This Week in Law 275 (Transcript)
Denise Howell: Hi folks, I’m Denise Howell and you’re about to listen to our latest episode of This Week in Law. We’re so glad you joined us because with us today are Mike Lissner and Brian Carver, cofounders of the free law project. We’re going to talk a lot about that project and about access to court documents in general. Public information that sometimes can get people in trouble when they access it without permission or in the wrong way. So we’re going to go deep on that. We’re also going to talk about some good fair use developments, bad news for groove shark. We’re going to talk about Apple Pay and Apple Watch and the privacy overtones there. Musical mice, too. All 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 275, recorded September 12, 2014
First Rule of Mou5 Club
Hi folks, I’m Denise Howell. And thank you so much for joining us for This Week in Law. That’s what you’re here for. That’s what we’re going to do here for the next couple of hours, this show can run. We’ve got a great panel of folks with us today. And a really interesting and exciting lineup of topics. I’ll go ahead and introduce them to you right now. My cohost Evan Brown is here with us. Hello, Evan.
Evan Brown: Hi Denise, it’s great to be here. Good to see you.
Denise: Good to see you, too. And what we have for you today is a double header of folks who are involved with the free law project. Both of them are founders of the project and they can tell us a whole lot more about it. Brian Carver is here, he is a professor at the Berkley School of Information. Hello, Brian.
Brian Carver: Hi.
Denise: Good to see you. Great you can be on this show.
Denise: And Mike Lissner is with us, too. And Mike was one of Brian’s students and the project they’re involved in was a project of his while he was working with Brian. So that’s really cool. Hello, Mike.
Mike Lissner: Hi, great to be here.
Denise: Why don’t you guys start out telling us about the free law project and why you started it and when you started it.
Brian: Mike, why don’t you take that one.
Mike: Sure, so the free law project is something that Brian and I started about a year ago officially as a non-profit. We’ve been doing this and exploring things in this sort of realm for just about five years now. Brian was a professor I had when I was at U.C. Berkley and he sort of pitched a final project to me. And I took that project and sort of started rolling with it. And built out Court Listener which is a website. Court Listener has millions of court opinions and removing and oral arguments, things like that. And I’ve been sort of building that and working on that part-time and now full-time over the last five years. I think that’s the crux of the history.
Brian: Sure, I would add that it also now, the free law project sort of serves as an umbrella organization for all of our efforts. And another thing that we’re working on that people might have heard of is the recap browser extensions. Those were started by some folks at Princeton at their center for information technology policy. And that was about five years ago; they just recently celebrated that anniversary. But recap if you haven’t used it, is a browser plugin if you use Firefox or Chrome. And when you’re using the Pacer system, the system from in which all the Federal district court and Appellate court dockets reside. And the documents on those dockets. Recap will tell you if another recap user has already paid for that document and uploaded it to our archive in the little blue recap icon shows up on your docket so you can choose if you’d like to click that and get the document for free from our archive rather than paying Pacer’s ten cents per page charge. And of course sort of the other end of that is the, as recap users pay for documents that are not yet in the archive, they get uploaded so that the next person doesn’t have to pay for it. And through that process, there’s now over 3M documents, I think, and close to a million different cases in the recap archive.
Denise: That is really cool. And our timing couldn’t be better to have you on the show. Because there’s been a lot of controversy with Pacer just over the past couple of weeks. And I’m going to go ahead and call it a copyright-related controversy. So, let’s get into it from that standpoint. This is a copyright-related controversy in an unconventional way. What we’re talking about here is public domain documents. All of the court documents that are filed with the Federal court system and the decisions of the various Federal courts in the United States are all public domain. But they’re not that easily accessible. Pacer has been around for what, 25 years or something along those lines. I certainly remember using it back when I first started practicing law. And it hasn’t changed much in that time. It has always been a pay-service where you could get filings and opinions if you knew precisely what you were looking for at ten cents a page. So it can get pretty pricy. And Pacer has taken flack over the years both for having this paywall infrastructure for access to all the court materials that it houses. And also for its pricing at whether it is really following its congressional mandate to cover its costs. And that’s it. If I teed that up sufficiently, Brian, can you tell us a bit about the background of Pacer and people’s thoughts about the system?
Brian: Sure. You’re right that it’s a system that’s been around for a long time. And in some ways it’s very good at what it does. Lawyers that work in the Federal courts have become familiar with it and if we’re filing documents in the parallel ECF system, it does its job. We’re able to have electronic filing and delivery of documents. The charges get some criticism. I guess we feel like the courts ought to fund their activities and there’s nothing wrong with that. I guess we would prefer that Congress simply allocate them the money they need to operate. Because as it stands now, the burden of supporting the court’s activities falls on the public that wants to access public records. And so if we could move away from that we would certainly be happier. But there’s been a long history of folks who have wanted to try to liberate some of these documents. Famously when they did a pilot project where they were going to provide free access at several regional libraries spread out across the country, Aaron Schwartz got the idea to create a script that would download lots of these downloads for free. As soon as the courts saw many millions of documents going off of the site, they shut down the public access at the libraries and there was even an FBI investigation of Aaron before they determined these are public records. There’s really nothing wrong with downloading them, even if you happen to download a lot.
Denise: Let me ask you something before you go forward. Obviously Aaron Schwartz was subject to an FBI investigation for his mass downloading of Pacer documents. And now you guys have done this browser extension Recap that is allowing people to share those documents they’ve paid for with others who are looking for them. Sounds like a really cool tool. Have you had communication with the folks at the Federal courts system about Recap? Do they like it? Do they not like it? Do they see it as some sort of threat that could result in an FBI investigation at some point?
Brian: There is some indication that they’re well aware of Recap. It is a five year old project. There was for some time a notice on many of the login pages at the district courts informing users of the Recap extension by name. But not in order to encourage them to use it; but in order to warn them that open source software is sometimes subject to security concerns. I think that’s a little bit of a scare tactic. And then also to remind them that if you are using a Pacer account that has free access because either you’re a pro-say litigate or for some other reason have been given a fee-waver, that in those circumstances it would not be appropriate to share your documents with others in that way. But the Pacer system at pacer.gov for the longest time in the FAQ had a statement saying that information in the Pacer system are public records. And sort of what you do with them after you’ve retrieved them can be done; you can redistribute them without permission from Pacer. I actually just noticed this week that that FAQ answer has disappeared from their site. They did a reorganization of their frequently asked questions and somehow that one didn’t make the cut. So I don’t know if that represents a change in the administrative office of the court’s view but I think for years now they’ve been telling us these are public records. People can redistribute without permission so I’m relying on that.
Mike: I think one thing to add to that too is although they may not like the Recap add-ons, there’s no real way for them to detect that it’s there. And there’s no real way to stop the Recap add-on from doing its thing. Technically speaking. Because once the document is downloaded to your browser, we send it away. From the government’s perspective, it just looks like any other person downloading documents. Short of going into the court and making them stop that way from a technical perspective. It’s pretty invisible.
Denise: And so far there’s been no contact from the Federal courts system to the internet archive challenging them for archiving the documents?
Mike: Not that we’ve heard, no.
Denise: So, no DMCA take down notices yet. It hasn’t become that kind of copyright issue. So again, this isn’t quite so much a copyright issue as a transparency in government and how are we going to structure our access to public domain government documents. Pacer has been much in the news lately because they decided spur of the moment without really much notice at all, about 24 hours’ notice if all the reading I’ve done on this is accurate, before they were going to do away with everything in their database. Before is it, 2012? Really, that’s how far they’re going to drop, everything except the most current two years?
Brian: It varies by court. And there are five courts that were affected. Four of them at the Appellate level, the second, seventh, and eleventh Federal circuits. And then one bankruptcy court out of the central district of California. What Pacer’s been telling us is that these courts used a legacy system that was not compatible with Pacer next gen. Some upgrades that they’re doing. And so they looked at cases that had been closed and decided to take those offline because for some reason they didn’t feel they could migrate them to the new system. Sort of the technical details of why that migration is not possible has not been discussed. And a lot of technical people have been a little confused and irritated by that because that sort of database migrations are fairly commonplace things that people have to deal with. At any rate, there were some parts as recent as 2012 that is the cutoff date. And particular the Federal circuit, there are so many people interested in patent cases that that community has been particularly disturbed. They might be missing documents from cases that recent and then there was an interesting article by the BBC that pointed out that this includes many important civil rights cases out of the second circuit. Now Justice Sonia Sodamior was previously on the second circuit, so all of the cases that she decided while she was there will be included in the cases that will be taken offline. And when she went through her confirmation hearing, there was quite a lot of interest in scrutinizing her record and going back and looking at how she decided these cases on the second circuit. And when you take several hundred thousand documents offline as they have, when this comes up next time, when the next person is nominated for a Supreme Court position, if they come from the second, seventh, eleventh, or Federal circuits, we won’t be able to engage in the exactly the same sort of scrutiny. Or at least not as easily. The Pacer folks have said that they will continue to make the documents available but not online. So the process for retrieving these is burdened to say the least. A librarian out of the University of North Carolina’s law school did some research to find out what exactly am I going to have to do now to request these cases. And they have a blog post about this and it’s frankly absurd. The fees are going to be extremely high and sometimes you’re going to have to fax somebody a request. And wait a couple weeks. And doing it on a case-by-case basis. Comparing that to the online access that we’re accustomed to, it’s as if they don’t exist at all.
Mike: Brian, I always try to make sure that if I get indignant about something that I’m being well-reasoned by it. So what I see as a couple of ways of being upset by this; one is just the fact that these cases were actually taken offline. That there were big chunks of data missing from a few jurisdictions now. But now there’s the larger abstract question of principle. The fact that this could have happened. So which is it, I’m sure we need to be upset a little bit about both of them. But which should we be more upset? The principle or the fact that it actually happened? Because I’ve used Pacer for years and my sense is that a great portion of it is useless stuff. I’m not trying to minimize its importance or be diminutive in any way. But docket number 237, minute order on plaintiff’s request for extension of time; you know it’s grand. So that’s of no real consequence. That’s not going to help us determine if the next Supreme Court justice is eligible to sit on the bench in that way. So really, honestly, how important should we be about the particular fact that this has been taken off versus the larger more principle idea that this has been allowed to happen with government provided technology infrastructure?
Brian: I think you’d be equally justified in being indignant on either basis. On a principle basis, I believe that government has a public access obligation. And this is a failure of that obligation in my view. And it actually may even be a technical violation of the e-Government Act. They say that they’ve only taken off closed cases. But the e-Government Act requires them to maintain online the records of all closed cases for at least one year after they’re closed. And it’s not clear to me yet whether that is true yet. So I mean we could even be talking about a violation of the law. But I think you could also be upset about this particular set of facts. For several different reasons. One is the recentcy of the documents involved and the relevant importance of some of these jurisdictions. If it had been five bankruptcy courts, maybe you wouldn’t have a harder time getting worked up about it. But it includes four important Appellate courts. I think that makes it a bigger issue. And that we received no notice that this was happening. That it was just sort of announced is a sort of separate concern. But maybe the larger issue is it’s kind of indicative of government technology failures more broadly. Healthcare.gov is still on everyone’s mind. And we have this impression that government can’t seem to do large technology projects. And why is that? Here in California, we had a state-wide case management system that we spent almost half a billion dollars on and we had to just say stop, we can’t spend anymore. It’s not ever going to work. When the public sees why is it that Pacer can’t migrate documents from one database to another? This is something that industry has to deal with all the time. We sort of lose confidence in their ability as stewards of this very important information.
Denise: That’s an excellent point. Go ahead, Mike.
Mike: I was going to say, if I could add one more thing, too. We talk about these minute orders that are practically just a sentence. And how maybe they’re not at all interesting in themselves. But something that I think it’s lost with the Pacer system on the whole is the sorts of incredible oversight and powerful things you could do if we had bulk data. For example, even with these minute orders, say we could look at the quantity of these orders; is it going up over time? Is one judge more prone to doing these kinds of orders than another? You know that kind of analysis has been totally unavailable basically due to Pacer. And this makes it worse; it makes it basically impossible forever. And that kind of analysis can really lead to a lot of interesting sort of facts about the system, about individual judges, about all kinds of different things. We just don’t have it.
Denise: Right, so you’re totally correct on that, Mike. And for our listeners that aren’t lawyers, the difference between a minute order and a regular Federal court order is volume. A minute order is a few brief sentences and directive. You shall do this or this shall happen. An order is more like an opinion that you might see from a court of appeals sometimes. And in the Federal court, the Federal trial courts orders actually get read and followed by the other Federal trial courts. So they can have a precedential effect. So it would be a very interesting thing to see if a judge is doing mostly minute orders or was taking the time to actually write things out and put the reasoning on the record. And in public, and available for others to see. The other thing I was thinking as you all were talking, is you never know what people are going to do with that data. Maybe Evan, someone would find that little boring minute orders would be a very effective Apple Watch app that would work with your healthcare data and help you sleep better at night. Because there’s just nothing better than knocking you out like reading a flurry of minute orders. I jest, but you never know what someone’s going to do with that public domain data.
Mike: That’s exactly, in a truth is stranger than fiction, there was an app or website a couple days ago that came out that just makes; it reads through opinions and makes haikus. Those are the ones that have sentences that have seventeen syllables or something, and you get a haiku automatically generated.
Denise: Perfect. The other thing that we’re not really addressing here is the charge that Pacer builds in. There are a lot of people that think that the ten cents a page is outrageously high based on the cost to actually run the system. And I don’t know what the accurate number is; I’ve seen a bunch of different numbers I’ve read on the system over the last couple of weeks. There seems to be a thought to that; it costs about $20M a year to run Pacer but they may be making over $100M a year in fees. Or somewhere close to it. So there seems to be a disconnect between the mandate that they have from Congress to charge just as much as it costs to cover administrative costs. And to try and make these materials as available to as many people as possible. Evan, do you see a problem with the fee structure of Pacer?
Evan: I don’t have any inside into the real economics. I would defer to Brian and Mike on that one for any research they have done or communications. But applying a healthy dose of common sense to it, given the fact that the consumer place and the private market place, we see of course Moore’s Law in effect. Storage cost going down. Bandwidth costs should be going down. What is it that continues to cause the pricing here? Electricity perhaps, I don’t think that the cost of powering the data center ought to change that much. Again this is all just speculation and applying things that are observed in everyday life. Services such as this should at least be able to stay stable. An ideal situation would come down when we think of the kind of cost for providing this. Also, the efficiencies, generating the scanned documents in the first place. A lot of this stuff is filed electronically. Unlike the old days when the courts actually had to scan these documents that were filed by paper. A number of different ways that costs would seem to be going down. Again, I don’t have any real inside into the economics. It would be nice if it were just cheaper.
Denise: I can tell you one thing they’re not spending the extra money on, a Johnny Ive-developed U.I. I think it looks the same as it did when I started using it in law school.
Evan: It’s good to be nostalgic sometimes.
Denise: Exactly. You don’t have to use internet archives way-back machine to see what Pacer used to look like. Let’s just put it that way.
Evan: It is fun to go to the Space Jam website. The Michael Jordan-Bugs Bunny website. You can just go pacer.gov instead for that.
Denise: So Brian, what do you think about the cost and economics?
Brian: It is clear that Pacer is not incentivized to lower their costs to operate the system because they’re running 214 different instances of it. It’s right to call it a system because it is every single district court, bankruptcy court, Appellate court in the Federal system runs their own instance of this software. Sometimes slightly differing versions of the software and sometimes customized a little bit for their unique situation. But that’s an enormous waste of resources. Everybody is moving to the cloud and combining resources into fewer and fewer servers. And for 20 years Pacer has kept going with this distributed model. And part of that is courts are their own little kingdoms and they like to make their own rules. And do things their own way. And it is very tough to herd those cats. But if they didn’t have the slush funds of Pacer fees to support it, then they would at least be motivated to say okay wait a moment, what’s the most cost effective way to run a system like this? I guess on the U.I. and in general the system and its usability, I’m certainly concerned about that. But I also don’t think that government ought to be in the business of providing the public with all these add-on goodies that third-parties are really better suited to do. What the courts are at root, are public. The one thing they do that nobody else can do is produce those opinions and produce the documents that are filed with them. So what they really need to be good at is publishing. I would rather see them not spend money on U.I. but spend money on machine-friendly formats for the documents. And get us out of the closed world of PDFs. Or bulk downloads of all the data. Let the third-party providers be the commercial or non-profits like us take those documents and we’ll make a pretty U.I. to put on the front end of them. And others will if we can just get our hands on the documents. Right now, they’ve made it cost prohibitive for us anyway to get all the documents.
Denise: Let’s talk about that aspect, of the free law project. How much of the Pacer database do you have at this point?
Mike: It’s hard to say. We’ve spent some time trying to estimate exactly how big the Pacer database is. And if you go on Wikipedia, there’s estimates in there too. I think the last number we came up with was somewhere around 100M documents. Is that right, Brian?
Brian: We think it’s around 700M documents in the whole system, probably a little more than that.
Mike: So it’s an incredible quantity of content and it’s easily the biggest government database that’s behind a pay-wall. So what do we have? We have about 3.5M items and so do we have a lot of it? No, not really. But, the way we get it is via our users actually looking for a document, actually purchasing a document. So the stuff that we do have should be to some extent the more important stuff. The stuff people have actually wanted at some point.
Evan: Did I read correctly that some of the stuff you have is what Aaron Schwartz pulled down in that period of time when he had access to that library in California?
Mike: I don’t think we have that.
Evan: Or was that at least Recap? Did you populate Recap?
Mike: I don’t think that ended up in the Recap database. I think the whole deal with the FBI getting involved—people got a little skittish with that. I’m not positive.
Brian: We have access to the sorts archive as a separate body of data. I think our dream is to get 2.5M opinions on court listeners integrated with the 3.5M documents we have from the Recap archive and then sure let’s bring in the Schwartz material as well. Little by little, we want to put the entirety of US case law on the internet for the public for free.
Denise: That’s a huge goal. And we hope that you accomplish it. First of all, we should put our first MCLE passphrase into the show for this episode. We put these phrases into the show in case you are listening for continuing legal or other professional credit. If you need more information about that, you can go to our Wiki at wiki.twit.tv. Find the This Week in Law page there. And we’ve got lots of information in there about the different jurisdictions. Where lawyers at least have to comply with legal education requirements. We put these phrases in there in case your oversight body needs to see that you actually watched or listened to the show. So our next one is going to be magical minute orders. Jot that down, remember it for later. Could come up. Let’s talk about the ways in which you’re growing Recap and the free law project. So Recap requires people to download and use a browser extension. You also have something called Juri-scraper. Tell us about that, Mike.
Mike: Sure. Juri-scraper is a project we’ve been doing for about five years now. I think it’s in its third incarnation and basically what it does is there’s all of these court websites. And they do actually outside of Pacer, a lot of courts will post all their opinions. And sometimes they’ll also post things like the audio from an oral argument inside the courthouse. And those can actually be pretty fun to listen to also. So what Juri-scraper does it is currently goes to 193 of these court websites and it grabs the latest content. It does this every hour of every weekday and so you can use it yourself. It’s open-source. You can install it and start getting the same content. And it just goes out and gets the latest stuff. And it puts it into our court listener database. At the end of the day, you can get email alerts or do all your legal research on all the latest content. Which is I think a big advantage. We have a lot of other systems that takes a couple days to get content. We usually have the latest Supreme Court cases. The latest, any Supreme Court cases in any state. Alabama Supreme Court—we have their latest stuff within about half an hour or an hour and then it comes up.
Denise: And the scraping that you’re doing there just to clarify is not of the Pacer database. It’s the things that courts are making available outside of Pacer. So unless you were somehow overburdening their system you’re not finding yourself in an FBI investigation kind of scenario.
Mike: Right. We have yet to have any problems with the courts coming and saying who are you. And we don’t hide who we are at all with this system. The system very clearly says who we are. And it’s never been a problem. We’ve thought about scraping Pacer but it’s a very scary thing to write a program that automatically gets content that should be free. But sometimes costs a dime per page. I wouldn’t want to be the one with the credit card backing that up.
Denise: Yes, good point.
Brian: Juri-scraper just recently passed something of a milestone because we were able to announce that we do now have coverage of the courts of last resort in all 50 states. We originally started with the Federal Appellate courts and then added the Supreme Court and various Federal courts in special jurisdiction. Like the court of claims and stuff like this. It’s been a long project to get those courts of last resort in all 50 states. Some states without picking on anyone have very difficult websites to parse and so it’s taken longer to get set up to do those. But now no matter what jurisdiction you’re interested in, we try to have coverage of the material for you.
Denise: That’s wonderful. So anything else you want to add on this topic before we move on, guys? It’s such an important topic and we’re so glad that you’re doing the work. We want to give you the opportunity to promote anything you think people should be doing. Above and beyond using Recap. Obviously you guys are non-profit. Do you take donations?
Mike: Yes, we do take donations. And I guess the thing that I would say is one, if you ever use Pacer, you’re wasting your money if you don’t have Recap installed. That’s the one big takeaway. And I guess the other one is everything is open-source. We do all of our work in the open and give all our data away for free. If you ever want to play with legal data or get involved, get in touch. We have developer evangelists and everything. We love when people get in touch with us.
Brian: I’d say that address is courtlistener.com/donate if you want to contribute. We do have a lot of volunteer developers that contribute. So we’re on Get Hub at gethub.com/freelawproject. And you can check out the source code for everything we do. If you want to learn, you might find a way to contribute in that way.
Denise: And you’re not only helping people get access to the law, but you could be building entrepreneurial businesses on that data, too. Like you said, there’s a developer kit to work on your data, Mike. So if someone wanted to put a super great U.I. on the database that you have. There wouldn’t be any bar to doing that, right?
Mike: That’s right. And people get in touch with us constantly. Our data is possibly our most popular feature. And if you look on our homepage, it’s usually hundreds or thousands of hits. Maybe it’s about 100k a day. I’m forgetting my stats. But it gets a ton of traffic and it’s super easy to get involved and use it for whatever you want to do.
Brian: I guess you have reminded me of a couple other things. What Mike’s talking about there is we now have an API so that people can access the data programmatically. If there’s non-programmers out there, an application programming interface or API is just a way for computers to talk to computers. When we put that API on our data, it enables third-parties who want to make use of it in some way to do so very easily. One example is the Sunlight Foundation has this alert tool called Scout that lets you keep up with changes in the legislation that you might be following. Or other areas but they had never done court opinions before. Once we had our API, they were able to just plug that in and now you are also able to get alerts; the same sort that we offer, about court opinions as well. Or maybe a more interesting example might be the state decoded project is trying to make nice readable versions of state codes available. And I think it’s a VA code, is Virginia’s code that they’ve done. And integrated our API so that when you’re looking at a particular statute, over in the sidebar, they pull in opinions from Court Listener that are interpreting that statute. So it’s nice to be able to read the law, but really what matters to you is how that court interprets that law. So having it a couple inches away to click on makes it more useful on their site for their users. It’s something that became possible once we created that API.
Denise: That is really cool.
Brian: Another thing that you mentioned though is that it also does sort of level the playing field for startups or legal technology businesses. Something that I frequently say is that there is currently an enormous waste of money happening where legal technology startups are getting kind of hot. And VC’s are funding various startups to do this. But almost all of them need the documents. Almost all of them want the legal data to get started. And most of them are having to go out and buy that data over and over again. And they’re wasting what little resources they have on that when they could be spending their money on whatever their whiz-bang feature is on whatever it is they wanted to do a startup to begin with. So we’re hopeful that if we can get everything and give it away for free, it will have this amazing impact on startups in the legal-tech space. Because they’ll have a head start on doing whatever it is they want to do.
Denise: Yea, as you were talking it reminded me about the way people get frustrated on buying their music over and over again, their movies over and over again. In different formats, I’m sure that applies to rounding up usable data as well. I’m surprised we’ve been able to have this whole conversation without mentioning West Law and Lexus who are the two big players in paid access to searchable legal information. Evan, do you think that they see this kind of progress as a threat?
Evan: I was thinking about West Law and Lexus but I didn’t dare utter those words because I was afraid that Brian and Mike might be swearing. I would trust that Brian and Mike see this at a pretty fundamental level as sort of the same problem with Pacer; it’s a question of economics of access that’s inherent of the ownership of content itself. Rather than some sort of proprietary interest like copyright with the Federal statutes like that. When we look at it this way it becomes an economics problem. And it seems like the economics is in tractable from the issue because if you guys are being so ambitious as to offer this for free, you’ve got to be getting monies from somewhere. And I trust it’s more than the donations coming in from what was it?
Brian: The donate page itself is at courtlistener.com/donate. But you’re right, we put up that donate button and it turned out the world was not sitting there with their wallet in hand waiting to make donations. We are a sort of niche issue that some people understand its importance but maybe not everybody. So we’re currently seeking support from large foundations that might take an interest in government transparency sort of issues. And if somebody from one of those organizations is out there listening, please get in touch. We do need more support and it actually takes away from our adding new features and doing new things because we’re having to struggle to find that funding. I guess I could go back to the West Law and Lexus thing and say I run into guys from those companies at conferences all the time. And they’re very nice people. I have nothing against them. I don’t think at the end of the day they’re very scared of us. They shouldn’t be. Those who have thought about it in those entities know that the day is coming when the basic legal data is going to be commoditized and is going to be free. And I don’t think they really see themselves as offering a service that only provides that data. And instead, they’ve got decades and billions of dollars invested in nice legal research tools on top of that, third-party resources, copyright treatises that we’re not going to put on our site because we don’t have a license for that. And so there’s a world of resources that they provide that are going to keep people especially practicing lawyers subscribing to those types of services. I don’t think they’re too worried.
Evan: What about Google Scholar? Should we think about them and what role Google is playing in this? Because that’s sometimes a useful tool.
Denise: Where are they getting their data? Do you know how Google is getting its data? Probably the same way Juri-scraper does, right?
Brian: Well, it’s a good question. I’ve heard people from Google Scholar speak at conferences several times and what they say is that for at least the back catalogue of stuff they have, the older opinions, they bought it from someone who had it. And under the terms of that contract, they’re not allowed to post from whom they bought it. And they’re not allowed to give it away to anybody else for free. At least not in bulk. Of course you can use Google Scholar for free. But you can’t download their entire thing like ours. So I think we exist in harmony with Google Scholar as well. If you’re looking for something on our site and can’t find it, you should certainly go check and see if you can find it in Google Scholar. When I’ve done comparisons, what I find is what Mike mentioned. We do tend to have stuff with sort of an immediacy that almost nobody else seems worried about. We’re getting the opinions within the same hour often times of when they’re released. With a lot of other services, you may wait a day or two. And we try to be transparent about what our coverage is. We have a coverage page, you can look at it and see if we don’t have some intermediate Appellate court in some state covered yet. We’re probably working on it, but we may not have it yet. And it will show up on that page. Whereas when you go to Google Scholar, you do a search and there’s sometimes that number in the corner that says 200,000 results or whatever. There’s really no way in to see how far back this goes. Or does it have everything? You can’t use it with any certainty that it’s got the coverage that you might need.
Denise: Excellent point. One other thing that came up just as we’re having this conversation; we keep talking about pages and how much Pacer charges per page. Why are we still talking about pages, Mike? When what we’re really talking about here is data?
Mike: I assume it has to do with the 1990’s and we’re stuck somewhere around the beginning of that decade. I don’t know. I put this on IRC log a minute ago, but even Pacer thinks of search results in terms of pages. And when you do a search, you get charged a dime per page for results. And you don’t know how many results you’re going to have until your search is complete. So be very careful what you search for because you could end up paying a lot of money if you search for a common word. And this is just the way, it’s immediate. It’s not like there’s an interstitial that says you know that search has X results and it will cost you Y dollars. It’s just, here are your results, that will be X dollars, please.
Denise: That’s terrifying.
Mike: It’s insane. And I could see how it made sense at the time.
Evan: I did a search on Pacer for reasonable once, and then had to take out a second mortgage on our home.
Denise: I think that has to be our second MCLA passphrase on this show before we go ahead and move on. Let’s make it unreasonable search. Because, yea that should work out.
Evan: And then they did an unreasonable seizure on my credit card account.
Denise: Alright, second phrase, unreasonable search. Let us move on to some other copyright issues outside the realm of court documents and inside the realm of entertainment. So I don’t have too much to go through here. One bit of bad news for people who are Groove Shark subscribers if that is your music service of choice; obviously they have had their problems over the years with the RIAA and it looked temporarily like they were getting through some of those problems and they were going to be officially available on Chromecast. But it looks like that’s not going to happen anymore. That Google had to pull the rug out from under that, citing terms of service violations. The RIAA commented to Next Web that Groove Shark; they said something about Groove Shark infringing still. And made a little snide comment about Google-YouTube Viacom litigation. And so it looks like sadly, if you’re a Groove Shark person and you like Chromecast, you’re not completely out of luck. You can still as Groove Shark is quick to point out, use Groove Shark on Chromecast by going to their main site or their HTML5 mobile site. But they’re not going to have that nice integration that say YouTube and Netflix have. Mike, do you have any thoughts on this?
Mike: I don’t know. I sort of looked at it and said yea, RIAA is up to their usual shenanigans. Right? I don’t know; it’s been how many decades now that we’ve had technology making our lives better. And the RIAA working their damnest to stop it. I look at it as that’s the way I was thinking on it.
Denise: Alright. Brian, anything to add?
Brian: No, that’s about right. I have a Chromecast myself. It never occurred to me to try and use it with Groove Shark. So I’m maybe not affected.
Denise: You might think about it now.
Brian: Yea, I’m wondering what I lost that I never even had. But, no, nothing to add.
Denise: Evan, I’m guessing that’s you too. Should we move on?
Evan: Yea, Groove Shark seems like this strange animal. I’m not quite sure how it’s still existing because it seems like some of the stuff it does seems questionable. Every few months, it seems to come up with stories. I hadn’t really thought about it too long. It had been a long time. I was surprised that there was this synergy going on between Google via Chromecast and Groove Shark. Yea, I just expect something. We got to see if we can get some of these questionable practices at Groove Shark seem to be exhibiting results. Someday, somehow, perhaps.
Denise: Right, or maybe with the various and sundry other music services, it will finally just slink away.
Mike: I was thinking that a part of this has got to be the Streisand Syndrome. As a business model.
Denise: Streisand effect as a business model.
Mike: Right? Create a storm and get the free PR that comes along with it. Oh, I’m sorry. Was that illegal that time? Two weeks later.
Denise: You could be on to it. We know so many other ways that people are getting their music these days that seem to be having a comfortable if not strange relationship with the music industry these days. And along those lines, the MPAA and the RIAA have changed their elementary school copyright curriculum. I forget which episode of the show we talked about this on. It was something like a year ago, Evan, I think. When they came out with this kind of, not too surprising given the source, but a sort of partisan doctrinaire sample copyright curriculum for public schools in the US. And I remember having the discussion on that show that it’s a good idea to educate kids about copyright and encourage them to create. They all are running around a certain age with devices in their hands; whether it’s a Go Pro or a phone or whatever it is they’re using, maybe their desktop provided at their school to be able to create a lot of stuff. And how it is that they can make use of that, share their work if they want to. The excellent news via Torrent Freak is that, and Torrent Freak is taking full credit for having called them out on the copyright curriculum, and then initially was made available. And I think it was leaked at the time, if I remember correctly. Now it has been since people have kind of gotten up in arms about that, there’s this little thing called fair use; you might want to mention that. Not only does the sample curriculum mention fair use now, it also mentions things like creative comments. It seems to do a much nicer job at creating a balanced view of the copyright system that exists. That the students will be working within with their creations. The whole crux of the teaching endeavor is called Be a Creator. So it wants to encourage kids to go out and create new ones to educate them about their rights once they do so. Brian, as an educator, are you glad that the elementary students, if their schools adopt this curriculum, will get a leg up?
Brian: Well, the RIAA certainly has gotten a lot of criticism in the past over curriculum like this where they present a somewhat one-sided view of copyright. So, to the extent that they’re moving away from that and trying to provide more balanced material. That’s certainly a good thing. But I have elementary school students in my family and right now I’m more worried that they don’t have a music program at all in their school. That we might spend time teaching them about copyright when they only get to go to art once a week. And they only get to go to science once a week or these kinds of things strike me as a much smaller problem in the world of elementary school education right now.
Denise: Yea, that’s an excellent point. Evan, you also have elementary school kids in your family. What do you think of this?
Evan: I really like that point that you just made there, Brian. There are a number of ways to do what the copyright and patent clause says to promote the progress of the arts and useful sciences or whatever it actually says there. And it seems like maybe just funding those programs in the first place so that we have the content that’s worth applying copyright to someday might be one thing. So, Denise I heard what you said. This is excellent news. It’s a more fair and balanced approach. And of course that is because we want any sort of education to actually present some semblance of reality. And in this case, the reality being what copyright law actually provides and what tools are out there in the wild to manage those rights. EG, creative comments. Maybe before getting too much into the value judgment of what’s going on right here, I would just sort of call into question the idea of doing this kind of indoctrination. I guess I went ahead and said it, indoctrination as if to have a negative connotation of just this whole activity of the industry or its antagonists; those who would want to see more discussion about fair use and creative comments. And diminimize use in public domain, and all those other things that MPAA and RIAA may cringe at, those types of notions. Sure, I guess it’s better to have some discussion rather than not. But maybe this is just like sex ed and some of these other issues; maybe this should be the responsibility of the parents. Maybe that’s the soapbox I want to get up on. I guess I want to throw out the question of what should the role of the school systems, be public or private, to be teaching this sort of stuff in the first place.
Denise: Yea, I like the idea of kids getting a background in this. I do think that things like the fundamental music and art education should take precedence over making sure they understand all the copyright ramifications. But if this were just kind of a once-a-year thing and a couple of hours allocated to going over these points, and then kids who were interested could do some more investigation; I would be on board with that because I do feel like this is an issue that affects their lives. We might think maybe kids just blithely go along and don’t think about copyright too much. And maybe they do. But little things like the rumors of Mind Craft getting acquired by Microsoft. Huge copyright overtones to how that’s going to all play out. And if their favorite game suddenly no longer has mods and the people on YouTube aren’t able to do their channels doing the play-throughs, I know my son would want to know why that is happening. In my family, he would know. But I don’t know that that’s necessarily the case with everyone. Mike, any thoughts?
Mike: I guess for me the system of copyright, the way I understand it anyway and I’m not a lawyer, the concept is we have copyright to encourage our art. And at least in elementary school, which it sounds like this is what it’s geared for, kids are going to make art. It’s not because they have a commercial interest. I just don’t know about teaching this to people, to children until they might have a commercial interest in it. But at the same time, I see that sort of understanding copyright at a certain level once you're, like, hearing about business deals or whatever and how those might have copyright ramifications — maybe in high school I could see understanding that. But I think framing it from a, you need to understand copyright in order to not infringe, which is, I assume, what they're doing here —
Mike: — that seems really wrong to me. Maybe if you framed it in a, you need to understand copyright so that you'll understand why things that seem so obvious, like giving your friend an MP3 — I don't know. It — certainly not for young kids like elementary school. I think that's just kind of — it's only going to make them less creative.
Brian: I think it is indicative of a shift in copyright that's occurred, say, maybe over the last 30 years or so where technology has brought what used to be a law for industry, right? I mean, the people who needed to understand copyright law in the '80s worked for the record companies, right, and worked for big publishers, and that's about it, right? The day-to-day interaction with copyright was just not something an average person would expect to deal with. But when every piece of technology you touch today is basically a copy machine, suddenly, the average person does impact or run into copyright issues when they're just posting something on YouTube or sharing an Instagram photo or whatever it is they're doing. And so the world changed underneath copyright law, and now it is relevant to our day-to-day lives; but I'm not sure that's necessarily a good thing. It might suggest that it's time to revisit copyright law. (Laughs)
Denise: Yeah. But until that happens — the RIAA is doing their part to make sure that kids understand it; maybe others should do their part, too. Let's — I thought that was a piece of good news. Obviously, you can look at that as a mixed piece of news. (Laughs) But for someone who's interested in the fair use doctrine gaining more clarity and application by the federal courts, there was a good decision in a case involving a company I've never heard of before called TVEyes, which creates — speaking of making databases of data available, do we have databases of other things? (Laughs) TVEyes makes a searchable database of TV and radio station broadcasts, and they were sued by FOX for copying and making their clips searchable. They sued for copyright infringement and hot news misappropriation. The hot news doctrine is something that is dying a slow and happy death and seems to have continued to do that in this case. (Laughs)
Denise: And the court found, following the Second Circuit's decision in the Authors' Guild, the Google book search, HathiTrust case, that this was fair use, that making this material searchable for analysis and research was a fair use of the works and that copying was necessary to make that happen. So we don't get too many flat-out, yes, this is fair use and this business can continue on as it is going" kind of decisions, and this is one of them. So Evan, any thoughts on this one?
Evan: Well, I wish we hadn't already given both CLE phrases because I like the word "moribund."
Evan: I had to look that one up.
Evan: I'd seen that one, but that's what you were talking about, the hot news doctrine dying this slow death. And so I guess one of the reasons the court found that that didn't apply here is because TVEyes — which I hadn't heard of either, and I was surprised I hadn't heard anything about this litigation because it's really interesting — TVEyes is not free writing, which is one of the elements of hot news. It's just holding this — it's not holding this content out as its own. So — and it almost seems — from the copyright fair use standpoint, just sort of the analysis of Google book search and HathiTrust, just sort of on a microcosm, actually, in a little bit of a different place. But you can definitely draw the analogies of what's going on here, taking content that exists in some other form and making it available for search. Which is a little bit confusing here because I think one of the issues that's actually going back down to the district court is whether and to what extent that capability of search is relevant here. So I'm not quite clear about exactly what is still at issue; but on balance, at least, according to this analysis from the EFF that we saw, which included that word "moribund," it does seem like something very positive for fair use as a whole inasmuch as taking all this content and making it available for the transformative purposes of looking at just these clips here.
Denise: So Brian, here's a good reason why elementary school or older children might need to know about copyright if they stumbled across a tool called TVEyes and were involved in some kind of creative activity; and they did a search and they found a bunch of clips of things they wanted to use, put together, make a movie of some kind, or presentation. Just because they can find them doesn't mean that they're licensed to use them, so they would have their own slue of fair use hurdles to get over; correct?
Brian: Yeah, although that scenario makes me want to return to the idea that, boy, we need to revisit copyright law.
Brian: If we're telling kids working on a school project or trying to learn how to be filmmakers or whatever it is they're doing that the first thing they need to do is stop and talk to a lawyer ... (Laughs)
Brian: That seems crazy to me.
Evan: Wait. What's wrong with that?
Brian: It's great for us lawyers, full employment for lawyers. We're going to solve the job crunch for new graduates in this way. (Laughs)
Denise: Hope so.
Brian: But this is a really interesting case because it comes out of the Southern District of New York, and the Second Circuit is a hot bed of fair use decisions recently, with the HathiTrust decision and also the Google Books case. Those two prior decisions in the Second Circuit suggest that this ought to be upheld if it's appealed; but it's in this category of cases where we see people providing an information location tool, a search engine or something like that. And so, much like the old Perfect 10 v. Amazon case out of the Ninth Circuit, we find that these kinds of tools, courts are willing to find them to be fair use, sometimes paradigmatic fair uses, right? They're so transformative that they're exactly what this doctrine is supposed to be all about. You have courts making really grand proclamations like that in some of these cases; so that's interesting. And then, the hot news angle on this — you might remember from a couple years ago, it was also the Second Circuit that had the "fly on the wall" case in the financial services industry. Access to these researcher ports about a given stock or company are hot news. And it was in that case that we saw a little resurgence of, oh, is this doctrine coming back? And then it was sort of — the kibosh was put on it. But it's all happening in the Second Circuit, so that's the place to watch for these issues, apparently, right now. (Laughs)
Denise: I think Simon & Garfunkel did a song about that once.
Denise: Mike, any thoughts?
Mike: No. Brian taught me everything I know about IP law, so I defer to him on all issues of this type.
Evan: Simon & Garfunkel —
Denise: Can I digress —
Evan: I just — what?
Denise: They did a song called — yeah, this is when the decade gap between Evan and I becomes apparent because I remember the Simon & Garfunkel song "It's All Happening at the Zoo," and he doesn't. (Laughs)
Evan: I've got their greatest hits. I only know "Bridge Over Troubled Water" ...
Evan: "Sound of Silence," just the classics.
Denise: Right, right.
Evan: It took me four days to hitchhike from Saginaw, but anyway.
Denise: Oh, good one; that's a more obscure track.
Denise: All right. Okay. I wanted to ask you guys, before we move on — this is just a bit of a digression, but I think it's — the UC Berkeley School of Information has always fascinated me because it is a whole school devoted to information science, etc., and I seem to run across it frequently, being here in California. Are there a lot of other schools that specialize in that area, or are you guys kind of out there in the woods?
Brian: There are. The history of the school at Cal anyway is, it was originally the library school; and then there was a time when libraries were facing a lot of challenges and technology was changing and the Internet came along; and it was time to reinvent themselves, really. And first, the school was known as the School of Information Management Systems or SIMS. But then there grew up a lot of these similar programs at various colleges across the country, and they started calling themselves I-schools, or schools of information. And so Berkeley looked at that and said, Oh, yeah, that's us, too. And so then there was the last change, to be just the School of Information. But it is really interesting. It's a Master's and PhD program; we don't currently have an undergraduate degree, although some schools are doing that sort of thing. And we bring together economists and political scientists and computer scientists and lawyers like me and so on to look at these information issues from those diverse perspectives. And the students come out really well-rounded and capable, like Mike. (Laughs)
Brian: I like to always mention that Mike came to the I-school as an English major; but yet now, he spends his days writing code and developing software. We teach people enough technical skills to make them dangerous.
Denise: Yeah. And I'm guessing — I mean, I was an English major, too; and I think, if I were doing things all over again, I might have gone to I-school instead of law school in today's day and age, with legal careers — as you pointed out — not having that great of an opportunity to employ yourself after you graduate. Are you seeing more and more people who you think might have taken the other track, come your way instead?
Brian: Sometimes, yeah. I just met a student — we're just starting classes this fall semester. And he told me that he had considered going to law school but chose our program instead. So that is a calculation that some students are making when they have policy-based interests. Our I-school, I think, actually stands out if that's your leaning. There are some I-schools that are much more technically focused; so if you're interested in user interfaces and the usability of a system, there are some schools that might be better to go to for that. But we have two lawyers in our small faculty, and so those people who are jazzed about privacy and copyright and cyber law and these kinds of things, we're a pretty good place to touch on those interests.
Denise: What do you think, Mike? Is your I-school degree more marketable than a law school degree would be in today's day and age?
Mike: (Laughs) All I know is that all my lawyer friends are struggling. That's in the San Francisco area; there's lots of firms shutting down, the recession being unkind. But I had a fantastic time at the School of Information, and I recommend it really, really highly. It just gives you, like Brian's saying, the technology background, and it gives you the — there's a sociology component; there's a policy component; there's a UI design component — anywhere that technology touches our lives. Like, how did telephones change society a hundred years ago? Well, how are cell phones changing society now? All of these things — it's a wonderful program, I think.
Denise: Well, I think that's a really good segue into talking about the Apple announcements this week, which I'm going to approach from a privacy standpoint.
(The intro plays.)
Denise: So all the ways in which technology and data impact our lives, Apple wants to impact them even more than it already has in those areas with its announcements this week about its two new iPhones, its Apple Watch, and its new Pay system. So all of these are going to put Apple more in the business of managing and keeping track of, and allowing people to make use of, data about them, both financial and health wise, in the case of the Pay system and the health apps that will be part of the watch. So what do you think of this, Mike? Is Apple the company that we want to have in the data management business? They haven't shown a great track record of security soundness to date, but Tim Cook's comments resonated with me, that, Well, we're not trying to sell you stuff; we're not going to look at this data. All we sell is hardware. We're not going to be targeting you or selling your data; we're just helping you make use of it. Is he just trying to put a good spin on things, do you think?
Mike: I think it's a tough one. It's a bit of a double-edged sword. I do think of Apple as primarily a hardware company, and that's great because maybe they're not going to be as likely to look at your content, although I'm skeptical of that. But on the other hand, that also means that you have this celebrity photo leak scandal. Their reputation for pulling off online services is not as good as, say, Google's, I think. I'm not positive of that. But that celebrity leak couldn't have come at a worse time for them. And I think putting all this health data and — these watches, I think, have sensors on the back side that you can turn on in theory. But it's interesting, right? It's just going to go farther and farther. Sooner or later, they'll be monitoring the contents of our blood, probably, that kind of thing.
Mike: How long is it going to be until they know you're pregnant?
Mike: There's already blood tests that do that. Do you want Apple knowing that? Do you want anyone knowing that? It's an interesting sort of situation we're moving into.
Denise: I guess Tim Cook's argument is, better for Apple to know you're pregnant than Target because Target's going to start sending you diaper ads and things —
Denise: — and Apple's just not. At least, not now.
Mike: I don't know. I mean, once that data is in their cloud, I have declared bankruptcy on knowing where it's going to go next.
Mike: And how long are they going to store it, and who are they going to give it to? Who have I said they could give it to? Probably everybody. So yeah, I've given up staying ahead of that curve; I think it's just sort of, once the data's in their cloud, it's gone, it's theirs, and I have no control.
Denise: Right. And —
Mike: I don't think that's a good situation, just to be clear.
Denise: I'll toss it out to the three of you. Me, personally, haven't worn a watch since I've had a smartphone, right?
Denise: I mean, I'm not dying to wear a watch. The phone has replaced all of my watch-related functions, and I think I would need a watch to replace all of my phone-related functions before I left the phone at home and just went around with a watch on. Maybe for men it's a different thing. Before the show, I was chatting with someone in IRC that said watches are the only sort of societally acceptable way for a straight guy to wear jewelry. (Laughs) So are you guys excited to have a more effective multi-function watch on your wrist? What do you think, Evan?
Evan: I haven't yet seriously considered — I haven't considered seriously enough actually getting one to sort of think of it from the aesthetic, cosmetic level, if you will. I mean, I can see where it would be handy for certain things and certainly not very good for others. I'm still trying to just visualize what it will be like to actually generate content using a watch. I think it'd be very difficult to actually expect to manually enter text or anything like that. So to the extent that there are features — with what Siri can allow you to do, or other ways to generate content or to send content — to generate and distribute that — that's going to be questionable. So what I see the real interesting aspect of it here is the ability to capture biometric data to enhance one's ability to capture and collect data for the quantified self. And from what I get on that, it's still sort of unclear how much of a hook that's going to be for people. So what we see with the Apple Watch and with the Apple Pay — And I do want to just sort of dog-ear that notion, talk about some branding when we get to that notion. I mean, what we see here is Apple doing some very intriguing things by entering into two spaces that are very privacy-volatile areas: health data — the data about one's biology and physical state; and financial data. And I really think they're saying the right things, and I'm sure they would be — Tim Cook didn't change plans just in the last week about how all this stuff is going to work or really what the messaging was going to be, I'm sure, in light of the Jennifer Lawrence and others — the privacy scandal. That may have actually — there might be a little bit of a silver lining on that because what — that privacy concern of last week with the unauthorized access of this content in the iCloud infrastructure really allows what Tim Cook's messaging is in terms of privacy to stand in stark contrast. For example, all the health data with the development — with HealthKit and all the tools that will allow developers to developer apps with the Apple Watch, for example, is not permitted to be stored in the iCloud. It can be stored in some other cloud service but not in iCloud. And from what I understand, it's going to be encrypted on the device itself.
Evan: And then, of course, with the payment system, the near-field communications, I don't see why that's not going to be head and shoulders above ordinary credit card transactions because there's not going to be the actual disclosure of a particular credit card number to the vendor anymore. Situations like the Target breach and the Home Depot breach and all that are going to go away because the near-field communication and the way that the interaction, the interchange, of that payment goes. So the messaging is right on. They're saying all the good things in light of the particularized concerns that we have seen in the last year. The big privacy stories are Target, Home Depot, Jennifer Lawrence. Those things seem to be pretty adequately addressed in the announcements and the design and certainly the messaging for it.
Denise: Brian, what do you think? You're there at ground zero; you both are. Mike and Brian in the bay area. Are you going to be running out and health-kitting your arm and letting people tap you on the wrist and paying for your Pete's Coffee with Apple Pay?
Brian: It's a little disingenuous for Tim to say that they're just a hardware company. They've been a services company as well for a long time, right? I mean, iTunes is a service that allows me to pay for MP3s; and iCloud is a service that I can pay a little bit extra to get more storage space. And now, with Apple Pay, that's going to be a service, right, that they're offering to people. And I think it is the bigger announcement. I mean, the new iPhone 6s — okay, those are interesting; but there's going to be a 7 sooner or later, and it'll be forgotten. The Apple Watch is interesting to some people. I don't know. I'm sort of with Evan on, I'm trying to imagine how my interaction with that is going to be less frustrating than I already am frustrated trying to type messages on a phone. So there's maybe a niche market for that sort of thing; but if they interject themselves into payment systems and it's successful, that's a really big deal and could become a really big business for them, I think. And I've read an article where somebody was sort of discounting the convenience factor and saying, Look, I have to drag my wallet out and get my credit card, and this is posed as some insurmountable obstacle, paying with a credit card. (Laughs) And it's actually, in their eyes, not that bad. Now I have to dig around for my phone and get that out and pay. They didn't see convenience as the selling factor, and there may be something to that. But Evan's right to point out if there is a security enhancement, then that could be a selling point. I really want to see the thing work in action because I don't know if you've been at the airport where people have the mobile boarding passes; and they get up to the scanner, and they can't quite get it to scan.
Brian: And they turn the phone this way and that way and, oh, let's try and zoom it; and you're standing in line behind them, wanting to throttle them, wishing they just had a paper —
Evan: With your paper boarding pass, yeah.
Brian: Exactly, right? So sometimes these allegedly convenient systems in practice don't work out. So let's wait and see if it's as convenient as ... [audio fades]. But it, I think, was the biggest announcement of the ones that they made this week.
Denise: Yeah. I'm so glad you brought that up because I guess — is it Passbook or Passport? I forget what Apple calls that, where you can add things —
Denise: Passbook. Where you can add things to that feature and then, what's supposed to happen is it's supposed to make your life easier. I've never once had it happen where it popped up on my screen when I walked into the airport and it was ready to use. I always have to go three screens deep into the phone and find the dang boarding pass. And I've been that person who everyone behind me in line is going, —come on, just print the thing out at home! (Laughs) But I do think that — we were talking earlier about how excruciating it is for people to get their documents from PACER in a non-electronic way; and they have to fax and do the — we use these antiquated technologies to accomplish things. Anyone who has done a refinance or a home loan in the recent past, it feels like you're time traveling. It feels like you're going back to a time, maybe pre-fax machine, when maybe you would get out your fountain pen to scrawl your name on a two-inch-high stack of documents, none
of which you have read. (Laughs) So I do like — people have been, I think, giving Apple the knock that they're not innovating enough here; but pushing forward in both these fronts, I think, is pretty innovative and is getting us away from those antiquated ways of doing things. I just hope that they implement it properly and don't have the kinds of privacy headaches that could be inherent in managing this data. Any last thoughts? I'll go around. Mike?
Brian: He just sent a chat message saying that he dropped out, and he's reconnected; but can't seem to get back into the call.
Unidentified voice: Yeah, yeah, we're getting Mike back in right now.
Denise: Okay. How about you, Brian?
Brian: No. You've covered it.
Denise: All righty. I think the last thing that we'll cover today — well, let me ask you. I definitely want to cover the net neutrality Internet slow-down that we saw this week, but we have some other things in the rundown. I just want to make sure, if we skip them, no one is sad about that, hasn't been dying to talk about it. Evan, any of the other stories catch your eye that you really want to talk about?
Evan: I don't have it right in front of me here, but — so ... it was —
Denise: Let me tell you what they are. We —
Evan: Oh, there's Deadmau5. We promised to talk about that.
Denise: There's Deadmau5, which we skipped from last week. Shall we — yeah, let's talk about Deadmau5, then.
Denise: That's a trademark story, so we have no bumper to play for it, but we shelved it from last week. It's a trademark issue that involves Deadmau5's logo that looks like Disney mouse ears. I haven't paid too much attention to it, Evan, so maybe you'd better bring us up to speed.
Evan: Sure. Well, Deadmau5, the electronic musician — I thought of him as a dubstep artist, and I was corrected that that's not entirely accurate, although you might characterize it in that genre, so sorry. He is well known for performing in this big, costumed head that is spherical in shape and has two large ears; and it resembles, abstractly, at least, a mouse and clearly is reminiscent of Mickey Mouse. Nobody's going to, I think, actually mistake and think that it's Mickey Mouse, but there is, at a pretty detailed level, a resemblance here. And so he's been around for years, and Disney hasn't really done too much about it. Up to this point, he enjoys trademark registrations in a number of other countries. And so in mid-August, he filed in the USPTO and tried — the United States Patent and Trademark Office — an application to register the logo, which is the outline of the mouse head that he uses, the large, spherical head and then the two round ears; and then, underneath that is the word "Deadmau5"; and it's, of course D-e-a-d-m-a-u-5. And then it has kind of like the eyes in it as well. And it's for a pretty broad list of goods and services, including clothing; and of course, services — the performance of — live musical performances and things like that. So what the issue is, is that he has filed this application to seek registration of that trademark, that service mark, in the USPTO; and Disney has taken issue with that aspect of it, sent him the "cease and desist" letter shortly after he filed the application. What sort of makes it, then, interesting is that he found on a Disney website a situation where Disney" making one of his audio tracks available for remix and, I think, a video as well. Disney has responded to that, saying that that was licensed, so there's sort of some issue there. But essentially, Deadmau5 is sort of firing back, fighting a trademark allegation with a copyright allegation, so these things may or may not — will not necessarily cancel each other out; it's sort of just a lot of fighting and going on here. So I think a couple of different issues that arise from this is, what is the appropriate way of thinking about this from the legal standpoint? And I've certainly got some thoughts to share on that, on the substantive trademark issues. But I think the other interesting aspect of this is, how are we supposed to think of these things when it's a large corporate interest against what I think people perceive as sort of the little guy here, although Deadmau5 is wildly successful and probably makes money hand over fist, I'm sure. We've got this sort of theater going on of Deadmau5 in the position of taking aim at what he characterizes as bullying, big-corporate tactics. So it's interesting to see all this play out and all the issues that come out from that.
Denise: Well, you just published your article on your firm site about trademark. Did any of those principles come into play here to give us some insights on how this might come out?
Evan: I don't think you have to get too nuanced in trademark law to see how this — or at least how I think that this should come out because one thing we've got to make clear here is that Disney, in response to what Deadmau5 said about his copyright allegations here, is that Disney is not complaining about Deadmau5's use of the costume, the performing and the costume that he does, the big mouse head. What it's concerned about here is protecting its trademark interests in the United States because he's actually seeking registration for that; and if you get a trademark registration in the United States, you get a lot of these wonderful benefits. Among them are that you are presumably the owner of the exclusive rights to use that mark in connection with the goods and services that are listed in the application anywhere in the United States. And so what an examiner at the trademark office does — and this is a similar analysis that you would do in litigation over trademark infringement — is examine whether there is a likelihood of confusion, whether a member of the consuming public is going to be confused as to where these goods and services are coming from. And when the examiner at the trademark office is looking at the application, it just looks at what's in the application. The examiner's under no obligation to go out into the real world and see how the mark's actually being used. It looks at the mark that's in the drawing in the application and the services that are there. And Deadmau5's logo that he's applying for looks a lot more like Mickey Mouse than does the head he wears when he's performing; so I would encourage anybody to go to the USPTO website. It's pretty easy to do a search there; if you just search for "Deadmau5" — spelling it correctly — and the services there, it really does look a lot like Mickey Mouse, more so than what sort of the overall general commercial impression is. So I'm on the side of Disney when it comes to this, but that's not to discount sort of the overall theater that's going on here about, what's the appropriate action on either side. But as far as a pure trademark analysis goes here, you don't have to go any further than just thinking of this idea of the likelihood of confusion to have some thoughts about this.
Denise: Brian, is there a fair use principle that comes into play in this as well with trademark, or is the USPTO going to look at the fact that this is a transformative use of — if they go ahead and decide that it does resemble the mouse logo that Disney has?
Brian: So I'm not familiar with Deadmau5's performances or music, and so I'm not sure. Certainly, it feels like, when he chooses that costume that there's some sort of commentary being made about Mickey Mouse or Disney or corporate entities, generally, or something. And so maybe there's a — if there is a parody going on here or something like that, that's worth looking into; but I guess I tend a little bit more towards Deadmau5's reaction so far on this, that the idea that there really could be a likelihood of confusion going either direction, right? If we imagine that Deadmau5 gets this trademark, and then what? He's going to try and sue Disney if Mickey Mouse ever appears in a cartoon as a DJ or something? I don't see that working out very well for him. And if Disney were to try to allege that what Deadmau5 is up to, to the extent that I'm familiar with that, somehow could create a likelihood of confusion with their marks, I don't see it. And so they're similar; one may even be commentary on the other; but is there likelihood of confusion? I don't think so.
Denise: I don't know how we can work the word "earmark" into the discussion here, but it seems like it belongs somewhere. (Laughs) Evan, what about — is there any sort of fair use commentary transformation parody principle that should come into play here?
Evan: I don't think there's going to be the opportunity for that to come into this particular dispute here because, if you'll remember, a few months ago when we were talking about the Washington Redskins brouhaha —
Evan: — everybody was like, Oh, this is just such a huge deal; when actually, the legal issue is very, very narrow because what is — I mean, there's actually no proceeding that's been filed. It's just a cease and desist letter that Disney sent in response to Deadmau5 having filed the trademark application. So the next logical step would be that once the application travels along in the path at the USPTO — it hasn't even been assigned to an examiner yet. That takes, like, three or four months before the examiners get down deep enough into the pile to actually start reviewing the thing. So next logical step is that there will be an opposition proceeding in the United States Patent and Trademark Office before the Trademark Trial and Appeal Board; and the jurisdiction of the TTAB is very limited. All it can do is give a thumbs-up or a thumbs-down as to whether the registrations should issue. It doesn't have the subject matter jurisdiction to award money damages or issue an injunction or anything like that. So it's a very — likely, the next step will just be a very narrow set of legal issues. And in that context, there really won't be any room or space or opportunity for discussion of fair use because the examiner is, like I said earlier, limited to just what's in the application and not — the examiner's not supposed to look at, and the TTAB is not supposed to look at anything really in reality except what's actually in the application because of the narrow question that's before them. So I realize I'm sort of giving a long-winded answer; but truly, just to sort of set in contrast to what would happen if there were actual litigation, where if Disney were to go to court against Deadmau5 and say, stop using your mark in commerce in connection with these goods or services, Deadmau5 would then have the opportunity to say, Well, this is a classical fair use — and I really don't know how we would get there because the sort of fair use that you see in trademarks I just don't think is here. He's actually just trying to use his own mark in connection with his own service; he's not making any comparisons to Disney. Maybe there could be evidence come out that he's trying to make some kind of statement about Mickey Mouse; but I haven't seen that in the commentary so far. It just doesn't seem likely that Disney would be interested in doing a whole lot of stuff like that based on what they've said so far with — they came right out and said in a public statement that they don't object to him using the costume, which leads me to think that there may be just some narrow concern here on this proceeding in the trademark office. So ultimately, I think academically it's interesting to think about; but right now, there's really no opportunity for fair use, other than just us kicking it around right here, I guess.
Denise: Right. Well, all these academic legal issues are well and good; but I have to ask Mike because he, I think, is our youngster on the show today, what the heck is up with all these people with their fake heads in music these days? (Laughs) We've got Deadmau5; we've got — Frank Fastbender? Is that the guy who wears the huge head mask? And there's Daft Punk ... Why? Why the heads?
Mike: I can't attempt to speak for [unintelligible] generation on the head topic.
Mike: But I will say that the horse heads seem to be going away, so that's good.
Denise: That's good. All right.
Mike: That's progress.
Denise: Wonderful. You may have noticed — and this is on the legislation and policy front, just to let you guys know. This would be where our bumper plays. (Laughs)
(The intro plays.)
Evan: And you can't miss this one.
Denise: Thank you. You might have noticed on Wednesday, a bunch of spinning "please wait" kind of messages around the Internet. It was Internet slow-down day. Much like in SOPA, this was the Internet's effort to bring awareness on the part of the general public to that net neutrality issue. I saw spinning "please wait" icons all around the web that day. What I didn't get a good impression of is if people were actually slowing down the delivery of their sites. Mike, do you think that that happened; and what do you think of the whole protest? Did it do its job?
Mike: I don't know. I think, from what I heard, it seemed like most people weren't actually going to slow things down; it was sort of just a, this is what it would be like.
Mike: Which — we all know what it's like because we all have cell phones with the Internet on them, and it's slow.
Mike: But did it work? Who knows? I mean, I was looking at the FCC comments. Sunlight did a nice analysis of the comments they've gotten already; and it's overwhelming. The public — we want net neutrality; but is that — are we going to get what we want? I don't know. There have already been, what, 80,000 comments from the public. Is that going to be enough weight on one side of the scale to overrule ComCast and whoever else is wanting to do this two-tier thing? I don't know. Did it work? We'll find out. But I know they got a lot of comments; I know I made a comment yesterday. I saw — I think Vimeo had a real great sort of interstitial pop-up if you watched any of their videos yesterday. They said, This is what it would be like. And it had, like, a jittery video that was sort of big jitters; and it was done really, really well, and it put you immediately in touch with your Congressperson. But will it work? I don't know. ComCast is strong; they've got their fingers in a lot of pockets.
Denise: Right. Fletcher Babb, at least — over at VentureBeat — thought that the whole notion of just showing you the spinning circle and not slowing things down wasn't really making the point. He thought it was — the headline says, "A bogus, empty gesture" without actually putting any teeth into it. Evan, what do you think?
Evan: Oh, isn't that just link bait? Come on.
Evan: Doing something is better than nothing.
Evan: I didn't have the ambition to get out of bed and then think of some campaign like this, so I'm glad somebody did to raise awareness to the issue. I mean, I get sort of cynical about the whole network neutrality, open Internet debate in the first place. I don't get so cynical about the issue; I think it's critically important. But I just get cynical about a lot of the commentary because it seems so polarized; and it's so difficult to find a reasonable discussion about all the different interests at stake here. It's just — in this particular campaign, it was just like, the cable side, bad; the Internet side, good. As if that's just black versus white, you know what I mean? Just very, very stark contrast, polarizing dispute. Same way with — we were talking about last week — the video with the people riding around Manhattan on toilets.
Evan: It's just so easy to parody a lot of this stuff in ways that I just think reinforce stereotypes and just isn't helpful, ultimately, for the discussion. So it's for that reason why I get very cynical about sort of the commentary on this in general. But goodness, it's better to engage in the communication and the conversation — even if done not perfectly — than to not do it at all. And I wouldn't take the side of throwing stones at any attempt at that, even if I don't think it's perfectly executed. (Laughs)
Denise: Yeah, I agree with you on both points. And we have tried — and we've had a number of guests on all sides of the issue on the show over the months since the Verizon decision. And I think, if they have shown us nothing, it's that it's a very complicated and nuanced issue, and the polarized points of the spectrum don't necessarily tell the whole story. And so anything that gets people reading about it and trying to wrap their head around it and trying to give productive feedback to the FCC and their lawmakers on their take and what they're afraid could happen and how they want the Internet to function and what feels like fundamentally required access and minimum levels of service is a productive thing. So Brian, anything to add?
Brian: Yeah. I think, to the extent they wanted the slow-down day to mirror the black-out that we had to fight SOPA and PIPA, it didn't feel like it was as big of an event, experiencing it, anyway; but maybe the proof will be in the pudding. If we actually see some sort of result from this in the coming weeks, then maybe we'll view it as a really important protest. But it is a thorny issue. People want to go on and comment and say some sort of polarizing thing when you wish there were a way to get people to say, Well, what we need is Title II reclassification as a common carrier, but we don't want the FCC to overreach.
Denise and Evan: (Laugh)
Brian: It gets so in the weeds of telecom law so quickly.
Denise: Yeah, it does.
Brian: Because — I mean, actually, for me to be happy with the result of this, I actually think the FCC needs to thread a pretty narrow needle, right? I mean, I am one of these people who's very worried about the cable companies overreaching and acting as extortionists and trying to get money out of NetFlix when I've already paid for my connection and ... [makes a zapping noise], you know. And that's a concern, right? But also, the FCC is not an organization that I trust to be in charge of the Internet, right? They've been an agency that, over years, has been subject to capture, usually by the industries that they regulate. (Laughs) And so we don't want an outcome from all of this that makes them the new Internet cops because I don't know what they'll do next, right? So it's —
Denise: Right. Or from administration to administration.
Brian: Right. So it's a tough, technical issue, and we'll see how much this slow-down protest gets us towards that optimal solution.
Denise: Yeah. Evan, refresh my memory. When the SOPA and PIPA protests took place, didn't big sites like Wikipedia — I know Reddit was a spearhead of that — didn't they go completely dark that day?
Evan: Yes, yes.
Evan: Indeed. And that was terribly disruptive because I like to look up a bunch of random bullshivek trivia, and —
Evan: So it was very difficult. So —
Evan: But yeah, a lot different.
Denise: Yeah. So I don't — I mean, you never know what protests are to come. Perhaps we can all look forward to our Internet slowing down in order to raise awareness. But let's hope it doesn't slow down in any kind of permanent way.
Let's move on to our tip and resource of the week and get you started on your weekend. Our tip of the week struck me as interesting. It's a piece over at TechDirt where Mike Masnick is reminding people that cell site location data is not very accurate. It only provides you with sort of a wide range of where a person might be; it doesn't pinpoint where that person might be. And he used as his rant starting point an Economist article that gave some examples of cell site location data being used to convict people and, in one terrible, terrible case, keep a woman in prison for 12 years based on the argument by the prosecutors in her case that she could be pinpointed at the location where her — I think it was her roommate, somebody — was killed. And so she felt hamstrung and had to plead out. And who knows — there was never a trial, so we have no idea what the actual facts are there. But the fact is that cell site data is often used by law enforcement — as Mike puts it, "Law enforcement lawyers, prosecutors, and judges" as something that's terribly, terribly accurate about where you might be when' in fact, that's not the case. And Mike looks forward to the day when people recognize that on a wider basis. So we're helping get the word out about that. GPS allows for much more precise targeting. But what I have personally discovered is that the GPS on a cell phone is not as accurate as a GPS on a GPS-oriented device. And I'm not sure why that is the case; I'm not technical enough to understand why you can't have accurate GPS on a cell phone. (Laughs) But that's not what we're talking about. Cell site location data. Do our information school guys have any thoughts on this? Brian?
Brian: I'm not familiar with the cell phone location data, and so I read it with interest but don't have a comment. (Laughs)
Denise: All right. Mike?
Mike: Yeah. I was a little surprised by that because I thought that you could use the combination of the signal strengths at several different towers to get a much more accurate picture, but --
Denise: Yeah, he addresses that.
Mike: Oh, does he? Okay.
Denise: I think you're talking about triangulation?
Mike: Yeah. Essentially, yeah.
Denise: Yeah. So, yes.
Mike: So that's not as good as I think it is. Okay.
Denise: No, no. That's good.
Mike: Oh, okay.
Denise: And Mike points out that that's good. But apparently, people are — evidentiarially, this data is being used just from one tower. And from one tower, you really only know where someone is in a broad area.
Mike: Yeah, yeah.
Denise: If you can watch their progress from tower to tower to tower, you can tell what direction they're going; but again, you can't pinpoint their location. So something to bear in mind.
And our resource of the week is — surprise, surprise — CourtListener.org and Recap. So CourtListener is where you can go and search the database of federal materials. It's not just federal, is it? You guys have all the state materials in here, too.
Denise: Everything you've been able to put in here so far. So it's searchable, it's fast, it has very current information as compared to some of the tools that you might find out there. It's not all that comprehensive yet, but it is a work in progress and a great tool. Anything else you want to add about CourtListener, just as a background for our resource of the week here, Mike?
Mike: It's CourtListener.com; but other than that, no, I think that's a great summary.
Denise: And recapthelaw.org is the browser extension for Firefox and Chrome. Any other browsers that it works with?
Mike: We're working on Internet Explorer, but it's not out yet. Soon.
Denise: (Laughs) Well, see, once you get it on I.E., then you'll capture that whole lawyer user —
Brian: That's the hope, and —
Mike: That is the hope, yep.
Denise: That's right.
Brian: And actually, if there are I.E. users out there right now, we need some beta testers for the I.E. extension. So get in touch. (Laughs)
Evan: (Laughs) Nobody's going to admit it.
Denise: All the law firms that are still using I.E. All right, so great resources. Wonderful to have you guys here with us. Really fascinating discussion of the work that you're doing and the history leading up to where we are, how we got where we are with PACER. So definitely keep up the great work. It's been so great having you on the show, Brian Carver. Any events or goings-on at the I-school that you want to leave us with before we get on out of here?
Brian: No, I generally tell people that the first Thursday in May each year is when the final project showcase is, and the master's students show off what they've been working on. And if you're in Berkeley at that time, that's the best way to understand what happens at an I-school that there is, is just seeing the presentations of these projects that the students have worked on for so long.
Denise: Really cool. Thank you for that.
Denise: Mike Lissner, thanks so much for joining us as well.
Mike: Absolutely. It's been my pleasure.
Denise: We've learned a ton. EVAN, this has been a really fun show, huh?
Evan: Sure has, yeah. Really interesting to talk about these different things, so I've enjoyed a lot. So it's been a lot of fun to be here. You're always asking the question, Denise. What have you got going on, coming up on your radar?
Denise: I don't have anything coming up on my radar. I do the show and I represent a few clients and I don't have any speaking coming up. I would love to get out and do a little bit more speaking. I haven't been doing it much lately because the invitations I've been getting — it's not because I haven't been getting invitations, but I've been getting invitations to go to the East Coast, which is very difficult for me to do. So southern California, northern California, I can make it too much easier. So go ahead, if you're having an event and want someone to talk about technology law, think about me because I'd like to go do that. But other than that, just cranking along trying to — I spring clean in the fall, so that's what's been on my agenda these days. (Laughs)
Denise: Getting rid of junk. I'll turn to more intellectual matters once that's all over and done with. But thanks for asking, Evan. What else shall we leave you with? We're recording this show on Friday, and that's when we always record the show. We start at 11:00 Pacific Time, 1800UTC. If you would like to join us live, that's when you should do so. Go to twit.tv and click the "Watch live now" link; and that's how you can join us live. You can jump into IRC with us while we record and heckle us, give us questions, give us resources. We love to interact with our audience during and after the shows. After the shows, the best way to get in touch with us is either by email — I'm Denise@twit.tv; Evan is Evan@twit.tv — or we are both on the Twitter. He is @internetcases there; I'm @dhowell there. And I find that my most common use of Twitter these days is interacting with people about the show there. I don't so much use Twitter as my news or information source as I used to, but it's sure useful to talk about the show and develop themes for the show; so keep feeding us stuff there. Also, we have a Facebook page at facebook.com/thisweekinlaw; YouTube.com/thisweekinlaw as well for the archive of shows in case you've missed a live one or want to go back to one of the great old ones, figure out what the RIAA and MPAA wanted to teach our kids a year back, that show is there somewhere. (Laughs) What else should I tell you? Google+ is another place where you can get in touch with us because we have both a community and a page over there. So we hope you've enjoyed the show; we hope you'll come back next week when we do this all again on This Week in Law! Take care.