This Week in Law 274 (Transcript)
Denise Howell: Next up on This Week in Law: New Media Rights is in the house with Art Neill and Teri Karobonik. We’re going to talk about why you shouldn’t put things into the cloud, why you shouldn’t believe every court order you receive, un-carriers, net-neutral toilets, and much more next on This Week in Law.
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Denise: This is TWiL, This Week in Law with Denise Howell and Evan Brown. Episode 274, recorded September 5th, 2014
This episode of This Week in Law is brought to you by Personal Capital. With Personal Capital, you’ll finally have all of your financial life in one place and get a clear view of everything you own. Best of all, it’s free. To sign up, go to personalcapital.com/twil. Hi folks, it’s Denise Howell, and you’re joining us for This Week in Law. We are so excited to have you with us this week. Lots has been going on. We’re going to talk about things that have been shared. And things that we will share with you. All at the intersection of technology and law. We’re really thrilled to have back this week, two folks from newmediarights.org. Art Neill is joining us again. Hello, Art.
Art Neill: Hi, Denise. Great to be here, thanks for having us back.
Denise: Wonderful to have you back. And also Art’s colleague, Teri Karobonik is here. Hello, Teri.
Teri Karobonik: Hi, Denise. Thanks again for having us back.
Denise: My pleasure. I didn’t just butcher your name, did I?
Teri: No, you actually got it right, which is pretty rare.
Denise: I’m so glad! I didn’t even check beforehand. Did that one on the fly. So excited that I remembered. Also here is Evan Brown, my co-host. Hello, Evan.
Evan Brown: Hi, Denise. How are you doing today?
Denise: Doing great. It’s looking sunny there in Chicago.
Evan: It is, you know it’s the end of September. Or no, it’s the beginning of September. End of summer is what I meant to say. So still plenty of sunshine and the good season to live in Chicago. Still plenty of that left for a little while longer. It’s a good day. But like usual, always the best place to be right now is here. Talking about the law and technology, so I’m happy about it.
Denise: I know. Me too. Alright, let’s get into it. Let’s talk about a big story this week on the privacy front. So even if you don’t store things in iCloud, you have probably heard about the fate of some who did. May perhaps still do. The celebrity photos that leaked out over the, at least news of them leaked out over the holiday weekend, last weekend. And folks were very unhappy to find that photos that they thought they had stored in the cloud, in a private manner, had actually been hacked in a targeted way. And really, these were mostly celebrities photos; lots of folks in states of undress as Evan and I were discussing before the show. I’m afraid maybe some of our audience is more knowledgeable about exactly what was in these photos then either of us are. Because we have not seen them, we don’t know if they were selfies or perhaps professionally-taken glamor shots. We do know that they were meant to be private. They were not meant to be shared. And yet they were, and folks are up in arms. And not happy with Apple. So obviously I think the network here has covered security aspects of this. Probably ad nauseam this week. So we’re going to focus a bit on the legal side. Evan, do you think under these circumstances, companies are going to have to start re-thinking not just their security, but what they are representing to their customers about the cloud and how secure their data is there?
Evan: Well, I mean there’s a couple of different ways to look at that. If you look at it from purely a copyright issue, if we’re going to stop and focus and try to examine what the copyright rights are in these photos, I don’t know if that makes a whole lot of difference what Apple will do. And the kind of representations it would make. But, it’s a real important issue, this privacy here. And it’s something that has come up in conversation a few times this week. There’s this special meaning that we give to privacy when we’re talking about it in this context. Because there’s privacy of what we think about in everyday life, of what things are private. And if I only share things in social media with a few users, I sort of think that as being private because it’s not something that’s available to anybody on the web at all. But that has a very different meaning when it comes to the legal context and what is there. So it’s going to be mainly just a better sense on the individual user as to what kind of expectations of privacy to have. And I’m using that in a very general sense. Using the services and what’s going to be there. And I’m not so sure that any of this is too surprising to anybody. It’s scandalous of course that there were these celebrity photos that were accessed without authorization and later distributed. But really, I don’t know that anybody is so surprised like, oh my gosh this could have never happened. We know inherently that these platforms have the risk of being accessed without authorization, content coming off of there. Overall, it has to be a general mindset, taking our collective mindset and moving it into a realization that that’s just how things are these days.
Denise: You mentioned copyright, and I think there’s an interesting spin on this story about talking about monkey selfies on the show and not so recently on the show; and the issue of who owns the copyright, in particular photos of a subject. And I can instantly see that issue coming up here as well. We often see copyright ride-in on what seems to be a privacy-related story, when the privacy law doesn’t seem to give a clear path toward a remedy. But copyright law might. As far as private civil actions go here, Evan, do you see anything happening along those lines?
Evan: Realistically, who knows? I don’t know because first off we’re dealing with four users of Four Chin, members of Four Chin, participants in Four Chin, whatever the most accurate way of talking about it is here. So probably sophisticated users, so I imagine there will be a really hard time tracking down who is responsible for this. The indications that it wasn’t just one individual. It may have been a ring and that these efforts have been going on for quite a while. I don’t think the facts are really clear. I’ve seen descriptions of this, looking like it was a brute force attack. Where they figured out the email addresses of these celebrities and used automated means to figure out what the password was to the iCloud service. Or if there was some other form of social engineering, changing passwords. So I don’t think we’re really clear on all of that. But I guess we just have to see how it plays out. If we were able to identify the individuals involved here, I would think there could be, it’s likely there could be a prosecution under this. The FBI has gotten involved in situations like this before where celebrities have been targeted. And their photos have been leaked online, and I guess there have actually been convictions come to think of it. As far as civil liability goes, you can look at things like invasion of privacy and we’d have occasion to look at that question of were these photos really private? The question I was talking about earlier. And then things like intentional infliction of emotional distress. And then of course, we sort of keep talking around the edges of all this; the copyright liability for having copied these photos from the service and reposting, redistributing them on Four Chin. And then of course they got distributed further on Imgur, Reddit, and various other channels. So there’s definitely the copyright owner in these photos and that could be the celebrity herself, having taken a selfie. Or to the extent it was somebody else taking the photo, that copyright holder there could have a civil cause of action for that. There’s a number of different ways civil liability could play out here.
Denise: Right, and the DMCA has come into it, too. Already there is a story that was dated September 3rd at page six of the New York Post that talks about a porn site that received a DMCA takedown notice on these photos. And refused to take them down. Challenged the notice because they wanted Jennifer Lawrence to provide evidence of who had the copyright to the photos. I’m not sure if we’ll see that more than once. But we’re used to seeing the DMCA protect the good actors out there. And enable them to do business, but it can be used in any circumstance when we’re seeing it used here too. Art, I think this is just another step in the saga that goes back and forth between consumers and companies of how security is going to work for them. Apple has had to back and fill a number of times, hey we’ve had something happen; we’re going to implement stronger security measures. This is obviously a pain for users, but helps counteract this kind of attack. Do you think this kind of cat and mouse is just going to continue?
Art: Well, this is really the age-old question in internet law. All those causes of action that Evan was talking about are certainly relevant. And the underlying issue here is of course all those causes of actions would apply likely to the individual or individuals that hacked the accounts and got the photos. But there’s another question here which is who else should be liable? And certainly in the public’s sphere and just in the media, Apple has taken a hit for what’s been going on. But the technology here and the process actually is extremely important in terms of the causes of action and whether; blaming Apple and the public sphere is one thing; are there any causes of action that could be brought against them? It’s really important how this actually worked. And from everything I’ve read, it’s not entirely clear exactly how the hack happened. Certainly it seems Apple is allowing infinite input of passwords is what some of the reports are saying. If that’s the case, then that might have helped out a brute force attack and made that easier. But it’s two different things to say that an individual account was targeted and compromised by a really focused effort. Whether that was brute force attack or a phishing attack versus the accusation that iCloud has been entirely compromised. And so I think it’s still unclear how exactly the hack took place. But that’s really relevant to the causes of action. And as far as some of the specific causes of action that have been brought up, the DMCA; we see that all the time. We work on both sides of that issue. Certainly we work with a lot of people, defending a lot of areas, ridiculous DMCA takedowns. But in this case, we have seen people who have real legitimate gripes. They don’t like their photo appearing here and there; it’s inaccurately portrayed. But it becomes an issue, ownership of that photo really becomes an issue when you want to utilize copyright. And really nobody but the copyright owner is supposed to be utilizing the DMCA to take things down. There’s nothing like the DMCA or a takedown. It’s really the only apparatus I know of in the law where you can send a letter, and the information is supposed to go down. It would be really interesting, the site that you’re talking about, it would be interesting that the folks who sent the letter; Jennifer Lawrence and these people, if they can actually prove ownership, would they foul that up. And see if they could go after them for some other form of liability. And it’s a really interesting story about expectations of privacy as the invasion of privacy issues, it’s that basic question. Once you put something online, of course we all would hope that our private photos would stay private if we’re sharing them to the cloud. And we are sharing more personal things to the cloud. But the internet is such that no matter whether it’s just a simple comment on Facebook which you want to delete, or something that’s even more innocuous, it’s hard to permanently delete or to forever keep something private on the internet. This is just another example of that.
Denise: Right, I mean this is an example of people who may in the wake of this story and concerns raised by it, take an admiral Adomma approach. Or Captain Adomma, to their connections online. There’s certain data that perhaps just should never touch the internet. Or any sort of networked environment. Nude photos of one self would seem to fall into that bucket. But I don’t know if it’s realistic in today’s day and age to expect your run of the mill celebrity to take that into account. Teri, any thoughts on this?
Teri: Well I think actually one of the more interesting angles is the Four Chin angle at the moment. They recently registered as a DMCA agent within the past two days. And there have been, as you probably know, a fair number of cases that say it’s great that you’ve registered as a DMCA agent, but that isn’t retro-active. So any behavior that occurred, you’re still on the hook for. So I think they could be looking at a fairly large copyright lawsuit in the near future.
Denise: Yea, that’s one if you can just think about the amount of stuff that might be on Four Chin. The ramifications of that are pretty staggering. Alright, well…
Art: Denise, you raised a really interesting point, that we actually work in a co-worker’s space here in San Diego that is focused on internet of things. It’s really interesting to think how the expectation of privacy might change as we all our constantly network-connected through every device and everything that we’re using in daily life. And it’s kind of interesting to watch how that might change the expectation of privacy.
Evan: And it’s also interesting to examine this when we think of these two notions of privacy. One being what our expectations of privacy is just in the average everyday sense. And our expectation of privacy in the fourth amendment context when we think about subject to a warrant or a search by law enforcement. Or the NSA watching us, or what have you here. Because with the ordinary average everyday sense of privacy, I think that’s the analysis. That’s the paradigm under which we would do the analysis for say example a court claim for invasion of privacy. I don’t think that it would be as easy to argue that you’d lose your privacy as easily as when you post a photo, just having it in your iCloud, stored in your iCloud account. I think it would be much more difficult in a civil case to say that you had somehow divested yourself of a privacy interest, by doing that. It would be much more difficult to say that what it would say if it were the government that was searching the stuff in your iCloud account, on your iCloud drive. The expectation of privacy that you would have in that context. That’s not to say that you wouldn’t enjoy an expectation of privacy of stuff that is stored on the server. I think that’s still an open question; even though we’ve had cases from the Supreme Court with the Riley decision for example. That really doesn’t address it directly but it certainly brings in the notion of fourth amendment privacy into the digital context in a way that’s much more in line with what our ordinary thinking of privacy is all about. So I just think it’s interesting to see how the notion of privacy is malleable depending on what legal context we’re bringing it up in. And how it would actually play out in the legal analysis.
Denise: Right, and I keep coming back to companies and what people reasonable expect when they are using certain services. Regardless of what the terms of service say, which of course are going to try and insulate the company as much as possible; if you’re using a strong password, if you’re using two-factor authentication, then you probably have a strong expectation and a reasonable strong expectation that what you’re storing in the cloud is going to be secure. And I just don’t know how long courts are going to put up with companies hiding behind legalese that nobody reads in their 47 or however long their terms of service are. Staggering long pages of text that no one reads. And yet, if there’s still a vulnerability despite all those steps being in place, I think that there’s going to be a lack of patience on the part of law makers and law enforcers with that kind of approach.
Art: Denise, let me ask you this. Because you bring up the question of how long are courts going to put up with this. Sort of Apple protecting it up by long terms of service; folks in IRC were talking a few minutes ago about a really good point here: would the public’s reaction be different if this were Microsoft instead of Apple? Somebody in IRC, I wish I could give credit; it’s already past the screen now. Now with Apple, it’s like, sorry about this, Yolo. Give them a pat on the back. And we’re like, okay. Maybe it’s because of other things going on in the world with NATO summits, and ISIS, and the Ukraine, and what was here name… I can’t believe I’m spacing, the comedian that just died.
Evan: Joan Rivers?
Art: Yea, Joan Rivers. Total mental block; sorry about that. We’re so quick to forgive Apple in this. Would it be different if it were a different company? What do you think, Denise?
Denise: I do think it would be slightly different and I don’t think too many folks are that quick to forgive Apple. I think a lot of people have been pulled into the Apple ecosystem at this point and they’re going to expect that ecosystem to function in a way that meets their expectations. I know that was redundant. You’re going to have to take it, that’s what I got.
Art: One thing I would add as an organization that does tend to spend a lot of time working with really strapped startups is that it’s really a tough line to draw. And it’s an important thing to protect consumer privacy. And we work with folks everyday on that issue. At the same time, you look at a company like Apple and certainly it’s easy to criticize their behavior. I wonder certainly folks need to be held to a high standard as far as data privacy. But to say they’re held to some sort of absolute standard of keeping that data private. I think a lot of small companies do their best and they know that to get customers and to keep them, they need to keep the data private. But what happens is that they know they can’t promise. They can’t promise they’re 100% impervious. Because they know technologically, they’re not capable of promising it. So it’s a real challenge as to where you draw that line for liability for that service.
Denise: Yea, it sure is. And I think there’s a whole lot of education to be done on the consumer side too. As far as the vulnerabilities in place here, reading the coverage, Apple has denied up and down that it was the Find My iPhone service that had the vulnerability that you were discussing earlier, Art; that allowed the infinite number of brute force attacks. That somehow the data got out another way. And they fixed that vulnerability. So, I think as you point out, it’s going to be important for any legal proceedings that go forward here, to know exactly what happened and then folks are going to be able to go from there. I also think this story is a good; aside from Admiral Adomma, if you can’t disconnect entirely from the internet or people don’t want to, it’s a sign post for services like Snap Chat and others who are that their business model is trying to make things affirmable. Even if Snap Chat is no longer quite the poster child for that, that it once was. As you say, startups will jump into that void and try to offer a service that will allow people to share things and know that they’re not going to come back and haunt them. But again, I don’t know why you would have a database of naked photos of yourself stored in the cloud. That’s beyond me, but then again we have had Federal judges who have had all kinds of interesting stuff stored. I’m thinking of Judge Kazinsky and the terrible things that happened with access to his own server. It was not a cloud server but it was a cloud-connected server. And a lot of personal family stuff got out from that. Even very smart, very tech-savvy people can have a challenge with this. It’s sad for me that not just celebrities but every consumer out there doesn’t quite know what it might mean that they can, yes share family photos easily and seamlessly with grandma and grandpa. And far-flown cousins and anyone else from high school that they’re keeping in touch with. But it might mean a whole lot of privacy heart-ache down the road too. Any final thoughts, Evan?
Evan: No, it’s just that you wouldn’t share these kind of photos with grandma and grandpa in the first place.
Evan: Just wanted to clarify.
Denise: Yolo! Poor grandma and grandpa, they wouldn’t know what hit them. Since we’re talking about photos, let’s talk about photos of a slightly different kind. One of our audience members on Twitter pointed me toward a story that happened earlier this year that we never covered. And I think it’s worth mentioning because it also involves photography and not really privacy. But the extent to which photos of you that are part of the data cloud around us all these days, can be used to make your life miserable. In this case, there was an important decision from the California Supreme Court earlier this year. It was called People versus Goldsmith. And it was the end of five years of litigation over whether red light machines that decide whether you’ve blown through an intersection and deserve a ticket, whether the video that they take is admissible in court. And the argument made, and I think it was a fairly strong argument, is that they shouldn’t be admissible unless they’re very strongly authenticated. Unless you have someone from the red light company, red light monitoring company come in and describe how the data is gathered and maintained. And why it’s reliable, etcetera. The Supreme Court in California said no, that’s asking too much. Photographs are silent witnesses. We’ve long-held that to actual events and so heresy isn’t going to be a problem here. And people can be prosecuted, these red light videos are appropriately admissible evidence; we’re not going to throw them out. Evan, were you surprised at all about this decision?
Evan: Well, it’s good to have the Supreme Court of California reviewing this. Because I think it’s a really important issue. Not just in the context of red light cameras, but in any future that we will behold where there will be so much more information generated through automated means. Whether those be surveillance cameras or as Art was underlining a while ago, the internet of things. There’s going to be sources of data coming from all these disparate places, new sources of data that will come about that could potentially have evidentiary value someday. So we have to remember that there seems to be two issues in this case here. The Supreme Court, whether this is heresy and whether this is a violation of the constitutional right to confront the one who’s testifying against you. Your accuser here. And if we step way back and go back into the 18h century mindset where these doctrines come from. It’s this idea of really being able to ascertain that the evidence against you is accurate. And to have the opportunity to cross-examine the adverse party against you all in an effort to better get at the truth. So it’s really important that we figure out how this happens, however the supreme court of California is going to figure out how this happened. It’s important that the issue be resolved and you can kind of see both sides of it. For one, from the perspective of the criminal defendant and the risk of being treated unfairly, we want to make sure there’s the opportunity to uncover whether the evidence was tampered with. Whether the prosecution did something to it to make it more favorable before it was introduced into evidence. And that is usually ferreted out in the process of cross-examination. So that is why you have the video technician there who knows how the camera works and can testify that the camera was working properly and also to authenticate it. To prove that it is what is purports to be. But then from another perspective of it, there’s part of that is missing when it’s automated data collection sources. Cameras won’t lie. Cameras don’t have a motive to lie. Or an automated sensor somewhere out there on the internet of things won’t have the same incentive to lie than what a live human witness would, which to get around that is one of the reasons why we have the rule against heresy. There’s this interesting mix here. We have at base, it all goes down to this human element of the process by which a human has to bring this to court. On the part of the prosecution to make sure that nothing bad is happening to the evidence, bad in the sense of it made less accurate or not properly presented or in a way that’s particularly biased. Or something like that. So it’s not a real straight forward analysis because of the technological and automated nature of the way the information is collected. And like I was saying earlier the fact that these machines themselves don’t do any lying or fabricating. So it will be interesting to see how it turns out.
Denise: Yea, I’m picking up on one of your threads there. I would like to see; I’m not a criminal lawyer so I’m not sure exactly how this works when you’re playing it out in court and you have a prosecutor. And you’ve challenged your ticket and a prosecutor is attempting to demonstrate, well we have this evidence from the red light camera. If they are required to demonstrate that the camera functioned normally or from everything we can tell it functioned normally and was not hacked, I would want to know those two things. Or still being taken care of. Teri, this story reminded me of something that popped up in your Twitter feed this week. Which was a tweet from Maris Sotag and a photo that he says is from the Czech Republic that is a, please don’t urinate in public kind of universal sign with the slash over the person doing the act; showing that if you do so, you’re going to be recorded and instead of threatening that you’re going to be recorded and you might be prosecuted for something like this, the sign goes on to infer that you’re going to be recorded and then you’re going to show up on YouTube. So it has even more teeth than any prosecutor could ever throw at you in court. Just the public embarrassment of it all. And you had an interesting take that, gee they’re using the YouTube logo in that sign. I wonder if the Czech Republic got permission for that.
Teri: Yea, I sincerely doubt that they actually got permission. But the other interesting thing, so something at New Media Rights, we help with a lot of take downs and we have a special category of take downs that I’ve named 18-year old boys doing stupid things. And those take downs are usually rightful since in YouTube’s community guidelines, it pretty explicitly says you cannot post yourself doing illegal things on YouTube. So the idea of a state enforcement agency actually putting illegal things on YouTube as a method of public shaming is just so interesting and for such a variety of reasons.
Denise: I mean the sign doesn’t have any actual text. So you’re interpreting it one way; you’re thinking that the symbols depicted here mean we will put the video of you urinating in public on YouTube. I read it to just read somebody will, you know. Everyone’s walking around with their camera and you’re going to show up on YouTube.
Teri: I didn’t think about it that way. Admittedly, it would be very hard to actually enforce that unless you had a wide swath of cameras that are literally pointed everywhere.
Denise: Well, I don’t know. I think we do.
Teri: Who knows?
Denise: I think that’s about all I had on red light cameras and urination cameras. Let me just make sure. I do want to drop our first MCLE passphrase into this show. And that’s going to be Teflon, harkening back to Apple and how they come through the controversy that they’re embroiled in. Oh, another thing as long as we’re on the front of crime and justice, another viewer, audience member emailed me and said, hey you know I thought at one point, he reached out and said, I think this is a fake court order. Turns out it was. So he had encountered this before; Sundance Vacations, I guess have forged a court order. At least that’s what they’re being accused of. Can you tell us more about this, Teri?
Teri: Sure. So, Sundance Vacations is actually kind of a known content foley in his space. They’re really all about getting any possible negative review ever taken down from the internet. And they’ve been trying to do this in a variety of ways. They’ve sent DMCA take down notices. But those for obvious reasons were not really working. So I guess at this point, they decided, let’s forge some court documents because forging court documents is always a good idea. And that sentence never ends with anything ever bad happening, ever. So I’m kind of surprised that they went this far. But I mean if you actually look at it, it definitely looks off from even the laments perspective.
Teri: I’m just absolutely shocked that they went this far to try to get their stuff taken down from the internet.
Denise: Yea, Evan, if you’re found guilty of having forged a court document, what are the sorts of ramifications you can expect to face?
Evan: I’m pretty sure in Mississippi they cut your hands off. At least that’s where this purported court order comes from. Correct me if I’m wrong, anybody in IRC from Mississippi. But no, I mean seriously it’s a bad idea. You don’t even need to really think about whether there might be a statute against this to know this is just not good. I mean it’s sort of like it’s planted in your heart when you’re born, the idea not to do these things. There’s that, there’s the risk of actual legal liability for it. But moreover there’s the fact that people are going to really recognize in very vivid terms that you’re very disingenuous. Is that the right word? There’s all kinds of words that you can use to describe how this just doesn’t work. And this is just not useful or an effective way to combat speech online. Just not the way you should really go about this stuff. It can definitely backfire in a big way.
Denise: I don’t know about the whole hand chopping off thing. But I think just about anywhere, it could be a felony offense.
Evan: Well, we’ll look it up. We’ll see.
Denise: Forging court documents is not something you want to involve yourself in. Go ahead, Art.
Art: The whole story is just a reminder of how difficult it is to authenticate anything on the internet. There’s a court order, a fake court order, but then there’s of course this update that they did to the blog on Wednesday. They updated it and we’re saying, well apparently we might have received an email that was falsely identifying itself. And so, just a reminder that it’s very difficult to authenticate things period, on the internet. It’s also a reminder that plaintiffs are going to find any way possible to remove things from the internet. I remember years ago, when I was helping launch a consumer website, I had spoken to the people at ripoffreport.com. And that’s one of the sites that has gone through battles over and over through the years because they just don’t take comments down. And so they’ve fought many of those take down battles and lawyers have tried every type of claim you could possibly think of to take content off of that site. Or disparaging comments about companies, and it’s a reminder also. This things a reminder for anybody who’s running a website, when you get any kind of email or court order to just sort of pause, really take a close look at the order. And hopefully even seek out an attorney. This is the kind of thing that media rights does; provides services to folks who can’t necessarily access them. So it’s okay to pause and seek out assistance to understand what your responsibilities are as a website owner or as an app owner. I think it’s really important that people pause and take a look at what they’re being sent and make sure it’s authenticated before taken that step of removing and taking content down.
Denise: Yea, just because something is formatted as a legal document doesn’t necessarily mean it is one. So it’s something to pay attention to if you are a site operator for sure. So now we’ve covered, we shouldn’t put things into the cloud, now we’ve also covered we shouldn’t believe anything that originates from the cloud. Hopefully we have some more upbeat things in our future. And I’m not sure if people know this but Art shares the broadband working group at the FCC’s consumer advisory committee. So you know what we’re going to talk about here in just a minute; is net neutrality and open internet rules. And what is going on, on that front. Now that we’ve finally reached September 2014. But first I want to thank our sponsor for this episode of This Week in Law. And that is Personal Capital. Did you know that Personal Capital solves two barriers to growing your wealth? And who does not need to grow their wealth? I think we all do. The first barrier is that it’s hard to keep track of the kinds of things that you might have on hand. Maybe you have some stocks, a 401K, bank accounts of course, investment accounts hopefully. All on different sites and with different usernames and passwords. The second problem that you have is that you’re paying someone to manage these things for you. And you just might be paying too much. Personal Capital brings all your accounts and assets together on a single screen on your computer, phone, or tablet. With real-time and intuitive graphs. Personal Capital has an award-winning watch app that you can download on Google Play that seamlessly integrates with Personal Capital on other Android devices. And provides users with relevant and timely updates on their finances whenever and wherever they need it. Personal Capital shows you how much you’re overpaying in fees and how to reduce those fees. You also get tailored advice on optimizing your investment. So why wait? Signing up takes just a minute and it will pay big dividends. Personal Capital gives you total clarity and transparency to make better investment decisions right away. And use a strong password, folks. When you sign up for your free account, go to personalcapital.com/twil. Personal Capital is free and the smart way to grow your money. Thank you so much, Personal Capital for your support of This Week in Law. Let’s look at some issues including net neutrality on the legislation and policy front. The FCC got over 1.4M comments, Art? On let’s see, the Sunlight Foundation has done a thing on 800,000 public comments. But I think they got more than; those are just the public comments. They got many comments that are not public. So I think they topped over like a million and a half comments?
Art: I think it’s the most commented proceeding ever. At the FCC, to my understanding, it might have surpassed Janet Jackson eventually. So yea, obviously some folks are tuned in. It was nice to see. I was looking at that Sunlight Foundation report and they were talking about 16% of them were automated messages sent in through automatic petition-type systems. And that a lot of them were people writing in their own thoughts. Whether it’s just a couple paragraphs or a couple sentences, or whether it was a 50-page comment. 150-page comment. There were a lot of people participating, which is great to see. We’re definitely at a crossroads after the Verizon/FCC decision. This is a big moment for the FCC to decide whether or not we’re going to do any kind of regulation over what has become the primary means of communication in the 21st century. And what is becoming even more so the primary and eventually perhaps, sole means of communication. And whether or not the body, the Federal Communications Commission, they’re created to regulate communications; whether or not they will have any kind of authority to actually regulate communications in the 21st century is what this is all about. I should say that even though I am co-chair of the broadband working group for the consumer advisory committee at the FCC. Of course anything I’m saying is corresponding to New Media Rights, as opposed to the working group. We had an issue where some folks has written some mop-heads and there was some question about that. So I’m definitely speaking for New Media Rights and myself, not for the CAC.
Denise: Good to know. It’s been a busy summer for you. And although we’re talking about people synthesizing the comments. The Sunlight Foundation has done a great post. And you can look at it and everything else we’re talking about today. We’ve aggregated the links for this show at delicious.com/thisweekinlaw/274. The Sunlight Foundation took the 800,000 public comments that have come in to-date and tried to make some conclusions about the comments in general. Estimating that less than 1% of the comments were clearly opposed to net neutrality. And 60% of them were foreign letters but as you were saying that means the volume weren’t. At least 200 comments came from law firms, on behalf of themselves or their clients. And they have done some cool graphics and things over there if you want to dive deeper into the data. And try and read the tealey. Actually Sunlight Foundation answers the question I was asking earlier. Wait, where are the 1.1M comments and it goes on to say that mailed comments postmarked prior to July 18th are still being scanned and enter, per the FCC. So they’ve been so overwhelmed, they haven’t even made all the comments available yet. And the comment period does not expire until September 15. Extended from September 10th. So if you still feel you have something to weigh in on, add to the discussion, you still have about 10 days left to do it. So, Art, busy summer obviously coming to the close here on the comment period. What happens next?
Art: It’s the reply comment period now that’s September 15th is the deadline for that. The original comment period deadline was July 15th. So a lot of this particular phase is about looking at what folks have commented. And of course it’s very easy to do in a matter of two months; with August sandwiched in there, through a million comments. And make some reply comments. The idea is to gather comments and then to have people sort of engage in a discussion. Reply comments are where some of the points become very clear where there’s disagreement. And that’s what’s really happened. Our comment on September 15th, which we’re putting a finishing touch on, we’re really focused on the independent creators that we represent, the internet users, and the kind of bootstrap startups that we work with. And we’re focused on a lot of providers’ statements, broadband providers’ statements that we think don’t really have any basis. And are fairly misleading. There are statements throughout broadband provider comments that say there’s plenty of competition in the broadband space. And if we were to degrade or to cause any problems, the three main tenants are transparency and then no blocking, and then these new open internet rules. Instead of a no discrimination, that is the old internet rules said you can’t discriminate against lawful traffic. The new one says you can’t do anything commercially unreasonable, which is very unclear what that is. But the providers are saying, look even if we do anything that would violate these net neutrality rules, it’s not a problem anyway because the market takes care of it. Well, a number of consumer groups, ourselves included, disagree with that. Some of the arguments; and really the most painful thing and the thing that I’m also going to have a blog coming out on this subject as well; is the data that’s relied upon by the broadband provider is frankly dated that itself identifies itself as not being able to be used for competitive comparisons. And the example is, providers rely on two things. They rely on the 2013 internet access report from the FCC to say things like 88% of people have two or more broadband providers. And the problem with that is that the FCC’s report itself says, hey look, this is only based on larger Census track data. And within those Census track, there may be many people who don’t have access to these providers. The truth is, we did some analysis of some areas here and we looked at another bit of data that the providers rely on besides the access report from the FCC, which actually says don’t rely on it for competitive comparisons. And that’s national broadband map. And I don’t know if anybody’s ever looked at that. It’s actually pretty cool. You type in your address and it kicks back at you, here’s your wire line as well as your wireless broadband providers. And that sounds really great except there are some serious problems with it. Most of the data we found anecdotally in local areas here and addresses here was inaccurate in at least one way and in some times multiple ways. One good example was we searched the entire database for a group called Platinum Equity. Platinum Equity is a backbone, small-business provider. They don’t provide to residential customers. But it actually appears for 138M of the 300-something million addresses that are in the database. So fully a third or more of the addresses list Platinum Equity. But Platinum Equity is not a residential broadband provider. So when broadband providers say there’s competition, they’re relying on various data that is either inaccurate or actually says that it can’t be relied on for competitive comparisons. So that’s point number one where folks disagree, about whether there’s competition. And whether there’s competition is very critical and has been in the past in regards to whether we regulate and how we stack in regarding railroad monopolies and other early communications monopolies. The master switch is really helpful to piece through some of those early monopolies. So that’s a big question and it’s an argument that’s ongoing. And I’ve found it telling that broadband providers theoretically may have the best data in that department. And if they could really prove competition, then it would be helpful to them. But the data they relied upon was just about the worst data; it literally says on the document that this is not for competitive comparison. So very strange that they don’t have stronger data there. And there’s also the question of wired-line providers say, well hey, wireless providers like Comcast or Verizon, AT&T, and Sprint; they are all competitors to us. We are shooting directly with them and in the marketplace that’s not how it really plays out. They’re much more complimentary systems that folks utilize and so to say that wireless is directly competitive with wired-line is reaching as well. The other big point of providers is the FCC decision said the circuit court told the FCC to implement some kind of open internet rules. But it would be done under the section 706 authority. Well, providers are happy to say that section 706 authority, plenty of authority. The truth is, and that’s another point of contention right. And we say, and a lot of other folks say, it sounds like the vast majority according to the stats you’re reading from Sunlight Foundation are saying look, 706, the problem with 706 is it’s such paltry weak authority that what’s going to happen is every time the FCC decides to do any kind of enforcement; one of the things we had on tap today to discuss was T-Mobile’s music freedom package. And whether or not you think that’s commercially unreasonable, that’s a good argument to have. But my point is the FCC can’t even argue one way or the other, or decide one way or the other, without getting title to authority. Because this is exactly what will happen. Let’s say the FCC decides to enforce under 706, the first challenge from the broadband providers will be aha, actually for this particular enforcement action, you don’t have authority. Your 706 authority doesn’t allow you to exercise authority over this. And so there will constantly be, until you actually get title to open internet rules and reclassification of the internet under title two, there will just simply be challenges based on the FCC’s authority to regulate rather than real discussion about what should an open internet look like. What are some of the rules that we should make? And let’s make them carefully over the years. And providers are basically saying look, there’s a lot less sensationalist talk from consumer groups and from individuals. But I didn’t see that kind of sensationalistic talk. All is saw from people was look, there’s going to be a gradually chipping away of what we expect from the open internet. And there was an attempt by a lot of groups and individuals to say, we need to preserve the best things about the internet. And so yea, after the reply comments, the FCC will take those and consider those. Some of their previous proceedings, because we were involved in the last open internet net neutrality proceedings back in 2009 and 2010. They also had a broadband legal framework, how to regulate broadband which we were involved in. And it took a while to sort of be processed; there were far fewer comments in those proceedings. So it will take some time and then the FCC will have to decide what they’re going to do. If they’re just going to promulgate what’s called the notice of public role making, the thing that opened up this whole procedure, it does propose new rules. And that’s what I was describing to you. The rules are pretty close, they look kind of close to the previous rules. But the devil’s in the details because the no discrimination rule became that you can’t do things that are commercially unreasonable. And there’s now been a definition of blocking that’s been added as well. I think it’s going to be a much bigger thing if the FCC decides that we really need reclassification. They can do it. There’s no reason they can’t. They can reclassify but that’s going to be a whole new, if they go down that path, a whole new line that they’re going to have to open up probably a new proceeding.
Denise: Right. I think as you point out, probably litigation ahead whichever way the FCC turns. If they decide to stick with this 706 and thou shalt not do commercially unreasonably things, they’re going to get challenged on that and wind up in court. And they may have the Verizon situation happen all over again, where a court says you’ve exceeded your authority, FCC. And if they go ahead and reclassify it at this juncture to title two, there are going to be court challenges to that as well, won’t there?
Art: Yes. But I think they’re two very different paths because I believe there will be litigation either way. And the broadband providers say, well there certainly wouldn’t be litigation if you took the 706 route. Not true. The only way there wouldn’t be litigation is if the FCC just does nothing and doesn’t do any enforcement. Then the broadband providers would be happy and probably wouldn’t litigate. But if the FCC decides to do anything, there will be a lot of litigation. The problem is that that litigation will only be about authority. It won’t be about what are the correct interpretations of the rules. And the second path of reclassifying, you might have to fight that battle. But I don’t see how under the brand-X decision particularly, that it can be argued that they don’t have the right to reclassify. There will be all kinds of takings and arguments and things like that. But I think there’s been a lot of great responses to that by folks. So I think that one could be disposed of. The second side of what you’re describing could be disposed of rather… well in a legal world, relatively quickly. But on the other side I think we would have another decade of authority challenges. And I think it hurts us; it hurts our economy. It hurts the broadband space in this country.
Denise: Would it necessarily be a decade if we got a couple of conflicting decisions in the courts of appeal, maybe the Supreme Court would take this up sooner rather than later?
Art: That would be the hope, but I think that frankly if they don’t reclassify, the FCC will continue to lose. That’s the problem. If they rely on 706, sure it can go all the way up, but they’ll be told, no you don’t have authority. But they’ve already been told they really don’t have much authority down that path. And the problem is there’s a miss-statement by broadband providers that we have some sort of world-leading broadband here. And you know, that’s not fair to say in terms of price, in terms of availability of speeds. And in terms of availability period. That’s really not true.
Denise: While you were talking, I went to the broadband map and looked up broadband providers for my area. Which I already knew without being told, we’re extraordinarily limited. I have Time Warner Cable, which is my provider. Platinum Equity, which apparently is not available and AT&T which only delivers at 6-10 mbps. And those are the only wired options in the area.
Art: We found when we were looking at it anecdotally, AT&T would be listed because they have some spots where they provide Uverse. But in a lot of situations there were whole apartment buildings, many, and whole rows of houses that all they really had, even though it said AT&T and somebody somewhere in the census track had Uverse, which is the higher fiber speed, which listed up to 25 on the map. They actually, many people in that census track can only get 1.5 because it’s DSL. And I don’t consider that competitive. And the FCC under their definition of broadband, the current one is 3 mb down; that’s not even broadband under definition of the FCC.
Denise: Right. Fascinating. Well, let's look at the T-Mobile example. We've talked about that on a few episodes of the show. This is T-Mobile giving preferential treatment to music services in its — let's see; it's called "Music Freedom." Why don't you describe first how it works, Art, so we know exactly what we're talking about; and then, let's talk about how it might be treated as commercially reasonable or not.
Art: Right. So T-Mobile is a — they're competing with the big two, right? AT&T and Verizon have a huge portion of the wireless market. The other two providers trying to sort of compete are T-Mobile and Sprint; and T-Mobile is really — they've started this whole un-carrier branding push. And so — I mean, but this is really at the heart of — I mean, they're participating —
Denise: It's like un-cola. People probably don't remember the un-cola.
Art: I remember that. (Laughs)
Denise: "Cola nuts, un-cola nuts." (Laughs)
Evan: Is that 7-Up? Right? No?
Denise: Yes, it is. You were a wee babe, Evan.
Art: I thought Pepsi was the un-cola.
Evan: Yeah, I think I was in, like, grade school.
Art: (Laughs) But — so what it is, the basic — As I understand it, essentially, T-Mobile will just exempt certain music services, music streaming services, from your data cap. So there were six that were exempted at the beginning; and then there were four others that recently got exempted.
Art: And so okay. Well, there's 10 or 11, maybe 12, that are part of the Music Freedom package. But it's —
Denise: So these are not being delivered in any greater degree of speed or reliability. There's no fast lane being given to these services; they're just not counting in your data cap; correct?
Art: Exactly. And so it's a calculation that consumers have to make. And I guess, if a consumer really does push up against their data cap, for those particular types of consumers, this may be a particular — put them over the hump in terms of making a choice. That last read I saw, for instance, that — it was interesting because T-Mobile had invited a bunch of requests or services; and I guess they're trying to do a deal with Google Play music later this year, but it's not necessarily added yet. Google Play, though, was the most requested service. And so, for right now, I mean, it looks like Google Play might be added later in the year. But if it was, for instance, somebody deciding between Google Play and Spotify and they were kind of pushing up against their data cap, it might push the consumer one way or the other. And it's — I think I'm always wary, from my consumer advocate days, of really — I mean, if the consumer's not making the choice based on the quality of the service but based on the fact that their broadband carrier has sort of nudged that, you should be using this one; this is the one that you should be using, that's one concern. But really, the big concern is that it's a — this is an example of the gradual chipping away at net neutrality because, like you say, it's not the Doomsday one; it's not what some people describe as the more difficult scenarios where services sort of pay for Play and pay for quicker access and better access and this kind of thing. But it does raise a number of questions if you start to think about it. What's to stop T-Mobile from using the data cap exemption as some kind of a penalty or against content providers that are trying to use broadband to reach their users, but they're not, for some reason, on good terms with T-Mobile; and for some other kind of reason that T-Mobile's trying to get an agreement or get some kind of terms out of those folks. It might be able to be a tool to be used in other ways, these kind of data cap exemptions. And so it's kind of — this is exactly what you'd expect to see. It's sort of the first step along that path; and then it's kind of like the old frog in a pot kind of thing. Well, it'll change gradually, gradually, gradually; and then suddenly, we realize, Oh! Now, wait a minute. Why am I purchasing Internet the way I purchase cable services?
Art: You know, where you're — and I know you've had guests on here before that have talked about — and it really is a question of, do you regulate X — you know, do you regulate before the fact or after the fact? And do you sort of just let things happen? And the thing about letting anything sort of happen is, over the years and seeing many cases, I've seen courts be very reticent to blow up or to alter certain business models. So I think that's really the game plan here, is this sort of — whether its tying up in the courts for another two, three, five, ten years, the idea is, slowly introduce these business models; and then, when folks challenge it later, companies are saying, Wow. We've been doing this for five years. I don't understand why it's a problem now.
Art: So I think doing a baseline, and then working from there and seeing — and having these arguments — what's nice to me is that you might — the FCC might decide this is not commercially unreasonable. But they can't really even have that discussion right now, as far as I'm concerned, under their regulatory authority. So why not give them the authority as a communications regulator to at least consider whether it's okay or not.
Denise: So you're firmly in the FCC first and foremost, as your ironing through all the 1.1 million comments, etc., you've got to plant yourself under Title II. You think that's their first order of business.
Art: That's where I finally — yeah, I've arrived there.
Art: Because I just don't — and if — what pushed me — I mean, the Verizon FCC decision puts you there.
Art: I just don't — it necessitates it.
Denise: Well, Evan, let's assume for a second that the FCC goes forward without taking that big step and decides that it would be a political hot potato and not something they're willing to tackle at this point, and they enact the proposed rules that have been garnering all these comments over the summer. And they're asked to decide whether this — what do we call it again? — Music Freedom initiative from T-Mobile is commercially reasonable or commercially unreasonable. What's your take on the way that will go?
Evan: I have no idea. I mean, I would ask Art what's going to be in the mind of all the different parties and the stakeholders here and how it would actually play out. But what I think is most interesting about it is that — look at what a pro-consumer thing this appears to be. So with something like Music Freedom and availability of all this stuff, especially if there's going to be a wide offering of different services here that don't go against the monthly data cap, where's the outrage going to be? I mean, is there really going to be that much to be upset about? Are people really going to get so fired up about this; and is the worldwide web going to go dark for a day in response to something like this? I just have no idea. I would ask Art. (Laughs)
Denise: What do you think, Art?
Art: That's a really good point about the way that these things are sold. That's exactly the idea, right? As you start with something that — and everything is couched. If there was one word that everyone tried to claim, right, in the comments, it's that they were actually interested in a consumer — they were more interested, more holding the consumer's interest, than anybody else. And you're right that that's actually what's most disturbing about this is that it does all the things I was talking about; but it also couches itself as the consumer-friendly option. So that'll be what's argued, but I really think that it should be up to somebody else besides the company to decide whether that's actually true for the consumer, for the larger marketplace, for the kind of competition and start-ups that are trying to bring other products to the consumer. That shouldn't be in the hands of the incumbents and the incumbent broadband providers to decide.
Denise: Okay. Well, I think we're just about due for a second MCLE pass phrase for this episode of This Week in Law. If I didn't mention it earlier, we put these pass phrases into the show so that if you are engaged in asking for continuing legal or other professional credit for listening to this show — there are various, legal profession's one of them — professions where you need to stay up on certain things. And we like to think that we're a good way to stay up on the latest and greatest developments in technology, law that affects technology. So our second pass phrase for this show — so that you can demonstrate that you actually watched and listened should you need to, is "toilets." And the reason that it's "toilets" is that someone who opposes net neutrality has decided that toilets make a — as Mashable says — a "catchy case" for net neutrality. Maybe we could play a bit of that video, Victor, when you get the chance. I know I didn't ask you to queue it up. (Laughs)
Denise: But when it makes sense to do so. Let's see if we can get some toilets flushing. The message of the video is, of course, that you're flushing — here we go.
(The video begins.)
Man in video: (singing) FCC, don't take away our net neutrality ...
Man in video: (Singing) The Internet was made for you and me ... we need it for communication, the YouTube and the Facebook nation ... for sharing selfies night and day ...
Denise: (Laughs) Okay. I think that's about enough, Victor, thank you.
Denise: Because everything's better with a toilet, right? At least it sticks in your brain when you add toilets. Let's — I did have a good place to move from here. Go ahead, Art.
Art: I wanted to just say one thing. It's really cute. My favorite was probably the net neutrality rap that came up a while back on Twitter; so if you haven't seen the net neutrality rap, that's also a good one. Certainly John Oliver's net neutrality segment was amazing. But I just want to make it clear — I love that video, but it's interesting the language that's used. Because you talk about taking away net neutrality. And just — I would love to remind folks that technically, we're asking the FCC to step in and to restore net neutrality because, frankly, after the FCC Verizon decision in January, it doesn't really exist. The rules don't necessarily exist. So it's just something to remember about what, specifically, that we're asking at the FCC.
Evan: And you know, the metaphor sort of missed me as well because I'm all about creativity, and it must have been fun to get together with friends and strangers alike and sit on toilets for a few days in downtown Manhattan —
Evan: — with the stop-motion photograph. But the metaphor misses me because the biggest implication I got from it is that the average everyday user just generates a lot of crap.
Evan: So it's not really worth having open Internet to distribute it in the first place. But anyway.
Denise: Well, here's where I was going to go, is that the average everyday user now has the Internet as perhaps a recourse for a career and livelihood in a way that they never did. And whether it's a lot of crap or not, there are certainly a lot of people out there who are using sites like YouTube and others to pay the bills and keep the lights on. I just found, right before the show — because yesterday, I was driving my son and his friend home from school; and they're giggling together in the back of the car, sharing videos with each other. And they were watching videos by a guy named Ryan Higa. I'm not going to say his name that he uses for his YouTube channel because it's potentially offensive. But there's a Forbes article that I put in our discussion points so you can read about — it's not all about Ryan Higa; it's mostly about other entrepreneurs. The title is "Three Entrepreneurs Who Changed Their Lives with YouTube"; and the focus of the article is, hey, there are people out there that are really funny. Ali Spagnola, who we've had on the show a bunch of times, falls into this category. Hysterically funny, hysterically talented, wildly talented. And they are able to use these channels to go directly to an audience and actually make money and have a livelihood in a way that's never been possible before.
Art: Could I put a plug in there, actually?
Art: Ali and myself and another video and filmmaker, [unintelligible] video creator Cy Kuckenbaker, and then another YouTuber, Tay Allyn — we all have a panel proposed at SXSW Interactive called "You Just Went Viral. Now What?" And this is the last day of voting; so if anybody wants to give us some support, please feel free to do so. (Laughs)
Denise: That's awesome. Thank you so much for mentioning that. I'm going to plug a bunch of potential SXSW panels at the end of this show that people should be paying attention to, but definitely pay attention to that one. So in this age where YouTube and others — but I think we can just go ahead and say YouTube seems to be the ground zero for people who are engaged in trying to reach a wide audience with their toilet video or otherwise — that they — and you guys have been paying attention to this issue. YouTube has its own issues to confront about the all-important — what do we call it? — views of your video or page views, however many people have watched and advantage of the fact that you've put your content, whether it's worthy of being flushed or not — online, that YouTube is now having to deal with the fact that — I mean, they've dealt with this in search for years and years now and are now having a species of gaming and manipulation of numbers with video views as well. Teri, I'm sorry, we haven't heard from you in a while. (Laughs) I'm going to go ahead and wake you up and have you talk to us —
Teri: (Laughs) No worries.
Denise: — about YouTube bots and New Media Rights's involvement.
Teri: So YouTube bots are actually quite an old issue. This problem started back in 2009 — or at least, that's when I could find the earliest news story about it. But because YouTube bases its search procedure, basically its entire system, on how many views a video gets, they have a term in their terms of service that basically says you're not allowed to use bots to increase your views. And this is a pretty common standard term that you'll see in a lot of terms of service. However, the interesting thing on YouTube is how they handle it. So I — we handled this case once before my time, actually, at New Media Rights with the band Fortress of Attitude and their song "P.S. Gay Car," which was flagged for bots when Forbes and HuffPo and a variety of other sites picked it up. And as you can imagine, when you ... [audio fades] ... viral, when you are picked up by a number of large news entities, somehow your number of views tends to go up. And this was misflagged in the system as buying bots. Well, we weren't actually able to come to a resolution to that. So very, very recently, when the video just sort of magically popped up with all of these views a year and four months after our last appeal. Or, sorry, four months after our last appeal. But this once again came to the forefront. We got a huge swath of takedowns that users weren't getting notice about why their video was being taken down; and they also didn't have an appeals option. So we reached out to YouTube about this, like, "Hey, this is weird." And when we reached out, they're like, "Oh, yeah yeah, this is a bots takedown. The user got notice." And we tried to work with YouTube because bots is a huge — it's a really huge problem on YouTube, not only from YouTube's end but for the average consumer, an entrepreneur online. For example, let's say you're a YouTube entrepreneur, and someone doesn't like your content. Well, they can flag you; they can send you DMCA takedown notices. And I should explicitly say, I'm not recommending anyone do this, ever; but it's actually quite easy to get a video removed maliciously through bots. You can use sites like Fiber and a variety of other websites and very simple computer programs that will basically spam YouTube on one particular video. And that's a very good way to have a video taken down. The other part of this that we — and the real reason why we got involved is that there is an appeals process, as we detail in our blog, "The Curious Case of the YouTube Bots." It's not one of YouTube's better forms; it's not really written for the average user. But the bigger problem we're noticing is that we were involved at the time that story was written in about a dozen cases. None of the appeals worked, none of them. Even when we sat down with the person and we wrote it out like a lawyer would write it, like we imagined the team at Google would expect to see it, and we just noticed this trend that none of the videos were going back up. So we're really concerned that — we understand why YouTube needs to take things down for bots, but giving users no method to appeal when there is evidence that people have used bots as a way of maliciously taking down videos, is highly problematic, especially for a lot of our users and entrepreneurs because they're building businesses. They're investing a ton of money into these YouTube-based businesses. And the heartbreaking reality — and this has become the thing that I have to tell people over and over and over again every time we get contacted — is, here's the appeals form; but the reality is, YouTube, as a private website, as long as they stay within the bounds of law, can kind of take down whatever content they want at any time, which is understandable to a lawyer; but to the average person, they don't see YouTube as a private company. They see it as a platform. They see it as a public park. They see it as a public sidewalk, somewhere that they're entitled to be, somewhere that they can — somewhere that really is a free and open space for speech. And it just isn't. It's not a free space for speech; it's not an open space for business or even young performers, that they can rely on it and know that their videos won't be taken down wrongly, for no apparent reason, for going viral and getting accidentally flagged within YouTube's system. So it's a huge problem we're seeing online, and it's — when you take a step back for a moment, it really is part of the much larger problem of speech online. And since there is no public park, there is no public space for free speech online, it's all run by private companies. So how the First Amendment exists online and who's regulating speech has become this really interesting question. And we're seeing this a lot with Twitter now at the moment, too, with what they decide to take down in various cases of [unintelligible] and what they decide to leave up.
Teri: So it's very problematic that we've left all of these private entities in charge of regulating speech online; and while I think a lot of the Googles and Facebooks and Twitters of the world, they're really trying to regulate speech in a way that's fair, but they're not the government. They're not really set up — and they have honestly very little economic incentive to regulate speech in a way that we would normally consider under the First Amendment as free speech. They really don't have a huge incentive there, so it's a hugely, hugely problematic area within Internet law and really hasn't been addressed, I think, largely because there's no clear legal way to address it.
Denise: No. And if you tried to let the government put out a site that was going to be a competitor to YouTube ...
Denise: I think healthcare.gov comes to mind. And I just don't — there are some areas in which private entities in our free market economy are going to go out and be able to outdo anything the government could possibly approach. So yeah, it's an interesting conundrum. Can I back up for a second to the bot question and dig a little deeper on something you were saying? Were you suggesting that perhaps a rights-holder — or maybe not a rights-holder — that doesn't have a clear path to a DMCA takedown of a video, but somebody objected to a video for other reasons, so the DMCA wasn't going to be a clear or fast way for them to get it taken down, but they want it down. So you're saying that what they might do is unleash a bunch of bots which would then lead YouTube to believe that the person who had posted the video was trying to game their system and up views, and the video would come down?
Teri: Yes. And we've seen that case before. I can't really talk about it anymore than we've seen a case exactly like that where the appeal was unsuccessful even when given very, very, very specific information. So it's not a question of if; it's already being done.
Teri: It is already a very effective tool to get something taken down from the Internet without having to go through content ID or the DMCA process for which there are very few legal consequences. I mean, the only legal consequence could be, if that person also had a YouTube account and if YouTube somehow traced the bots back to them, and then they could terminate all their Google accounts. But — which could be very traumatic for a lot of people that use Google.
Teri: But the odds of that actually happening are so minuscule that, yeah, it's essentially a very easy way to get things taken down off the Internet that you don't like with almost no consequences.
Evan: It's interesting to think if these are to commercial enterprises, and I guess, ostensibly, they are to different parties going onto YouTube to engage in commerce, and make money and monetize that content in whatever way you can. It'd be interesting to think if there would be a civil cause of action against the one doing the bots for some form of unfair competition.
Evan: You know, that body of the law's sort of nebulous; you could come up with something like that, doing something — it's like a tortious interference, maybe, something like that.
Denise: Yeah, yeah.
Evan: So it'd be interesting to —
Denise: Unfair business practices.
Evan: Yeah, yeah, at least theoretically, to talk about that stuff. But who knows how it'd ever pan out, actually.
Denise: Right. Well, before we get to our tips and resources and here, I'm hoping Art and Teri can bring us up to speed on more of the ... [audio fades] Media Rights has been involved in over the summer. You guys did a really cool thing with a thousand legal matters. Can you bring us up to speed on that? What did that involve?
Art: Sure. Actually — so this summer, we're celebrating our one thousandth legal matter that we've assisted on since we started. And actually, that's — we're probably even closer to 1,100, 1,150 now. I mean, we run a very, very active intake form that is a place where we both find folks that we end up working with as clients; but also a place where we're able to point folks in the right direction, help them understand some of the basics about the laws that they're interacting with every day. And that's what makes us really, really unique. So we thought we'd take a breath and celebrate.
Denise: Good for you.
Art: And so we had an event here in San Diego, and we had a celebration on our website. There was a lot of posts on our Twitter account, for instance, of testimonials. And there's all these cards that sort of describe the stories of the people that we've helped. That's everybody from speakers — you all were just talking about bots takedowns, right, which are sort of these difficult community guidelines areas on YouTube. The original one that we worked with quite a bit was Anita Sarkeesian, with her takedowns. And so we have a testimonial from her, but we also have testimonials from groups of open-source game developers like the DarkMod, who took their game mod and made it an independent game, and we helped them actually understand the copyright issues when doing that. But it ranges — everything from defending remix creators' right to speak to helping non-profits do what they're trying to do. There's a story about MacLite on there, which is this awesome San Francisco-based non-profit that connects votes of legislators with actual donations to legislators, and they do some really, really interesting data work connecting those two things. And so it's just a time — it's been a time for us to celebrate the thousand-plus legal matters we've already helped out on, and we're just preparing for the next thousand. And so yeah, it's been a chance — we had a big celebration here in San Diego, and we did it San Diego-style. We had a taco guy and aguas frescas out there, so it was very good.
Denise: (Laughs) That's awesome.
Art: And it's — yeah.
Denise: That's so great to hear. And congratulations on a thousand plus matters; you guys do great work. One of the other things you've been doing this summer is getting involved in all of the meeting around the country on the copyright green paper. I know we talked about this the last time you both were on, but bring us up to speed on both what that is and the meetings that have been happening.
Teri: So that process has been ongoing. So far, just to give those who aren't familiar with it — the USPTO and the Department of Commerce launched this green paper over a year ago at this point, asking for comments on how copyright should be changed or modified in the digital age. And one of the things that came out of this comment period was a variety of not only round-tables but also this DMCA working group. And we've actually been a part of both, at least the Los Angeles round-table, and I'm on the DMCA working group. And there are a couple different things going on. The round-tables have been very targeted on a few specific issues. All the round-tables have covered digital for-sale doctrine, statutory damages, and remix and copyright law and the general direction we need to go. The interesting thing about the way the round-tables are going is, there's definitely a shift towards trying to find non-legislative solutions to copyright, seeing if there's a way that we can develop industry best practices that really serve as a way to — while we're waiting for the next great copyright act should it ever come into being with the many, many, many copyrights policy proceedings that are going on — that this could serve as some sort of intermediate step. + round-tables have — and I was at the L.A. one, and it was certainly lively. I would say the remix panel in particular was one of the more lively policy panels that I've been on.
Denise: I'm sure.
Teri: But there's also this DMCA working group that's a much smaller group made up of artists, folks from both the tech and content owner side, as well as folks like us on the NGO side of things representing consumers that are working towards DMCA efficiency. And it's really — and we're actually going to have another meeting of the working group that's open to the public next Wednesday starting at 10:00 a.m. Eastern Time, to go over some of the findings. And what the DMCA working group has been working on lately is sort of a guide to creating your DMA notice and takedown form.
Teri: Which is really interesting since there are ... [audio fades] ... guidelines, but we're looking at ... [audio fades] ... this better. Is there a way to make it more friendly for both the large content holders and also for sites like YouTube and other small sites that maybe work with smaller content holders who might see the statutory language and not have any idea what it actually means. So it's definitely an interesting process. Allegedly, at least, on the non-DMCA side, the USPTO and Department of Commerce should be putting out a paper end of the year, maybe early next year, on the findings and potentially presenting some interesting solutions going forward. And just more of a pitch to any of your listeners, whether they're lawyers, academics, interested parties, this is a public hearing. Regardless of your affiliation, you are more than welcome to not only attend meetings, but also speak at some of the meetings and round-tables. So please, if this is an area you're interested in, please, please, please get involved. Honestly, the future of digital copyright is too important to leave up to chance. So that's why we've been involved, is really ensuring that the future of copyright is friendly to both consumers, small Internet companies, and also to those smaller artists who don't have a team of lawyers to enforce their copyrights.
Denise: Yes. And for anyone interested in getting involved and being heard on these issues, there's a whole list of the 2014 public meetings; we'll, again, put it in our discussion points at Delicious. But if you just Google "Internet policy task force" and "Green paper," you're going to come up with this page, I would imagine. It's interesting to me, Teri, that it's the USPTO and the Department of Commerce. Why is the copyright office not in the mix here?
Teri: So that took me a while to figure out; but apparently, the USPTO serves as the adviser to the President on primarily international copyright matters. So when it comes to negotiating treaties like WIPO, they're the ones at the table listening and bringing things back. So that's why they're involved because the President is interested in the future of digital copyright. But it's actually funny because both Congress and the copyright office have their own independent proceedings that have also been going on over a variety of different issues; so I know, for a smaller organization like us, we've really had to pick our battles as to where we actually have time to get involved since there have been so many calls for comments. I feel like the copyright office is putting one out every couple of months. (Laughs)
Denise: Yeah. All right, well —
Teri: So there's a lot of copyright reform going on. (Laughs)
Denise: We're very fortunate to have your ear since you're actively involved in these discussions. And I'll just put in my plea. And I know it's just kind of — if you can aim for the bleachers, why not do it? And this is that kind of plea, for some kind of clarity, since their thinking of policy issues and how to improve the way business is conducted and how to improve people's use of digital media — and you were just on the remix panel. I'm sure this must have been a central piece of the discussion. Some kind of clarity on fair use because, for lawyers such as Evan and I, who get clients coming to us — and I'm sure, same thing with the clients that you handle at New Media Rights — with specific problems where, Here's what we have in mind. We'd like to do this, and can we do it? And oftentimes, fair use is the pathway to being able to do it. But to be able to advise a client that they have any kind of legal certainty if they go down that path is virtually impossible. So any way to take fair use from being quite so amorphous into something where, if you jump through these certain hoops, you're going to be in good shape, would be a good thing; don't you think?
Teri: Well, maybe. We have been in talks, and I do think that fair use could use some clarity. I think there's a couple of dangers there with making it too clear. I think it's always important to remember that there's a camp that doesn't believe in fair use at all, doesn't believe it should exist, doesn't believe it currently exists in spite of being a statute, which is something I've never quite gotten my head around. But on the less extreme side, we have seen countries make changes to fair use and attempt to make it easier. For example, Canada has actually introduced this multi-tier fair use where it's like, Oh, if you're non-commercial and fit into these categories — like educational use or journalism — then you're use is going to be fair use. But I believe they also run through a factor test. So there have been some attempts, but no one's really come up with a model for making it simple. The USPTO did definitely bring out the idea of a federal best practices for all fair use; but, as I'm sure you've found with your clients, fair use is so different for every type of — every genre that you're looking at, every type of media, that it's really hard to come up with one overarching guideline that fits everything, that really actually works at that practical level. So that's one thing that they're looking at. But it would be nice to have some clarification towards fair use; but I just haven't seen a model that's made it simpler. I know in many parts of South America, they actually have a system in civil countries where it's, If you fit into one of these categories, no matter what, it's fair use. But it's a very inflexible way of handling fair use because any innovative approach is pretty much, well, it's too innovative; our law doesn't handle it; it's not fair use.
Teri: And I really don't want to get to a world where that's the case. As much as we think things like educational use and journalism are straightforward, I think they're a lot less straightforward than we think.
Denise: Yep, that's an excellent point. Well, something for them to continue to discuss, I hope.
Let's move on to our tips and resources of the week. We have many for you this week. I'm going to run through them fairly quickly. Number one is at New Media Rights' site, there is a great guide. If you are someone who is concerned about not running afoul of the FTC's disclosure guidelines, this is — it's entitled "Disastrous Disclaimers in the Digital Era: A How-To Guide on Correctly Implementing Disclaimers in the Age of Digital Media." We're not talking about disclaimers such as "I have no liability" kind of disclaimers. We're talking about disclaimers letting people know if you are sponsored or engaged in advertising. So great guidelines there for you, for folks who are engaged in that kind of speech online.
A couple of other tips, things not to miss. One is an event in — we've got both coasts covered here. One is an event on September 19 in New York; It's called Code the Deal. It is sponsored by the New York Legal Hackers and the law firm of Nixon Peabody. It's — basically, the New York Legal Hackers —
Evan: That's where everyone's a winner, right?
Denise: (Laughs) Yes, that's right! Evan, you remembered! Everyone's a winner at Nixon Peabody. Oh, we'll have to go back.
Evan: Yeah, yeah. Go on; sorry about that.
Denise: Yes. Anywho, great event. If you're in New York, I would check it out. It's about the transactional side of technology dealings. So definitely get to that if you're in New York. And if you're not, if you're over in San Francisco — we've been talking about the USPTO — if you would like to meet with the chief of staff of the USPTO, Andrew Byrnes, you'd have the opportunity to do that next week. Wednesday, September 10, at the law firm of Orrick, Herrington, and Sutcliffe at noon Pacific Time. They're doing "From Silicon Valley to Washington, D.C.: Insights from the Intersection of Technology Law and Politics." So a great opportunity if you're in the bay area and would like to hear what the USPTO chief of staff has to say. I guess it's the one-year anniversary of his holding that position, so hence the event.
And then, our resource of the week for you is, if you're looking for things that you can use without worrying about fair use, wonderful endeavor by someone with an unpronounceable name, who I'm going to pull up and try and pronounce here real quick. Kalev Leetaru — is what I'm going with — has been engaged in — he's taken as a model sort of the digitization that's gone on with Google book search and decided — you know there are a lot of images in books, and there are tons of images in books that are freely available at the Internet archive but they're not readily searchable. So he has taken it upon him to upload just — let's see; how many millions? — 2.6 million pictures from the Internet archive to a Flickr account with tags so that they are searchable. The name of that account is Internet Archive Images. So wonderful resource for finding imagery from the year 1500 until 1922, all of which has been stored at the Internet archive but hasn't been terribly easy to find until now; and now it's searchable on Flickr. So really cool resource there.
And, as Art pointed out, it is the very last day to vote on panels that might be happening at SXSW in March; so some you should pay attention to if you're fans of this show: One of them is from Legal Hackers in New York. Warren Allen's been on our show before. And their panel is on legal hackers, a global movement to reform the law; so look at that one. There are also panels on free speech and fair use. Etsy's Sarah Feingold is on that one in addition to other great speakers. A panel with the Sunlight Foundation on open government; and another panel on student data and privacy, which, again, a very important issue as more and more information is gathered about all of us and all of our kids. So definitely weigh in on those. Evan, one of these years, we're going to make it to SXSW. We always say that. Maybe this will be the one: 2015 in Austin.
Evan: Right. I hope so.
Denise: I don't know. No, I never manage to make it.
Evan: We've got time to plan. We've got time to plan.
Denise: We do. We do.
Evan: We just might make it.
Denise: We might. Anyway, this has been just such a fun show, great information. Art and Teri, so fun to have you join us. Anything you want to leave us with as we're going out here? Art, I'll start with you.
Art: I'd just put a plug for a brand new guide that we've got out there available to people. It's a guide to intellectual property issues and fiscal sponsorship; so if anybody in the audience knows of or is involved in a project that is a sort of scientific research archival project — we just saw an archival project there — that needs to understand intellectual property issues and the important considerations that happen when you become part of a larger organization as a fiscally sponsored program, we have a guide. It's really focused, and it's on our front page there, actually. We have a guide that we just launched yesterday, and it's really designed to help those small projects understand how to work with larger entities and work within the structure of a larger 501C3. So I'd say go ahead and check that out and share it with various scientific and archival and research projects that you might know who might need that help. But thanks for having us on; I appreciate it.
Denise: It's been really fun. Teri, anything you want to add to that?
Teri: Since we are actually a fiscally sponsored program of California Western Law but we're not actually funded by California Western, we always like to put a pitch out. If anyone is interested in supporting our work, we're an extremely small non-profit working on a shoestring budget. and we're always happy for both monetary support and just getting our name out there since we've found that, through referrals from our community, we've found some of our most interesting clients and interesting experiences as an organization.
Denise: Very cool. Thanks so much, Teri, for joining us. Evan, so fun to chat with you again!
Evan: I had a great time, too. It was lots of fun, really interesting things to talk about today. Seems like we covered a lot of different things, didn't we? We got all the way from copyright to net neutrality to privacy. So yeah, lots of fun.
Denise: Yeah, but no dubstep. There's always that for next week.
Evan: No. Yeah, we saved that; that'll be good. And I'm sure that won't go away soon if you've got people upset about that story. So it's something to look forward to, so yeah. Great time. Enjoyed it.
Evan: Good to see you.
Denise: Thank you, as always, for joining me here on This Week in Law. I've mentioned that you can see the links to all the things we've discussed and plugged and mentioned at delicious.com/thisweekinlaw/274. You can watch this show live when we record on Fridays at 11:00 Pacific Time, 1800UTC. But if you can't join us live, you can find us at twit.tv/twil. We're ThisWeekinLaw on YouTube. We're on iTunes; we're on Roku; various other ways that netcasts are distributed, you're going to find us there. And we're just thrilled that you can join us however and whenever you can, whether it's driving down the road at 65 miles an hour. I'm not quite sure — one of our listeners pulls that off a lot, and I'm not quite sure how he does it. (Laughs) But you would not think that we hit the truck driver demographic, but we do because these issues are important to everyone who uses technology and puts any kind of data anywhere. So we're really glad that you join us and that you let us know what's on your mind and what kinds of issues are of grave concern to you or are funny and entertaining as well along those lines. So get in touch with us and let us know what you're thinking. I'm @dhowell on Twitter; Evan is @internetcases there. You should check out Evan's blog regularly because he puts great stuff up there; he's at internetcases.com. And you should also go to our Facebook and Google+ pages because they're a good place for you to expand at more length as to what you have in mind, any responses to stories that we've talked about, follow-ups, information, leads. Also, you can email us. I'm email@example.com; Evan is firstname.lastname@example.org. And — gosh, I can't believe we're already into September. We will see you for next episode of This Week in Law next Friday at this time. Thanks so much for joining us! Take care.