This Week in Law 271 (Transcript)

Denise Howell:  Hi folks, I'm Denise Howell.  Next up on This Week in Law I am joined by Evan Brown, Ali Sternburg, and Sam Glover.  We are hooked on the feeling that you are going to want to watch this show.  We are going to talk about old music and new business models.  It's stalking cats and dogs!  We are going to talk about robots, jobs, and lots more next on This Week in Law.  

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This is TWiL.  This Week in Law with Denise Howell and Evan Brown, episode 271, recorded August 15, 2014.  

A Hero Named Kevin Bacon

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Hi folks, I'm Denise Howell, and you are joining us for This Week in Law.  We are really, really excited that you have joined us this week because we have a wonderful panel of folks to tell you about everything that is going on and their special insights into all that is important at the intersection of technology and law.  So without further ado, let’s introduce them to you and get going with this, shall we?  My co-host Evan Brown is back.  Hello Evan.

Evan Brown:  Hi Denise.  Yes, it's great to be back.  Seems like a long time out for a couple of weeks.  I had a great time visiting Colorado and enjoying the mountains there.  But no place I would rather be right now that here on TWiL with you talking about this stuff.  I'm looking forward to our conversation as always.

Denise:  Me too, so much.  It's great to see you.  We've got sort of back to back representation from the CCIA, that's the Computer and Communications Industry Association and also project DisCo, the great, great blog that we mentioned to you last week.  This week we have Ali Sternburg joining us.  Hello Ali.

Ali Sternburg:  Hi, great to be here.

Denise:  Great to see you.  Thanks so much for joining us.  Also joining us from the Lawyerist Blog is Sam Glover, hey Sam.

Sam Glover:  Hey, good to be here.  

Denise:  Good to see you, nice to meet you.  Am I correct in assuming that if you call a blog "ist" like Lawyerist, or Gothomist, or LAist that there is a good deal of snark involved.  Is that what the "ist" implies?

Sam:  That was not my intention.  I think that Lawyerist means one who lawyers, but yeah, we kind of do the snark thing anyways so maybe that's part of it.

Denise:  You do a bit, yes.  So snark is good.  It helps get us through life, I think as long as the snark controls are in place.  A healthy level of snark vs an unhealthy level of snark.  We will be talking about that kind of thing later on the show.  Right now, I think that I need to go around and ask people if they have seen Guardians of the Galaxy yet because I have seen it twice and it has been on my mind as I have been prepping for the show this week.  So who's with me?

Evan:  I haven't seen it yet.  Believe it or not, my 8 year old son is the one who is providing the motivation for this.  I'm not quite sure how to feel about that fact whether it's going to be appropriate for him or not.  He's had some peers to go see it.  There is a really good article in Wired this month too about it that sort of goes into the historical context of it all and the origins of it as a comic book phenomenon.  I'm definitely more than sufficiently intrigued to go see it, but haven't seen it yet.  Interested to hear what everyone else is doing.

Denise:  Yes.  Hopefully we can intrigue you further after our discussions today.  Ali, have you seen it yet?

Ali:  I have not seen it yet.  But I love superhero movies and definitely plan to see it.  Especially after hearing about how the soundtrack is important too.  

Denise:  How about you Sam?  Am I the lone Guardian's viewer on the show even though we are going to talk about it?

Sam:  You are.  My movie partner has already seen it so I'm kind of left out in the rain here.  I need to make a date with myself to go watch it.

Denise:  Alright.  We are going to get you all enlisted and we are going to start out talking about that and some other stories at the intersection of entertainment and law.

(Music intro plays)

Denise:  So, Guardians of the Galaxy; the wonderful comic, wacky movie just killing the box office right now.  I guess it's no surprise that as of August 11th TorrentFreak reported it as, I guess it is kind of a surprise to me anyway, and that it is only the eighth most pirated movie for the week ending August 11th.  I can only surmise that that is because with their listing, I don't check this TorrentFreak list of who is topping the Torrent charts that frequently, but on this list the Guardians of the Galaxy movie is listed as only an HD cam version.  I don't know, I guess that's what they've got to work with, so that's what people are Torrenting.  I suspect that it will jump up as the movie gains popularity and buzz.  It's hysterical.  This is the only movie I can think of ever in my life that I've felt compelled to go see again two days after I saw it the first time with my son who is 10, Evan, not 8.  That may make a difference.  There is some language.  Really mostly, of course there is violence.  Not bloody, awful violence, but a lot of like shoot em up, huge explosions, and etc. kind of violence.  So yeah, from a parental standpoint you might want to check Common Sense Media and see what their take on the appropriate age would be.  But it is so funny.  Part of what makes it so funny and wonderful is this quirky soundtrack composed entirely of 60's and 70's tunes that is now the number one selling album on the Billboard 200 which just absolutely floors me.  The movie makers were actually able to put together this quirky, campy, creaky old soundtrack and it's just going gangbusters.  It's called the Awesome Mix and I won't give away for all of you and all of you watching who haven't seen the movie the significance of the cassette tape that we are seeing now on the video.  It's just this great mix of old music, and provides an amazing backdrop, and is an integral part of the movie.  I wanted to talk about having this old music at the top of both the download and CD sales charts, what that means in the Digital Era; old music and new business models.  One thing that occurred to me is that everyone who has been lobbying for these incredibly long copyright terms that we have in the United States, life plus 70 at the moment, just got a huge shot in the arm to their position.  If you can take something this old and make it this profitable I guess that militates towards a long copyright term doesn't it Ali?

Ali:  I think that's one way of looking at it.  I think that, if anything, it shows that really good quality music, there will always be an interest in it.  I think that they could be selling it even if some of these songs weren't still in copyright.  I don't know if this is one of the reasons that you are interested in it, but there is an interesting wrinkle in the pre '72 sound recordings that doesn't actually come up that often.

Denise:  Yeah, tell us about that.

Ali:  Some of the songs were pre '72, which is kind of a unique niche issue in copyright that Matt talked about a little bit last weeks.

Denise:  Right.  It comes up on the show, and I don't think any of us understand it very well, so if you want to flush it out for us here since we are on the topic...

Ali:  Yeah, so due to the way that copyrights change over time, sometimes piecemeal and sometimes the big Acts like the '76 Act and the '09 Act, sometimes things will get changed a lot of things at once and sometimes they will be responding to small niche areas or different interest groups who come in to ask for things.  For sound recordings, due to the way that those codify, songs that were recorded prior to February 15, 1972 are protected just under state law and not under federal law.  For each song there are two copyrights, there is a copyright in the musical work and the composition and that would be owned by the songwriter and is often owned by a publisher, and then there is a copyright in each different sound recording; each different cover version will have its own copyright.  All of those are protected by federal law.  But the side owned by the labels, the ones that are pre '72 are just protected by state law.  One of the reasons that that has come up recently in litigation are whether the DMCA Safe Harbor applies, and there is some discrepancy over whether that is available around these things that are just protected by state law.  A brief that we filed a couple of weeks ago argued that the DMCA does apply, but we will have to see how that goes over the next couple of months.  

Denise:  Okay, it brings up too, since this is a mix of music and that is what makes up the particular blend of the Awesome Mix Vol. 1 quite so awesome.  It's just that it's taking a bunch of music and putting it together.  Of course, there is nothing new about that.  People have been doing it themselves and commercial companies do it, but I thought it would be interesting to talk about the legality of mixes and making your own mix given the popularity of this soundtrack and its integral, interwoven nature with the film.  Mixed tapes, even though we haven't had tapes in a very long time, continue to be an important part of particularly the rap music industry.  People do go after artists who take their music, mix it up with other popular artists, and market themselves that way.  Evan, do you have any thoughts on the current state of the laws regarding mixed tapes?

Evan:  As far as what the current state is right now, it appears that sort of by default the idea of making a personal copy of a track of music is not something that the RIAA is going to vigorously go after.  Was it back in like the Grokster litigation?  It was in some of the ligation pushing ten years ago now that it was a famous admission by one of the lawyers for the recording industries where he essentially conceded that they wouldn't go after an individual making a copy of a song.  If somebody can brief me on if there has been any actual resolution of that issue, any kind of court decision, certainly I'm not aware of any kind of amendment to the Copyright Act that addresses that issue.  There is sort of this idea that personal use is just one of those things that kind of happens and it's not really there.  A larger phenomenon that is on the larger scale of history is how the right's holders in these situations have recognized the danger of making a personal copy to the revenue stream where there are certain provisions in the Copyright Act that don't allow for the selling of, I forget exactly how it goes and I forget exactly where it is because I should have studied up on this before, but where there are certain restrictions on being able to sell blank media in connection with actually renting out audio recordings.  This goes back to the idea that there would be a record store that also sold the blank tapes.  I think that it is in Poland now, of all places, I remember seeing something about this recently, where there is talk among the commentators about attacks on blank media, which also comes into our system as well.  I realize that I'm talking in generalities.  I hope somebody can fill in some details.  Maybe that is you, Ali, on all of this.  Personal copies are a thing, a real thing that people will do and have always done.  A mixed tape is a cultural phenomenon.  It's a thing that many of us who grew up in the '70's, and '80's, and even the '90's can identify with.  It sort of engages in this interesting dance with copyright both at what the fundamental black letter law would say and more as just a normative of acceptance of how people are going to use this content.

Denise:  Ali, do you have anything to add on the topic of mixed tapes and the law?

Ali:  Yeah.  I've always been really interested in sampling.  I'm a huge fan of mash ups.  It's probably the type of music that I consume the most.  A lot of these DJ's put them online for free on their websites, from whatever kinds of different wrong but right line things, about how many seconds you can sample, out of fear about ambiguity about fair use.  A lot of times they just end up choosing to have their business model be more about live concerts and finding different ways to make money rather than their recorded music.  I think that there is a lot of history there and the recorded music industry didn't pay a lot of attention to hip hop at first.  But when it started to become a lot more commercial then that's when they started to be suing a lot of older artists.  There has been a lot of interesting research done on whether the Beastie Boys albums and a bunch of other really classic albums couldn't have been made today because of the cost of licensing all the different samples and stuff.  It's completely prohibitive.  Thinking about how much these albums have influenced the way music developed, it's really discouraging when copyright acts as a disincentive to be creative when it really should be doing the exact opposite.  There are a lot of interesting sampling cases out there.  I wrote a post on DisCo about a question about six seconds.   Can you infringe copyright in six seconds?  I wrote about when Twitter introduced Vine maybe a year or two ago and just kind of talking about the different case law and whether that was at all influenced by the Bridgeport Cases.  There were some classic sample cases in the 6th Circuit where in one of them the judge quoted the bible's "thou shalt not steal" and said to "get a license or don't sample".  There have been a lot of cases in music that have been a kind is probably one of the different creative industries where Fair Use is the least available.  That's concerning because music is awesome and you don't want the law to be hurting its development.

Evan:  Isn't there one particular case, one particular Bridgeport Case, that's really bad to sort of make the reality what it is.  You are saying, Ali, that Fair Use is the least available.  Isn't there one Bridgeport Case that led to this?  It's like a 6th Circuit case...

Ali:  It’s moved around to a couple of different law schools, but somebody put together a site that compares all of the different music licensing, I mean sampling cases that compares the two songs.  This is before transformativeness became part of the big analysis.  That sample is unrecognizable.  You could barely hear it in both songs.  If that were decided today then things could be different because transformativeness has become a big part of the Fair Use analysis.  In one of the other Bridgeport Cases, the judge actually even found that it was transformative, and it still wasn't fair use.  That's literally the only time I've seen a judge find something transformative and not fair use.  So it's very interesting law in that circuit.

Sam:  Is that why Girl Talk has not gotten in any trouble for his recordings?  Is it not transformative enough to be fair use or is he just so popular that if they went after him then he would get in trouble?  You say that the Beastie Boys' recordings couldn't be made today, and yet we've got an artist who is entirely samples.

Ali:  I've heard people make that claim before.  That they don't want to sue him because they are afraid they would lose.  A lot more of that would become legal and there would be more certainty.  So maybe they are just staying away from that.  I'm a big fan of the Girl Talk's album.  A couple of years ago I found out that he had his own station on Pandora.  That it is your own kind of genre, and other kind of music that is also built upon samples and beats can also be seen as its own style of music is really cool recognition.  I'm a big fan.

Denise:  I just want to clarify that despite what I said earlier about life plus 70 getting a shot in the arm from this;  I'm not a fan at all of long copyright terms.  I think that the fact that this commercial music is so old and is being so currently used right now is something that we are going to hear about from folks in that camp.

Evan:  It's just too bad that you have to quantify it.  The law actually does have to draw the line somewhere.  Whether it's 14 years, whether it's 20 years, whether it's life plus 50, whether it's life plus 70; what the real measure should be is the half-life of what the nostalgic effect is.  That can take different forms at different times.  Right at this particular moment in history there is an interest in those songs from the '60's and '70's because of the Guardians of the Galaxy release.  If you remember back to the late '90's there was a renaissance of swing dancing.  Do you remember that?  You had the styles of different artists who were harkening back to the styles of the '20's, and '30's, and '40's for swing dancing.  It just goes to show that it's too bad that you have to draw a line somewhere.  If we are going to start from the assumption that if it's popular then it ought to be monetizable.  I know that that's a pretty faulty platform of which to stand.  But I know that if that's going to be the basis of what's going to promote the progress then it would be nice if there were some sort of wishier washier way to do it.  

Denise:  A wishier washier way?

Evan:  Or a wishy washy way.  I don't know where the modifier goes.  Anyway, go ahead.

Denise:  Lots of people in IRC have been talking about Spotify and it being a great tool.  Ali was just mentioning Pandora.  I think that it is interesting that in addition to being able to buy the DRM free MP3s of the Awesome Mix Vol. 1, the soundtrack to the Guardians of the Galaxy movie, you can buy them in CD and you can buy the MP3s on iTunes and Amazon.  On Spotify there are two Awesome Mix playlists that you have to check out.  One, and we were talking about this - we named a show recently "More Disney than FIFA" pointing out Disney's sort of hands off, we are not going to prosecute you approach to mixing songs from Frozen.  Here the record label that actually put out the soundtrack is Hollywood Records.  It is part of Disney Music.  They have their own Spotify playlist that is all the tracks from the soundtrack.  So they're actually competing with purchases of the music by having this playlist on Spotify.  For anyone who is a Spotify subscriber and you don't feel like you need to have a physical CD in your hand and downloadable MP3s, they are something that comes with your subscription that Hollywood Records has put out.  The other thing, just to highlight for fun for anyone who is into this type of music at all, is that Entertainment Weekly had been interviewing the director and got some insights into what music might be no the, because there will be a sequel to this movie, they made it very clear at the end.  There is an Awesome Mix Vol. 2 that begins playing at the end of the film.  Entertainment Weekly did this purely hypothetical but rather well educated guess as to tracks that we might see on the second mix.  They have even more tracks than are on the first one, and it's equally fun to listen to.  Go check out Entertainment Weekly's list on Spotify too.  I don't know that there's that much more to talk about about the movie aside from the, oh, there's one more thing that I wanted to mention.  I don't know if there is any sort of legal tie in, but I suppose with the legality of mixed tapes and the fact that any of use that grew up in the 1970's and 1980's and don't purge all of our stuff as frequently as we should has a box of mixed tapes sitting around somewhere, actual cassette tapes.

Sam:  I don't.  Mine was stolen out of my car in college.

Denise:  Oh, that's a tragedy.

Sam:  I had this great big shoe box of mixed tapes, and somebody stole them out of my car.  So I had to reassemble them out of iTunes.

Denise:  Right.  Well there certainly has been resurgence in the popularity of vinyl in the last couple of years, and I'm wondering if this movie will do a similar thing for Walkman’s and cassette tapes because, as I said, my 10 year old who has now seen it twice desperately wants my old Walkman.  He wants me to go through all the stuff and find it and start playing tapes in it.  Maybe all of those mixed tapes that we were making will find a new life too.  Let's talk about a couple of other entertainment related stories.  Ali, you blogged recently about Community moving.  Community, the TV show, a very funny TV show, but I guess it did not get renewed for another television season.  But that's okay, because it's going to have a 6th season on Yahoo.  Can you tell us about that?

Ali:  Yeah.  I think that this is just an example, as written about in the post, of a lot more opportunities for media consumption.  I compared it with the new original programming on Netflix.  Amazon has their own programming.  I think Hulu might have original programming.  A lot of times these new sites have a lot more freedom to kind of break more boundaries in what they are talking about and what they can say and do.  In their different distribution models, I know that Netflix gets a lot of attention for House of Cards and Orange is the New Black when they will release everything all at once.  They don't try to have artificial windowing or anything.  It seems like they just understand how consumers want to consume content and when they want it.  It's available, and affordable, and convenient.  There are a few other times that I have found some quotes from Kevin Spacey who said give consumers what they want, when they want it, in the form that they want it, and they will pay for it.  They don't want to pirate it if you are making things available in a 21st Century way.  So Yahoo is another service that is getting into this.  I think that this is encouraging.  It is a lot more competition and less gatekeepers for showing what entertainment you can have in your house.  Universally, it is a good thing.  Community is a great show, and it's awesome that they are going to have their 6th season and they will be moving.  So it's a good thing.

Denise:  It is a good thing.  It has legal ramifications on a couple of fronts;  number one the increased competition in the world of entertainment distribution is a good thing and is something that winds up driving regulatory policy kinds of decisions.  Also, this all sort of comes into the net neutrality debate, too, if more and more entertainment is going to move off of conventional cable and satellite delivery and into a more net related delivery system.  Net neutrality becomes even more front and center.  Just another example of why that is important.  Let's see, let's move on to the very sad passing of Robin Williams and its impact on the Torrenting world.  Another story over at TorrentFreak points out that in the hours after his death Pirate Bay was subject to many, many searches for his entire body of work.  People were going back and looking at all of his great old movies.  Of course, they were not actually paying the estate or the studios by Torrenting them.  With the Guardians of the Galaxy movie, what we are seeing and what our discussion focused on today as far as the music that people want to get, is there are so many legal ways to get that music that I haven't seen a whole lot of stories.  In fact, I went out and affirmatively searched for stories of pirating that music and it just doesn't seem to be something that is concerning anyone.  There are so many legal ways.  And you know that at $8.99 at iTunes or Amazon that's not a hefty price tag for something to climb up the Billboard Charts with.  But here where you look at all of the movies that people immediately got nostalgic for in having their own memories of Robin Williams and how he impacted their lives it looks like the Torrent's and the illegal downloading definitely got a huge boost from the fact that people suddenly were interested in going back and reviewing his body of work.  Evan, any thoughts on this?

Evan:  Just to riff on what you are saying there, maybe this is the more unpopular perspective to take on this, but I don't know that it's right to look at figures of greater numbers of Torrenting his work as really a meaningful tribute.  If you want to tribute him in a meaningful way then buy the content and benefit the estate.  There is definitely a couple of ways at looking at this.

Denise:  I don't think that people probably look at it as a tribute necessarily.  They probably don't even think that somehow I am harming him, or his estate, or his memory by doing this.  They are very emotional or visceral in thinking that I need to see Dead Poets Society again, and I need to see it now, and I don't own it.  I don't know.  My argument falls apart because it's probably pretty easy to find his movies on legal sites as well.  I bet if we looked at those numbers that those shot up too.    So, Ali, what do you think?

Ali:  To tie back in a few things that we have been talking about so far, I know that you have mentioned that TorrentFreak has their list of the 10 most pirated TV shows and the 10 most pirated movies.  There has been some research in the past comparing that list with a site called Can I Stream It?, it think it's, it's an Italian domain name.  You can search a movie on there and see what different services have free streaming, it can let you rent it, or you can buy it.  A lot of times when those movies are really new, they are still in theaters or the industry is trying to window them in some other way; the newer ones don't tend to be as available.  There it is, awesome.  I would expect that most of the older movies are more available.   I would expect there to be some lawful ways to watch most of the movies. 

Sam:  It turns out that The Pirate Bay is actually a really good user experience.  I will just go ahead and admit that I know that from experience if you can't find something easily.  If you can find something easily, I will buy it; if it's on iTunes or you can stream it through Netflix then I will totally buy it.  But if I can't do that, there have been times that something is basically not available online, if I can't download it even for a fee, then there is a chance that I might want something enough to just go and get it.  While you were talking, by the way, I went and looked and both Amazon and iTunes are saying that their sales of Robin William’s stuff are soaring, too.  There is this question that if there are people who are pirating, are studios actually losing money or are people just doing it because it's convenient and people probably wouldn't pay for them no matter what.  It doesn't mean that it's right, or legal, or should be.  But I think that if you look back when Game of Thrones was in season 3 it hit Pirate Bay right away and it was getting downloaded like crazy.  I don't know if it was the director or the producer who said, great, it shows that it's popular and we know that our success is somewhat tied to the distribution of the movie.  Book writers know this.  It's way harder to get exposure than it is to get book sales once people know who you are.  So get it out there.   Even if it's getting pirated, that's ultimately probably a good thing for your show or your movie.  Which doesn't mean that it has to be legal.

Ali:  How else are you going to get an audience?  The internet makes it easier than ever before.  Actually, I had seen a BuzzFeed post, I just found it.  It's called Where to Watch Robin Williams' Work Right Now.  It looks like they have that everything is available either on Netflix, or iTunes, or Hulu, or Amazon.  They are all over the place in different services, but it seems that most of them are available lawfully.  That is definitely encouraging.  

Denise:  Yeah.  It really is.  Let's move on, sticking with the Robin Williams theme, however, to something related to the social web.

(Music into plays)

Denise:  Before we get into this, I will just mention that our intern, San Do, let me know before the show that World of Warcraft, speaking of tributes, does tributes for people who are well liked by the players known to have played the game.  I guess Robin Williams was a really big gamer.  The World of Warcraft has let it be known, they have not announced what they are going to do, but they have responded to a petition that players have launched to memorialize him somehow in the game.  They have said, yeah, we are on it; we are going to do that.  But they haven't disclosed exactly how they are going to do it.  In fact, Robin Williams liked gaming so much that he named his daughter Zelda after the Legend of Zelda.  Zelda is about 25 years old, and a popular entertainer in her own right.  Unfortunately she had some very bad times with her social media accounts in the wake of her father's demise.  She, in fact, has abandoned her Twitter and Instagram accounts because she was being sent terrible, terrible things involving Photoshop pictures of her father, etc.  So I toss this out to our group here to talk about a topic that comes up over and over again, harassment on social media.  The particular wrinkle on this one is that they don't seem to have been threats against her.  They were just things made to make her feel terrible.  So Evan, do you think, I know that Twitter has said they are going to take action and review their policies about terminating accounts, and what sort of conduct is acceptable and not in the wake of these events.  Is there a legal angle here?   Does the law get involved when people are merely made to feel awful?

Evan:  I guess the ways that we would start looking at this from a legal standpoint is to first evaluate whether there is any criminal conduct.  Maybe, maybe not, more meaningfully, we could look at if there were any civil causes of action from this.  If you were able to trace down the individual that is doing this the first thing that comes to mind is that maybe there is some intentional affliction of emotional distress or what have you, this kind of outrageous conduct like this.  The larger picture for us is that some people are never going to stop being idiots no matter what happens, no matter how hard we try to drive in positive norms and how optimistic we've become about the world there is always going to be this negative dark side that is going to come out in the worst of ways.  Especially fueled by the perceived anonymity that one has online, which sometimes works if you are an effective core user and the government hasn't infiltrated your machine.  The anonymity is a questionable thing here.  There is also this question of what is the intermediary's role because people are quick to say, ah, Twitter or Facebook should do more in these types of situations to prevent abuse.  And, of course, yes, they should.  I don't know where that comes about.  That is an even more difficult place, I should say, to determine what the intermediary's role should be from a legal standpoint because there are these protections from Section 230 for most civil liability that is occasioned by information provided by third parties.  I would look to cases like Doe vs MySpace from a few years ago.  That litigation arose from somebody being assaulted by someone that they had met on MySpace, like physically assaulted in the real world from somebody they had met up with.  So I do think that we have some guideposts for the intermediary liability on all of this.  Sufficed to say, the intermediary is the last party that we should look to from a legal standpoint to be obligated to do something.  From a normative standpoint, from a fickle good behavior standpoint, sure the intermediaries should be proactive while not overly constraining speech on these platforms.

Denise:  Intermediaries have the additional responsibility of that if the law has been broken and an investigation is ongoing of deciding whether they are going to comply with law enforcement and turn over information about otherwise anonymous users.  If they might not have direct liability they still have some sort of responsibility for ensuring that the people who do are dealt with.  Twitter has been one of the forefront companies in saying that we will go to the mat on our user’s information.  We will protect their accounts and anonymity as much as we possibly can.  So I think that this puts them in an interesting kind of situation.  I haven't read anything about a criminal investigation flowing from this.  I don't even know if there would be criminal liability for this.  I think that state cyberbullying and harassment statutes are all over the map as to what they will tolerate and not.  Here we seem to have people, again it's all just kind of general, the reporting is that people Photoshopped pictures of her father's body, and sent them to her, and insinuated that she was somehow to blame for her father's death.  Again, we are not talking about someone saying that "I'm going to come after you."  We are not talking about a lot of the other kinds of stories that we have tragically seen throughout the years where people have been threatened, or stalked, or otherwise made to feel that they were in personal danger.  But certainly no one would argue that these are hate messages as well.  

Sam:  Isn't it a similar problem to the open letter that Jezebel posted the other day about the rape imagery in Photoshop that they get due to the way that Gawker has anonymous accounts that you can use.  It's similar to Anita Sarkeesian and her videos about women in video games.  And it's similar to the experience of women who are just online and that we have been hearing so much about lately.  They are not threats, or necessarily defamation, or anything actionable.  They are just people being jerks.  Do we want to effectively legislate people being jerks?  Because that's what we are really talking about here.  I'm not saying that it is wrong to want to do that, but I think that coming up with a solution that isn't easily abused is difficult.  I think that is probably why Twitter has dragged its feet on this for so long, because it is just as easy for the trolls to turn around any sort of system that is built to prevent bullying by calling the victims the bullies and getting them shut down.  That has happened before.  I want to think of an example, but I know that that has happened when you want to try to institute a system like that.  Twitter has said that they are going to do something about this finally, although they are vague on the details.  It seems sometimes that the solution is worse than the harassment because it just leads to more.  It's a problematic thing.  If you go back to just generally how catcalling effects women on the street you can't shut people up, but you can have a social response.  On the social web I think that is part of what is happening right now because people are speaking out like Jezebel, and like Anita Sarkeesian, and like Zelda Williams.  I think we are starting to see that the trolls, hopefully at least, the trolls are being outted and called to the mat for their actions.  Maybe that sort of pressure will gradually change the tone online and people will start behaving like human beings to one another again.

Denise:  What do you think Ali?  Do sites have a responsibility to step in where there is no specific law to prevent this kind of conduct?

Ali:  I think that Evan gave a great overview of it in principled incremental liability, and Safe Harbors like Section 230 of MCA that things that are not intellectual property, and there is the MCA 512 Safe Harbors for things that are copyrighted.  I think that these kinds of limitations on service provider liability have helped the internet expand and made a lot more platforms for expression.  I think that's what is important.  I do think that in some situation there might be some things that service providers can do, but I think that the most important thing to counteract people's speech is more openness, more speech, and again as Sam was saying, more people trying to change their behaviors.  I really appreciate what Sam was saying about just recognizing that it can be really hard to be a woman on the internet.  A lot of people face a lot of abuse.  I think that it's great that the services like Twitter are so open about it.  I know that Twitter's head of safety; she herself is on the internet under a pseudonym.  There is a really interesting Forbes article about her.  Victim blaming is also problematic.  I think the most important thing is to focus on these people who are saying hateful things that try influence them while also maintaining free expression and privacy.  There are a lot of concerns at play, but I think that hopefully over time it will be a better, nicer place on the internet.

Sam:  Will Wheaton basically has the conduct policy on the internet, which is "Don't be a Dick".  He certainly didn't invent the phrase, but he has really popularized it.  That's the rule that everyone wants to enforce, but it's just hard to enforce that rule.  We do in our comments on Lawyerist.  But we are lawyers, so we don't swear, but if someone is just being ad homonym, they are just off the point and being jerks then we will just delete the comments.  But we can't stop people from making them in the first place.  That's what I would hope to see happen is that we can stop people from making those comments by teaching them not to be jerks.  There is an interesting post on Reddit, and I haven't gone back to see if there is a new update, but a woman just realized that her husband, who she says is a kind a loving man, his way to blow off steam is being a troll on Tumblr.  He is racist, and he is sexist, and he is horrible.  She told him that he needed to stop.  He said he would think about it and didn't.  She kicked him out of the house.  This obviously is on Reddit, I have no idea if it is a real story or not.

Evan:  I'm sure that there weren't any other issues between them to begin with.

Sam:  She claims not.  But she also claims to be pregnant with their child, which either makes it a horrible story or makes it less believable.  It's an interesting scenario.  According to her, he came right out and said that they don't feel like real people.  I started fooling around on the internet when people didn't feel like real people, so everybody was jerks to each other because they didn't feel like there were real people on the other end.  Now everyone is on the internet.  There is no online of offline.  That's a meaningless distinction at this point.   Your friends, and neighbors, and family are all online.  To treat people online any differently than you would treat people at a store, or at the school, or something, is foolish.  But there are plenty of people out there who seem to be incapable of getting that.  

Denise:  I think that it's really interesting that you and Ali, Sam both thought of this story in terms of Zelda Williams being harassed because she is a woman and Robin William's child.  When I read this story I thought, it's Robin William's child.  It would be happening whether she were a daughter or a son perhaps.

Sam: I don't know that that is true.  It might have been.  I was thinking of it more in that I think the harassment was at the level that you have to look at the only analog that I could look at was the harassment of women that has been getting a lot of publicity in the recent months, maybe years.   I can't think of another person.  I guess the only other person who tends to get harassed on the death of a family member is to look into the past to see stuff like Matthew Shepard and the harassment that his family received and the Fred Phelps type picketing of his funeral is another example of that.  I just think that is sort of the post analog that I can come up with.  I have two little girls, so I am especially sensitive to that sort of thing.

Denise:  Let's do another social web related story, and what's legal and what's not is also greatly at issue here.  This has to do with the hotel in I think it was upstate New York.  Let me pull up the name of it here.  Bear with me while the page loads.  Union Street Guest House is in the Hudson River Valley.  What they decided to do was that they would from time to time, I suppose it's a small hotel, they would let people reserve rooms for people coming into town for weddings.  As part of their agreement with their wedding related clientele they would tell people, okay, you are giving us a deposit for use of our premises during your wedding and for every one of your wedding guests who posts a negative review of our hotel we are going to fine you $500.  So this was a contract that people entered into with the hotel in booking out for their wedding related activities.  It all blew up when they started trying to enforce this and started telling people, hey, we see that you have put a negative review on Yelp.  Did you know that your friend that got married here will get fined $500 if you don't alter this review?  So there were some backing and filling kinds of activities from the Union Street Guest House and its management once all of this broke and ticked people off online.  I wanted to talk today about not whether this was a good business strategy, but the legalities of trying to dock people $500 if their guests posted a negative review.  What do you think, Evan?

Evan:  When I hear about this I think, well, you know, this is a perfectly enforceable contract.  Again, I just have the lawyer hat on for this, not just like what a polite person would do.  Those things are perfectly exclusive, right, lawyers and polite people?  Sure, this is an enforceable contract presumably.  Are there any defenses to its enforcement?  What this sounds like is a Liquidated Damages Provision.  The law is pretty skeptical when it comes to treating Liquidated Damages Provisions.  What is, as you know, you have breached the contract, and the Liquidated Damages Provision is, I think that this is an example of one, that you have breached the contract and you automatically become liable for some x number of dollars just by virtue of having violated the contract.  Courts treat Liquid Damages Provisions with quite a bit of skepticism.  For them to be enforceable there is a number of things that have to be met.  They have to somehow approximate in reality how much that the parties would have suffered because of the breach or what have you.  I guess the whole theme of what I'm saying here is that done correctly this could very well be a provision in a terms of service if all of the elements of contract formation are met and we showed that this Liquidated Damages Provision under the contour set out by the law should be enforceable and there is nothing otherwise substantively or procedurally wrong with it.  These types of things ought to work and ought to be enforceable.  Of course, this is the third time I'm saying it, this is an entirely difference issue on whether or not it is good.  Whether it's going to enhance your business and whether it's going to keep you free from the Streisand Effect and all of these other parade of horribles that can happen to somebody who is kind of acting in a silly way, business owners who are acting in strange ways like this.  What do you think?

Denise:  I don't know.  We've been talking about the role of 3rd party intermediaries like Yelp in stepping in where the law might be uncertain.  I've seen a couple of commentators, including our friend Buster Goldman, who say they don't think such a contract should be enforced because it was unconscionable, or against public policy, or various reasons where you step in sometimes and render portions of a contract unenforceable.  But I wonder if Yelp might step in and say, we are just going to kick you off of our site.  We are not going to let you be a part of the universe that we send business to if you are treating people this way.  Do you think that can happen, Ali?

Ali:  I don't know as much about this kind of issue and Yelp.  I do know that they have been pretty active in the SLAPP suits and they do seem to be very protective of consumers.  I do think that they have an interest in their platform not being abused.  I do know of people writing negative comments about the hotel after this announcement came out that had actually not been there.  I don't know for sure how much the different Yelp policies and if you actually had to be there to make a review.  But I do think that generally it is a really bad public policy.  I can't believe that it was up there on their site that long and that they were actually trying to enforce it.  Evan brought up the Streisand Effect.  It's a classic example when you are trying to hide something and you end up just drawing way more attention to it.  That's what happens on the internet.

Denise:  This is another, it's not the same situation as Zelda Williams, but it's the same situation of someone being unpopular for whatever reason, justified or not, and having people pile on.  Sam, do you think that there is anything that Yelp or the law should do either for the guests who are being somewhat bullied by this hotel and it's borderline policy or the hotel itself that is then getting trolled because people don't like it?

Sam:  I don't think there should be any legal response here because it all just worked out fine.  The hotel did something stupid, everybody found out about it, and now the hotel has got its just deserts.  You have a right to be an idiot online, and that is what this hotel did.  So it all worked out from my perspective.

Denise:  Internet justice is served, I suppose.

Sam:  Exactly.

Denise:  Alright.  We have lots more coming up in the show including robot lawyers, and stalking someone else's house pets.  But before we go there we want to encourage you to do something that can really help the TWiT Network.  We all do a lot of shopping on Amazon.  Goodness knows I do.  From housewares, to groceries, to my printer just went on the fritz and had to get a new printer, to Guardians of the Galaxy mixed tapes; all things that Amazon is more than happy to deliver up to you.  I have been reminding myself each and every time that I have went to make one of these purchases lately is that before I just automatically go to the Amazon site instead what you want to do is you go to and click on the link from there, the Amazon banner.  Then you shop as usual.  That printer, or that mixed tape, or whatever it is that you are picking up will kick a little bit to and help up keep the lights on.  It's a very easy and efficient way to show your support for the TWiT Network.  You already know the price, selection, and convenience of Amazon.  Now just bear in mind, just remind yourself that every time you make an Amazon purchase you can support TWiT.  It's so easy, you just click through that little banner there, and you can see it there if you are watching the video.  It's at, and you shop usual.  It's as simple as that.  It costs you nothing extra, and anything you purchase helps us keep things going here at TWiT.  It's very important to us.  We know that you are out there buying on Amazon all of the time.  We know that we are.  Go pick up that $8.99 Guardians of the Galaxy mixed tape, you will find good uses for it.  If you go to you will definitely find yourselves in our hearts and subject of our most grateful sentiments.  So thanks so much.  There are also links there for Amazon UK and Canada,  Thank you so much.  We really appreciate your support on this.

Alright, let us move on to some copyright stories.

(Music intro plays)

Denise:  Let's start with plagiarism.  This story about BuzzFeed's Benny Johnson I think is really funny because The Onion actually did a story about this time last year about a BuzzFeed writer resigning in disgrace after plagiarizing a story about 10 llamas who wished they were models.  This was a pure joke.  Pure lark on The Onion's part, pointing fun at the fact that anyone would, I think I'm putting myself in the shoes of The Onion right now and goodness knows that's fraught with danger, but I think what they were driving at was that anyone who thinks that the BuzzFeed's content is original to begin with had better to back to their thinking starting point.  But that doesn't mean that BuzzFeed doesn't take themselves seriously journalistically.  They had an author, Benny Johnson, a blogger there who was actually, guess what, cutting and pasting things from other sites and putting them in his BuzzFeed story.  So BuzzFeed came out, Benny Johnson is no longer writing for them, and they are taking steps to make sure that this kind of thing doesn't happen again.  Where have we come, Ali, if BuzzFeed is now the pinnacle of journalistic standards?

Ali:  I actually am a fan of BuzzFeed.  I think that they have a lot of good reporters there.  They also have a lot of more frivolous listicles.  I think that there is some quality there.  I think that this is an interesting situation.  I haven't seen that many people talk about the infringement, it's mostly been taken as plagiarism, which is more like a moral issue and not like saving everything so well.  I looked at a lot of examples.  There were some that were pretty blatant.  But then there were others where it was not, I'm not defending it, kind of a closer call because you can't own facts.  That's one of the exceptions to everything being copyrighted.  I did think that it showed a lot of journalistic integrity for the editors to decide to let him go over this.  There were enough examples where if you are a journalist then the site is better than that.  I think it was the right call.  In some of the documentation after he was fired, there had been some other questionable things that he had written about.  Like things that were original.  I know there was one about using Jurassic Park for a story about Siri or something.  There have been some others, even when he was doing original stuff that had been questionable.  It was probably the right call, but it brings up some interesting issues about copying words online.  It's so easy to tell, you can just plug the text into Google or any other search engine and you can't really get away with it.  If you are a journalist you should really be better than that.  

Denise:  Evan, are we getting a point where the web will be split into two camps;  things that are purely plagiarized and things that are original?  Do you think, as BuzzFeed experienced here, that people are tempted by the fact that it is so easy to copy and paste, and they are going to continue to do it and there will be a journalistic gray area there?

Evan:  I think that one of the biggest influences for his whole dynamic will be the manner in which this content can be monetized.  BuzzFeed relies a lot on heavy traffic, surge traffic, and the content is written in a way to generate that surge.  It relies on coming up with a lot of content, so there will be this temptation to...well I guess that there is a lot of pressure to come up with a lot of content.  It's hard work to be original.  Then, we've got within that mindset, this sort of idea of creeping norms, and remix culture, and fair use.  One moment somebody can easily be saying that everything that is out there ought to be widely available for reappropriation and the next moment be crying foul because of plagiarism.  Those facts can just differ in very subtle ways for one to reasonably to be taking either stance on the particular situation.  So it's tough.  I sort of heard in your question framing it as is there going to be a schism of good content and bad.  I don't think that we need any pronouncements on the web like that.  This is just sort of a path along the evolution of the web, and the way that different forms of content are in vogue, and are monetizable, and have value, and are therefore generated more.  The web in five to ten years will look very different regardless of these particular issues.

Denise:  Sam, I'm curious as to your take on this story.  Before I get it, before I forget here I'm going to drop our first MCLE pass phrase into this episode of This Week in Law.  We put these phrases in in case you are listening for continuing legal or other professional education credit.  If you need more information about that you can go to and find our show there, This Week in Law; lots of information there for you.  We put these phrases in in case your oversight body needs to have some sort of concrete proof that you have listened to or watched the show rather than just, you know, copying and pasting the link to episode 271 of the show and saying, hey, I listened and watched.  You can tell them that you know the first pass phrase is "Llama Models".  And now, we will go to Sam.  As the entrepreneur of a blog yourself, what do you think about all of this both for your own content, and protection of your own content, and competing with the likes of BuzzFeed, and the other news outlets that BuzzFeed is seeking to compete with?

Sam:  You know, plagiarism is to some extent, sort of like the hotel and Yelp, a self-punishing thing.  If your traffic comes from Google in particular, Google is always on the lookout for duplicate content, and it will down rank the plagiarists.  Now, of course, maybe if you just tweak it instead of straight up plagiarizing it you don't get punished.  There's always been that sort of self-enforcing sanction with plagiarism.  BuzzFeed is not big on Google as far as I know.  I think they are more of getting links from social, where that is not the same thing.  Twitter, and Google+, and Facebook don't go around looking for duplicate content and pulling it off the site.  Not plagiarizing is kind of the capital offense of journalism.  BuzzFeed does do great journalism, although not all of those articles could be considered in that category.  You have to keep an eye out for plagiarism and it's a problem for us.  We are always getting sites that are scraping Lawyerist, and we are finding out about it less now than before.  It's interesting because it happens for two reasons.  You've got the BuzzFeed, and as Evan said, they are under pressure to produce content and it's got to be viral, and social, and it's got to be stuff that people want to share.  And then you have sort of old school search engine optimization which relied on lots of links back to your site and sucking in as much traffic as you can through that.  That's what a lot of our scraping came from was people who were trying to game the search engines to get their own traffic.  Now that Google has clamped down on that, I think that's why we are not seeing it as much as we used to, but it used to be a big thing.  Like I said, I think that it is in part a self-enforcing sanction, but yeah, if I were BuzzFeed I would fire for plagiarism, too.  I think that it's just part of being in the publishing business.  You can't let that go on.

Denise:  Well that's good to hear.  Let's move on to a couple of privacy related stories.

(Music intro plays)

Denise:  Evan, do you think that pets have privacy?

Evan:  Well, no.  It's not hard to draw a line between the privacy of your pet and the owner of the pet.  I think that's the best way to at least start thinking about it.

Denise:  Yes.

Evan:  I did see a dog food commercial, though, about a low calorie diet for your pet.  Your pet has the right to be healthy, I guess.  

Denise:  That's right.  If the pet insurance companies know that your pet is eating pet junk food then maybe they would hike up your pet premium; definitely a privacy issue that people are subjected to.  I'm talking about pets and privacy because you found a map that lets you cyber stalk cats all over the world.  Can you tell us about that?

Evan:  Sure.  This has been getting quite a bit of coverage lately, it's  It's a really interesting mash up of technology here.  It's a professor from a university down in Florida named Owen Mundy.  I'm happy to talk about Professor Mundy because I went to high school with this guy in Bedford, Indiana of all places.  So I was really excited to see this get some coverage even in the Wall Street Journal and some really interesting stuff here.  He's actually an art professor, but the way that he goes about it is with digital technology and big data sets.  He's all about data portability, so that's the approach that he's coming from on this.  He's developed this tool that goes out and searches the content of various photo sharing platforms, I think Flickr, Instagram, and others for photos tagged with the word "Cat".  He then lays those down on top of Google Map.  So you can go to and find a random cat or you can browse a particular area.  So, it's interesting, it's novel, and it also clearly makes a point about privacy.  It's sort of a call to awareness of the kind of information that can be gleaned about an individual about putting up their content.  I guess one important step I missed was that it mines the metadata so that it knows where to put it on the map because the device used to take the photo has it embedded with the photo, the geolocation information.  So that's one important step about how it gets onto the map there.  It raises some interesting privacy issues, and it's something that is interesting to talk about for its intrigue and for the potential dark side on it as well because you could just as easily have developed a tool that has the word "daughter", or "son", or "child" on it.  It would kind of amp the creep factor up on that.  This is more of a benign way of introducing the concept.  It's kind of reminiscent of a service from a few years ago.  I think we talked about it on the show, and I don't know even how real it was.  It was called something like Please Rob Me.  Do you remember that?

Denise:  Yeah, I do.

Evan:  The platform would bring up; I don't know if it was Facebook updates or Twitter statuses and the semantics would indicate that the person was away from home and talk about the obvious implications of that.  I remember taking issue with that, and you will remember Denise, because robbery is a crime against a person whereas burglary, which is the appropriate term here, is the crime again the premises.  So it should have been Please Burglarize Me.  But there's all of that, it's interesting to see this motif to come up again.  I'm particularly happy to see my old friend Owen Mundy doing something cool and getting some press about it as well.

Denise:  I think that one was based on check-ins when people first started checking in on Facebook and Foursquare and things.

Evan:  That would make sense.

Denise:  Yeah, you were checking in anywhere else where you were not at home.  I think you raise a good point Evan, and so does Buster Mundy, that people need to be aware of the ability to do this kind of thing.  Do you think at all Sam that there is some paranoia here, that who is really going to go to the effort of trying to do this kind of mapping?  Or do you think that this is important and dangerous?

Sam:  Well, I guess I'm curious to know, because I haven't seen anything about it, has anyone ever actually been robbed as a result of their camera data or has their cat been kidnapped because of that?  I don't think so.  I think it was like a month ago or two months ago that my Facebook feed exploded over privacy panic over exif data.  It was either Flickr or Instagram, I can't remember what it was on, somebody all of the sudden that found out that Flickr includes your exif data and your geo location data with your photos which is kind of duh.  They also have great privacy settings so that you can make that nonpublic.  But I think that anybody that had used Flickr for longer than three months was probably bewildered by the attention.  I think that it does make sense to not publish that information if you don't want people to know all about your activities in your home, and where your kids are, and where they sleep, and sure.  I think it's a bad idea to make that public.

Denise:  Evan, is there an easy way to turn off exif data that you know of?  When you are taking pictures from your phone?

Evan:  There are a couple of things that you can do.  I don't hold myself out as an expert on gadgets, but it is easy to turn the location information, you know the location services, off on your device.  Of course, Windows 7 has a very effective feature for removing the properties in the various fields of metadata.  I'm sure that's one of dozens of ways that you can do it before you upload the photos to the web.  I guess going from the device to the mobile platform would make that step more difficult.  In Flickr you can pretty easily change the settings as well to not make the exif data available as well.  It's not difficult to do that.  It may take a little bit of tinkering to do that, but certainly not impossible to enhance your location privacy by taking a few affirmative steps and more than one ways to skin that cat.  How do you like that one?

Denise:  Oh, lordy, lordy, lordy.

Sam:  This is actually one of those things where it is really nice to have geo location data on your phone.  Everybody wanted it, it was a great feature.  You just have to be smart about it.  I would never tell everyone to turn off geo location data, it's actually pretty awesome to remember where you were when you took a picture.  But yeah, it requires the users to be on the ball and actually pay attention and change some information if they aren't comfortable with it.  

Denise:  Right.  What I am hearing here is a disconnect between how the users want to use the photos and share the photos on their phones.  I think how they want to do that is without going through a computer and stripping off data and what they would like to be possible with those photos after they've posted them and that no one has really jumped into that breach yet.  Do you agree, Ali?

Ali:  I think that this particular example of the cats, if it’s the right article that I'm thinking of, this is people who volunteered their home location, because their cat lives where they live.  I do see people tending to check into different restaurants they might visit, which is kind of cool because you can see what other people have had there or you can have a map of where you have been.  To add your own home sounds like a choice that people should try to be more informed about.  I'm not as familiar with people doing that.  I think that people want to share when they are in public places, and they want to join the community in that way.  But it's definitely an option that they add on.  I've actually never used the geo location feature when I'm taking a picture.

Denise:  I guess the flip side of this, obviously the pet story has ramifications beyond being able to just locate pets, that's the point of Evan bringing it up.  But people do want to locate their pets, there's actually a company called TAGG, T-A-G-G, that makes it far easier to do the geo location of your pet because they actually sell a GPS device that you attach to your pet.  It doesn't actually check in your pet on Facebook or anything, but if you have ever seen, I think it is an iPhone commercial showing you the usefulness of the device, it has somebody's lost dog in an alley and they are driving around in the car trying to find the dog.  They are finding it on their phone, and I'm assuming the way that they are doing it is with this TAGG device because it has an app and it enables you to find your dog or cat if they are out and about in an unsupervised manner.  I guess there definitely is a market of people.  I actually was so fascinated with the device that I decided to try it out for our dog, Caramel.  I'm glad that we have it on the one hand, but it's a real pain I've got to tell you.  The battery is not designed well.  It constantly needs to be charged and it goes into battery saving mode only when it's close to its base station.  How are you going to tell your pet, "Stay close to that base station or your battery is going to run out."  It's definitely got some implementation issues, but I think that the idea that people would have GPS devices on their pets, on their children, certainly the children one has been around for a while, is something that also has privacy ramifications.  Don't you think, Evan?

Evan:  Yeah, yeah I do.  I was daydreaming a little bit about what you were saying, but I'm joining with it for the most part.

Denise:  Alright, well let's move on.  Aside from vanishing pets, let's talk about vanishing communications, and ephemeral communications.  Mike Elgan was just talking on Tech News today before we started our show about Windows Phone possibly developing some sort of Snapchat type functionality.  Mark Cuban actually has something, I don't watch his VC related "I'm funding this show", but I think that's how this came into being.  Something called Cyber Dust, it's a business kind of an app that allows for confidential communications.  There are a couple of angles to this I think.  Lawyers constantly need to be confidentially communicating with their clients.  Mark Cuban has said that a lot of his users are lawyers.  That comes to me from our listener Jim Jensen.  Thank you for highlighting this story Jim.  I can definitely see where the legal profession as whole would like the idea of being able to communicate with clients in a confidential and potentially ephemeral way.  The other angle I see to this is that as these other kind of Snapchat clones become not just the toys of teenagers who don't want their silly photographs they take to survive and haunt them later, but become a real sort of mainstream way that people communicate because they are concerned about the ramifications about permanent communications.  What does that do to law enforcement?  How on earth do we prove lawsuits?  How do we prove criminal charges against people if communications all mission impossible self-destruct after three seconds?  What do you think Ali?

Ali:  I think there is going to be a lot of challenges.  I do think that a lot of times law tends to lag behind what is going on in technology and innovation.  I think that if you try to quantify something now based on the current technologies that that has a potential to deter people in investing, innovating, and creating new things because they are not sure about the legal ramifications of that.  I think that as longs are changed they should still try to be vague enough to allow for new things to come about.  I do think that it's going to take a lot of qualified legislators to come up with something that is good for law enforcement, good for privacy, and good for innovation.  There are a lot of challenges coming in the next couple of decades, absolutely.  It's going to be interesting.

Denise:  Evan, would you find it useful to be able to communicate with clients in a way that you felt good about being confidential because those communications weren't going to be discoverable and weren't even going to exist after a while?

Evan:  Well, there are a couple of different interests here that I see for lawyers using this.  One, you've got the idea of the confidentiality of it, and that's good.  There is also this countervailing interest that the lawyer has to follow the rules of professional conduct in as much as you are required to keep a comprehensive file of what it is that you are working on.  So the rules of professional conduct can touch on that issue.  Also, you may want to keep a record of what it is that you have done, not just the other side of the coin of not having something there that proves you did something wrong, but you may want to have a record that you did do something right.  If the client is accusing the lawyer of malpractice it would be awful handy for the lawyer to say, no, here is the communication where I advised you of this, this, and this.  It was your decision not to follow that advice that got you in this bad decision, not that I gave you bad advice.  There are a couple of different ways of looking at it.  I see this as being much more useful for criminals, and liars, and fornicators, and adulterers.  That's what I see this being used for.

Denise:  More useful than for lawyers, huh?

Evan:  Yeah.

Denise:  Alright.  What do you think, Sam?  One thing that I heard when Jim Jensen brought this to my attention, one thing that crossed my mind is that maybe, just maybe, this is a chance for lawyers to get rid of those god awful email disclaimers that accompany every single communication they send out.  If things were ephemeral then maybe we don't need to disclaim as much.  Maybe those will just get tacked on to ephemeral messages too.  What do you think?

Sam:  There would get tacked on, although they are unnecessary and ridiculous as is.  Months ago a PI firm decided to try and text accident victims.  So they sent a text message I think while the accident victim was in the hospital saying, whatever, call the PI lawyers at whatever.  They actually ran it by the ethics authority, or potentially the court, I'm not sure.  In any case somehow somebody ends up issuing a decision on it saying that's fine, no big deal, but you have to send out this long disclaimer.  So instead of sending one text message you would have to send ten or fifteen text messages to get the whole thing in.  And I think that had to go first.  So what they did is they said sure, it can be ethical.  But you have to obey the rules, and part of the rules are that you need this long disclaimer.  So they made it impractical instead of unethical.  I can imagine that same thing being applied to Snapchat or whatever.  It doesn't obviate your ethical responsibilities just because you are using a new platform.  Every time a new platform comes out some lawyer thinks it's totally different and they should just go ahead and use it and not worry about the old rules.  But the old rules still apply, and often for good reasons.  They are still there.  I think it's an interesting question if you start using Snapchat to start planning crimes with your clients, is that exfoliation if you let it expire?  Who knows, probably not.

Denise:  Do you think that lawyers will embrace this kind of technology or stay away from it?

Sam:  Well, in about ten years I think lawyers will start using it.

Denise:  Because that's about when they will realize that it exists.

Sam:  Aaron and I joke about lawyers.  We are media types, right?  So we pay attention to trends in advertising and stuff.  We think we've got about five years to react to whatever BuzzFeed decides is the future of advertising because our industry just doesn't move at the head of the curve.  I think that is probably a good thing most of the time.  I think lawyers who jump out on the cutting edge generally have to include within their calculations if it's going to be worth the ethics investigation that is inevitably going to follow when you are the first person to jump out ahead.  Not many lawyers do it as a result.  Lawyers will try it.  I know that there are lawyers using Snapchat with their clients now.  I'm not sure exactly what for obviously, but maybe just for quick messages back and forth.  You know, lawyers use text messaging back in forth with their clients, too.  It's fine if they want to.  Lawyers will use it.  I'm not sure that it's super useful, and I'm not drafting a post "10 Ways Lawyers ought to use Snapchat with their Clients".  I think it's going to happen, because it's a way to communicate that people want to use.

Denise:  Hey Evan, getting back to the harassment and bullying topic that we were on a bit earlier, do you think that these kinds of communications need to be looked at as dangerous in that regard?  Law enforcement and legislators will find themselves, you know legislators have been in various states and even at the federal level looking at how we put a stop to people being harassed, and abused, and bullied, etc.  Does this just make it easier for people to stay anonymous on the one hand and harder to prove that anything untoward happened?

Evan:  Sure I think it would enhance anonymity because the ephemeral nature of the content and presumably the ephemeral nature of the metadated would help you, I'm using the term "metadated" pretty broadly there, and that all of the different information that would guide one down the path of identifying who it was that originated the message.  Sure, it would be easier.  There could be even more harassing because of that factor of it as well.  I get the impression that most of these technologies are being used pretty consensually.  One of the big elements, loosely speaking again, not necessarily as an element of the crime, maybe it is one of the elements of the crime of harassment, is that it's an unwanted communication.  A lot of these privacy enhancing platforms and devices are really where both parties have to go through the effort to use specific technologies so that they can communicate confidentially like this.  It's not in the same nature of just having a phone number that is available to receive text messages and that phone number is widely available to everybody.  There is a bit more effort that goes into it at least for now.  That's likely to change as these technologies become more widely adopted and you can have the capacity to get more unsolicited communications or communications that are more difficult to block.  I think that there needs to be a little bit of a change in the way that these technologies are used before the problem would really come about, that you are talking about.  You will see that come in to play, perhaps, with those difficulties that we were talking about at the beginning of those comments right there.

Denise:  Right.  Let's move on to gazing ahead at the future of robotics, and jobs, and the law.  Traditionally we welcome our robot overloads on this show rather frequently and talk about how super intelligent AI can be a very, very scary thing, yet how incremental changes in technology and automation processes is bound to impact the world of professionals, including lawyers, and how we resolve legal disputes.  There is a new study out from the folks at Qinternet called "AI, Robotics, and Future of Jobs".  The interesting thing about this particular study is that, while we've seen in the past how robotics can impact more blue collar types of jobs, this one takes aim directly at folks in the medical, and legal, and other kinds of white collar professions where it's becoming more and more common for robots to be able to perform those kinds of tasks.  I think, Sam, you pointed to "The 10 Best Paying Jobs of 2014" as reported in the Wall Street Journal.  Most of them involve being a doctor or a dentist of some kind.  Petroleum engineers and air traffic controllers make that way on that list.  So does attorney down at the end.  If you read this Qinternet study, all of those jobs might be at risk as AI becomes more sophisticated and prevalent.  Tossing it out to you, Sam; again, you were already saying how the legal field doesn't pay too much attention to trends and current developments.  Maybe we will just wake up some time twenty or thirty years from now and find out that laws are being made, legal decisions are being resolved by, and litigants are being represented by a more artificially intelligent life form.  What do you think?

Sam:  There are lawyers in both Star Trek and Battlestar Galactica.  I think we are pretty safe.  If we get real AI, true AI, then everything is out the window.  The moment after we really have artificially intelligent computers and the singularity comes then who knows what happens?  I think the better question is not if artificially intelligent robots are going to replace lawyers, but how will lawyers be necessary in a post singularity world or a post AI world?  In the meantime, is the very limited AI that we have really a danger to lawyers?  I have a hard time thinking that it is.  Real AI is such a long way off.  Maybe when you factor in the speed of technology maybe it actually is close.  It feels like a long way off still, so I don't think our jobs are in danger in the near future.  What I think is more interesting about that Qinternet study is that I just don't think that we are in immediate danger.  I think the greater danger comes from better DIY forms.  I wrote the other day about the difference, and maybe it's more of a scale where on one end you have do it yourself, and not everyone wants to do their own legal work, and probably nobody should, but some people want to.  And at the other end you have push button legal work which is virtually the same as going to a lawyer.  You say, here is my problem, fix it for me, and the lawyer gives back a solution.  If you can push a button on a website and get the solution, why would you go to a lawyer?  I think that's where the greater danger is, and we are pretty close.  Google, and Facebook, and everything has APIs.  So why do you need to take all of the time to fill in that long form to do your will when a quick public records search and pushing a button that says, yeah approve this connection to my Facebook and Google accounts could probably fill out that form for you?  You might have one or two questions left, and then they can just spit out the will.  Nobody has done it yet, but I think that you can do it with today's technology.  I don't think that you have to forecast robots and artificial intelligence.  You just need a decent will and a few API connections and I think that you could actually do push button transactional work.  I think that's the greater near future danger to lawyers is that somebody actually puts that together and runs with it.  I think that it's just a matter of nobody has done it yet.  

Denise:  That's fascinating, and I think that you are absolutely right that that is going to be something that we see in the future.  It's not going to work perfectly at first, either, and there will be a lot of headaches about it, but it's sort of a vendor relationship management, VRM, approach to basic legal tasks.  Apparently the ABA and Rocket Lawyer have buried the hatchet.  We definitely already have, it's not quite the push button legal realm that you were envisioning Sam, but there is still a lot automated "if this is your problem we have the solution" kinds of tools that are available right now, aren't there?

Sam:  The ABA / Rocket Lawyer thing is just kind of a weird collaboration.  I don't really think that I understand that.  But they haven't really been forthcoming on what the plan is, either.  I guess I don't really know the shape of the collaboration.  It's interesting, and that could be sort of a forecast of the future right there, I don't know.  I guess we will know better when we see more what it's going to look like.

Denise:  Can you tell us what we know right now about that collaboration?

Sam:  I think that is all we know.  What the press releases all have said is that they are going to collaborate and the goal is to increase access to justice, is my understanding.  That it's going to be targeted low cost legal services, low income clients, which is good.  This is the first concrete step that the ABA has taken.  I'm not sure everybody is going to agree with it, but I don't think that the ABA has done anything but say that we need more access to justice in the last couple of years.  Maybe they have, and I'm unaware of it.  I don't want to be unfair to the ABA.  I think it's been mostly committees and reports, not action.  Maybe this is the first action that the ABA has actually taken.  That's potentially positive, I guess.  Until we know more about the outlines of the deal it is hard to know.  What it initially looked like to me was more the ABA is getting more into lead generation and marketing, not access justice.  Now that they have emphasized that end of it I'm a little more optimistic.

Denise:  So Evan, have you checked out JIBO on Indiegogo;  the world's first family friendly robot?

Evan:  Looks like fun.  I was reminded of the Jetsons a little bit.  It could be somewhat interesting to have around the house; a good companion, helpful companion, interactive.  You wouldn't get as lonely.

Denise:  Right.  It will read to you if you are a child, or anyone I suppose, if you need to be read to.  God knows I love audio books.  It will take pictures and has facial recognition to help it take decent pictures apparently.  It looks very interesting and it does look like something that is striving to be the thing that you go to in your home and ask questions of when you have questions; maybe legal questions.  

Sam:  They make it look like it's moving around, but it just sits there.  You have to pick it up and move it from room to room if you want it to move around.

Denise:  I think its little top part moves.

Sam:  Yeah, it looks around and stuff, but there are no wheels on it.  It can't drive itself around your house.

Denise:  I think it's an interesting concept.  Dr. Cynthia Breazeal, if I'm not butchering her name too badly, is its instigator.  Ali, do you think that personal assistants like this...first of all, I could see where there could be potential liability considerations for folks like Dr. Breazeal for products like this in various ways.  I could also see where it might start filling needs for us in ways that we are used to from computers or professionals, say.  Do you have any thoughts?

Ali:  It's definitely a really interesting new innovation, especially if it's going to be affordable for consumers.  This is the first I've heard of it.  But I do find it really interesting that it is being Crowdfunded in this way, which can guarantee that there is demand upfront for something this modern and crazy to be available to average people.  I have one thing that I wanted to jump in before on the last topic.  I think,  I'm a lawyer, we are all lawyers, and it would be great if there were less extensive need for lawyers.  I know that, especially in the patent context, patent reform and talking about fighting pools in that context, we are all about startups and companies spending more money on innovation and R&D then on lawyers, and litigation costs, and keeping these engineers busy by legal issues.  I haven't read this much about the legal disruption, but one of my colleagues on DisCo, Glen Manishin, has written a couple of posts on legal disruption and disrupting the legal industry.  All of these issues of new technologies replacing human tasks are really interesting.   We are going to see how people react, how Congress reacts, how courts react.  It's going to be a lot of excitement.  There are going to be a lot of issues at first, and there is going to be a need for lawyers still.  There are a lot of questions.

Denise:  Does anyone remember the name of the Jetsons' robot?  It was Rosie, right, Rosie the maid.  Rosie.  So "Rosie" is going to be our second MCLA pass phrase for this episode of This Week in Law, thank you Evan.  We have some resources and tips for you before we go ahead and make our way out of here.  The first comes from  Actually, I don't have a tip.  I have a couple of resources, but no tips.  So if anyone has a good legal tip, now would be the time to think about it.  I will do the resources, and then I will go around and see if anyone has a good tip that jives with anything we have discussed today or otherwise.  Our first resource is from Lawyerist, Sam's site.  You know how we love to talk on this show about the wonderful, snarky, clever, put lawyer in their places kind of responses to cease and desist letters that become internet famous from time to time.  If you have ever been looking for a good repository of those, there is a great post on Lawyerist that has several of them, nine of them to be precise.  I will go ahead and let you guys go read them yourselves.  Some of them we have covered on the show.  Sam, do you have a favorite?

Sam:  You know, the Groucho Marx one I haven't seen before, and it's really good.  It's really amusing, especially that he kept on, he didn't drop it, and he just kept on being Groucho Marx when they tried to get serious with him.  But I think that the Cleveland Browns' response is probably the greatest response to a legal threat of all time.

Denise:  That's the one where the lawyer wrote back to someone complaining about paper airplanes at a Browns game.  It was sort of more, hey you need to be careful.  Be aware that some bleep is writing ridiculous letters and signing your name to them.  

Sam:  Yeah, it's just so good.  That's the one that kind of killed the genre.  It was the greatest one, in my mind.

Denise:  That was in house council for the Cleveland Browns.  You are right, he just kind of threw the mic on the stage and walked off at that point.

Sam:  That was definitely a drop the mic response.

Denise:  Yeah.  Let's see, the Groucho Marx one had to do with Casablanca, the classic Bogart / Bergman movie and the Marx Brothers' A Night in Casablanca.  So go check these out if this is a genre of literature that you are interested in.  Also, we have a good resource here from the Copyright Librarian.  I'm trying to remember, that's Nancy Sims, and I think that we have had her on the show before.  In any event, there was a wonderful little infographic that was making the rounds that reported to be a flowchart for the Terms, Laws, and Ethics for Using Copyrighted Images.  Nancy Sims had some issues with the conclusions drawn in the flowchart, so she did her own version sort of, if I can use an old blogging term "fisking" that flowchart, going through it and line by line just saying, okay, this one is just plain wrong.  This one is iffy.  This is not quite on.  So, if you were planning to use that flowchart as your touchstone toward using copyrighted images in your post online, say, or anything else you might be doing online with them;  go ahead and check out Nancy Sims' commentary on it before.  Of course, none of this is legal advice, but you want to be as informed as you can if you are trying to make your way through that minefield.  So, does anybody have any tips for me or for our audience that they want to share?

Evan:  Hmm.

Denise:  Hmm.  Going, going, okay I think we are going to be tipless this week.  But we did give you two resources, so there you go.  I think that is going to do it for the show.  It's been really fun.  We've covered a lot of ground.  I really appreciate your joining us from CCIA and the wonderful Project DisCo Blog, Ali Sternburg.

Ali:  Thanks again for having me.  It was really fun.

Denise:  Ali, is there anything going on with you that you want to share with folks before we go ahead and clear out today; any talks or thing that people should be paying attention to?

Ali:  This has just been the summer of filings.  There has just been like Copyright Office after another, and I've barely had a chance for other things.  Personal news, I'm excited but I'm recording an album.  So I'm trying to be more creative on the side.  Let me see, some other things.  We tend to blog on DisCo, it's about interesting things that we are doing or that are going on in the news about the disruptive competition or innovation, a lot of IP issues, mostly copyright competition.  That's generally the place to look to see what CCI is thinking about.  So check it out.  Thanks again for having me.

Denise:  Sure.  Tell us about your album.  Is it '60's / '70's funkified kind of music or something else?

Ali:  That's definitely my inspiration.  I'm definitely a Beatle's classic rock fan, but then I'm a girl who plays piano, so it doesn't always come out that way.  But I try to have those influences.  I'm definitely a big fan of the pre '72 era.  I appreciate seeing that that soundtrack is in the news.  That's a great era for music, and I'm going to have to check it out.  And Guardians of the Galaxy, I'm going to see it.  Thanks for all of the recommendations.

Denise:  Sure, our pleasure.  Sam, it was great meeting you; wonderful insights for us today.  Are you still here Sam Glover?  Thank you so much for joining us.

Evan:  I think we lost Sam.

Denise:  We lost Sam.  Sam, wonderful site.  We love your site  We are so glad that Sam was able to join us right up until the very end of the show here.  You guys should check out his blog, it's really cool.  Evan, it's great to see you again; wonderful to have you back.

Evan:  Yes, it's great to be back.  I enjoyed our conversation.  Ali, it was really nice to meet you.  I have read your stuff, some of your stuff.  You've written a lot of stuff.  I haven't read it all, but it's great to meet you on the show.  I was excited to have you here, and I've really enjoyed it.  It's been a lot of fun.

Ali:  Thank you.  That's awesome.

Denise:  Evan and I are both avid readers of Project DisCo, and I'm sure that we have talked about your Six Second's Vine Copyright Post when Vine first came out and considered the copyrightability of those.  Oh, Sam is back, yay!  Sam, we were ending the show, but we wanted to thank you and say goodbye.  Great to see you and it's been really wonderful chatting with you.

Sam:  Thanks for having me on.  This has been fun.

Denise:  Anything else you want people to know about before we sign off and get out of here?

Sam:  Stop by Lawyerist and make sure you follow us somewhere.  That would be awesome.

Denise:  Alright, we will do that.  Thanks so much.

Sam:  Thank you.

Denise:  Thank you all for joining us for This Week in Law.  As you may know, we record this show live at 11:00 Pacific Time, 1800 UTC every single Friday.  Except for like Fridays after Thanksgiving, that kind of thing.  We are really thrilled that you can be here with us live.  It's fun if you can do that and you can jump in IRC with us at and follow right along with the show.  If you can't watch live with us, don't worry about it.  We are on demand in various ways at, at, we are on iTunes, and on Roku.  Find us in a way that is convenient for you.  Put us on your mixed tape, and listen to us when you can.  The whole TWiT network makes a great tape, we think.  What else should I tell you?  You should get in touch with us between the shows.  You can email me and Evan.  He is  I am  You can get ahold of us at Twitter.  He's @internetcases there.  I am @dhowell there.  We also have Facebook and Google+ pages on communities for folks who have a bit more to say.  We loved hearing from you about your feedback on our guests, our shows, our topics, further things you think that you would like to add to the discussion, or things you would like us to be paying attention to and possibly discuss on the show, guests you would like to see on the show, all of that.  We love to hear from you.  We love getting together with you every Friday on This Week in Law!  We will see you next week. Take care.

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