This Week in Law 269 (Transcripts)

Denise Howell: Hi folks, I'm Denise Howell, and next up on "This Week in Law" we've got UCI's Jack Lerner, lawyer Adam Sanderson, Franklin Graves, and me. We're going to talk about video games and piracy, the status of the "Happy Birthday" lawsuit, the status of the "Alice" case and how it's impacting current patent cases, podcast patents on the run, and lots more. 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 269 recorded August 1, 2014.

Blame It on Rio

Help support TWiT with your Amazon purchases. Visit twit.tv/amazon, click on the Amazon banner, and shop as usual. That's twit.tv/amazon, and we thank you for your support. Hi folks, Denise Howell here. Thank you so much for joining us for "This Week in Law". I'm super excited about this week's show. We have our old friend and former intern Franklin Graves joining us. Hello Franklin.

Franklin Graves: Hey Denise, how's it going?

Denise: It's going great. I'm sure it's going great in your neck of the woods now that you are two days off from taking the bar exam.

Franklin: So happy, I feel like a huge weight has been lifted off my shoulders, at least until October, when results come back.

Denise: Yes, well. You've got a few months to kill until then. And we definitely want to hear about the bar, and some interesting technological snafu's that took place this year. Before we get to that, we have two other great guests joining us this week. New to the show is Adam Sanderson from the Reese, Gordon, what is the final name in your firm?

Adam Sanderson: It's Reese, Gordon, Marketos.

Denise: Reese, Gordon, Marketos firm in Dallas, Texas. Sorry I flubbed that. But I'm not going to flub welcoming you to the show. We are very excited to have you today. Adam does a lot of patent law, and obviously there has been quite a bit going on in that arena lately. So we are looking forward to getting your take and insights on things, Adam. Also joining us to return to the show is Jack Lerner. Hello Jack.

Jack Lerner: Hi, nice to see you.

Denise: Nice to see you again, too. The last time Jack joined us, Jack you were at USC. You are going to be coming down the 405 or the 455; however you are going to get down here to UCI very soon.

Jack: I'm learning about 5 other freeways, too. That's right; I just joined UC Irvine School of Law. I'm very excited about it. I started over the summer. It's really exciting because it's a new law school, and so the faculty has really had a chance to sort of think and get on the same page about what the law school is about. It's really a vibrant place, and they are going a lot of really interesting things there. Or I should say that we are going a lot of really interesting things there.

Denise: Yeah, you are, the UCI Law School, is it quite a decade old at this point, six or seven years old?

Jack: No. It was started in, the first class joined in the fall of 2009. The first graduating class then was in 2012. They've just had their third graduating class. We just got accredited by the ADA, which was a very kind of slam dunk think. Which was great. It's really exciting. We are still hiring quite a bit, and I was brought in to start a law clinic similar to the one I had been directing at USC. So this fall we will be starting the UCI Intellectual Property Arts and Technology Law Clinic. Every school has clinics where students practice law under faculty supervision. It can be anything from Landlord / Tenant, to Criminal Justice focused clinics, and Immigrations Clinics. There are a few tech oriented law clinics around the country. There are probably around a dozen, or maybe fifteen. About half of those do tech policy and do wider issues around technology. The others are straight up transactional and do thinks like prosecution, or just licensing exclusively, or something like that. This clinic is going to do a wide variety of stuff. Everything from amicus briefs to regulatory commerce. But we also will be counseling and advising a really wide range of folks, from local entrepreneurs, particularly in Orange County, to local filmmakers and artists and people in the arts community throughout Southern California. We will also be working on people in the developing world, government agencies or nonprofits that are struggling with IP issues around the international IP system. There is a lot of need for technical assistance and expertise in the developing world. So I'm really excited to bring that to UCI.

Denise: It's really wonderful that the law school is this young and is still paying close attention to the issues that you have been dealing with at SC and now are going to broach in your clinic at UCI. It's very neat, and we are excited for you and for all of the students who get to participate in your classes and your clinic.

Jack: We are going to have a lot of fun.

Denise: Yeah, you sure are. It has got to be more fun than Franklin has been having, because Franklin just took the bar exam. It's sort of a sad truth that you can have a good deal of intellectual fun in law school and participate in great clinics if you are fortunate enough to have Jack Lerner at your law school heading one up in an area that you are interested in. I'm sure Franklin would have loved to have participated in that had he had the chance. But you do all of that, and then you have to take this arduous two to three day, in California it's a three day exam, that I think we were talking about before the show. If you wanted to test for ability then there has got to be a better way to figure out how to do that then the rigors that we put people through. You may as well get the roster of people who successfully summited Everest because it's a terrible endurance test the way the bar exam is set up, this year even more so. Franklin, what happened?

Franklin: I guess, taking a step back, you have two options with the bar exam. Every state has a board of law examiners. They give you the option to either handwrite the exam or you can use a computer. Kind of the way if you think about it logically, there is no reason to not do it on your computer because you have, most people you would assume can type faster than you can hand write. It's so much easier to edit and to cut and paste on the computer. You can't do that with paper. So the board of law examiners, in some states, gives students the option to use software. You install it on your computer about a month or two before the exam. It basically shuts down your entire computer except for that one program, and it keeps a log of everything that happens on the computer so they can see if you access something else. They can basically watch everything that happens on the computer during that time. There are two companies. One is Exterigty, which does exam 4, which I was more familiar with through practice at law school because they have software called Exam 4. Exam 4 is the same thing as Examsoft, which is the second company. They both offer this software that you install on your computer. But with Tennessee we took it using Examsoft. With Examsoft, you open it up, and the first day is the essays. You start out with your laptop, and you are typing it all out. It saves a local copy of the essays to the computer itself that you are working on. At the end of it you upload it to Examsoft servers. From there it gets graded by whomever. Essentially what was going on was after the first day of our exams the instruction sheet that they had in front of us said either to go back home, or to your hotel, or to your apartment and upload it later rather than bog down the conference center's Wi-Fi that we were in. They were very helpful. They had Examsoft reps at the site that we were testing in. They would walk around during the exam. Obviously there were issues with the computer. A couple of people I saw actually had to switch over to paper either because their computer had frozen or something like that happened. At the end of it, you can upload it there. I connected to the Wi-Fi there, thankfully, and uploaded it before I left the conference center. So I did not encounter any of the issues. But, I get on Facebook around 6:00 that night, and most jurisdictions said that you had to upload it that same day by 9:00 pm or midnight. At Tennessee it was 9:00pm. I was on Facebook around 6:00 trying to get my mind off of the next day’s testing. I start seeing all of these updates from other students who were talking about how they couldn't upload their files. Parts of the rules were that if you don't upload it by 9:00 pm, they won't be graded at all, so all of this breaks out. There is obviously an issue with uploading the exams. From there, it caught the attention of Above the Law and a bunch of other news media sites. Twitter was blowing up, because the company Examsoft has a Twitter feed, and people were complaining to them. Then it just became this whole kind of effect were everybody just started complaining online if they weren't uploading. Obviously, it's a stressful time for students and examiners. They were trying to upload, and it's not uploading, and you were having this deadline that you were trying to meet. Examsoft, I don't know if it was them or other state board law examiners, decided to extend the deadline to the next day. But that still didn't help some students because it was not uploading, even the next day. So it was all this culmination of stress, plus technical issues, created this whole online issue of people complaining openly to the public at this Florida based company. It was just disaster overall for their public image, at least.

Denise: There are a couple of hysterical hashtags that people can look up if you want to see the poor, struggling law students and how they were moaning and complaining about this in real time. There is a "barmaggedon", which I thought was quite clever, "barghazi" and "barfail2014" on Twitter. All of those should get you some pretty funny tweets such as one that Above the Law highlighted. Somebody said, "This Examsoft thing will fuel the No. 2 pencil industry for years." That's how I took the bar exam, was with a pencil and blue books. It used to be that you had to get special dispensation to use a computer. Now, as Franklin was just saying, I'm sure that for most people it's done in a typing format rather than the other way around. Just like with our health care services, you need to have the infrastructure in place before you start having thousands of people trying to hammer that infrastructure at the same time. Jack, as a professor, are you feeling sympathetic about any of this?

Jack: Oh, absolutely. You know, you get to know your students so well. You are obviously not there with them taking it, but I'm always thinking about my students and which ones are taking it and which ones are going to take it next year. You know, there is a barmaggendon every third year or so. About 8 or 9 years ago, there was construction going on next door, there were climate control issues, it was extremely loud, there was like water coming into the room. A bunch of people, what they ended up doing, I think, was they took out one test score, the lowest test score, for a bunch of people. And of course that was very controversial. Something like that. That problem is an infrastructure problem. The way I see it is that if you are going to have a really difficult test that takes six weeks to study for and two or three days to actually take, then that is a huge barrier to entry. Why are you doing that as a bar association? Well, the noble reason is that you want people to be prepared to practice law. The less noble reason is because you want to maintain a high demand and a lower supply. Therefore you try to get higher demand. You really ought to be sure that everybody is taken care of, and that you have the infrastructure in place. If you can't find the right contractor to do it, then rent a room big enough and have people come and take it there. Maybe that's not a good solution because that's a lot harder for people. When you and I took it, Denise I don't know about you, but I rented a room in the hotel where it was being given, which was the Oakland Marriott. That's cost several hundred dollars for three nights, or two nights, whatever it was.

Denise: Yeah, I also took it in Oakland. I was staying close by. I was living in San Francisco at the time. You are so paranoid at the test that I did go over to the other side of the bay and stay close by, but not right in the hotel. There are stories that go around. I remember when I was taking the test, I don't know if this is urban legend or not, but someone somewhere taking the bar exam had collapsed in the middle of the exam. The other students had tried to help that person, but the helpful, Good Samaritan students were thereafter penalized because they had taken time out from their actual testing to ensure that the person had proper medical care, and there was no relief from that. Again, I have no idea of the validity of that story. But that's the kind of thing that is flying around in the ether while you are taking the test. To have a company telling you that, "Your upload will not succeed right now, please try again later." has got to be just terribly nerve-racking for a test that, not only is difficult to take, but so difficult to take that people like former Stanford Law School Dean Kathleen Sullivan have taken it and failed. There is just a lot of emotion going on. Clearly, if you are going to let down a bunch of people with your technology, you don't want to pick a bunch of newly minted lawyers to do that to. Adam, any thoughts on this before we move on?

Adam: You know, I think that's right. The last constituency that you want to offend is probably some brand new lawyers. And if it’s not the brand new lawyers, it might be the law firms that are trying to hire the brand new lawyers so that they can give them a job and bring them in. I think if I were a technology company that I would not want to upset law firms hiring lawyers, right?

Denise: Yeah, no, you wouldn't want to.

Franklin: If I might add, I think that part of the reason everybody is so upset is that we paid $100, well in my jurisdiction it was $100, but through social media I found out that in other jurisdictions it was $150. I don't know why it was the same software but there was a price difference. I think people wouldn't be as upset if we didn't have to pay an extra $100 or $150 on top of the bar examination fee and all of the other fees associated with it. I think that added to the frustration. That we are paying this company on the one day that they were supposed to have performed, to not have them live up to what they promised would happen.

Denise: Right. Maybe it will be a lesson for the various bar examiner boards out there. They need to have some competition to the test taking software. Give people a choice, and have a number of accepted companies that you can go to.

Jack: We are getting some pretty funny comments on the IRC. It's pretty funny, one person says, "Our predatory supply and demand model is getting pretty long in the tooth." I think that's true, there's a lot of movement toward bringing in people with different kinds of qualifications, somewhere between a paralegal and a lawyer. There is another comment that I think is interesting, it's like one-tenth of one percent problems. And on one hand I think that's true, and on the other hand, people take the bar exam all over the world and they have infrastructure problems there too. I think the only difference here is that we are taking them electronically. This happens. It happens with professional exams. Snafus occur, right. The question is how does the organization deal with it? Do you make it right, or do you make people take it over? What is it going to be? The bars where this happened need to step up.

Denise: They do, indeed. And I did not mean to spend quite so much time on this particular topic. But since, here in California, we just wrapped up the bar exam yesterday I'm sure it's fresh and raw in many people’s minds to the extent that they are awake after having gone out and recovered last night after the test. Let's talk about some copyright things.

(Intro Music)

Denise: It's so fun to have our little transitional bumpers there play on this particular show because Franklin made them. Thank you Franklin for our bumpers. I'm not sure why, exactly, last weekend all of the sudden the "Happy Birthday" lawsuit story again Warner / Chappell that was filed about a year ago, it's about the birthday of the "Happy Birthday" lawsuit. Maybe that's why it's being talked about again. It's still winding its way through the courts, not much has happened there. People were sharing the link to the original filing of the suit as though it had just been filed. That's not the case. It's about a year old at this point. But it's a very fascinating case, and it deserves looking at it fresh a year down the road. What is happening here is that Warner / Chappell, who claims to have the exclusive copyright to the song "Happy Birthday to You", is being sued on a number of theories, most of which revolve around the fact that Warner / Chappell never had the copyright to the song to begin with, that it was in the public domain from way, way back. So this suit is still pending. Not much is going on with it right now. It is still in the discovery phase. It's not on its fourth amended complaint, which has been answered. The most interesting thing that is set to happen in the suit is in November the parties have their deadline for motions for filing summary judgment. So we should see some substantive arguments there, and see the parties put their cards on the table, and be able to make some armchair quarterback predications perhaps about where the case will go. Jack, have you been paying attention to this? Do you think it is as interesting as I do?

Jack: I think it is fascinating. There are so many different thing that you can think about when it comes to the policy of copyright policy and also, when it comes to this case, questions like this. We just had a case; I think it was decided early this year or late last year. It was decided one of those, about Sherlock Holmes. The Sherlock Holmes estate had been asserting copyright over really a lot more than it had owned. A lot of the key early Sherlock Holmes material is already in the public domain because he did a lot of stuff before 1923, and then he did some stuff after 1923. For public domain that is a key date. The Sherlock Holmes Estate was not going to just roll over and say, "Ok, we will just let people use it now, or we will just give back all of the royalties." They fought tooth and nail. In the trial court they lost. They are going to lose up above because, I think, it’s a pretty clear cut case. This is also, I think, pretty clear cut. I think it is clear cut, and I think the prediction is easy to make that Warner / Chappell is ultimately going to lose for a couple of different reasons. The first reason is because there are some pretty good arguments about how the copyright was originally obtained and maintained over the 75 plus years, or hundred years almost, whatever it is, over the decades between now and when the song was originally put together in the teens. We went through many different changes to the copyright law, including a massive change in 1976. Many little changes throughout there in different periods when we had to re-register and stuff like that. We get into the nitty gritty, I think, on one of the links that we posted. I think that one of those is probably going to win. But I think that there is a bigger reason why. Which is that a lot of litigation, and copyright litigation is no different, fair use litigation is particularly lifeless, but I think that a lot of litigation is about the story you tell and it's about what is going on in society and what is going on in the case or whatever it may be. I think that there is so much outrage and so much discomfort with the length of copyright terms. I think that this has become part of our culture that we all feel ownership over. "Happy Birthday" is almost like the "Star Spangled Banner", which of course is in the public domain for a long time. There are many songs like that when you talk about sampling, when you talk about referencing. Look at Reddit. Look at all of the ways that people use memes, and they use Spiderman, or they use the guy with the Louie Viton hat, Bad Guy Steve or whatever he's called. They use these pictures as words, as pieces of language, as tropes. And "Happy Birthday" is part of basically a part of every American's life since they were a tiny child all the way up until now. The idea that that would still be under copyright doesn't sit right with people, both because it's part of our culture, but because it's so old. And so I think that that seeps into litigation, excuse me that seeps in to the ether of the case, if you will. I think that is one of the reasons that it's not that hard to predict that, ultimately, Warner / Chappell will lose. That might be ten years from now by the time it's finished. Or five, because I guarantee you they will fight this tooth and nail. Particularly because it's not just saying going forward we want to do exclaritory judgment. In this case they are saying this is a class action and we want you to compensate everyone since 2009 who has licensed this from you. So not only would they lose out on future revenues, but they would have to pay out. I predict they will fight it. I don't think that they will settle. It would also be very embarrassing and call questions into Warner / Chappell's other behavior, well what else are they asserting copyright over that they actually may not own? It doesn't look good for Warner / Chappell, but it's going to be quite a while before people that want to put "Happy Birthday" into a fictional film and not a narrative film are going to be able to do that without getting a narrative letter from Warner / Chappell.

Denise: Right, Virgil and IRC are suggesting that people use the Beatle's Birthday Song, but then you have the whole raft of copyright issues and licensing issues around that, so not so much a good alternative. Franklin, do you have any thoughts or suggestions?

Franklin: Yeah, I would agree. I thought Jack brought up a great point that this is a great way to get people to talk about the current length of copyright. What a better example than "Happy Birthday" for people to get upset about the current length and term of copyright. Especially when there possibly might be reform going on or efforts to reform the current copyright act, as it is. I think that it is a great starting point to get people to discuss issues that are in copyright. Jack did a great job of explaining the whole court case, or the outcomes that are potentially available. So I think it is going to be interesting to see. I also agree with the fact that Warner / Chappell cannot necessarily go back and say, "Whoops, we made a mistake and don't have the copyright in this." I understand why they are still fighting this, because they have a company image to protect. Who else is going to call into question any other rights that they may have underneath their record label or the group of record labels that they have?

Denise: So, a scholarly article that really unpacks all of the copyright ramifications here is highlighted, there is a great blog post done at minifightingface, which had appears to be done by a law student who had the professor who is being cited so repeatedly in the lawsuit. I'm going to butcher his name, its Robert Brownice maybe, if I'm getting it right. I've gone ahead and put it with the rest of our discussion points at This Week in Law at delicious.com/thisweekinlaw/269 if you want to look at that in depth. It is available on the web and for your perusal. Using that as our segway, putting things on the web that are research and educational oriented, I thought I would just mention that there is a "Shades of Aaron Schwartz" story going on in Columbia where a student is being criminally prosecuted and faces up to 4 years in prison for uploading an academic article to Scribbed. I read about this a few weeks ago, and we haven't mentioned it on the show. I believe he is an Oceanography / Biology student, and there is some good discussion. I think the EFF wrote this up as well as over at Techdirt the difficulty of accessing academic materials in this particular student's field. The EFF did write it up as well. The upshot here is that there are some good arguments to be made in his defense under Columbian Law. He is fighting this battle now. It's something to pay attention to in this ongoing issue of access to academic materials online in a way that doesn't involve a restrictive pay wall. Jack, do you have any thoughts on this?

Jack: Well, I mean, it seems excessive, just as the Aaron Schwartz prosecution seemed excessive. He's being threatened for four years for one or two articles, am I correct?

Denise: Yeah

Jack: As opposed to thirty years for thousands upon thousands of articles. I mean, these were public domain articles in the case of Aaron Schwartz, and Jay Stohr at Art said, "We have no interest in pressing charges." You know, I mean, it's hard to say what's going on in the Columbian legal system and what's behind this. I think that the bigger question is how does this relate to US IP Policy internationally? Columbia, as a government, has been much more pro IP rights than a lot of the developing world. Much, much more. They are one of the most aggressive in terms of their law and in terms of their stance. I guess I don't really know this to be the fact, so I'm surmising a little bit, but I think part of the reason for that is that we have cooperated so closely with them on anti-drug enforcement type of activities for many years. We give them a lot of aid. So the American influence over IP policy has been stronger than in other countries, like Ecuador for example. Or something like that. So, I think that maybe this has to do with that. Maybe this is influenced by that relationship. I have absolutely no reason to believe or evidence or anything like that that the US has anything to do, or even cares about this particular case. But, when you think about the overall policies, the US PTO and the US Trade Representative have really pushed, with some exceptions, have pushed very aggressive IP policies, some that would make it very difficult to reform US Copyright, and some that arguably even run counter to US Copyright Law as it currently exists. For example, would it make fair use harder for us, orphan works reform might be problematic, and so we've pushed a very aggressive IP Policy around the world. We've asked our trading partners, a lot in Columbia and others to adopt policies that might be more aggressive than what they would want to do on their own. Low and behold a student is being prosecuted in one of those countries that have acquest to the kinds of things that we have asked for more than most of the development countries. Low and behold, in one of those countries, someone is being prosecuted for downloading an article. When you think about how things work in a developing world, access to educational materials is extremely difficult there. Piracy is the default of educational materials. I wouldn't call it piracy necessarily, because if there if a textbook isn't being marketed and everyone makes photocopies and there is no license structure in place, to what extent is that being taken care of? What is considered a fundamental civil right, which is the right to education? Or is that being considered piracy? Beauty is in the eye of the beholder. The point is that, all over the world, you can see this in the report that Joe Caragonus and others have put together. I can post a link here in the IRC. But, it defaults around the world, that universities around the world, all around the developing world, photocopy the educational materials. Most of that is not licensed. So for this person to be going to jail for downloading one article is particularly outrageous given that international context and global context for educational materials. And even this access to research materials, obviously it seems excessive, but I think it's more excessive there where there is no market often for legitimate materials. I mean, we can't even but stuff online sometimes because we don't even have a credit card.

Denise: Right. The student's name is Diego Gomez, and we will continue to watch this and to pay attention to the impact of US IP Policy getting exported to our trade partners. Adam, did you want to weigh in here?

Adam: You know, I would just point out that, of course, it is excessive what is happening to Mr. Gomez in Columbia. But another thing to keep in mind is for all of those businesses and individuals that run an internet website or conduct electronic commerce; if you are doing business across borders and you are doing business with other countries you really have to make the effort to educate yourself on how those other countries treat intellectual property. Because intellectual property is always a tradeoff. Governments grant certain exclusive rights to authors and inventors. In exchange, at some point, the materials, and the inventions, and the artist's creative work becomes part of the public domain. But what you have to know is that every country treats it very differently. Here in the United States we know that there are the copyright laws, but there are also exceptions that protect researchers and protect teaching, the Fair Use Doctrine. Columbia doesn't have an equivalent of the Fair Use Doctrine. So those exceptions that are common in the United States and are common in a lot of countries around the world; they don't exist in Columbia. What is happening to Mr. Gomez is tragic, and excessive, and inexcusable. But, I think it does make us reflect and remember that if you are in the United States and you are trying to do business with countries and across borders that you've got be very cognizant that the laws are very different. We aren't talking subtleties; we are talking night and day difference. I think that's one thing to keep in mind.

Jack: I don't disagree with anything that Adam said there. I think that all makes a lot of sense. The only thing that I would add is that not only do you need to understand the environment in terms of infringement and in terms of intellectual property laws of these other countries, but you have to think if you are making the product available at an affordable price that is going to be accessible to people. When DVDs are sold for the equivalent of $200 in a place like Brazil, which is the equivalent of 3 days’ work or a weeks’ worth of wages, no one is going to buy it. Or maybe it's not being marketed at all, which is the case with a lot of educational materials. I would say that I think there is a real need for access across borders for some of these products that hasn't been.

Denise: Right. And just to pick up on a couple of threads you both raised, I visited Columbia a few years ago on a purely leisurely recreational tourism kind of trip. Anecdotally, my thought about the place was that it was really determined to be business friendly. It really wants to be the place where that, if you are not able to do business because of heavy regulations in other countries, that you can come to Columbia and do business there. Which will have its own raft of repercussions for the country as it goes forward. But having such a strong IP rights holders’ stance in copyright law kind of goes hand in hand with that. Again, it's something that people should be aware of if they do take the country's economic invitation and decide that Columbia is a good place to do business, or headquarter, or trade with. Let's move on to something equally interesting a little bit closer to home. That is the automakers that are getting sued here in the US for their CD players in their cars. Ford and GM are both being sued for technology that enabled drivers to have a library of music in their car that had been ripped from CDs. Of course, that's not the only thing that the audio system in their car did. But that's one of the features. They are getting sued by the Alliance of Artists and Recording Companies (AARC), a nonprofit group representing more than 300,000 artists, for $25,000 per unit of these particular audio systems, which number is supposed to be tied to the lost licensing and royalties that AARC claims it would have been due had this music not been taken straight off of a CD. The legal claim is that there is a violation of the Audio and Home Recording Act of 1992. If you remember the Kaleidescape case, this at first blush sounds a little similar to the company that sued because they allowed you to create these enormous DVD jukeboxes in your home. The difference there is that DVDs have copy protection and most CDs do not. So AARC had to find a different theory. Their theory has to do with the fact that, if you are under the Audio Home Recording Act, if you are distributing a digital audio recording device with the primary purpose that that device will rip copyrighted material, then that is prohibited under the law. Interesting case here. Jack, what is your take?

Jack: Well, on the one hand, again this is something that the automakers are going to fight tooth and nail because no matter how much you spend on lawyers, unless you are Google and Firecom, you aren't going to get into the hundreds of millions of dollars range. This could go on for a while from a practical standpoint. It's possible that a settlement would happen. We will see. The Audio Home Recording Act has some exceptions. For example, this is under the Audio Home Recording Act, which says that if you make CDs then you have to give royalties to the recording industry. I'm actually a little bit surprised that whoever the contracted with the put the CDs in there hadn't taken care of that. It seems like something of an oversight. That's one thing I'm a little bit surprised about. There might be problems with the class. The class seems to be, and consumers pointed this out, the class seems to be pretty diverse. Being a class action, that is always something to think about. I also think there is a lot to argue about here in terms of the facts and the laws because the Audio Home Recording Act contains some exemptions like personal use exemptions. It contains some exemptions around CD burners in computers and things like that. There is going to be a lot to fight about here, it's not just a black and white issue. I don't see it as utterly insane or completely insane. People come up with creative lawsuits and they go after people with deep pockets all of the time. I've seen many less plausible lawsuits out there whether in copyright or other areas. We will see what happens. I don't know; the Audio Home Recording Act is a bit of a weird animal. So this one is a really wonky copyright nerd question.

Denise: Yeah. It's particularly wonky. People in IRC are pointing out that CDs in cars and having a big CD library in your car is about as current as listening to the Steve Miller Band. It's just not something people are worried about for auto technology going forward. But that doesn't mean that there is not a big dollar lawsuit to be had here over the technology that was in place. Adam, you were mentioning the Fair Use Doctrine a minute ago. I remember, speaking of things from decades past, I remember there was a big controversy and a lot of people paid attention, I think it was during the Napster litigation, when one of the recording industries lawyers, during oral arguments actually acknowledged to the court that ripping a music CD with no copy protection would be a fair use of that CD. Now that's not any sort of citable presidential law, but it's a telling admission. I'm wondering what you are thinking of the Fair Use Doctrine's application in this case?

Adam: Well, I think the Fair Use Doctrine is going to be a problem for the plaintiff for certain. But what jumps out for me first, as someone who has a background in software and as a litigator of software matters, is that the statute, like you said Denise, this is the Audio Home Recording Act, that's not a statute that you've seen a lot of litigation. It was passed in 1992, and if you remember, I think this gets to your point; there was a case that had to do with the MP3 player, the Rio, back in the early 2000's. That was a case, kind of like this one, where the record industry and the artists brought a lawsuit claiming that the maker of the Rio MP3 player had violated the Audio Home Recording Act. That went up to the 9th Circuit. The 9th Circuit threw it out and essentially said that the only way you can violate the Audio Home Recording Act is if the VIAS qualifies as a digital audio recorder. Now most of us would think that an MP3 player, the Rio in particular, would qualify as a digital audio recorder. But the court said that it didn't. The court went on to say that that act was not intended to effect individual's private use of listening to music and copying digital music files. The 9th Circuit so gutted that statute that we haven't heard anything from that statute. No plaintiffs have really brought cases under that statute, or at least not very often, certainly not to the degree that it happened then. This strikes me as certainly a strategy by the plaintiffs to avoid the more common claims that you would ordinarily see. Ordinarily you would expect to see a violation of the Millennium Digital Copyright Act or some other statute. I think these plaintiffs chose not to bring the case under the DMCA for the reason that you are getting at Denise. That is, that they would have this Fair Use Doctrine defense that they would have a hard time getting past. Because, if you go back and you look at the Audio Home Recording Act, that was a compromise in the 90's. That was back when we didn't have a way to make perfect copies of digital music files like we do now. So in 1992, you had consumer electronics companies that were poised to release these copying devices. Now we see them all the time. They were basically CD read / write capability devices. The music industry didn't want those devices to be released because they were afraid it would lead to widespread copyright infringement and lost sales. So this statute, Audio Home and Recording Act, was put in place as a compromise. The device makers could release their device and the music industry would receive a royalty on every device sold. This lawsuit against Ford and GM is kind like a time machine, a way back machine, going back to 1992 and trying to recover these royalties that they bargained for 20 years ago and seemingly found out 10 years ago, hey that statute isn't as effective as you though it was going to be, music industry. This was an interesting choice by the plaintiffs to bring this case under that statute.

Jack: I think there are a couple of other pretty interesting points with respect to this particular case. One of them is that the AHRA actually isn't used very often, and very little royalties are distributed now. They are asking for more royalties in this lawsuit than I think have ever been distributed in the history of the act since 1992. According to one site, in 2009 only $20,000 was paid out to rights holders from all of the royalties collected under the AHRA. The other thing is yeah, as Adam pointed out, this is really more about machines that were made to make repeated copies, to make large numbers of copies, like CD burning machines that you have, where you have the capacity to make a lot more copies. Just the idea that you can use something to back things up is not what it was intended for. Whether it actually meets the letter of the law remains to be seen. I think that this is probably pretty likely to go the same way as the Diamond Rio case, which went for the manufacturers and not for the right's holders.

Denise: What do you think Franklin? Are you paying attention to this at all? Because CDs are really relevant to you anymore.

Franklin: I think it is a very tough situation. But one of the distinctions that I just thought of in my mind is that, between the car ripping technology and an MP3 player, like the Rio from a few years back, is that with an MP3 player you don't have the ability to take any CD that is just around you and put it in the MP3 player. Obviously that is just not possible. You have to have some type of computer with a CD rom drive and a hard drive all attached and connected ripping the CD that way. That, in my mind, I can see as a logical exception to be able to back up for home use. You have your CD, they get scratched easily, you can back it up to your computer so that then you can take it and transfer it to an MP3 player that you can carry around easily. I think that with the car case it seems like you have this device that will rip the CD connected within the vehicle to the storage device that will store it for however long the hard drive is. I can see how it is a little bit different than a standalone MP3 player. Whereas this, you can actually insert any CD. It's kind of weird because who actually uses CDs anymore? That is the better question. I know they aren't arguing Fair Use under this act, the Home Recording Act, but I kind of shy away from the idea that just because somebody rips a CD, or sells a device that is able to rip a CD, that they should have to pay a royalty for selling that device that gets distributed randomly among artists, or record companies. I have to say, I will be working for a record label soon, starting next week, so I've got to hold off and make sure that I'm sharing my own opinions, and not anyone else's. In this instance, I think that it's pretty clear that as fair use and also incorporating the First Sale Doctrine that I can go to any record store here in Nashville, we have tons of used record stores, and pick up a CD. Then I buy that, the artist does not see a penny of that money. I think that's a better argument to say, "Hey, someone else is profiting off of their music." The artists should directly get money from that sale. Obviously not, underneath the First Sale Doctrine. It aligns to this that, just because I put a CD in my car and rip it why does that entitle somebody to make money off of that? Because it's still mine. I can understand if I sell the car a few years later and the hard drive is still in there and somebody else is still able to have access to all of my music that I paid for, that they are getting for free. Kind of like if you look on EBay, people that sell iPods full of music, they used to when I was in high school, people would sell iPods chalked full of music already illegally downloaded and then you could just get all of the music that they had on there. I think that there are some distinctions between the MP3 player by itself and a car that has ripping capabilities attached to it. If that makes sense at all.

Denise: Yeah, it does. Your points make me think that the undertone of our discussion here is that this is sort of an anachronistic lawsuit because so few people are using CDs and relying on CDs as their audio entertainment in their cars going forward. But, if that's the case, then the music industry is in a better situation than it was when CDs were the default music delivery mechanism. As you point out, Franklin, you can buy a bunch of used CDs and not see a dime go to anyone on the right's holder's side. Today, the reason that CDs are anachronistic is because more and more; streaming is the way that people go. Even though there is a lot of complaining about the royalties that are paid in that format, at least they are royalties. There is a payment being made there. It just strikes me that as technological progress and the law and the right's holders having somewhere to go as technology has evolved. That piracy is less the go to and people are getting paid. There is still a lot of bellyaching how that is working, but at least we are seeing some progress there. I think that we are going to put our first MCLE passphrase in the show at this point. It's going to be "Rip My Ride". So if you are listening to the show for continuing legal education credit in your jurisdiction or professional credit and you are not a lawyer, we put these phrases into the show so that your oversight board, whatever that may be, can see that you watched or listened to the show. Which, particularly today with Jack joining us, is very academically and educationally worthwhile, I have to say. Let's move on to, we've already been talking about Hollywood with entertainment and music here, let's do it officially with a bumper, shall we?

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Denise: Just a couple of quick things to hit on here. Note that, as we are talking about piracy in the state of piracy, The Pirate Bay now has a mobile app that will help you find Torrents on your mobile device and download them straight to that device. Again, you know, I don't know, Jack, I'm starting to feel that The Pirate Bay is anachronistic these days. What do you think?

Jack: Well, I don't think it is anachronistic really because it still gets a lot of traffic and still where a lot find their Torrents. People find them in a lot of different spots. It's not hard to find them. A lot more stuff is moving towards mobile. I think this has interesting net neutrality ramifications because if the mobile makers are going to say we don't want all of this Torrenting going on with the vast majority of it being pirated material. So we need to put sniffers on the mobile networks. Sprint and AT&T and all of the other companies need to put devices there. This is an excuse to throttle. This is an excuse why mobile needs to; if you go back to 2010 the FCC said we are not going to have a no blocking rule on mobile devices because it's still a developing market and some more competition and some other reasons. So this might be a reason to preserve that exception or that difference between mobile and landline, despite the fact that more people are going towards mobile. I think that whether that should happen, we should have full net neutrality for mobile and landline. I think that is really important. Fundamentally important. But, other people might disagree. I don't think that this is an argument for having any exceptions for net neutrality on mobile. I think that it's an argument maybe for other solutions like right score or solutions like streaming. The harder it is to get your stuff through legitimate means, the more piracy is going to happen. It's hard compete with free, but it can be done. You not have a lot of people paying into Rave Audio and Spotify. You have a huge number of people paying into Netflix. If we see more of that, and it becomes a thing where, I like to think about cable. I don't want to get on too much of a tangent, but I spend more on cable then I do on buying new movies, or music or paying for an audio subscription stream combined. Routinely people pay $50-$100-$150 a month for cable. So people will pay for their content.

Denise: We will. I guess the cable companies have struggled with offering the people with the flexibility to watch what they want where they want it. Over the weekend we had some guests here who were Comcast customers, and they were actually able to watch, I'm not sure what technology Comcast is able to use for this, but they were able to watch as though they were on their home system on a mobile device. Which, I remember when, a couple of years ago, Time Warner rolled that out. You had to be actually on your same Wi-Fi network that Time Warner was providing to your home. I'm not sure if that has changed either. My point is that you are paying all of that money. I think that the choice that people make is to stop paying all of that money to the cable company and go to the Netflix's, and Amazon's, and HBO GO's of the world. Although HBO GO has its own tie to the cable company, so that's not a good example. If you feel like you are getting value out of that, if you can use your content where you might happen to be at that time. I guess there are people out there that if they are not going the way of paying through the nose for all of the various different services, that Torrenting on your phone would be a big deal. I agree that the net neutrality piece of that is very interesting. What do you think Franklin?

Franklin: When I saw this, I was like, this isn't anything new. Last year, I remember I was at the Blue Coast Burrito, and I had a guy, one of my friends, he had his jail broken iPhone. He showed me that there were Torrent Apps available all over the place on his jail broken iPhone. So it's not necessarily a new thing to do BitTorrent on your phone. Obviously, if Pirate Bay does something along those lines it's going to garner more attention. I think that it's, number 1 from my opinion, if I'm Torrenting a movie, there are many other uses for BitTorrent besides entertainment purposes but the vast majority that people talk about and get wrapped up in are the entertainment aspects of it and profit / losses, all that. In my mind, if it's for a phone, I'm not going to want to watch a movie that way. I know that I don't have kids yet, and I know it's different when you have kids, so maybe there is a use for it. In my mind, I don't see a use for it.

Denise: I think Franklin froze up there on us. I'm not sure if we lost him or not, but we will soldier on and try and get him back. Adam, mobile BitTorrent, big deal or no?

Adam: It strikes me as the latest in this arms race of where, on the one hand, the providers of free, copyrighted but infringing content are trying to make it easier so that you can download infringed copyrighted material and watch it; and then meanwhile, like you said, all these services that provide it to you legally — frankly, they're inconvenient and they can be a real hassle. And no, you don't want to watch a movie on your phone, but you certainly will watch a movie on your tablet, especially if you're in an airplane. And just recently, I was on a business trip; and trying to download a movie from Amazon and then watch it offline on my iPad turned into — it just turned into a big headache and a big inconvenience because, although it's possible to do it, but to do it you have to jump through several steps. Torrent, in that case, would have been very easy for me to do. So I think what the content providers need to do, instead of making it more inconvenient, is continue to practice making it convenient to follow the law and watch content because, as long as it is so inconvenient to use NetFlix or Amazon or some of these other legal sites, there's going to be a demand for torrents. And so the fact that PiratesBay is moving to the phone, that's not a big deal; that's just a natural evolution.

Denise: Franklin, now that you're back, you made me think that the mobile BitTorrent, the unintended consequence of mobile PirateBay, will be a huge surge in the illegal torrenting of things like Spongebob, right? Because as you hit on — (Laughs)

Franklin: (Laughs)

Denise: — people will put that on their phone and then occupy their child for a long time in a store or a restaurant, for example.

All right. Mobile PirateBay may be one of the first sites to get this new kind of treatment from the London Police, who are going to begin — the City of London Police in London, U.K., are going to start — now this is a clever little tactic they're using. For sites that they believe are offering unauthorized infringing materials — and it would be interesting to get into how they're making that determination and what sort of evidence is being submitted here because this strikes me as something — a very sort of prohibitory step that's being taken without an actual trial, so the due process questions arise. But in any event, what they're going to do is replace the banner ads that would ordinarily appear on the allegedly infringing site with a warning from the London Police letting people know that this site is under criminal investigation for copyright infringement-related activities. This is from an article at ZDnet by Joe Best. So it's an interesting — it raises a bunch of issues. An interesting tactic, a novel approach, certainly, toward letting people know that they might be putting themselves at jeopardy for copyright infringement if they continue to use the site. Jack, what do you think of this tactic?

Jack: Well, this is similar to a lot of tactics that you see when you're talking enforcement and you're trying to do it in a nimble way or in a creative way. The question comes up: Well, how do you account for due process here? I mean, what does it mean, you're under criminal investigation? On the one hand, that's pretty heavy-handed; on the other hand, that's a lot better than saying, "We don't know you; we don't know who you are; we don't even know if it's you, but we think it's you because of an IP address that was used; so we're going to give you one strike." So in a way, this is heavier because it's the government and not the ISP; and in a way, it's actually a lighter touch than if the ISP actually says, "Well, now you have one strike; and if you get up to three or six, depending on where you are, you're going to be in trouble. But it's just very — it's a thorny — I mean, I sympathize with rights-holders to a degree to say we want to stop piracy; but at the same time, I have to say people have due process rights in the U.K. They might not be equivalent to ours, but they do have due process rights; and this seems pretty heavy-handed. So it's a tough call. I'd like to see how this plays out before I come down and say it's absolutely unacceptable; but honestly, I mean, at a minimum it's very heavy-handed. What are they — how are they figuring this out? I would like to see them say, This is why we think this is the case. Here's a number you can call if you disagree; here is a hotline you can call. You can talk to us. I mean, have some procedures there so that it's not just this single communication that's a black box, that's all you get. That, to me, is problematic, as opposed to something that's nuanced and actually responsive. And this has been a problem with the ISPs, which were big corporations. Sometimes city governments or county governments, whatever it is, can be quite responsive. You call up the State of California; sometimes you can talk to somebody about this or that, or easily, sometimes you can't, right? But it can be done, is my point, and it should be done. And when you're going to send somebody an intimidating message like that that, again, is very heavy-handed, then you need to be able to enable the follow-up, too. And so just as we were talking about with an earlier thing, I think a lot of it comes down to, the devil is in the details, in terms of implementation and how it's done; and can you get — it's like the Bar exam. Can you get your organization to have a whole set of procedures around this to make sure that it's done right? And then maybe it wouldn't be so bad.

Denise: Right. Interesting, too, that this is a city police force that is taking this kind of step. Adam, what were you going to say?

Adam: Yeah. I mean, this strikes me — this was kind of surprising to me when I read this article. This is an easy call. This could never work. This would never work in the United States. I can't imagine how it's going to work in the U.K. Who's determining — who can make a determination based on the face of a website whether material's copyrighted or not? And — because it's not that easy. It's not like watching someone run a red light, and the light is either green or red. You've got to know is — okay. So who's the owner of the copyright? Did the owner give permission? Has the copyright expired? They don't have an indefinite life; copyrights do expire. And then, more troubling is, does it fall under a fair use, or in U.K. it would be fair dealing. Is there a defense for fair dealing or fair use? Remember, it's okay to copy portions of a copyrighted work and publish them on your website if it's for purposes of teaching or parody or commentary. Those are all acceptable uses. Obviously, there's an analysis there, and I'm speaking broadly; but ... [audio fades] ... takes into account several factors. It's not the kind of decision you can make by simply — I'm the copyright police, so I use the Internet every day and I visit websites. And when I see something I don't like, or appears to be infringing, I then shut down all the ads on that website. Think about that.

Denise: Yeah.

Adam: You are garnishing the wages of the business. The advertisement revenue is likely the very money that that website is hoping to earn for its business. So someone is making a determination, in the comfort of their own office without, presumably — well, someone is making a determination without due process to the actual owner of the website, and then going further and saying the penalty is, I'm going to garnish all your websites. And worse than that, I'm going to replace your ads with a warning so that no one wants to visit your website. I don't see how — that would never work in the United States; I can't imagine it would work in the U.K. for very long. So I guess it'd be something interesting to watch.

Denise: Yeah, definitely.

Franklin: I would have to disagree. I mean — if I can jump in here. I mean — (Laughs)

Denise: Yeah.

Franklin: From a content owner standpoint, that's a little untrue as to what the PIPCU appears to be doing in the news article. It seems like it's the content owners themselves who are the ones that are running across these websites, and they're the ones that are then reporting it to the authorities. And then the authorities, it says, are then getting an option for the website to respond prior to doing any of the ad removals or any other violations of due process that might occur in that sense. So there is an opportunity to respond and say, "We have this right to use this content," or a fair use argument here. So in that sense, I don't think it's really fair to say it's just some authority sitting in his office deciding what is a wrong website. And I think that, from my viewpoint, this would be more helpful for websites like NinjaVideo, if you remember from a few years back when that website was running. It's very clear that when a website is able to offer users who install some type of flash plug-in that does a routing service to be able to watch videos — and a lot of the ads that are surrounding these clearly illegal videos based on titles that match the exact titles that are in a torrent search, for instance. Like, you can look at a torrent, and a TV show has a very common .avi or .mp4 title that even includes the name of the group that has ripped it or encoded it for that purpose. And so I think, when you have clear-cut websites such as NinjaVideo from a few years ago, I think that there should be an option for a content owner or a company to say, This is wrong. It's clearly wrong. And then, here, they're using Google Ad Sensor; they're using Netflix ads on their site because they know the target audience are content consumers. So why are they allowed to make money on that, on my content that I'm not allowing them to share yet? Especially if it's something that's still in theaters. I mean, to me, it seems like there are clear-cut examples of when something is truly illegal, and there's no possible way they have any right whatsoever to be sharing Guardians of the Galaxy the day it comes out in theaters. I mean, yeah. (Laughs) I just had to share that.

Denise: (Laughs)

Jack: And I think there's an important distinction to make between what I was talking about, what Adam was talking about, and what Franklin was talking about, right? And so, yeah, when you have obvious infringements, maybe there's a way to go after that. I was talking about — I actually have my facts a little bit wrong; and I realized, when Adam was talking, that I had been mistaken. It's one thing to say, Okay. We're going to put an ad on this particular — so this particular user can see it and give them a notice that way because we've done an investigation about that user. But what's actually going on here is that they're just saying — and it's what Adam pointed out, right? They're just saying, This website, we've decided to call this infringing; we've decided to commandeer their ad infrastructure in order to send messages to their users that are going to drive users away and going to replace their ad revenue, right? To me, that shades of SOPA and PIPA.

Denise: Yeah.

Jack: What was the problem with that? Yeah, you have rights holders just come in and say, Let's — we don't like the site; right or wrong, let's shut it down. We've seen problems even with the current laws, where the U.S. government has mistakenly shut down — or not shut down sites, but seized their domain names; or they've seized domain names without any charges or any indictment being filed and held onto those for as long as a year in the case of DJS1, and then released the domain name when they really couldn't come up with facts enough to support an indictment, right? And so we've already seen unlawful seizure of sites, right? My view, unlawful — inappropriate, at least — seizure of sites. And that's — I think that's really problematic. And so Adam's made a good point that you can't just cannibalize — but I think that's different than saying, Okay. We've done an investigation of a user, and we're going to reach out to that user and have a process, right? And I think that's a middle ground sort of between what Franklin is saying and what Adam's saying. But if you're talking about just deciding, oh, well, a rights holder told us they don't like this site — they did that with, for example, TorrentFree.com at one point, which was a —

Denise: Yeah.

Jack: — which is actually a new site about the torrenting world, right? And they have a lot of original reporting. And so to me, that's, again, problematic if you can take these kind of unilateral actions without the right procedures in place, it can't be done. And if you look at the offline context — bookstores and newspapers, things like that — there's actually a lot of jurisprudence that says that's completely out of the question. You can't just go in and seize somebody's store even without a court order, right? So I think we ought to think about whether we're talking about targeting individual users based on evidence, targeting websites based on evidence, and what kind of process is involved.

Denise: Yeah. As you were saying before, Jack, it's going to all be in the implementation and whether this winds up being a sensible kind of a strategy or a really overzealous kind of strategy. And it is going to be interesting to watch and see how it unfolds.

Speaking of revenues and where we spend our money and where we spend our time online, I would love to point you guys over to twit.tv/amazon. Of course, we all spend a ton of time on Amazon, whether we're buying videos over there or house supplies. I know just about every household good that I purchase these days comes from Amazon, as well as media and entertainment things. (Laughs) And if that's true for you, too, and you're a fan of the network, then this is definitely something you need to be doing. Of course, you know that Amazon has great affiliate programs and that you can support people that you like, like the TWIT network, just through your ordinary shopping habits. And we have a great way for you to do that here in conjunction with TWIT. You go to twit.tv/amazon. You already know the price selection and convenience of amazon.com. You can help support us with all of your Amazon purchases. It's easy; you just click through the Amazon banner at twit.tv/amazon. You'll also see links there if you're in the U.K. or Canada that'll work for you. And then you just shop as usual. It's as simple as that. It costs you nothing extra, and anything you purchase helps keep the lights on at the Brick House, which is very important to us. So I just can't imagine that Amazon isn't a major part of many of our listeners' lives. I know, between Amazon Fresh and every other aspect, I still use both Amazon Fresh and Amazon Subscribe to get groceries and day-to-day supplies to our household. So it's just an integral part of my life, and I know that I now am going to shop via twit.tv/amazon, and I encourage you to do that, too. Whatever you buy, please make sure to click through the Amazon banner at twit.tv/amazon. It's an easy way to support TWIT. You can also bookmark that page and click through our link every single time you shop at amazon.com. Don't forget there are links for Amazon U.K. and Canada. Once again, twit.tv/amazon. And thank you so much for your support of our network.

All right. So a sad, sad story along the lines of infringement and the back and forth that goes on with that. I don't know if you guys remember that there was a controversy about the game company GameLoft. Its Amazing Spiderman 2 title originally was going to have always-on DRM. And GameLoft responded to the outcry about that, didn't want to upset its users and do something that was, in their mind, overzealous and too much on the DRM side. So they removed the DRM. And just a few weeks later now, there's another title from GameLoft called Mortal — sorry, not "mortal" — Modern Combat 5 that was leaked online prior to its official release date; and the company has had to scramble and try and push up its release date so that it can get out there competing with free and have people actually buy its game. So I thought I'd just toss out real quickly here the state of infringement. When it comes to video games, obviously most game titles are very concerned, like with most movies, that their distribution follows the agreed upon and paid-for avenues. Jack, do you have any thoughts on the state of copyright infringement in the video game industry?

Jack: Well, I don't have any particular unique insights about that. I think when you compare, for example, to movies, I think we'll probably see more always-on DRM. The users have really resisted that. They've really complained loudly about that; and people still pay a lot for video games. There's — a lot of users and a lot of people who pirate also pay a lot. But at the same time, there's more piracy — I think it's growing, as far as I understand. So I think that there's going to be a continuing battle around always-on — and always-on is the video game version of the streaming model of Rdio and Spotify and Netflix, which is —

Denise: Yeah.

Jack: — which is, basically, you have to be connected, you have to be checking in in order to play the game. And that can create all kinds of problems. At the same time, a lot of people are always online anyway when they're playing because they're playing in groups or whatever it is. So whether that'll be a problem long-term is, I think, for the user community and the developers to work out. And I think there's a lot of feedback, there's a lot of — I think game developers appear to be more responsive to the users and be more in sync with the users. And I think the fact that they have a much better relationship, for the most part, with their users than the RIAA and the MPAA have is deserved. But that's — so my thoughts are pretty general on that. I mean, we're going to see more skirmishes like this for years to come. Most likely, always-on is going to be very attractive to game developers [unintelligible].

Denise: Yeah. And if that's the case, they're going to have to make sure that their software performs better than ExamSoft's, that we were talking about at the top of the show. (Laughs)

Adam: (Laughs)

Denise: Franklin, what do you think about video games and infringement?

Franklin: Yeah. I mean, I'm clearly on the side of, it's wrong to download — I think anybody would argue that it's wrong to download a game illegally and not pay the developer something. But what I particularly liked about the article is the writer picked out the fact that some of the common arguments are, you don't know if the game's going to be worth it or if it's going to suck when it comes out. But a good way to get around that are with, like, the reviews that are available. I mean, you have to find a reviewer that you can trust, and there are plenty of game reviews out there. So you can even go online to YouTube and watch a complete walk-through of the entire game so you can know whether or not you're going to like it. But some of the comments —

Denise: There are copyright issues with that, too, though, right?

Franklin: Exactly, exactly. So you've got to pick your poison. And some of the comments on this article were very interesting in that I'm an iPhone user, and I know there are so many more models of phones that you can use with Android. And I think that is a very valid argument to make that if you don't know, when you're downloading from the App Store, whether or not the game from the developer is going to work on your phone, then why would you waste the $7 or so? And I guess — somebody said there was like a 15-minute refund window with Android's store; I'm not sure if that's true — the Google Play store — or not; but either way, there are good arguments for either side, but I think the safest thing for a developer to do is just put out a demo and let people play through the first few levels. (Laughs) I mean, I think they just did that with — Bungie just did that with Destiny, the new game coming out.

Denise: Yes, they did. (Laughs)

Franklin: And so you can play up to, I think, eight levels or nine levels of the game; and that gives you a great sense of knowing whether or not you're going to enjoy this new style of game. But I think if developers choose not to do that or just don't have the finances available — because I'm sure it costs more money to put out a completely different version of the game — then you can't really argue with the fact that some people are going to torrent it, and some people are just going to cough up the money to pay for it. So there's always going to be two sides to the argument.

Denise: Yeah. The Bungie model is a great example; I'm glad you brought that up. The other thing that I always — that's always in the back of my mind, thinking about video games these days — is Minecraft and how they've just taken a completely different approach to — I guess it's a different kind of game that lends itself to this approach, but having people pay their initial fee for the game; but then the whole world of mods and maps, and the fact that you can create so much content once you're playing the game and creating for others to play in the game, that involve other kinds of IP being brought into the game — you know, pick your poison. If you're a Harry Potter fan, you're going to find dozens of Harry Potter mods for Minecraft. If you're a Spongebob fan, you're going to find Spongebob running around in Minecraft. And it makes my lawyer head spin a bit, but the approach of the company toward that, at least the Mozhang Company; God knows and people who own the IP rights to the Harry Potters and Spongebobs of the world may have an entirely different take on this. But Mozhang seems to have just completely embraced the explosion of creativity that has happened around the game. So I guess that would be at the other end of the spectrum of what's going on right now. Adam, what are your thoughts?

Adam: I'll probably defer to Franklin and Jack on this. But it strikes me as, there's always going to be a tension between the consumers who want to use copyrighted material and the artists who are creating it and the artists' efforts to try to control access to the copyrighted work. So I get that, and I think everyone does. And every once in a while, you have a clash or a collision like what we saw with the game being released illegally a day before it was supposed to be released, according to the legal schedule. So I think that's just something we have to deal with. I'm glad, though, there's pressure on the companies to try to minimize the inconvenience they cause to their consumers. Because we just saw this week in the news where the — is it Renault that makes the electric car? Where they used a DRM control mechanism similar to what we've been talking about to lock the battery for the car; and therefore, if the owner of the car falls behind on the payments — let me put it this way. When you buy that electric car, you're actually not buying the battery. You're buying everything but the battery.

Denise: (Laughs)

Adam: You are renting the battery. (Laughs) You're renting the battery; and if you should ever fall behind on your payments for the battery, guess what? The provider can turn off the battery where it will not charge; and therefore, you cannot drive the car. So I'm glad there's pressure on even gaming companies and any software makers to be careful and responsible about the DRM controls that they embed in their product because, if there wasn't that counterbalance from consumers and that pressure from consumers, then I think we would see more heavy-handed techniques like you're seeing with Renault and its electric cars. So ...

Denise: Absolutely. And we have to now make our second MCLE pass phrase "DRM my ride," I think. So that'll be number two for the show.

Let's move on — speaking of heavy-handed — to look at what's been going on between the CIA versus Senate on the privacy front.

(The intro plays.)

Denise: Okay. Head spinning again — we have a Senate oversight panel overseeing the CIA's secret actions; but the CIA, it turns out, got embarrassed about the fact that it had actually been spying on the Senators. Jack, can you add some more detail and tell us what happened here?

Jack: I just can't believe that CIA director Brennan still has a job after hearing this. I mean, not only was he not straight with the American people, but — let me go back. So what happened was, the Senate Intelligence Committee was working on — well, the CIA was investigating, I think it was, allegations of torture, and so they wanted to see what the Senate staffers knew. So they went in and looked at their computers and got into their computers; and when this originally was leaked — and I believe it was by Snowden, but I could be wrong there — the — I don't think that was by Snowden, actually. But what happened is, Director Brennan said, No no no, we're not leaking — this didn't happen; this isn't true. And of course, it turned out that it was true, and that investigators for the Department of Justice were lied to and that the CIA staffers who did it were not straight with DOJ about it. And so to me, this is most likely a criminal situation, but the DOJ has declined to investigate it since they didn't have enough evidence. But it's more problematic — I mean, all of this spying, it can chill people's expression, it can chill who they associate with, who they talk to, what they want to do with themselves. It can also, I think — something more disturbing is, it can lead to intimidation by government. Everybody knows that the government has a lot of information about you that it can manipulate and do whatever it wants to do with. That creates a real chill for people, and it's very scary and it threatens our democracy, right? So originally, when this whole thing broke a year ago and people — I do a lot of privacy work, and I think about privacy for a long time. And so we were thinking about this, and people were suing the NSA and the DOJ and saying, Stop pointless wire tapping long before the Snowden revelations. But when this whole thing hit, one of the first things Obama said was, "We're not listening to your phone calls." That turned out not to be true. We were told, This is all legal. Legal. This is all legal. And it's true that the FISA Court had approved a lot of it; but when you see the legal justification, it's frankly laughable because the Patriot Act provision that they're using, for example, to collect all Americans' phone calls — phone call records, not the content of the phone calls — is not intended for that at all. It's intended for business records that are relevant to an investigation, right? So now they're saying every phone call everyone makes, how long they make it, who they call, where they called it from, possibly, and some other data is all relevant to an investigation. And I guess the investigation is terrorism and scare quotes. So that turned out not to be true. Then he said, "No one's listening to the content of your phone calls." Well, it turns out that many phone calls, many emails, many chats, are actually being collected of Americans, right? Even without suspicion, sometimes on purpose, sometimes not on purpose, sometimes carelessly. And then they said, "Well, no one is using this for prurient purposes, for sexual snooping or for spying on people's private lives. This is all just for terrorism natural security. And it turns out, no. There's actually a nickname for that type of activity — it's that common — it's called Loveint. And only about a dozen out of tens and thousands of employees have been fired for it; but that's because they had to take lie-detector tests and they thought they wouldn't pass. And so people's pillow talk is being listened to and things like that. Then we had a situation where the spying was actually being leaked and given — or, sorry. Information was being given to other agencies, like the [unintelligible] and the IRS to use in prosecutions. And then law enforcement that was given — sometimes they were given some of that information. They were told to lie to the court and to hide that that was being used and to create a legitimate trail and hide all of this from the defendants. That's problematic. Lawyers are being spied on. We now have a couple different situations there where lawyers were — communications were intercepted, so that's problematic. The only thing we haven't seen is where it's being used to discredit opposition, to blackmail people for political purposes in ways that would directly undermine our democracy. It's not a [unintelligible] situation because this has already happened. It happened in the Nixon administration, and J. Edgar Hoover was actually — they would go to Congressmen with incriminating information in their briefcase, and they would say, I'm going to leave this piece of paper here and I'm going to come back in the room in a couple of minutes after you look at it. So we need you to vote for this appropriations bill, or whatever it is. We don't have any evidence of that. I don't know if that's taken place; but the thing is that when you have this much information about people — and now we see that the executive branch, in charge of foreign intelligence operations, is going in to look at the legislative branch's privileged or confidential information related to investigation, that touches on that agency. I mean, that is a huge, huge violation that really threatens our balance of powers, that threatens our whole system. I mean, it's incredibly disturbing. It's, in many ways — at a certain level, it's far more disturbing than just thousands of citizens having their information be intercepted and looked at, right? And the only thing we haven't seen yet is where people are being blackmailed or being manipulated with this information into changing the course of politics. In other words, the course of policy-making. And that's the shoe that's going to drop. I don't know if it's going to drop — I don't think it's going to drop in the Obama Administration; but the longer it goes on and the more presidents we see that have this power, eventually it will happen. And then we'll be looking at a very, very dangerous situation. Well, we're in a dangerous — I think we'll be looking at a serious undermining, I guess you could say, of our system if that ends up taking place.

Denise: Yeah. And there's nothing to —

Jack: So that's my rant. So that's my rant.

Denise: (Laughs) It was a good rant.

Jack: Thank you.

Denise: And there's nothing to say that that's — I mean, the fact that we haven't heard about those episodes happening recently doesn't mean they're not happening because, if you're in that situation and you're a lawmaker, the last thing you want to have happen is to have it be public. So —

Jack: Well, yeah. And the other thing we've been told is, Yeah, this is all being secure. It's only authorized people. It's not going to be leaked. Except for the fact that somebody fled to Hong Kong with thousands and thousands of documents. So that's already evidence of the fact that if you have this, it's going to get out and it's going to cause harm. In this case, I don't know how much harm it's caused. I think it's enabled a conversation that everybody you talk to says it's important to have. But again, it's — there's too much being collected; there's too many people with access to it. It's going to get into the wrong hands; it's just a matter of time. And whether that other shoe will drop, Denise, I don't know when it will, if it will; but I'm absolutely terrified that it will.

Denise: Do you think that any of the cases that are pending now in federal court that challenge the constitutionality of the scope of surveillance that has been going on — do you think that any of them have a chance?

Jack: Well, I mean, we had a case in the southern district of New York from late last year where the judge said that the mass collection of, I think it was metadata, telephonic metadata — collecting everybody's records of who they call, when they called them, those kinds of things — was unconstitutional, and that violated people's Fourth Amendment rights. That's going to go up to the Second Circuit. Then a few days later, the — I think it was the — no, it was — I think it was — well, one judge — just off the top of my head I'm forgetting which cases, but I can get that. But there were two trial court — two federal district court judges, trial-level judges, within two days of each other, disagreed on the constitutionality. And I think it was a judge in the district — I think it was the District of Columbia that said it is unconstitutional; and I think it was a southern district of New York that said that it was constitutional. But those are going to go up for the Court of Appeals. Who knows what's going to happen in those two different circuits? It'll undoubtedly get appealed to the Supreme Court, and then who knows what they'll do? I mean, we've seen some of the more conservative judges be — vote with the more liberal justices to uphold Fourth Amendment rights. We saw a case about GPS tracking recently. And so that very well could happen. We also had two judges that said in concurrence recently — I think it was Justice Sotomayor — it was Justice Kagan, I think — who said we really need to look at the case that the DOJ is relying on called Smith v. Maryland, which said that when you do business with a third party like a phone company, you don't have a reasonable expectation of privacy in your information. And so you don't have a Fourth Amendment right to that. That Smith v. Maryland case was from 40 years ago and is quite different in a lot of respects than the current situation; so will that get re-examined? It's really tough to tell. On the one hand, I think that the five more conservative justices are pretty establishmentarian and aren't going to want to come down real hard, if at all, on the FISA Court. At the same time, you see Scalia and a couple other justices coming over to the more civil libertarian side on a number of cases. And this goes back a few years, too. Go back 10 or 12 years, or 10 or 15 years, there's a case about marijuana infrared detecting — heat sensor technology; and the court said, You have to get a warrant before you use technology that's not available, generally, to the general public, that's sort of super sensitive technology. And Scalia was in the majority on that case. I think he actually may have even written that case. And so it's — it could go either way; it's really tough to call.

Denise: Yeah.

Jack: Because you've got the establishmentarian bent on the one hand; you've got civil libertarian bent on the other hand. So it might depend on which president's in office, if you want to take a cynical view that the court is politicized. But who knows what'll happen?

Denise: Hey, Franklin, we have a good article in our rundown for today that's by Megan Meaghre over at Forbes that's titled "Why Online Privacy Should be the Defining Cause of the Millennial Generation." I know we're not really talking about online privacy here but other forms of privacy and expectations of privacy; but do you find this particularly alarming, or do you kind of take it in stride?

Franklin: I think it's something you have to take in stride, kind of like she says in the article. (Laughs) It's kind of hard to control because we — well, my generation at least, I guess — we use Facebook — I guess high schoolers don't use Facebook anymore, but messaging apps, everything like that. And so the data that we're really sharing on these types of mediums, I guess, is being mined and could, potentially, be used against us. And so that's a very scary thing to consider, especially come time to apply for a mortgage for a house and everything that goes along with growing up and getting older and getting jobs. And so that's why I kind of, to the best that I can, take a stance that I want to put out there as much as possible that I want to be out there, if that makes sense. I want to control the information that's out there. But I feel like, with companies like Facebook, you can't really control that because of the inherent nature of using them, the privacy that you just consider to be there when you're using a Facebook message or you're sending a photo through Instagram's Inbox feature. You kind of get into this mind set of, oh, it's just me communicating with this other person, but it's not really like that. It's me communicating with this other person with this huge company knowing exactly what I'm talking about. (Laughs) And so it's kind of hard to see how it's going to play out in reality in the future. I mean, I would hope that — as the article explains, I would hope that generation will rise up and make a cause for the fact that all that data they have on us can't be used in that sense. But it's going to take time to tell whether or not there will be limitations on using the data that has been mined about us.

Denise: Yeah.

Hey, let's wrap up the show with some patent stories.

(The intro plays.)

Denise: Ka-boom! (Laughs) So the Alice case is starting to have ripples, not just among small players but big ones, too. Of course, the Apple versus Samsung and Samsung versus Apple litigation has been going on for quite some time. Some very high stakes issues at play. And apparently, now the Alice case before the Supreme Court, which talked about patents being too abstract to be legally valid, has now come up in the Apple versus Samsung dispute. Some claims — some lawyers for Samsung think that some of Apple's claims need to be thrown out in light of this decision. That issue has been fully briefed to the court now, and we're waiting to see what the court does with it. Adam, what do you think's going to happen here?

Adam: Well, it's — I guess it's not surprising that Samsung is now looking to the Alice case as a reason to invalidate Apple's patents. They've — Samsung's got a hard road to go, though. One, their deadline for having done that passed some time ago, and Samsung lost the case at trial. So they're a little bit behind the eight ball. But I think their bigger problem is really Alice itself. The Alice case is a patent case that the software industry has been anticipating and waiting for for some time; and the expectation, at least among some people, was that the Supreme Court was going to issue a new legal standard, and it was going to change the way that trial lawyers like myself and software companies and software developers think about software patents and whether software is even eligible for patents. But the Alice case — the United States Supreme Court decision — it didn't change existing law, really. The United States Supreme Court invalidated the patent that was before it, the patent that was actually an issue, but went out of its way to confirm that software deserves patent protection just as much as any inventive medium that we have. And that makes sense. Software is probably the basis of some of the best and greatest innovations that are taking place in the United States, so it's understandable that software's certainly eligible for patent protection. The court did, however, say that what you cannot do is you cannot take an existing process or an old idea and then throw a generic computer into the mix and obtain a patent. Patents have to be novel; patents have to be useful. They have to be new; and the court says, if you take an old idea and throw in a generic computer without really explaining how the computer improves that idea, then you really haven't done enough. You haven't transformed that idea to an invention. And so Alice just really stands for the fact — or for the principle of law that we already knew; and that is that you cannot patent an idea. Ideas are not eligible for patent protection. So what the court is looking for, and what future courts are going to look for, is — because remember, all inventions, if you drill down deep enough, begin with an idea. So the courts are going to look for that inventive concept. In other words, has there been a transformation? Has what began as an idea, has it been transformed into something that's innovative? And that's really what the Alice court made clear, is, We're going to be looking for that inventive concept, that moment of transformation, where something ceases to be just an abstract idea which is not protected by patents, and instead becomes innovative and useful and worthy of patent protection. So now we get back to Samsung. Samsung takes this court decision that it had probably been hoping all along might give it a second defense after having lost the case. So Samsung tries the case against Apple, loses, but is hoping all along that the decision coming from the United states Supreme Court and Alice will give it a new chance, a new breath of life. And so Samsung's sticking to its game plan; and they have filed papers with the court, asking the court to invalidate Apple's patents in light of the Alice case. The problem is — and this is the problem Samsung's not going to be able to get around, in my view — is that Apple's patents are not like the patent that was at issue in the Alice case. Apple's patents are innovative. One of them is the "slide to unlock" feature that we all like, to turn an iPhone on. If you recall, before there was that type of innovation of that technology, we all were dealing with on/off switches. And those could be bumped; they could be inadvertently turned on; you could make unwanted phone calls, not knowing your phone was on. So Apple has a patent on the technology that allows you to touch the screen; it recognizes that you're making a horizontal swipe; and it therefore responds by turning on the computer. That technology seems easy and simple; it's intuitive. My 4-year-old figured that out and probably, if anyone has kids, your kids have probably figured that out right away, too, because it is intuitive. But intuitiveness and obviousness, for purposes of deciding whether a patent should be issued, are totally different concepts. If you put yourself back in 2003, 2004, when Apple patented this technology, that was an innovation that improved on a problem that was facing smartphone makers. So the patents at issue in Apple/Samsung cases are not like the patent that was at issue in Alice, so I don't think Samsung's going to be successful. I'm not surprised they're making this defense, but I think it's a long shot.

Denise: All right. Hey, you're down in Texas where a case that we've been following has been pending and continues to be pending despite the fact that the plaintiffs now want to walk away from it.

Adam: (Laughs)

Denise: Have you been following the Personal Audio case against Adam Carolla and others?

Adam: I have some, from a distance. It is interesting because what we all hate is

frivolous lawsuits; and what is so frustrating in the legal field — and it makes, I think, the practice of law look bad in the view of people who aren't lawyers — is what happens to the plaintiff that brings the frivolous lawsuit? My partners and I, we go — we do a lot of diligence in our cases, and we turn down a lot of cases involving — cases that I would ordinarily want to take because they're software related — because there's no merit to them. But unfortunately, there are frivolous cases, and it's often so easy for that frivolous — that plaintiff that brought that frivolous lawsuit — to just turn around and end the lawsuit and walk away without penalty. And so often, defendants, for good reason, they don't continue to prolong the fight. When they never wanted to be in the lawsuit in the first place, they generally will agree to let the plaintiff go. So it is kind of interesting. For the viewers, what's happened is, the plaintiff brought a patent lawsuit against a number of defendants, one being Adam Carolla; and then has since backed out of those lawsuits and is trying to walk away because, frankly, there was probably no merit to the case. And then Adam is refusing to dismiss this case, and he's continuing to prosecute, I guess, from the defendant's side, probably seeking to recover all the attorney's fees he spent up until now. So it is interesting.

Denise: Right, and seeking to invalidate the patent, importantly.

Adam: Yeah, yeah.

Denise: Which is the patent that claims to cover technology related to what we're doing here today. (Laughs)

Adam: Right.

Denise: So it's an interesting case. It has been an interesting case all along. It's an intimidating case for those who do podcasting or netcasting or whatever you would like to call distributing of video in a syndicated way. Adam Carolla has raised over $450,000 in a crowd-funded campaign to his fans and is going to make good use of that war chest and continue to try and take this case to trial and get a legal determination on the merits of the patent. So I believe that's scheduled now for the end of the year sometime, so we'll continue to take a look at that. There's a good article by Joe Mullin over at Ars Technica on this if you want further details. But the Personal Audio, LLC, the plaintiff in the podcast patent case, is now on the run, and so we'll see how far they run and what happens. (Laughs) Any closing words on that one, Adam?

Adam: That is the fear of the plaintiff, of course, is that the plaintiff started the lawsuit with a patent, hoping to get money; and then now, it became clear that the plaintiff wasn't going to get money, so the plaintiff, now, is just hoping to walk away with the patent. And it looks like that's going to come to court, so ...

Denise: Yeah. All right. We are kind of running long, so although there's much we could still discuss, I think we're going to have to table it for another day and go on to our tip and resource of the week.

Our tip of the week: hearkening back to the privacy discussion we were having, a lot of people use Tor, the onion router, when they are engaged in activities that they want to have a degree of privacy that their open Internet connection would not have. The tip was that there was an announcement by Tor that they believe that people who have used their service between February and July of this year may have had their web traffic compromised. There is kind of a complicated story of some research that was being done at Carnegie Mellon University that was government-funded research where the researchers were trying — they were looking to give a talk at Blackhat to show that they'd been able to identify Tor users. And I guess, when someone caught wind of this, they said, No, no, we're not giving a talk; we're pulling the talk. (Laughs) And no, we're not going to be that university who's known for having unmasked you on Tor. In any event, the tip to take away from all this is that even when you are using good privacy-oriented tools, a healthy degree of paranoia is still in order, and don't rely on those tools to be infallible.

And our resource of the week: again, interested in those who gather information about us and the innovations they may come up with in doing so. ForeignPolicy.com has a very interesting database, a searchable database of all the NSA's patents. The NSA has been busily registering patents with the USPTO, and all kinds of fun spy-related technology in these patents. (Laughs) So if you're interested in seeing what patents the NSA has and the volume and the rapidity with which those are being registered, go ahead and check out this online searchable database of NSA patents at ForeignPolicy.com. The entire link will be in our discussion points at Delicious.com/thisweekinlaw/269 is our episode today.

Guys, this has been a really fun and wide-ranging discussion. I have learned a lot; I hope that you've enjoyed your time with us, too. Franklin, so glad that you've come through it all. And you say you're already employed and going to start work so soon after finishing the Bar exam?

Franklin: Yes. I'll start on Tuesday. I got hired by a company called Maxis of America. They're a classical music record label, worldwide. Obviously, they have their main — they started in Hong Kong. But if you Google them, you can actually read a pretty interesting Wikipedia article about a court case they were involved in about pre-1973 recordings, all that kind of fun stuff. So I'm really excited about it. I'll be starting out in, like, a business affairs type position, and from there we'll see what happens. But I can't officially practice law until — I guess, October, I find out the results; and in November, I will be sworn in, hopefully. So —

Denise: Yay!

Franklin: — come that time, I will actually be able to call myself an attorney or esquire, rather than just J.D. But I'll actually — next week on Friday, I'll be at the ABA conference, their annual conference in Boston. So if anybody is there, I'd welcome the opportunity to meet up and chat.

Denise: That's so cool. Congratulations, Franklin, and great job on finishing school and the Bar.

Franklin: Thank you very much. Thanks for having me. This was so much fun to be here and talk with everybody.

Denise: Yeah, it's great to catch up with you again.

Jack, great to catch up with you again, too. So excited about the new stuff you have going on and the fact that you're coming down to the more civilized part of Southern California, if I do say so myself. At least — I don't know. I like the beaches here better, let's just put it that way.

Jack: Well, it's — I'm really excited about this new position and starting the Intellectual Property and Technology Clinic. Excuse me — the Intellectual Property Arts and Technology Clinic at UCI. And it's just — life is easier in Orange County, in some ways.

Denise: (Laughs)

Jack: The problem is getting there from [unintelligible].

Denise: Yeah. UCI is sort of the unsung hero of the UC system, I think. It's in a lovely location, but I don't think the word has quite gotten out on that yet. The law school is definitely something to check out if you're someone who's interested in this show, considering law school. Is the dean still Erwin Chemerinsky?

Jack: Yeah.

Denise: Yeah.

Jack: Erwin's still the dean, and he's doing — he's doing great stuff.

Denise: Yeah. Incredibly world-renowned constitutional scholar, so if you are in the market for a law school, definitely check out UCI. And if you're someone who's interested in these issues that we've been discussing today, Jack's clinic would be an incredible addition to your legal education. And Adam —

Franklin: And Denise, just —

Denise: Yes?

Franklin: — just to interrupt real fast ...

Denise: Sure.

Franklin: Erwin Chemerinsky — even if you don't go to that school, you will encounter him through [unintelligible].

Denise: Yes.

Franklin: He is a very prominent lecturer for studying for those 1L classes and then also for the Bar. So he's an excellent professor on [unintelligible] as well.

Denise: Yep. He's very well-known and very respected in the —

Jack: He's a phenomenal dean, too.

Denise: Yeah. Yes, definitely.

Adam, it's been a real pleasure to meet you. The firm is Gordon, Reese, and Marketos in Dallas, Texas. And is there anything going on at your firm or with you that you want to let people know about before we go ahead and wrap the show?

Adam: Well, we just started in 2011, and we're a boutique law firm in Dallas, and we do only commercial and business and litigation. We also — within that niche, we also practice intellectual property litigation. I have a background in software development. My undergraduate degree was in software, and then I worked in that field for a number of years; so I specifically like to represent software developers and software companies. But anyway, Denise, thank you for having me on the show. It was my first time, and I enjoyed myself and I learned a lot. And it's nice to meet you and nice to meet Jack and Franklin.

Jack: Likewise.

Denise: Yep, great chatting with you, too.

Folks, we record the show every Friday at 11:00 Pacific Time. As it was pointed out to me on Twitter, that means 2 P.M. in the real world for all of you on the East Coast.

Franklin: (Laughs)

Denise: 1800UTC, for all of you elsewhere. And we sit here and chat away about technology and intellectual property issues, privacy issues, net neutrality, everything that really is important and happening at the intersection of technology and law. So if you have enjoyed yourself and want to join us again, please do so at — Friday live, at that time is when we record. Otherwise, you can pick up the show on demand through this wonderful technology sometimes known as podcasting, which we hope will survive any patent challenges thereto. You can pick up the show on our site at twit.tv/twil. We're on YouTube at youtube.com/thisweekinlaw. We're on iTunes, on Roku, various other outlets where you're going to be able to find the show. Also, you should get in touch with us between the shows. You should let us know what you thought of today's guests and the topics we discussed. You should let us know what you think we should talk about next time and in the months to come. And the way you're going to do that is, I'm on Twitter. I'm dhowell there; my cohost Evan Brown, who couldn't be with us this week, is also on Twitter. He's innternetcases there, so you can get in touch with us directly there. You can email us. He's evan@twit.tv; I'm denise@twit.tv. We also have a Facebook and Google+ page and communities for the show, so great place to get in touch with us when you have something more lengthy that you want to discuss or something to toss out to the community and take the temperature of other people, see what their reaction is, those are great spots to do that. That's my son walking by in the background. (Laughs) Say hi, Tyler. Wave to the camera. There we go.

Voice in background: Hi!

Denise: Hi, how are you doing? (Laughs) He's trolling us there in the back. So I'm going to go ahead and wrap the show and go spend some time with him. I've enjoyed spending time with you all. I hope that you all enjoy the next week, and we will see you next time on This Week in Law! Take care.