens every presidential election season, right? So, the iconic Obama poster was the subject of a long and drawn-out copyright litigation. And the paper that I wrote was actually about the Romney’s campaign to use NBC news footage in the primary and aims at Newt Gingrich. So, Romney used some footage back during Newt Gingrich’s ethics problems in the House and that’s all that was in the ad, right was tall, Brokaw talking about Newt Gingrich’s ethics problems. Well, NBC immediately was like ‘take it down, do not use this. This is our copyrighted content.’ Brokaw also had some right of publicity claims, they asserted some lattamx sounding claims, and the Romney campaign to be at down. So that opens over and over again. But the reason for that is because since 1984. The Supreme Court has said basically that the first amendment, all First Amendment protections in the copyright contexts are inherent in the copyright act. So, basically what that means is the courts don’t do an additional First Amendment scrutiny on any copyright suits. Instead, they say, does idea expression dichotomy help you if not, does further use help you, if not you, the defendant, Romney in this situation, that I am talking about, loses, right? So, this idea that the First Amendment doesn’t need, or that copyright infringement claims aren’t susceptible to First Amendment charges, though, hasn’t been worked out in the political setting, right? So we haven’t seen a court directly address whether use of copyrighted content in political campaigns requires an additional First Amendment inquiry. Certainly, we haven’t seen that from the Supreme Court. There have been some District Court decisions and they go the idea of expression dichotomy the fair use route. So, the state of the law right now is that as a general matter, courts considering whether there is copyright infringement don’t ask source amendment questions; they say either it’s fair use or it’s not fair use. And if it’s not fair use, you the alleged infringer have to take the stuff down. That means political campaigns have to take down their advertisements, right?
Denise: Yes, absolutely. So, what do you think, do you think we have any clarity on this. Do you think we will see candidates actually paying attention to this issue and their marketing staffs doing so that they don’t have to have controversy about this after the fact, or do you think that they will continue to trip over the issue?
Deidré: I think that they have been tripping over the issue for a long time and I think they are going to continue to do so, right? It’s, it seems sort of odd, especially in the context of news footage, to say you can’t use that footage for this purpose, right? For your political campaign, if a court actually addresses that, and says that’s right, NBC’s copyright disallows that use, then what that means is, that we have NBC footage that is only going to be available for use by, let’s be real, Democrats, right? And Fox footage is only going to be available for use by Conservatives. And that seems to me to not be the right answer. Nonetheless, campaigns do this, they use songs that people don’t want them to use. Mitt Romney got in trouble in ‘12 for using K’naan’s “Waving Flag”. Which seemed like an odd choice in any event. But no campaigns do this over and over again. And copyright owners get in trouble, or copyright owners yell about this over and over again. So I think it’s going to continue to happen.
Denise: Right, Evan, do you think that courts are going to say if it’s news coverage used for a political purpose, there could scarcely be a more clear fair use case or are we going to continue to see networks being able to tie up their coverage like this?
Evan: Well, I’m really intrigued to see how this would go and this is why I’m interested in what Deidre has written about this, and the way it sounds like it’s more than a fair use analysis, but it’s more of a pure First Amendment constitutional analysis about this and it underscores the importance of this kind of speech. And it’s political speeches seem to be afforded the widest latitude under any First Amendment type of analysis, which there is very little restriction on political speech. And, when we have the intersection of that First Amendment interests there; the right to speak freely about political issues balanced against the copyright issue, the copyright interest that the content producer, the news media, the broadcaster, whomever has it, seems like if we are going to open that quite a bit and say that you can use any footage of the political event or advertising or what have you, inasmuch as it, it’s usable, inasmuch as it relates to the current election and the political issues there. And it seems like that could be a really slippery slope that could go to the detriment of the content holders pretty quickly. Because, if the courts are going to read that right very expansively; then what would not qualify as a fair use, or as this other kind of use, and Deidre maybe you can clarify on how I’m thinking of the analysis here. This other broad use in addition to a fair use right. You know, what’s to stop somebody from essentially setting up a business model where you rebroadcast over the air signals, oh wait, I’m mixing two stories here, right?
Denise: Are there tiny antennas involved?
Evan: Right, but say there is
Deidré: No, there are no tiny antennae’s, this is not Aereo.
Evan: so you take, the broadcasters’ programming in October and November of every four years 2012, 2016, whatever and rebroadcast it. And say this is just my political right, you know, my right under the First Amendment to have this political speech here. And, you essentially just rebroadcast it. Would that be, it seems like there is a risk if we are not careful in defining contours here, that this right could be so great that it swallows the rule. The exception would swallow the rule.
Deidré: Right, so I think the limitation here is thinking about what courts have previously considered political speech, right? Evan is right to point out that political speech gets the widest possible latitude. But not everything is political speech. So, when you’re talking about the qualifications of a candidate for office, that’s political speech. That’s at the heart of what we understand as political speech, right? You get far fields from there and maybe it’s not political speech anymore, right? So, the question of sort of how broad this rule can get is, I think, and the argument, I make in the paper is the question that we should approach from the First Amendment perspective, as opposed to from the copyright perspective, right? From the copyright perspective all protected content is protected content. From the First Amendment perspective, the first question we have to ask is; is this political speech? And so, I think, in the case of Romney’s situation, it was absolutely political speech. Mitt Romney clearly with using that footage to make a statement about Newt Gingrich’s qualifications or lack thereof, to hold the office for which he was campaigning. That’s political speech.
Denise: Can I jump in for second Deidre and have you explain like you are explaining to your law students in their IP class, why it makes a difference? If we come at this from a First Amendment standpoint or and intellectual property copyright standpoint, explain why thinking about it and First Amendment terms takes copyright off the table, if it does?
Deidré: Sure, well, actually it’s sort of the opposite way, right? It’s that if we approach this question from the copyright perspective that takes the First Amendment off the table. Why, because in 1984 in Harper and Roe, the Supreme Court said, when we’re talking about copyright infringement; we don’t need to do a First Amendment analysis because the copyright act are really incorporates the expression dichotomy. Which means you can use the ideas and the facts in any copyrighted work, you just can’t use the work itself and because we have fair use. And so these two things that are in the copyright act means you don’t have to really do a first right amendment consideration in copyright infringement cases. Since 1984, that’s been the Supreme Court’s position on the intersection of the First Amendment and the copyright act. We had that come up again and go the same way in Eldred and then again in Golden Freeholders. So, that’s the Supreme Court’s position, right? So it’s actually, the question then, is does that position hold when the speech in question is political speech. And I suggest that it shouldn’t.
Denise: Got it. Well, we are looking forward to seeing the politician trip all over each other once again as they attempt to put catchy yet unauthorized music and bits of controversial news footage in their ads. The last thing I’d like to bring up in terms of this discussion, it is there was another incident with Romney that I am remembering; where he was at a small closed nonpublic fund raiser by somebody filmed him with their phone. And got him on record making some remarks to people at the fundraising event that may not have made in public or may have contradicted other things that he said in public, I forget exactly what he said. But it was sort of like a gotcha moment when this footage that someone in attendance had captured got released. Do you think that kind of a situation where we are not talking about a news outlet, but a member of the public sort of doing their own citizen journalism does that shade the discussion at all?
Deidré: Great, so this is the 47% comment, which I remember very well from the 2012 election, it was sort of a thing for a while.
Denise: it was a thing.
Deidré: Yeah, so, the question there, definitely isn’t a copyright question, because the person who captured the footage is the author under the act, they own the content they can do with it what they please. The question there is like a publicity right of publicity question. So, whether Romney has a basis for saying ‘no, no, no, you can’t use that footage because my right of publicity or my right of privacy.’ Of course, that is an untenable thing to do, I think, as a practical matter, it is an untenable for the candidate to say you can’t use that footage of me, like you can’t get your ‘aha’moment. That’s just not going to work in terms of the public accepting that, as that is the right answer. So, I don’t know that there is a question about if Romney could litigate that, I think that it’s silly to think that he would, right. Because the heat of a campaign you don’t want to be engaged in sort of that side of the legal issue and you certainly don’t want to be looked upon as it were trying to cover things up.
Denise: Right, so let’s move out of the political arena for a bit and into people’s living rooms where they want to be watching all the entertainment that is available to them online. Sometimes they want to be doing that in an illegal way under copyright law. Popcorn Time is something that we have talked about before, on the show, and that has moved into the open source world, once the original site was shut down. Now they have an open source iteration of Popcorn Time that lives at timeforpopcorn.EU; where it continues to be developed. It continues to be, as, I think, full-featured as the original was and may be adding even additional benefits that the original popcorn time did not have. For example, they now have support for chrome cast. So it is just continuing to chug on in the open source world.
(Webpage: TF: ‘Popcorn Time’ Remains Popular With Millions of Users, July 9, 2014)
Denise: It doesn’t make it any more legal, but it makes it more robust and able to survive. So, I wanted to get your take. Randal on this kind of a situation and this is obviously a quite public one but I imagine this is not the first time you have seen something that had trouble in the commercial arena going open source in order to continue.
Randal: Well, it’s interesting they made it open source to begin with, or else we wouldn’t be talking about the fork that has happened here.
Randal: As far as copyright is concerned, I made my living off of copyrighted materials for most of my life. So, of course I have a stance on that. I do, I do sympathize with people that recognize that merely watching a copy of something is not depriving the original owner of the original copy. So, I do have some sympathy for what these guys are trying to do and in fact I saw a comment, somewhere in one of these articles someone said it’s just proof that the people that own this material aren’t making it available in ways that we want to consume it, and we would pay money to do stuff like this if there was only an easy mechanism for it. We can have a whole separate discussion how I think the copyrights are way too long right now; I actually think copyright should go away after 14 years, but that’s a whole different discussion.
Deidré: Do you want to go back to the beginning, huh Randal?
Randal: Yeah, yeah, you know, it’s silly; and here I am next to Disneyland right here and Disneyland seems to make sure that Mickey Mouse stays copyrighted by continually paying off the right politicians to extend the law longer and longer. I’m of the belief that for the first seven years you should have exclusive rights that the current copyright law provides; for the next seven it has to be creative commons with attribution. Because that way if you can’t make your fortune in the first seven years, then you don’t deserve to be making money with it, and if you can’t make your fame in the next seven years. You don’t deserve that either. And I think that should be the rule. I would put all the stuff that I do under a two-tier system like that, and after 14 years it is public domain.
Denise: Well, that’s a cool strategy, I like that one. Evan do you think that Popcorn Time by making itself open source and now involving lots of people in its development and distribution is doing anything more than delaying the inevitable?
Evan: Well, I think it could make it more difficult for copyright holders, you know, the plaintiffs in whatever litigation that would arise, make it more difficult to go after them. In the same way that it’s more difficult to go after, you know, distributed terror networks, then it was the Nazis. So, it’s, I think there’s a couple of interesting ways of looking at it. I don’t think that the real legal questions change when we evaluate it in light of it being distributed versus it being one entity or sort of a discrete group of entities working on it because I think we have got to look at cases like, I think the Grokster case is one way to look at it. What is being done, in connection with the marketing of it to see whether this tool is being put into the marketplace to induce others to infringe copyright? I don’t think there is any question that the distribution of these works using the bitTorrent protocol is a direct infringement by the users, I think there are very few, there’s very few authorized versions of the works being watched through popcorn times. Maybe I’m mistaken. So, things like the idea of a new VPN support be built into new versions of popcorn times, I think that would go against the development. Whether it’s distributed or whether its relatively coherent that would go against them in the Grokster kind of analysis because, well, why is that being used to obstrucate the identity of the person who is using it as if to promote it being used for infringing purposes. And I’m sure we could debate that, it might be too bold of an assertion to make. But I think that a plaintiff in a copyright action would certainly advocate that that’s what that means in the course of the development. I think it’s just sort of for kids, fun to think of popcorn time now; to apply the Aereo test to it. His what it is doing looks like a cable company, that’s the test. We have now. Does it so resemble a cable company that its very existence and use in the marketplace by those who are not authorized by the copyright holders in the works that are being distributed by it, now come under the rubric of the copyright act as a cable company and therefore subject to the compulsory licensing fees under the copyright act and all that stuff, I think ultimately at the end of the day, it doesn’t because it just, it’s really not like a cable company, it’s more like a file sharing service.
Evan: It’s not like a cable company as much as what Aereo was but sort of fun just to think about. Aereo gets a use
Denise: It’s not intercepting anything with an antenna. I mean, I think that fundamentally distinguishes it from Aereo, but
Evan: I have just been eager to put the Aereo test to practical application.
Denise: It’s all Aereo. (Laughter) Exactly. Well, there is, to Randal’s point. It is always fun to see. Or, I don’t know, interesting to see what is leaving and coming to Netflix as the months go by. A bunch of, there is a huge list, I’ll put it in our discussion points at delicious.com/this week in law/266 if you want to look at the whole list of things expiring
(Webpage: technoBuffalo: Here’s Your List of Movies Being Added (And Taken Down) To Netflix In July)
Denise: from Netflix this month. A on flex, that’s a favorite in our household, Dr. Strangelove, not going to be able to watch that any more, From Russia With Love, Gatka, Goldfinger, so a lot of the Bond catalog is going away. That is disappointing. All the Rocky movies, sometime next year, I don’t know if that is at the same time next year. Oh, Netflix did a lot of marketing around having every Star Trek property on the service at one point or another but two of the Star Trek movies seem to be going away. Star Trek II and Star Trek IV are going away. The Running Man, The Odd Couple. Of course, they add new things each month too, but to Randal’s point. If you are hot on the trail of seeing one of those movies and you are looking to Netflix as your legal and paid for source often times you come up empty, and are disappointed. I do think it would be a very interesting, legal argument on the Grokster inducement point, Evan, for it to go after a service like popcorn time and try and argue that what they are doing is inducing infringement. They are certainly making infringement more convenient; but would you be able to show, as the rights holder that the person in question, the infringer, the user would not have just gone out and torrented these anyway in a less convenient manner? And I don’t know if that would play into the legal argument or not, but it seems like they have a causation problem, don’t you think?
Evan: I do, I mean, you would have to, if the developers of Popcorn Times aren’t being overt in their communications, and go out and infringe with this like there was some direct evidence like that in the Grokster case, I’m overstating it. It wasn’t like, hey, go use this to infringe, but it was pretty clear that that’s they were developing it for. You know, without that you would only have the circumstantial evidence, and I don’t think we have a lot of guidance from the courts in the past last nine years from Grokster on really what you have to look for from an evidentiary standpoint to prove that there is that conduct, that is prohibited under Grokster, or at least the conduct under Grokster that makes it an infringement. Really we just have the Isohunt case, that’s sort of the best guidance we have. But those were pretty blatant facts as well. We don’t have any decisions that I know of where a court has looked at real subtle set of facts, real subtle fact pattern to say, hey, yes, here this meets the Grokster standard of inducement. So, it is yet to be determined how that would play out when you don’t have real direct evidence. And perhaps with popcorn time, I have no idea what the state of reality is when it comes to that. But, it could be with popcorn time there is, just only a subtle hint that they are using to induce infringement. So it could be interesting.
Denise: In a moments I want to get to Aereo embracing its cable company characterization as it is tagged by the Supreme Court. But we should drop in our first MCLE passphrase for this episode of This Week in Law. We have lots of people who listen to this show or mandatory continuing legal education credit and with great law professor guess frequently joining us, I can see why. Deidre Keller on with us this week from ONU and the rest of us struggling to keep up. So if you are listening for MCLE credit or hoping to do so we have some information for you over on the twit wiki. You go to wiki.twit.tv and find This Week in Law there; we have a 50 state survey over there that tries to tell you what you can do, what body to go to and how should keep track of your time spent with us here on the show. And in some of those jurisdictions they like to know that you have some sort of verification system in place that they can come to us or you can go to them and say, look, you can check me, I listened to this show. Because I have caught the words they put in the show for just this purpose. And our first phrase for this week is going to be ‘applying Aereo’. Since that is what we all want to do in the wake of the Supreme Court’s decision and why don’t we talk about Aereo. Head on over to the entertainment arena and see what they are doing now that they had this decision come out of the Supreme Court.
(Advertisement: This Week in Law: Entertainment Law, music playing.)
Denise: So our friend Eric Gardner has written over at the Hollywood Reporter, Esq. his blog. He’s good about checking dockets, and making sure he knows when documents are filed in cases as they continue on. And then helping us make sense
(Webpage: The Hollywood Reporter: Aereo Lays Out New Survival Strategy in Letter to Judge)
Denise: of the parties filing. And what Aereo has done is file a letter to the judge at the District Court level, Judge Alison Nathan. Which gives us some hints as to where they are going and how they are construing what happens next under the Supreme Court’s decision. And what they have gone ahead and done according to this letter, they go ahead and say mea culpa after the Supreme Court’s decision. Aereo is a cable system, with respect to those transmissions. And they also go on to report that they are proceeding to file the necessary statements of account, and royalty fees necessary to get a statutory license. And they, once they have that license. They are re-transmissions may not be conjoined preliminarily or otherwise. So, it may be that they are going to try and keep the company alive and a license fees. Do you have any thoughts on this, Deidre?
Deidré: Yes, so I am not terribly surprised that this is the route that they took. The loss at the Supreme Court hinged on this question, right? Is Aereo a cable provider? And all that it means to be called a cable provider is that you have to pay for what Aereo was getting for free before, right? So, all they are saying is yes, we are willing to pay. That, it seems to me like the broadcasters should be happy with that.
Denise: Absolutely, it seems to me like they should as well. The question whether Aereo’s business model can support the fees that they would have to pay maybe they would just pass those costs on to customers who want to continue to use the service. Do you think that’s what we will see happen?
Deidré: Absolutely. For sure, the cost of Aereo goes up, right? Because how else do you provide this service that you are paying for, that you were paying previously for, yeah, customers will pay more for Aereo. And whether customers will be willing to pay to is a separate question that we are going to have to wait and see.
Denise: Evan did this surprise you?
Evan: Well, no. It’s, it seems like it is a viable plan B for Aereo. There were millions of dollars that have gone into developing this technology, including VC funding and those investors are going to want to see a return on that investment. So, it wouldn’t make any sense for us to have seen Aereo just put this technology on a shelf and not do anything with it. So, they have to do something. I could see why the broadcasters are frustrated by this tactic as well. If we look at it purely from the litigation standpoint; Aereo did not raise the idea of it being a cable operator as an affirmative defense in the litigations. So, if you just, and again I’m encouraging you to just look at this as a litigator right now. It’s frustrating when your opponent tries to raise new arguments, and often times the court won’t allow new arguments to be made after time has passed. When you have given up, when you’ve decided to take one route and you can’t really switch arguments a little bit later; so you can see why the plaintiffs are frustrated in this at a lower court level. Any time a party uses the word that they are astonished by something; I always get, a little red flag goes off that says that there is probably a little bit of righteous indignation that is perhaps going a little bit overboard when it comes to that. That’s probably more lawyer speak than it may be with the broadcasters, I don’t know, I can’t speak for the broadcasters, of course. So, you can see why they are frustrated in this. But for Aereo, I think there is a couple different ways. It could turn out looking good in this situation. More precisely, how it could benefit from having taken this tactic here. The first one is, okay, fine. It is determined to be a cable company, and starts paying compulsory licensing fees, under section 111
(Webpage: The Hollywood Reporter: Aereo Lays a New Survival Strategy in Letter to Judge)
Evan: and, I have read, I have heard commentators say, that it’s not going to be all that expensive for Aereo, it’s something that will certainly be able to afford, and it is not going to put it out of business. And the other advantage, the way that Aereo could turn out looking good with this is; if it gets this, if it gets a lower court to craft an injunction against it, it would carve out in that injunction only those things that the Supreme Court talked about. And as we have discussed in two or three different episodes, the Supreme Court said Aereo violates copyrights because it is so much like a cable company, in as much as it does this simultaneous, almost in real time, retransmission, and rebroadcast of over the air signals. Which implies van, leaves untouched the idea of Aereo as a remote DVR service. So, if we get the court to say yes, you are a cable company, yes, you pay these compulsory licensing fees. Okay, fine. They have that as a business model, but then they also have open to them, free of any obligation to pay compulsory licensing fees, the provision of this service as a remote DVR where you still capture the signal over the air, make a personal time shifted, place shifted, which arguably would be fair use under the Sony case from 1984, seems like 1984 is a real touchstone here. That would open that for Aereo as a business model.
Denise: All right, well we will continue keeping an eye on Aereo and how it’s going to perceive in the future. I’m wondering, Randal if some open source developer or developers out there are looking at a way to do their own version of Aereo by you know, taking little antennas and retransmitting content, and again following the lead of Popcorn Time or others, making it more distributed, makes it more difficult to get at the principles. Do you think that anything like that might be in the offing?
Randal: Well, it’s certainly possible, but I haven’t heard anything personally. So I don’t have anything to comment on that.
Denise: All right. Let’s talk about the world of open source for a while. We have not had it come up too much on This Week in Law in a while. Which I think is a good harbinger for the world of open source. The Coburn versus Linux litigations have sort of gone by the wayside and I have not had a lot of exposure to controversies about using open source software. Which a lot of IP lawyers for a long time have wondered whether open source was going to be able to cut it in the enterprise because of the way in which the software comes together and the uncertainty about sourcing. And, I just don’t, again, Coburn versus Linux case is a good case of how that can lead to problems down the road. It seems like it has settled down into something that is not just useful, but necessary to businesses. Do you agree?
Randal: Yeah, and I think part of it is that we have gotten a lot further down the line. I mean, open source is not novel. And I think that is part of what has happened. Also, organizations like OSI listed, published a bunch of licenses that say, if you are publishing under one of these licenses, we have had careful examination to say that one of these licenses will work, we can defend it, and we can make it work. And when I say open sources are no longer novel, I mean a lot of big companies now are turning to open source, and turning to mature projects like Linux and Apache and things like that to get their services done. And they are recognizing the boundaries of things like the GPL. They republished this stuff, that means they don’t have to open up their own source that was attached to that, I also know a lot of the projects are moving towards Apache style licenses, BSG type licenses that are a lot more liberal about,’ I can go ahead and publish this and I don’t have to publish my own source code’. And a lot of businesses are adopting embracing projects that are under those licenses as well. So, I think it’s a maturity, we have sort of got the kinks worked out. We know what the boundaries go and I think that’s why you’re not hearing so much about it in terms of litigation going on now because we are past the how, we are mainstream now.
Denise: Mainstream and yet still extreme, according to the NSA. Let’s talk about some privacy ramifications of reading the Lennix journal.
(Advertisement: music playing: privacy logo in place).
Denise: So, although Linux and Apache and various other open source materials and software and tools are as you were saying, Randal are part of the fabric of business, certainly in our country and around the world these days. I guess, reading Linux journal can still be considered an extreme activity. Can you bring us up to speed on that?
Randal: Well, I did find that story unusual. It seems like if these keyword lists are coming from something maybe 10 years ago that would make sense. But I’m, you know, if they are flagging all users or people visiting Linux, the links and materials from Lennix and other places. They are probably flagging themselves because I know the NSA is using tons of Linux insulation internally from what I have heard from trends of mine who actually talk about that. So, I don’t know why a lot of this stuff is coming out because of Snowden and the other revelations is because of things that happened five or 10 years ago. So I imagine that makes it a little more extreme. I also saw in the keyword list things like torrent and tore, and things like that and that makes more sense to me, because if you were talking about using torrents to share information and stick another free and things like that. If you’re trying to flagging something those would be useful words.
Denise: So, this comes from a story from a German site called, oh gosh, my German is not going to allow me to pronounce this,” Tagesschau” “tagashow”. That is revealing some information about
(Webpage: Linux: NSA: Linux Journal is an “extremist forum” and its readers get flagged for extra surveillance: July 3, 2014 by Kyle Rankin)
Denise: how the NSA targets people for surveillance and that various sites, including Boing Boing and Linux Journal, and tor might be targeted for long-term surveillance and retention why the NSA. So, I don’t know if this is too big of a surprise. I mean, do we all just assume these days that all of our activities are going to be suspect in one way or another and gathered by one agency or another. But this was in the news this week and it does seem sort of ludicrous that, if there is some credence to what is being reported here with X key score and how it designed switch traffic to view an key, that perhaps it may be a little broader than is necessary for pure national security purposes. Evan do you have any thoughts on this?
Evan: Well, from time to time. At least once before. I have, I haven’t characterize it as giving it an award, but I have characterized it as this being the Dennis the peasant in Monte Python’s Search for the Holy Grail. Where at the end he goes help help I’m being repressed where his hands were on him. So, I’m going to put this in that category for review to see if it qualifies for it. This is great headline grabbing material, ‘Look at us. We are being singled out, we are being persecuted and all that stuff’. By having come to this site to read this article, you are on the NSA watchlist and all your communications, along to us and all that stuff. So,
(Webpage: Linux: NSA: Linux Journal is an “extremist forum” and its readers get flagged for extra surveillance: July 3, 2014 by Kyle Rankin)
Evan: I think the information that we have about this doesn’t necessarily say that you are going to be in the NSA’s sights, but it could be, what this does not preclude is that if you are a Linux enthusiast and you seek out information about Linux, including visiting Linuxjournal.com that may be one factor in several that would put you within the scope of X key score and all of that stuff. So, it’s great, it’s one of these great things for Linux journal to write about, and I’m not unsympathetic with that because, heaven knows that I am, I have a lot of disdain for the idea NSA being too grabby, and storing communications and getting this stuff. But at the same time I am just using ordinary caution, let’s be careful what we are reading about before we cast judgment on how much of an outrage it really is. It might be entirely outrageous, and this could be one of those things where we all go grab our pitchforks right now, but it may not. And so let’s take a breath before we do that.
Denise: Okay, I will leave the pitch for in the corner for the time being.
Evan: yes, put it down.
Denise: Over in England, and I’m not sure if people are so willing to leave their pitchforks. The open rights group has been examining the web filters in use there. We have talked about those web filters put in place earlier by the British ISPs, imposing filters on new broadband customers unless specifically asked not to do so, open rights group decided to see how those filters were working and took 100,000 sites and decided to run them through the filters and see how many would actually be viewable where normal was the level of filtering that was set. And they found that 20,000 of those sites were blocked by at least one ISP. So, 1/5 of the web, and I got to say the first time I was reading through this story. It was written by Emma Woollacott at Forbes. I went ‘really, only 1/5 of the web is flagged as porn?’
(Webpage: Forbes: UK ‘Porn Filters’ Block One Fifth Of All Websites: by Emma Woollacott)
Denise: but, I’m not sure if their 100,000 sites included any actual porn sites. Assuming what they were trying to do was see how many false positives would be brought in and that with actual non-adult sites, they were still getting 20,000/100,000 blocked. I’m not well versed in their methodology but that’s my assumption here in reading this coverage. So, obviously that’s problematic if their sites like the one highlighted here in this Forbes article, a site which focuses on reproductive health care, violence against women and LG BT rights
(Webpage: Forbes: UK ‘Porn Filters’ Block One Fifth Of All Websites: by Emma Woollacott)
Denise: being caught by the filter and that site being sherights.com. And obviously if sites that are not pornographic are being filtered here then that is cause for concern. Much like if Linux enthusiasm is getting you on a higher priority NSA watchlist that would be cause for concern. Evan is this again, something where we should wait and see and not get the pitchforks or our pitchforks in order here?
Evan: I don’t know, pitchforks are more in order here. Good thing this is England and not the United States. Because this is why, and I will let Deidre talk about this from the First Amendment perspective. This is why we have the analysis that we do have here on content-based restrictions on speech is because of the risk that it is going to be overbroad, you are going to sweep too much stuff into the restriction that is legitimate speech here. So what is old is new again. This is the same kind of stuff that went on in 1996 and before, with the communication decency act trying to put restrictions on pornography in US Internet traffic. So, this is why, we ought to feel patriotic on holidays like the 4th of July because we have the First Amendment and the analysis that goes under it, don’t you agree, Deidre?
Deidré: Yes, I absolutely agree. And I think what is implicated here is the freedom to listen, which is a thing. The freedom to read, write, incorporated in our First Amendment is not just the freedom to speak, it’s also the freedom to listen and so, what’s crazy about this story to me is that you have to opt out, you have to ask for these filters not be applied as is the customer. I’m thinking that wouldn’t fly on this side of the pond.
Denise: Yeah, I’m you wouldn’t either, people would be pretty concerned or, I do think that the problem on the UK side is that it was mandatory on the ISPs. They didn’t have a choice, they had to institute these filters and at least in the US I think it would be more of a free market thing, if you wanted to have an ISP and market yourself as, hey, I’m going to be that ISP that’s going to be safe for your family; and people are willing to go along with having an overbroad filter would pay the price and go with that ISP. I would think that kind of thing would be more acceptable here and First Amendment, okay, perhaps? Rather than having the government come in and say thou shalt have filters. What you think about that, Deidre?
Deidré: I think that’s exactly right. I think get, and opt in system would obviously work here. But this, you have to opt out. Or else the government says what you can and can’t see on the Internet. That’s not going to work, I mean, our courts have said, have long said that the, we are not going to make it so that the only content that’s available is content that is safe for the most vulnerable, right? For children. And that seems to be what is going on over there.
Evan: Denise in IRC, Randal says may want to say something about opting out, because I do think that plays into the fact that you can opt out. Just to sort of pick up what you said there, Deidre How that would play into the First Amendment, Randal?
Randal: Yeah, just noticing that if this is, it may not be obvious that I have a filter in place, because I went to one of those sites that was blocked, but if it is a simple phone call or an email. No, I don’t want that filter anymore. I want to take full responsibility for what I see in my house. I don’t really see a problem with this. The list of sites that were blocked was interesting, but if what you are trying to do is provide a safe, well, you can’t provide a safe Internet in the first place. There is no way. You can’t know all the possible sites that need to blocked. I’m also curious how they came up with the first hundred thousand sites. 100,000 most popular sites on the net or something, so their methodology is flawed from the get go.
Evan: I can see he’s collecting big dossiers then of all the perverts that want to be able to view porn, these are the ones who called us up. You know, going at to what you’re saying about opting out, though isn’t I’m going to look to Deidre on this, isn’t there this idea in First Amendment jurisprudence, that any restriction on speech is really, really bad and we have got to be combat that, even if it’s for a limited period of time. Could that doctrine play into this? You know, you're being deprived of this First Amendment interest in viewing and seeing and listening to this content in that time period when maybe you're unaware that it's being blocked, and then the time period that you have to wait for the ISP to unblock it. Am I mixing up two separate things there, Deidré?
Deidré: No, I think you've got that right, Evan. I think that there is the idea that it's the blocking in the first place, right? You were right to note that we don't like content-based censorship, essentially. That is — it's repugnant to our First Amendment, the notion of content-based restrictions. And so ... [audio cuts out] ... I think this opting out thing doesn't really work to overcome that problem.
Denise: Yeah. The other problem with opting out is you may want to have your filter in place but be able to access certain sites that are being swept in there that are perfectly fine, that are not objectionable things that the filter is put in place to block. And I don't know how readily any ISP would be able to give you those fine-tuning kind of tools that will let that one through but not the others. Maybe — again, if you leave it to market forces trying to make the service as user-friendly as possible, then maybe you would get that kind of functionality; but I don't know that that's what we're talking about here in a mandatory program in place in the U.K.
We're going to go ahead and put our second MCLE pass phrase in the show. Getting back to what you might find yourself subjected to if you're reading that incendiary Linux journal, we're going to make "Extreme Linux" our second phrase for the show. And before we go on to some other open-source topics, I wanted to pick your brain, Randal. I remember, a long time ago, looking at the developers' agreement for Linux and seeing in there some indemnity language so that if you're someone who is actually making contributions to the Linux Kernel and helping further that ecosystem, you were actually asked to sign — you know, to represent a warrant. I don't know — e-sign, however you're entering into an agreement that what you're contributing is your own work product or you have all of the rights necessary to contribute that work to the project. And I remember thinking at the time, Well, that's really, really problematic. How are you going to get individual indemnities from all the contributors, and how are you going to enforce that? Is it really something that you're going to come back and go to some individual developer and say, Hey, hey, you actually used some other unauthorized code here and now it's part of Linux and shame on you. Do you know if that's still part of that ecosystem or what the status of that is?
Randal: That's actually pretty typical for a contributor agreement, to be able to say, "I own this code. I have the rights to transfer my copyright ownership over to you." A lot of large projects have a copyright transfer like that. A lot of them, though, actually work under more of a collective agreement in that — I contribute to, say, a project; but I don't assign the copyright. So I'd still copyright Randal Schwartz on the piece of code I contribute, but I'm contributing it under, say, a GPL or a BSAID license so that other people can build on my work without any restrictions from me. So projects go both ways. There are projects that do copyright assignment and projects that just simply take contributions but the copyright remains in the original hands. The latter, of course, is much easier because you don't have to have ... [audio fades] ... work with everybody. But if you ever want to change the overall license of the project, you have to go back to all those thousands of contributors — or hundreds of contributors — and say, "We listed originally GPL2; can we put it under GPL3 now?" or something like that; whereas when you assign copyrights, then there's essentially a central owner. And they can decide, oh, okay, this is now going to be under a patch-style license instead of the previous license. Like I said, they both have trade-offs, and projects go both ways on that. There's no consensus for which is better.
Denise: Gotcha. All right. Well, let's see how the world of open-source is being treated by policy makers in Washington these days.
(The intro plays.)
Denise: The IRS, the ever-popular government agency, has reached an interesting decision regarding a company called Yorba, which was attempting to be an open-source non-profit under 501c3. The IRS decided that Yorba could not qualify for Section 501c3, would not be given non-profit status. And the reason that it made that declaration is really problematic for the open-source world in general. The IRS decided the Yorba software, like any open-source software, could potentially be used for commercial purposes. What the IRS said was, "You have a substantial non-exempt purpose" — non-exempt being commercial — "because you develop software published under open-source compatible license that authorize use by any person for any purpose, including non-exempt purposes such as commercial, recreational, or personal purposes." And also goes on to talk about how the software could be used for partisan political purposes as well. So this seems like quite a blow to the open-source world, wouldn't you say, Randal?
Randal: Yeah. I was particularly troubled about this, and it's clearly a huge about-face from the IRS. Another reason I said earlier that open-source software is no longer novel; we're actually now under mainstream fire. And it's very troubling in the sense that we've — hundreds of open-source organizations have gotten 501c3 in the past and had no difference or restriction from what Yorba applied for. So this is clearly a policy change. It might make it more likely for organizations like — I have to disclose, I'm on the board of LinuxFund; and what we do is, as a 501c3, we can accept donations and pass those along to qualifying organizations. But — and the organizations don't have to be 501c3 as long as they're within our particular purvey. And we have our agreement under — it might mean that more organizations like Linux might have to show up to be able to take donations in the U.S. I also have to say that this is not something that will affect a lot of organizations, even those that don't have 501c3, because you're still — as an organization, you can fund out of your corporate profits, funding of these types of organizations to make things happen. So it's really only — we're talking about the individuals who want to give donations and how they can get a tax write-off for that. And like I said, there's always going to be organizations, like LinuxFund and others — Linux Foundation and — let's see; I'm not going to list all a thousand of them. But they're out there. (Laughs) It will be able to be sort of the buffer to you so you can donate to them, get a tax deduction in the U.S., and then they can, in turn, turn around and give money to these. Now, if the IRS goes after the second-level organizations like LinuxFund, I don't know where we're going to go. I mean, this is ridiculous, the fact that you can use freely developed software for commercial purposes — and that disqualifies the freely developed software organization as being a non-profit — doesn't make any sense to me. It doesn't — the ruling was just crazy when I read about it.
Denise: Yeah. It does seem like a really controversial decision by the IRS and one that I'm sure they're going to come under fire for. We'll have to watch and see what happens to all those open-source non-profits that have already garnered 501c3 status and see if there's any kind of revocation that's coming down the pipes for them.
Let's take a break here and thank our sponsor for this episode of This Week in Law, which is Personal Capital. It's a really great time, I think — summertime is when I, at least, get to take stock of what's going on in my personal life and make sure that all those ducks are in a row. It's when I finally get around to keeping those resolutions that I might have made around New Years’ time. And Personal Capital is a great tool if you find yourself in the same vein here in July. It is a free and secure tool that solves two barriers to growing your wealth. That first barrier is that it's hard to keep track of your stocks, your 401K, your bank accounts, etc. — all your financial pieces all live on different sites with different usernames and passwords, assuming that you even have online access to that kind of stuff. And the second is that you might be paying someone to manage those accounts for you. You might very well be paying too much. So Personal Capital brings all your accounts and assets together for you on one single screen on your computer, phone, or tablet with real time and intuitive graphs. This week, Personal Capital announced the integration of its award-winning app with Android ware, available for download Google Play. The Watch app seamlessly integrates with Personal Capital and other Android devices and provides users with relevant and timely updates on their finances whenever and wherever they need it. Personal Capital shows how much you're overpaying in fees and how to reduce those fees. You also get tailored advice on optimizing your investments. So why wait? Signing up takes just a minute, and it will pay you big dividends in the long run. Personal Capital gives you total clarity and transparency to make better investment decisions right away. So go ahead and set up your free account; check it out at personalcapital.com/twil. It's free and it's the smart way to grow your money. You must go to personalcapital.com/twil to take advantage of that. Personalcapital.com/twil. Thank you so much, Personal Capital, for your support of This Week in Law.
Speaking of New Year's resolutions, a lot of people make fitness ones. And we have a legal story related to that. A company named Appirio has managed to save itself $300,000 on its insurance premiums by giving its employees FitBits, which caused me — and I'm sure I'm not the only person — to wonder about other companies that might decide, Well, hey, if we can save money on insurance, then all of our employees must use FitBits, or something else, and must hit certain goals and targets and things. So this is kind of a privacy story and kind of a fitness story, and I know that, Randal, you're a big fan of FitBit.
Randal: Well, I actually — I do wear a FitBit, but it's not because I'm — well, first off, I've got to back up a second. For those people who listen to FLOSS Weekly, they know the story here already. But I was grossly overweight about two years ago and decided to do something about it and went on a low-carb, high-fat diet, ketogenic diet. Lost 45 pounds in six months without any additional exercise because the old "eat less, move more" is actually totally flawed, which is — the problem with this story is that you're talking about health by having people move more and probably measuring people by BMI and things like that that are really irrelevant. And I disagree with that sort of intrusion because it doesn't allow people, then, to make their own individual choices about what they want to do with this; and it certainly didn't work for me up until the time I discovered LCHF. So I'm really questioning the values here. We're putting more and more emphasis on things that, actually we've found over the 30 years, don't work.
Denise: Yeah. David Sedaris has a really funny story in the New Yorker about his experience with FitBit, how — obviously, he's not forced to use it, by any means, and neither were the Appirio employees. But I'm just sort of thinking down the road to any way that companies can do cost-cutting is certainly something that you might find rolled out in a mandatory way. And David Sedaris's experience was that he became kind of a slave to his FitBit and would go and do things with his life that otherwise he wouldn't do, just to get that response from his FitBit that he'd hit his goal for the day. And he writes, "Why is it that some people can manage a thing like a FitBit, while others go off the rails and allow it to rule, and perhaps even ruin, their lives?" So I'm not using one of these devices. I've certainly thought about it; but I do think the privacy considerations, when you bring it into the enterprise, is something to view with caution. Appirio, according to one of the articles in our discussions points — this one at SiteWorld — has been careful about giving users privacy control so that the program feels like a benefit for them and not a tool that the company uses to keep an eye on them. They can opt into many aspects, including getting their band to begin with; joining a team; and also having it — I guess Chatter is the corporate equivalent, an intranet Twitter kind of tool — and if it's going to broadcast that to your coworkers, you have control over that, too. Evan, what do you think about this kind of development?
Evan: Oh, what a terrible invasion. Next thing you know, employers are going to have the decision whether they have to fund all forms of contraception for their employees.
Evan: What's the world coming to here? So — well, no. I mean, clearly, we've got a — there is a balance that has to be made here between privacy and the real, tangible, quantifiable benefits. Setting aside what Randal's saying of whether or not we're looking at the right measure here, the real benefit to the employer — and hopefully it's a business benefit across the board. Because of that increase on the bottom line there, there's a real quantifiable benefit on the savings for insurance here. So that seems like a benefit we want to maximize; it's a good thing we want to maximize. But let's make sure that we establish some protocols here that do more than just — making sure that these representation about the employees' privacy are more than just lip service, but that actually is real and that it's not being too invasive to sort of cross some normative standard here. I don't think that there's a real privacy interest in the pure Fourth Amendment sense on the part of the employee here because you could always quit your job and go somewhere else, right? We know that. But there still is this idea of — it just seems something that we don't really like for employers to assert too much say into the personal lives, what employees are doing off the clock. It's probably the same part of the brain that gets revved up when we think of employers trying to ban employees from smoking or making other decisions. So maybe employees have some basic fundamental right to be lazy slobs.
Denise and Deidré: (Laugh)
Evan: Maybe that's where it ultimately plays out here. So as you can see, there's a bunch of different moving parts. I think there's a net benefit if we can do it correctly, is what, I guess, I'm trying to say.
Denise: I don't — there's a difference between a right to be a lazy slob and a right to make your own decisions about how healthy you're going to be. And I guess if you're — yeah.
Evan: Oh, come on. I wasn't seeing it that black and white. Don't —
Denise: I know, I know.
Denise: I get it. What were you going to say, Deidré?
Deidré: I was going to say, I'm fascinated by the fact that one of the things that it records is how long you sleep, right?
Deidré: Because I, for sure — that's not information that I want my employer to have. Just saying.
Denise: Right. Well, I don't use a FitBit; but at one point or another — and I've stopped using it years ago — I had an app on my iPhone that was — it operated like a FitBit. It didn't actually track pulse or anything, but it relied on you to tell the app what you'd done for exercise throughout the day. And you could put in various activities, and it would tell you how many calories you'd burned. And you could — it was like a weight management tool, and it would make a plan for you based on your activities, etc. And one of the activities it tracked was sexual activity. (Laughs) If you were willing to put into the app. Does FitBit go that far, Randal?
Randal: Not with the current installation.
Denise and Deidré: (Laugh)
Randal: At least not that I've seen, anyway. I actually —
Denise: Certainly there are calories to be burned that way.
Randal: Yes, yes. I wear a FitBit for sleep analysis, actually. I wear it during the day, and I have it set at a real modest 3,000 steps; and I hit that almost every day. And that's just walking out to the car and back. I mean, it's not really that far. But I do actually wear one to watch my sleep; and I'm actually paying attention to the fact that I actually sleep longer than I thought I do. And I wake up a lot less than I thought I did, which is sort of amazing. So for that purpose, it's a useful diagnostic for me; but I don't use it to hit goals. I don't really care. I'm just sort of curious sometimes when I climbed up 17 flights of stairs today or something like that. And those are usually airport days. I mean, airport days have numbers that are really outrageous compared to all the other days since I fly a lot. It's — one day out of every two weeks, there's, like, this huge spike in all my graphs and stuff. So —
Denise: So you're in the middle of some travel now, so you're getting your money out of your FitBit at the moment.
Denise: Okay. So let's — if your personal data about your health triggers some sort of concern, I would say, for all of us as to who gets to see that and use it and use it for cost savings or anything else, I think it's really interesting to think about exactly what is property these days; And the intersection between data and property. And, Deidré, you've written a really interesting article from a philosophical standpoint on property and persons. It's getting down to, what exactly is property, and what triggers a property right that might be salable in some way or another. Can you give us some background on that, your preliminary thoughts, and try and put it in the context of whether it's FitBit data or Facebook data or anything else that we deal in today's world and try and keep to ourselves or share; and if we're going to share it, expect some sort of return for that.
Deidré: Right. So if we're going to share it, who owns it, right? I mean, I think that's the question in the FitBit context. Particularly where the FitBit is provided by your employer, then that data, if you choose to share it, is that data then the employer's data, right? If — so let's say I decide that I'm going to — I work for the company that we're talking about, and I decide I'm going to take the FitBit, right? And I'm going to use it, and I'm going to use the Chatter function. And so all of the information about how many steps I take and how much I sleep and all that stuff is shared with my employer. When I leave that employer at some point, does that data get scrubbed from their databases, or do they still have that data available to them, right? Those are questions that this technology poses, that Facebook poses, right? The question — so there was this story this week about the Facebook study, the "manipulating emotions" study. Did you guys see this?
Denise: Yes, definitely.
Deidré: Okay. So similar kinds of questions presented, right? How much does engagement with these new technologies divest you of a right to privacy, divest you of your interests in that information? And those are questions that are sort of live, right? But the paper that you referenced, how it's sort of related to this conversation is that in that paper, I want to argue — and let's be clear that that paper only exists right now in my mind, right?
Deidré: In that paper, I want to argue that there are certain things, the right to privacy being one of them — and stated more specifically, autonomy — that belong to me, that are inalienable, right? I can't give away my autonomy, I can't sell my autonomy, nor should I be able to, right? It is inherent in being a person that I have this autonomy. And so I think, in the employer-provided FitBit context, there's a question there, right, about how much of that autonomy you're giving over to your employer and how much of your privacy with it. And so yeah, I'm glad to hear Randal say that in this iteration FitBit doesn't record sexual activity, but surely there is stuff short of that that I don't necessarily want to share with my employer —
Deidré: — even if I'm engaged in this wellness program, right? And so yeah, I think that these are interesting questions that are becoming more and more relevant as we sort of engage in social media more.
Denise: Yeah. And what's your take on personal data as property? Do you think that there's a monetizable property interest there?
Deidré: I think that the personal data gets aggregated and monetized all the time, right? I mean, this is sort of what Google does, right? (Laughs)
Denise: What about for the individual?
Deidré: Is it monitizable by me?
Deidré: Not in any way that I can think of at the moment, right? I'm sure that that's —
Denise: Well, would —
Deidré: Go ahead, Denise. I'm sorry.
Denise: Would you want it to be?
Denise: Do you think that it should be?
Deidré: No, I don't think that it should be.
Denise: Okay. Why not?
Deidré: Because I think that the interest that I have in my personal data is a privacy interest. That's more protectable; that's something that I want protected to a higher level than my interest in my stuff, right?
Denise: Yeah, I could —
Deidré: So I would say that's a dignitary interest and not a property interest.
Denise: Do you think that treating it as a property interest gives individuals some sort of bargaining power with, whether it's employers or social media sites or other sites — Google, you mentioned — anybody who's trying to gather information about them and use it themselves — do you think treating it as a property interest might help in that regard?
Deidré: I don't think so because I think what ends up happening is, then my interest in my personal data is on the same plain as your interest in my personal data, right? And it's a question of sort of, who has the most money, right? Am I going to go to court and fight with my property interests against your property interests, right? Whereas — so my thinking about this is really that that's a question of my privacy, which is more important than any property interest that can be asserted, right? So if I can articulate a way in which my privacy is being invaded by your claims to property, then I should win in that fight. Does that make sense?
Denise: Yeah, I think it does. Randal, what do you think about this whole notion of data as a personally protected privacy interest or perhaps a property interest?
Randal: Well, I know — I keep thinking of HIPA coming into play here — that we have a reason for laws like that where our personal data is ours. And I get concerned now that employers are trying to figure out some way to either bypass HIPA by the fact you've got an employment contract, or something to get that away. And I like the concern about, what if I leave the company? I mean, does my data have to get destroyed or is it in backup tapes for years or what? And also, to what degree can these companies collude then and share the data back and forth and have that define whether I can be on the company health insurance or whatever that levels around. Of course, that opens a whole nother can of worms of, employers should get out of the health market. But let's not go there. (Laughs)
Deidré: Agreed, Randal.
Denise: Yeah, that's a really interesting consideration, if you think about employers and FitBit — getting back to our earlier story — because I am no HIPA lawyer, and I have no idea what it covers and all the nuances of that law. But it seems to me like it might be aimed more at your relationship with a medical services provider than it is your relationship with something that is monitoring your day-to-day physical activity. So I could certainly see where HIPA could come into play here, but I could see where it might not, too, just because there's not a doctor involved in what's going on between you and the FitBit. Evan, we're talking about property interests and data and whether personal data should be more privacy or property. Did you want to weigh in on that at all before we move on?
Evan: Well, just to say that — I mean, it would be intimidating to talk too much about that with Deidré on the conversation as well because I know she's written about this from a scholarly perspective, and —
Denise: Actually — no, I — let me — she corrected me on that, and let me jump in. I thought you had written this article already, Deidré. I did not know that this was just a work in progress at the moment.
Deidré: It is.
Denise: But it's a fascinating topic.
Evan: Good, good.
Evan: Well, in any event — I mean, I don't know that it's going to ultimately be helpful for us to decide whether it has to be a property interest or some other kind of alternative interest. I think that we can best regulate this, and best develop a normative approach for a community-wide culture, society-wide understanding about how to treat the privacy/dignitary interest of an individual based on the types of harms that arise from when lines are crossed. So the starting point, I would think, doesn't have to be — it's like, okay, yes, this is a property interest; ergo, this is how it's going to be regulated: A, B; C. We've just got to look at it from a more general, a broader, standpoint, and say, "These are the harms that we seek to protect against because, ultimately, it's not going to make much sense. It's going to sort of see some anachronisms probably a lot like what we see in copyright law if we think of the starting point as being a property interest. Well, it can't really be a property interest because it's not like this pencil; it's not something that I hold. It's not chattel, my privacy interest. So it just sort of like — it's like copyright; it doesn't make any sense to think of it from the starting point that it's making copies anymore. There's something much more important at risk, things like the right of access, right of distribution. Just like with privacy, the main interest is keeping me from harm, from having people whom I don't want to know information about me coming into contact and knowledge of that information. So how's that for sort of a cop-out answer? It's just sort of saying, "Well, let's just try to keep bad things from happening."
Deidré: (Laughs) I think that works, Evan. I think that's a great answer, actually; and I think we're saying very much the same thing, and I agree with you 100% that the copyright as property thing is problematic.
Evan: Right, right. Yeah. I mean, it's a different world; it's an information-based economy in large part now, so these ideas that are sort of hard-wired into our brain structures of coming at it from the perspective of chattel sort of break down after a certain point. So good; it's nice to be —
Deidré: Yes. And yet courts insist on doing it anyway, right? Courts insist on saying, "This intellectual property. Well, it's property; so therefore, XYZ flows from that determination, right?
Evan: Yes. Yep.
Denise: Yes. All right. So we'll look for Deidré’s article and hopefully it can help convince lawmakers everywhere that making sure nothing bad happens is the standard that we want to follow. (Laughs)
Denise: All right. We've got a tip and a resource for you before we head on out of here. Our tip of the week is that the SCOTUSblog is not SCOTUS, the Supreme Court of the United States.
Evan: This is funny.
Denise: If you had any confusion on that front, allow us to set it aside. SCOTUSblog is the be all, end all resource for all decisions going up to and coming out of the Supreme Court, but it is not the Supreme Court itself. Evan mentioned the Hobby Lobby decision earlier that recently came from the Supreme Court. It was very controversial and caused a lot of anger, and some of that anger got directed at SCOTUSblog on Twitter as opposed to at the actual Supreme Court of the United States site. I'm not sure if they have an account or not; maybe someone can look that up for me while we talk about this. But SCOTUSblog certainly does and was getting terribly irate tweets thrown their way, which they responded to in kind of a wonderful way. Somebody tweeted them, "You" — and I'm going to edit the language a bit — "messed this up real hard today. Go read the * bleep * First Amendment again, OK?" And SCOTUSblog replies with, "Oops, lost our copy. Sorry about that." Various other ways that they were trying to let people gently know, you are aiming this ire in the wrong direction. (Laughs) So don't be confused. It's easy to be confused. A partner at my former law firm got confused once and went ahead and said some very nasty things to SCOTUSblog — (Laughs)
Denise: — thinking, again, that it was the Supreme Court that his ire was directed at. So be careful on Twitter, and don't get confused.
All right. Our resources of the week — we have two. Number one is a list that comes from Law Street. Various lists get published of who the top ten law schools for various subjects are. This one is "The Top Ten Law Schools for Intellectual Property," in case you might be interested in that. George Washington University Law School got number one on this list, with a tie for number two between the University of New Hampshire School of Law and Santa Clara University School of Law, where our friend Professor Goldman teaches. Just having him anywhere, I think, would get you in the top five of the list, for sure. And so if you're interested in that, if you're interested in the kinds of topics that we discuss on This Week in Law and looking at law schools where you might want to either attend or teach, this list might give you some guidance.
And speaking of George Washington University School of Law topping that list, they have an event coming up next week on July 16 that would be a great resource to check out, too. Look for, I'm sure, the tweets from this event coming up. It is the Internet Governance Forum USA for 2014. It's going to be July 16th at George Washington University. It is a domestic forum in the U.S. for civil society government technologists, research scientists, the media industry and academia, and all other interested communities to engage in dialogue about the development and best practices for multi-stakeholder governance of the Internet and moving its policy forward. So something to keep an eye on there, coming up next week.
And with that, I guess we'll go ahead and thank you all for a wonderful episode of This Week in Law. Randal, it's been too long. I'm so glad that we finally got you on the show, and congratulations on episode 300 of FLOSS Weekly.
Randal: Thank you very much. Thanks for having me on.
Denise: It's been a real pleasure. Anything else coming up on the show? You want to tell us who you have coming up as guests next week or any other things that you might want to share with our audience?
Randal: Sure, yeah. The next couple weeks, we're actually going to be OSCON focused. Next week, we're going to talk about the new kids' project, kids' programs that are happening at OSCON. We've got Simon St. Laurent coming on to talk about that, and also Erin Gumpta. And then the following week, we're actually live from OSCON. And OSCON, the open-source convention, often gives us — we've often got a scoop there because people announce things at OSCON, and we can interview the people right there. So I'm hoping for another scoop two weeks from now, but I don't know what it is until we're there, so stay tuned.
Denise: Very cool. All right. We definitely will do that; thank you so much.
Denise: And Deidré Keller, it's been a real pleasure chatting with you. You're doing some great work. We so appreciate your taking the time to join us today.
Deidré: Thanks, Denise; thanks, Evan. It was nice to meet you guys.
Evan: For Sure.
Denise: Nice to meet you, too. Are you working a lot over the summer or just kind of gearing up for fall rapidly approaching you?
Deidré: I'm teaching. I'm teaching law and literature this summer. So it's fun.
Denise: Very good.
Deidré: That's my fun class.
Denise: Yeah, law and literature would be a good one. What are the books that you have on your curriculum for that?
Deidré: Yeah. We read Susan Glaspell's A Jury of Her Peers and Melville's Bartleby, the Scrivener and Toni Morrison's Home this year.
Denise: No Bleak House this year?
Deidré: No Bleak House.
Denise: All right.
Denise: (Laughs) You'll have to get that one at a later time. Thanks so much for joining us. Anything going on with you aside from your law and lit class that you'd like to let people know about? Anything coming up?
Deidré: No. I'm about to go on vacation. Super excited about that.
Denise: All right.
Denise: Also, I realized we've gone the whole show with the ONU Law Twitter handle in your lower third. Are you on Twitter at all, if people would want to follow you there?
Deidré: I'm not on Twitter. I haven't figured out the whole 140 character thing.
Denise: All right. And you have figured out the privacy interest in your data thing, so good for you. (Laughs)
Denise: Evan, you're on Twitter, even though you're a very privacy-conscious guy.
Evan: I am, yeah. I'll say some things; nobody cares anyway, so why not? Just go ahead and put it out there so — but yeah. Fun episode; Randal, really fun talking to you, as we expected!
Evan: And Deidré, really interesting to talk with you and hear about the work that you're going on — you've got going on, something like that. So — good times.
Denise: Something like that.
Evan: Yeah, good times.
Denise: Very good times. Evan, how about you? Are you speaking anywhere soon or working on anything you want to let us know about?
Evan: Well, I should have something in the works. I guess I'm sort of — kind of on a down — or at least, on a rest day today. I spoke at a conference yesterday here in Chicago to a group of about 300 defense counsel. There's a big insurer here in town, and I spoke on social media as evidence. You know, it's the scope of what's discoverable and what have you there. But that's past, so that's sort of what I've been looking for for the last few weeks. So now — I'll let you know. There should be something coming up pretty exciting here soon. It's hard to stay silent for too long.
Denise: Yes, it is. And I love Evan's Twitter feed because you always find the great little gems, Evan. There's always something funny and ironic in the things that you find and tweet about; so definitely, if you're not following him, he's internetcases on Twitter. I'm dhowell over there. You can get in touch with us by email, of course. I'm firstname.lastname@example.org; Evan is email@example.com. We love hearing from you between the shows. Or on Google+ or on Facebook, if you need more than 140 characters, which often people do. So we just love hearing from you in any and all forms. I was listening to your intro to your episode 300, Randal, and listening to your discussion about the importance of audience participation in your development of material for FLOSS Weekly. And we very much feel that way here at TWIL, too. We love hearing from you about who you think we should have on the show, what you think we should discuss, what important issues that were out there that have not yet hit our radar. So please, definitely reach out to us and let us know what you'd like to see; that's very, very helpful for us. And we just love knowing what's on your minds, so definitely take advantage of all of the channels that I mentioned. And if you want to go back and watch older episodes of the show or you can't join us live when we record every Friday at 11:00 Pacific Time, 1800UTC, head on over to twit.tv/twil; that's where you'll find the whole archive of our shows as well as — there's a YouTube channel if that works better for you. We're ThisWeekinLaw on YouTube; and we're on iTunes and Roku and — various other ways that you like to consume this kind of entertainment, we're going to be there for you. And we'll certainly be there for you next week; we hope you'll join us then on This Week in Law! Take care.