This Week in Law 276 (Transcript)
Denise Howell: Next up on This Week in Law, we’ve got two great guests: Ben Manevitz and Colin Starger joining me. We’re going to talk about iPhone 6 and hey, Apple and Google jumping on the NSA proof bandwagon. The monkey selfie photographer stops by again, this time in 3D form. We’ll talk about Netflix and VPNs, Microsoft buying Mind Craft. Lots lots more on This Week in Law.
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Denise: This is TWiL, This Week in Law with Denise Howell and Evan Brown. Episode 276 recorded September 19, 2014.
Thanks For Some of the Fish
This episode of This Week in Law is brought to you by Personal Capital. With Personal Capital, you’ll finally have all your financial life in one place. And get a clear view of everything you own. Best of all, it’s free! To sign up, go to personalcapital.com/twil. Hi folks, Denise Howell here. And you’re joining us for This Week in Law. Really really fun and exciting panel today; co-host Evan Brown is going to join us midstream. Just you’ll have to wait for Evan who’s always one of the very best parts of the show of course. But we’re going to go ahead and start this show off live and on-time here at 11am Pacific or a little bit after here in California time. And introduce our guests to you and jump right into it. So today, we have Ben Manevitz joining us. Ben has his own law firm, the Manevitz Law Firm in New Jersey where he focuses on intellectual property laws, specifically trademark and domain name stuff. He has a keen interest in copyright as well as I think we’ll get to in the show. He’s done 10 years at lots of different law firms and also at EFF. So Ben, it’s great to have you on the show.
Ben Manevitz: Thanks a lot, Denise. It’s great to be here.
Denise: Also joining us this week is Colin Starger. Colin teaches at the University of Baltimore-School of Law where he specializes in civil procedure, criminal procedure, and guilt and innocence. Innocence and wrongful convictions. So all those times on this show when we say gee, we’re not really specialists or experts in criminal procedure and search and seizure and all that stuff, Colin is. So it’s great to have him on the show.
Colin Starger: It’s great to be here, thanks.
Denise: Wonderful to see you. Let’s get right into it and talk about an interesting development to our audience. And folks who do the kind of thing that we do, the personal audio case which settled with Adam Corolla. He actually went to trial with one of the broadcaster defendants and of course that deals with patents. So in the last few weeks, we’ve been discussing this settlement with Adam Corolla who raised a bunch of money and was going to go to the mat, fighting the case against him and the validity of the personal audio patent which claims to cover activities such as we’re engaged in now. Syndicating audio and video in various forms. Ben, you’ve been taking a look at this. I think this is a really bad decision. First of all, for people who aren’t up to speed on what happened at the trial, can you tell us who was involved and what did happen?
Ben: The short form is personal audio is a non-practicing; they acquired this patent, I don’t really know or remember how. I don’t think I was that interested when it first started. But they acquired the patent and have been chasing down a number of different players, including Adam Corolla. And particularly in this moment, CBS. Coming after them, well in this instance, they’re coming after them for the providing of podcasts, making an episodic computer files available. The claims are the last things in the patent. And it was just a jury verdict that found infringement on the claims that were relevant to this particular case. I think what’s upsetting at least to me, what bothers me about this case is this patent is really broad. I keep looking down, I’m flipping through the book. I’m sorry. But it’s very broad in that it seeks to lay claim to a lot of territory. It’s a land grab on podcast broadcasting, receiving a podcast is actually and earlier claim; a mechanism by which to receive essentially a podcast. So everybody who got the iPhone 6, they’re all in violation. They’re all infringing. For whatever reason the jury got to this question without a radical determination of the validity of the scope of the patent. And I think that’s the biggest concern that I have. CBS put in a rule-50 motion judgment before the verdict. Judgment as a matter of law, rule-50, motion before the verdict came in. So there’s an opening for the judge to issue what’s called a JNOB. But right now CBS is in a bad position. I mean the jury has found it to be infringing. There’s still a damages component that needs to be gone through. So it’s not totally done for CBS but it’s a problem.
Denise: Right. $1.3M in damages is what the jury awarded. CBS is in some ways a nicer party, sorry CBS, to have this happen to than someone like Adam Corolla or a smaller person engaged in distributing content episodically. Because presumably CBS will take this to the Federal circuit and challenge the decision. We can look down the road to that kind of review of this particular decision. And also EFF is challenging the very broad patent itself at the patent office. And that will continue. Have you been following the patent challenge itself, Ben?
Ben: I haven’t been following the patent challenge on EFF; it’s way more technical than I normally would want to read in. There are sort of two issues though. One is procedurally, there’s a question because now that the jury verdict has been brought down in the CBS case, if the EFF challenges is successful afterwards, there’s a procedural question as to what that does for CBS. So it might end up that CBS is still giving malted for damages even though the patent is determined to be invalid. Which I think on a fair reading of the facts that are available, patent should eventually be; I’m not making any predictions because you never know, but the patent is probably overbroad and probably anticipated. The problem actually that CBS had and that the EFF is going to have, is with a lot of the citations that they’re bringing in to claim anticipation and to show anticipation or obviousness; their citations or practices that are not normally or not traditionally understood by the patent office to be citations. So there’s whole sections for CBS judgment as a matter of law brief that have to convince the court that an online publication is actually a publication adequate for anticipation. Or that a practice of a website is a practice that can be counted as anticipation or publicly known that suffices to anticipate. It’s unfortunate, I think it’s a question of the law having to catch up with technology. But with that said, I think the fact that they have the rule-50 motion in puts CBS in a good place procedurally which is a little bit of inside baseball. But it opens them up for not paying the damages if the patent is found invalid in another proceeding. It’s good that CBS has the money to defend, and it’s really good that the EFF is fighting it. And there’s some good people working on that project.
Denise: Right, and the EFF also points out along the lines of taking it up to the Federal circuit that we shouldn’t be too skeptical as to how that might go. We had Lee Chang on the show who is a wonderful saber-wielding lawyer at Newegg. And figuratively or who knows literally as well. Newegg challenged a shopping cart patent lost after a five-day trial in the same district, the eastern district of Texas. But took it up to the Federal circuit who found that no reasonable jury could have held that patent valid. The EFF is very much saying stay tuned, stranger things have happened. So we’ll just have to watch what happens here. I do think that’s really interesting that they’ve had to brief extensively for the court what sort of online or computer-based evidence would be sufficient to prove or disprove the patent. Colin, do you have any thoughts on this before we move on?
Colin: You know I like seeing CBS and EFF on the same team. It’s kind of different, but no thoughts other than that.
Denise: Good to note. I think that they sometimes wind up on the same team on fair use kinds of issues as well. Maybe not CBS specifically but the entertainment industry and EFF. So that is something that’s good to see. Alright, let’s move on since everyone is all buzzed and we already have watching live on Friday the 19th, Leo in the studio earlier this morning unboxing the iPhone 6’s. We have some good privacy things to discuss along those lines. So let’s do it. Last week we were talking about the health component of the iPhone 6 and also the Apple watch. And the auto pay functions. And they obviously have a host of privacy concerns that we were getting into last week. This week I’d like to think about the iPhone 6 in a slightly different context given the open letter that Apple put out. And various press coverage in its wake about the new encryption that iOS 8 features. And the fact that Android phones at least Android phones that will be released in the future are going to follow suit. Which means that both kinds of phones will have very strong encryption that reminds me of the show that we did on episode 257 with Bruce Schneier. Where we were talking about iDrive. I had been driving up around the San Francisco area and there was this huge billboard looking out over the 101 freeway coming into San Francisco touting iDrive as a safe route. And we got into a big discussion with Bruce Schneier about whether that could really be the case. And also about the whole concept of having secure data in your devices that is somewhat shielded or entirely shielded. And we can get into a discussion of how much protection this really offers. From government intrusion, using that as a marketing tool. And iDrive was definitely jumping onboard with that. Now it appears the big players of Apple and Google are doing the same. This is very much a selling point for Apple, that if you’re using this operating system they will not be able to respond to government subpoenas asking for information that might be accessible from your device. So that’s a big shift from the way things have gone and it actually changes things a bit even from what we thought was a savvy opinion from the U.S. Supreme Court in June; holding that police need a search warrant to begin to access the data on your phone. With this, the Washington Post has written, I’ll just go ahead and quote it for you; in June the Supreme Court ruled that police need search warrants to gain access to data stored on phones in most circumstances. But that standard is quickly being rendered mute. Eventually no form of legal compulsion will surprise to force the unlocking of most smartphones. So let’s start with Colin. Colin, what do you think about this from the standpoint of criminal procedure and law enforcement?
Colin: I’m a little conflicted about it to be honest, Denise. I started off with my first reaction with this is great. It’s another way to keep the government out of where they shouldn’t be. And it’s moving in the direction to make the whole question of getting a warrant redundant. As was suggesting in the article you spoke about. But then I read a couple of things including a commentary by Warren Care and he made what I thought was a very interesting point. Which is that in a way, what Apple has done is thumbing its nose at the whole idea of getting a warrant. In a way, what it’s doing is circumventing the law and a lawful process. In other words, when you talk about the Supreme Court’s decision last June, the Riley Decision, they made what was an excellent unanimous decision saying if you want to do this, get a warrant. And the old idea that on an individualized case basis, if you have some kind of individualized reasonable suspicion that the judge will look at the evidence and determine if there is enough to go forward for a particular prosecution, that’s a bedrock principle. And as Fourth Amendment lawyers or criminal defense attorneys, they generally want to do everything they can to make the Fourth Amendment and the warrant requirement stronger. Now by making it redundant or going right around it, the question is raised if only hypothetically whether they’re eroding the general principle of forcing the police to act lawfully. And the point has been raised that now it’s not like people won’t try to hack through it. Hack through these different systems. The answer though is that doing it through what you would want to be the normal process of getting a warrant if you’re the government, just is no longer done. So it might potentially encourage illegal behavior. Like I say, I’m conflicted. I’m not totally buying that argument but I do think it raises an issue that you need to think about: do we want to do things to force the government to act in line with the old way which may still be a good way, which is if you have a decent suspicion, you need a warrant. If we get rid of all the incentives to even have a warrant at all, it might have ripple effects in other areas of the law that might not be good.
Denise: Is there any recourse on the part of law enforcement against Apple and Google if they do this? Can states or the Federal government come in and enact laws and say you need to be able to allow us to serve a warrant and get that data. That this is a step too far in guarding user privacy, security. We understand your impedance for it but it keeps us from doing our jobs. Do you expect that we might see some sort of legislation along those lines?
Colin: I can very much imagine a desire to push legislation along those lines. And depending on who leads that charge, it could be some horrible legislation like we’ve seen with the Patriot Act or other extremely oppressive cases. And certainly Congress can do whatever it wants in the legislative arena. Just how constitutional it is will have to be decided when there’s a challenge brought to that law. Although the average bet is that the laws are upheld. That’s not to say that if they dropped a particular draconian one, I think that if it was just standing on a blank slate, Google or Apple, in this particular case Apple but Google soon given the way it’s being marketed as you pointed out earlier, they have every right to do whatever they want to their own device. It’s their own property. They can send it out to the world however they want. But the argument will be put forward that these things, a lot of the data goes over public networks or lines, that once in the public there is some public right to know. The law can get a little bit murky and the idea that it’s just Apple’s property or Google’s property, or the individual’s property can get challenged with the way the packets get sent hither and yon. So I think there are weaknesses there and I think that the way you introduce this segment by referring to an earlier conversation about how the market at play here is kind of odd. I think you have to think that they reasoned with the marketers before they reasoned with the people who were thinking about the long-term stability of U.S. law enforcement. Which is unsurprising.
Denise: Ben, do you think this is bad or potentially dangerous?
Ben: I mean good and potentially dangerous is a harder question than I want to answer right now.
Denise: Maybe it’s a little bit of both.
Ben: It’s a little bit of both. It’s like any fifth amendment, you always get the horrible case situations that you can, oh if only the policy could have done that and found out. It’s always children, to save children. And then on the other hand, I would like to be able to walk down the street; I am used to the civil liberties as a citizen of the United States, I am used to certain civil liberties. And I feel invaded when those are trampled. So there’s a balancing act. Just two quick… one point and one question. Android, there was just an announcement in the past day or two that the next version of Android is going to do the same thing. So it is now Google and iOS, they’re both doing it. And wasn’t there a situation like two years ago when it came up that the courts forced you to give up your password? I don’t know necessarily how that would play in in terms of Fifth Amendment concerns. If you can’t obtain the data without a warrant, look straight. And now with presumably with a warrant or some sort of traditional intervention or decision-making, they can force you to give up your password. I think that sort of obviates the concern. I think what’s really happening here is both Google and Apple are off-loading the responsibility. They’re saying we no longer want to be the good guys or the bad guys. We’re going to give you the ability to protect your own data. And if you don’t like what the government is doing, that’s between you and the government. I also think there’s still the open question that even though the phones themselves are encrypted, the cloud backups of those are still… if they are encrypted they’re still under control of the parent company. Unless iCloud gives you a password and Google doesn’t have that ability; I’m sorry, Apple doesn’t have that ability to…
Denise: I think that’s what Apple’s claiming.
Ben: Even in the cloud?
Denise: I think yes. And here’s the open message from Tim Cook: security and privacy, this is reading from it, security and privacy are fundamental to the design of all our hardware, software, and services, including iCloud. And new services like Apple Pay. So he’s definitely lumping it in with this message that we’re going to secure your data and then there are some detailed sites to go to from there at the end of his open letter. Correct me if I’m wrong chat room or anyone else, but I am assuming that Apple is trying to put the hones as you were suggesting Ben, that they want to get out from being in the evidence providing business. That they want to make that relationship direct between law enforcement and their customers. Which does get us into the okay, under what circumstances can the government force you to turn over your decryption key. And we have a bit of a split on that in the U.S. don’t we, Colin?
Colin: I believe we do although I’ll admit that I haven’t studied that case recently. But what it comes down to is you can be held in contempt for not doing it, for not providing the password if you’ve been ordered to do so. But the government isn’t actually going to be able to force you to do it. I think Ben raises, I mean physically force you to do it. They don’t have that level; violence has not been authorized, thank goodness. I think Ben raises a really good point and you echoed it first, just trying to get out of the business and leave it between law enforcement and the citizens directly. But second, when he was referring to the two competing scenarios, the ticking time bomb scenario where you have to get into a phone to stop a bomb that’s going to blow up some innocence. Or as he said, children. And then on the other hand, what the government often normally does, or often depending on how you view government, spying on people that they shouldn’t be spying on at all. In some ways, it comes down to what your presumption is. If you have a rosy view of what government does and you think generally they’re in the business of stopping the ticking time bombs; or if you have a my cynical view and think they’re more interested in snooping for reasons that are dubious at best. And there I tend to fall on the side of dubious at best which is why after this discussion I’ll go back to thinking this is probably a good move like I said. Right from the beginning, I admitted I was conflicted so I had to go around the merry go round on that one.
Denise: That’s great. Do you think it makes a difference, Colin, what technology is being used to encrypt the data that law enforcement wants to get at? And I’m specifically thinking of a passcode versus some sort of biometric.
Colin: I think it would make a difference on the ground, right? If there’s a biometric, the case law’s pretty clear and there’s another case that’s probably heading up to the Supreme Court now. That you can take DNA, for example two terms ago Maryland versus King, you can just pawn being arrested. The take can take your DNA from the inside of your Jeep with the buckle swabs and throw it in a database to see if you’ve committed any other crimes. The way that opinion was written, unlike Riley which was the cell phone warrant case, Riley was a 9-0 case. Maryland versus King was a 5-4, much more contentious. Just as Skilea wrote the decent in that case, and as he very correctly pointed out the line that they attempted to draw in Maryland versus King; it was about an arrest for something serious, that line isn’t going to hold up at all. So what that means is that really there’s no decent constitutional barrier in place right now for the police on any kind of suspicion that all taking somebody’s DNA. If they take the DNA and can use that to gain access biometrically, it’s quite different than a passcode. I think practically it would make a big difference. Similarly, I think it wouldn’t let you torture somebody to get their password, but there probably wouldn’t be a lot of barriers in place for forcing them to put their finger on the screen to unlock it. There are plenty of legal challenges but I suspect that once they got whatever they want inside the phone by forcing to put their fingerprint there, once they got it and that came out and they saved the baby or stopped the ticking time bomb, the courts would somehow find a way to justify it.
Denise: Saving children always comes up. Can I ask you from your lens of spending a lot of time considering wrongful convictions and what sort of evidence makes good evidence; do you think this kind of development will contribute to the wrongful conviction problem? Because it’s going to be harder for law enforcement to get the evidence that they think might prove or disprove?
Colin: The Fourth Amendment falls into a funny place in wrongful conviction law. Generally speaking when you look at the causes of wrongful conviction, the big ones are eyewitness misidentification which definitely doesn’t come under the Fourth Amendment. Really junky forensic science, which really doesn’t come under the Fourth Amendment. And police misconduct which generally speaking doesn’t come under the Fourth Amendment. The great irony of the Fourth Amendment is that it’s there to protect people that aren’t engaged in criminal activity. However in order for those protections to be there, you have to protect people that are engaged in criminal activity. Just by its very nature, you’re not going to have a challenge to evidence being gathered by the police being challenged under Fourth Amendment grounds; that they should have gotten a warrant or they shouldn’t have gotten it at all unless it’s somehow incriminating. So most of the Fourth Amendment cases that go all the way up to the Supreme Court generally involve people who have evidence of guilt that’s been found by violating the Fourth Amendment. And the question is given the police didn’t know that’s what it was going to show ahead of time, should they have been allowed to do it in the first place? And the interest at heart is thinking about well what if it was actually an innocent person. Do you see what I’m saying? I tend not to think that this kind of warrantless activity, the main problem is that it’s going to lead to more wrongful convictions. The main problem is that it leads to erosion of civil liberties. What we need to do to correct wrongful convictions is another conversation. It’s one I’m really willing and happy to have. I just don’t think it’s going to turn around saying strengthening the Fourth Amendment will stop wrongful convictions or seriously slow them down. Except in the extent that it tells police that they have to follow the rules. If you have a strong Fourth Amendment, it tells police that they have to follow the rules. Generally speaking, that translates to less wrongful convictions because when you see police or prosecutors violating the rules or acting as if they are the law and to themselves, a lot of times you do have the wrongful convictions that follow. At a cultural level it makes sense. But analytically the Fourth Amendment and wrongful convictions to me don’t go together except in the false confession arena. And again that’s more fifth amendment.
Denise: Okay, hey before we leave this topic of whether you can NSA-proof your phone entirely, I wanted to highlight an email we got after episode 257 with Bruce Schneier. Bruce was skeptical when I asked him whether you could really accomplish what iDrive was claiming on its billboard to be NSA-proof. His quote was it would be the first company in the history of mankind if there were no laws in their security to really be able to make it NSA-proof. Our listener/viewer Obby Becker took issue with that and sent me a long email about his take on encryption techniques and thought that if someone really were to think about it and do it right, you could make a product that was NSA-proof. So I’m not going to go into too much detail; it was a very lengthy email, but his point was just to push back on that notion that it couldn’t be done. And also to highlight episode 448 of Security Now where Steve Gibson talked a lot about Apple’s keychain cloud storage system and having two different encryption systems. One used for everything and very strong. And the second encryption system that according to Obby does not seem to have any purpose and is clearly weak. So I’m not quite sure what the point is there, but he does think that you could do it if you wanted to. And it seems that Apple and Google want to do it. So we’ll have to see exactly how this all plays out. And I think we’ll put our first MCLE passphrase into the show and make it NSA-proof in honor of this discussion. If you are a lawyer or another professional who is listening to the show and desires of getting professional continuing legal or other education credit, we have some information for you over at our Wiki at wiki.twit.tv. And we put these passphrases into the show in case you have to demonstrate to your oversight body that you did in fact listen or watch the show. If you’re doing that, we thank you. We think it’s a good idea; we think we have all kinds of educational material and wonderful folks like professor Starger joining us today. Right now I’d like to take a break and thank our sponsor for this episode of This Week in Law. And that is Personal Capital. Personal Capital is a free and secure tool that solves two barriers to grow your wealth. The first barrier is that it’s hard to keep track of stocks, 401Ks, bank accounts, etc. They’re all on different sites. They have different usernames and passwords. The second is that you pay someone to manage your money and you’re probably paying too much. Personal Capital brings all your accounts and assets on a single screen on your computer, phone, and tablet with real-time and intuitive graphs. 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But a little sideways to it; certainly still in the constitutional arena. There was an interesting article again by Orin Kerr, who we mentioned before in the Washington Post. Concerning the Silk Road prosecution and the data that is being used there. And how it was obtained; this is a particular interest to Orin Kerr because he represented Weev. I’m forgetting his actual name, Weev, in a similar case involving something that was left openly available on the web. A security hole that was not closed that was exploited to find information. Weev was prosecuted for it, here the FBI has defended using research tactics like this, evidence-gathering tactics like this. In order to prosecute Ross Ulbricht for the Silk Road activities. So what Orin Kerr’s point is, is that it’s quite interesting for the Department of Justice on the one hand to say there was nothing constitutionally violative about what we did. We found this IP address that was leaking from the site due to a misconfiguration. And anybody could have found it and we just gathered whatever information we could from the web. Which is precisely the argument that was disserted on Weev’s behalf in his case. His case wound up falling not convicting him on completely other grounds. I think it was a venue-related issue; a totally procedural issue that didn’t get to the heart of the computer fraud and abuse act which is ultimately what Weev was accused of violating. So I thought this was a pretty interesting juxed position. I don’t know if it’s more of a thought experiment but do you think DOJ, Colin, has sort of tied one hand behind their back if they once again want to try to prosecute someone under the CFAA for happening upon information that was not adequately secured?
Colin: I think they have tied it a little bit. This is what started out, in Orin’s article, starts out like a thought experiment. And you’ve raised exactly the right question. It’s not about what happened in the Silk Road prosecution and can they do that, although we should get into that a little bit. But it’s more about what does this say going forward? In a way this is a classic argument from hypocrisy. You can’t say A and then do not A later. The question is well when you resolve the hypocrisy you can choose one side or the other. You can say that Weev’s actions were perfectly fine under the analysis they’re giving in the present Silk Road case. Or you can say that neither Weev’s actions were fine nor are the Silk Road’s actions fine. However taking the side of law enforcement just for a second which is not something I instinctively do, they will point to two things. Orin points to one of them. The CFAA specifically has a law enforcement section so if you are doing things that would otherwise violate the CFAA in pursuance of a lawful investigation, you’re off the hook. So they could point to that. As Orin points out in his article, they didn’t actually do that here. But they didn’t need to. The second thing they would say is listen law enforcement breaks the law all the time in order to catch law breakers. You wouldn’t say that police can’t speed to catch speeders. So why can’t they sort of hack about to catch hackers is the argument in a nutshell. I’m not entirely convinced that in this case that their position which isn’t articulated as well as Orin did, or you did, or even I did, in their briefing wouldn’t have some consequences going forward. They seem to suggest that publicly available data, if you just sleuth about, it’s not hacking. Sleuthing is not violating the CFAA. You’re just looking at what’s there. I do think at least a creative criminal defense lawyer faced with a prosecution of his/her client under the CFAA in the future, should at least try to raise this. I would have no doubt that the criminal authorities would immediately point to the law enforcement exception in there. But it raises the general question about government law breaking or government reckless activity. In his classic decent many years ago before wiretapping was illegal, the Olmsted case just as Brandise said that government should set an example. They shouldn’t violate the law not just because it’s against the law because what example does that send? While perhaps we should tolerate it while some policemen drive 75 miles per hour to catch a 70 mile per hour speeder, they shouldn’t drive so recklessly as to put other people in danger. The analogy isn’t perfect here but I do think it raises some deeper issues that we should think about.
Ben: I think the question is made a little subtle only because the actual CFAA violation or the actions by the Federal government in sleuthing, which I think that’s an awesome distinction. I’m going to adopt that, the sleuthing versus hacking. I think the sleuthing they did would have been a violation if done by a civilian to another website under the CFAA only under a very expansive reading of the CFAA. In other words, the government took information that was leaking publicly, it wasn’t that they hacked in, it was some sort of information that was around the edges of the protected information. But it was clearly intended by the Silk Road to be secret and they capitalized on that information. That action of capitalizing on public information that was intended to be secret, that is in the CFAA and I’m not sure if it’s in the stature or only by traditional interpretation. But it’s a very subtle question because it’s not so clear on a close-textual reading of the CFAA what they did would not have been over the line. What the government did would not have been over the line, except for this was intended to be private exception. And that makes the question a lot closer because it’s much more about what the Silk Road was putting out there. And I think you correctly hit it in the discussion we just had. Questions like this always come up in the context of bad guys but they’re really meant to protect good guys, that’s a reciprocation. And that’s a similar problem here; I’m a brown-coat at heart. I don’t think Silk Road is a bad guy. Little bit further, but on the assumption that the legal assumption will have is that the Silk Road is a bad actor of some sort. And you’re faced with this problem where the government engaged in a behavior that was arguably not over even the line set by the CFAA. And then of course there’s the fact that the CFAA itself has exceptions for law enforcements. So it’s a tighter question than I think we can give it credit for.
Denise: The problem though is that CFAA and again, Colin would be more versed on this than I am, seems to have a history or rather a notorious reputation of being expansively read by prosecutors to terribly dire effect. So that for the Department of Justice to take the stance of doing something akin to what they did here was not… and again they did not bring up the CFAA I think in their briefing. They were all about the Fourth Amendment and whether they were acting constitutionally. But I think the issue is a prosecutor might read this entirely differently than Orin Kerr would. Do you concur, Colin?
Colin: Absolutely and there’s no doubt in my mind that this story, we’re even discussing this story, because Orin made a connection that he could because he defended Weev. Because the government in the Silk Road case said our actions are entirely lawful. And Orin said to himself well that’s not the position at all you took in my case. But I don’t know if it makes sense to go to one of the other cases that you have put in the potential rundown because it just reminds me of it.
Denise: Sure, what’s it remind you of?
Colin: The anti-shredding case. The Sarbanes-Oxley prosecution.
Denise: I wasn’t sure where we were going to fit that in. The preservation of fish, it’s very important to talk about.
Colin: It’s prosecutors gone wild. It’s this exact phenomenon. Prosecutors very aggressively reading a statute if not incredibly creatively to find some room to prosecute. And this story, the Sarbanes-Oxley, the basic outlines of which involved a guy that was fishing. And he got a number, I think 72 fish that he wasn’t allowed to catch because of the particular fishing regulations. And the fishing wildlife service said we’re going to write you a ticket. Forgive me if I’m messing the facts up a little bit, but basically they said that we’ll write it to you back at the port. And when they arrived back at the port, he only had 69 fish instead of 72. And they said you’ve destroyed some of the evidence. And a prosecution was actually brought against him under the Sarbanes-Oxley act which is generally reserved for as the article that you have on the screen right now, for cases of massive financial misconduct by institutions like Enron. And this is the so-called anti-shredding provision that our man with the fish or the two fish missing was prosecuted under. And what happened was that one of the lines of the particular section of the Sarbanes-Oxley act prohibits destroying among other things any tangible object. And I have no idea how this brilliantly creative and yet aggressively wild prosecutor thought, hey I’m going to get this fish guy under the Sarbanes-Oxley act. And he read it and he said…
Denise: It’s not the first thing that comes to mind.
Colin: No, again I don’t know if he happened to have been doing a Sarbanes-Oxley prosecution the week before. It seems highly unlikely.
Ben: It’s a CLA class and some speaker in the CLA class said you can even use it for any kind of evidence! And he just wrote that down in a little book and he was waiting for that.
Colin: Yea, and if you’re an absolute literalist, he has a fantastic argument. And so for, that prosecution has withstood scrutiny from the court. But if you think the intent of Congress matters even just a little bit, then it seems completely wild that this guy should be prosecuted under this statute. But prosecutors have a huge amount of power. That’s something that I see all the time in my wrongful convictions work. And when prosecutors act well, it’s incredible how much easier things can go. I just had a case out of Dallas, Texas where I work as a special assistant to the Dallas, Texas conviction integrity unit. And that case went swimmingly because we had the prosecution or rather the cooperation of the prosecutors. But when prosecutors dig in their heels or come up with these aggressive theories, it’s hard to stop them.
Denise: So is anyone else just stunned that this is actually going to be heard by the Supreme Court?
Colin: Is it going all the way to the Supremes?
Denise: I think so. I think that’s how it… on my radar. Let me fact-check that.
Ben: In this article, he’s got the Court capitalized. Here’s the question, we took out the Sarbanes-Oxley component which is generally thought of as connecting with financial crimes and Enron, things like that; I hate to come down on the fish guy, but there was some sort of destruction of evidence. Whether or not I think it falls under that particular umbrella of Sarb-Ox is a different question if that’s the way to go about it. But there was arguably evidence being destroyed and some sort of wrong-doing. I don’t know that under Sarb-Ox increases the downside, and I think that’s the issue. I think it’s the downside of anti-shredding under Sarbanes-Oxley is worse, then there’s your problem. There was however some sort of evidence destruction which is a problem with criminal convicts. My tendencies aside, there are reasons for enforcement of laws.
Denise: Talk amongst yourselves for a second; I’m still fact-checking if this particular cert-petition which was filed got granted.
Colin: I think the article is about the cert-petition being filed so I don’t know. It still could be granted but I don’t think it has yet.
Denise: Okay, let’s see. I have overview of the U.S. Supreme Court’s October 2014 term. Let’s see if it shows up as something.
Ben: Colin, I just want to know where on the map fish law is going to go. You going to have a whole new branch of fish laws.
Colin: Yea, we’ll call it a new current of Supreme Court doctrine.
Ben: Oh, please. Please, really?
Colin: You’re embarrassed to be on the same show with me right now.
Ben: I’m trying to think of a clever fish pun and I’m not coming up with it. Which is disappointing to me and every one of my friends is eventually going to watch this.
Denise: I found an article by Elizabeth Slattery at Heritage and she is saying that this is part of the 2014 term. She says anyone who uses Facebook, pays taxes, enjoys fishing, drives a car, or uses railroads should take note of the upcoming Supreme Court term. The Justices will review cases touching on these and other important issues during the Court’s term beginning on October 6, 2014. So it appears to have been granted. We will hear more on fish.
Denise: I will add this to our discussion points at delicious.com/thisweekinlaw/276 where you can read Elizabeth’s rundown on all those interesting cases coming before the Court. And everything else we’ve touched on and will touch on in the show today. One other privacy-related story that I just wanted to mention: largely because it gives me the opportunity to use another good MCLE passphrase when we’re done discussing it. But it’s interesting too, it’s in California we have a law that will become law if the governor does not take any action to veto it very soon here. It will come into effect January of next year; and its acronym is SOPIPA. So apparently the California law makers have no fear of unpopular Federal legislation that didn’t pass. This is the Student Online Personal Information Protection Act and its purpose is to reign in what can be done with data about students as more and more technology is used in schools. So this would extend to any and all databases that schools maintain on things like behavior, things like email, any sort of student data would get protection under this new California law. California as we’ve discussed on this show before tends to have pretty extensive privacy-based laws. Personal privacy-based laws. This looks to be another one joining the phrase, SOPIPA will be our second MCLE passphrase. Any thoughts on this, Colin?
Colin: You know I think it’s great to see the challenge of dealing with big data taken up straightforwardly as the California legislature has done. You’re much more familiar on what happens out there and the trend so I can’t fit it into a bigger picture. And it’s no accident that we’re seeing it start in this kind of more comprehensive way with children because they’re among the most vulnerable and the ones where people can easily think of scenarios where it will be misused. Overly aggressive tracking or health-kind of issues. The only place where I think it might backfire, and here I’m being completely sarcastic, it might somehow help people from not vaccinating their children around Hollywood. But as perhaps I shouldn’t have even said that.
Denise: That’s okay. Those are some of the best moments of the show. Any thoughts, Ben before we move on?
Ben: I think the unfortunate acronym is the biggest problem with this. And how it’s tied into the various SATO and other legislation or legislative pushes. This is not tremendously controversial; don’t give away children’s information, don’t make it marketable. It’s going to face the same sort of problems technically that a lot of legislation in this field comes up against which is how are you going to technically make that happen. If you’re a provider of a certain service and that service is provided not only to schools but also to the general public, now you have to basically flag each account and say this one is a child in a school and this one’s not. And it just doubles the work. It doubles the regulatory compliance you have to engage in. That said, that’s where I think the friction is at; you have technical problems complying with this law. The law itself doesn’t seem that tremendously horrible.
Denise: Right, people like Google who are offering a specific product for educational purposes, they might have an easier time complying. Although they’ve certainly tripped over themselves with their email product for schools already. That may be part of why we’re seeing this kind of legislation in the first place. There’s also a companion piece of legislation that I haven’t looked at very closely that deals with the vendors themselves. If you are selling to schools, what sort of steps you have to take. We’ll probably see more shake out on this early next year when as you say, Ben, people who offer services that schools are using; and of course often times the software vendor doesn’t have any control over who its customers are. What are they going to do, right? This could be a bad outcome of this kind of legislation. They might just have to write into their terms of service that this piece of software isn’t for educational use. Because we don’t want to have to deal with the headaches and problems of maintaining the data like we’ve seen so many services who won’t even touch children under 13 because of the requirements of COPA. Do you think that that could happen as an unintended consequence of this, Colin?
Colin: I’m going to leave this one to you and Ben. You have a much better handle on it than I do, to be honest.
Denise: Aright, so that’s my hesitation. I don’t know if Professor Eric Goldman has written on this yet. But I know he will have good thoughts on this as soon as I figure out what they are. Let’s move on to Hollywood and the entertainment arena. Alright, apologies to you both if you’re not as interested in this story as I am. We touched on it briefly last week while it was still in the rumor stage that Mojang was going to get purchased by Microsoft. That purchase has since happened. $2.5B later. And tiny little but very popular juggernaut game company purchased by juggernaut Microsoft. So my fear in why it came up last week is the different take on uses of the intellectual property that a small independent game developer like Mojang might have versus Microsoft. And Microsoft has made several noises that are encouraging but certainly don’t take into account or address the whole world of wild and wholly intellectual property use unlicensed specifically that makes Mind Craft what it is. For those of you who don’t play Mind Craft or don’t have children who play Mind Craft, it is a very enjoyable game that standalone, you can get a lot out of. But the reason that it is the powerhouse that it is, the reason that it’s getting purchased for $2.5B is because of the very open approach towards intellectual property use that Mojang has taken. And has allowed so many different types of things to be done with the game. Anything you can imagine exists in Mind Craft including all manners of unauthorized trademarks, storylines, you name it. It’s an IP lawyer’s, certainly an IP professor’s fantasy exam question. So we still don’t know what will become of that. Microsoft has definitely made noises about how, despite the fact that it’s already an Xbox game and it will continue to be, that they will continue to make it available on other platforms as well. Which is a nice twist for Microsoft. So I just wanted to toss it out there. Again, if this isn’t anyone else’s cup of tea, we can move on to other things. Ben, do you find this interesting at all?
Ben: The only comment I think I have to add is, I think if you remember two years ago when Yahoo bought Tumblr? There was a concern then, the concern was I have pushed sharing content with Mind Craft but there is a society, there is a whole atmosphere. There is a whole gestalt that exists in Mind Craft; I am not personally concerned but I can understand the concern of somebody that lives in that world to know that Microsoft is going to come in and stomp on that. And as long as Microsoft respects that biosphere, that ecology that has developed there and leaves it alone, then I think everyone’s happy. Microsoft is happy because it is actually going to get what it bought. And the Mind Craft world will be happy because it will be left alone. If Microsoft takes over and sends in its lawyers and starts to whatever you do, driving-flying, whatever you do around Mind Craft, pointing to things mainly, that’s a problem, that’s a problem; then it is to be hoped that another Mind Craft will spring up somewhere. But this one will be crushed. And then Microsoft will lose out because it will lose what it was purchasing. I don’t think they’ll care; I think they’re worried about being sued.
Denise: The problem is that Microsoft can have the best of intentions of maintaining this ecosystem that has thrived and sprung out and put out so many thousands of tendrils; but Microsoft makes a far more attractive target for litigation than Mojang did. --
Denise: And so in order to just put up a shield around themselves, they may feel compelled to do something about worlds based on Harry Potter and Spongebob and other people's game technology -- what am I thinking of? There's, I think, just a plethora of Call of Duty servers in MineCraft.
Denise: Just -- you name it; it's there. So Colin, do you think that they will have to be the bad guy on the IP front simply in self-defense?
Colin: Yeah. Well, there's nobody that has deeper pockets than Microsoft, or very few people. So I imagine there are some lawyers who are already licking their chops thinking, Okay, this is a pretty good target now. And although we might instinctively think, Okay, Microsoft -- they're going to be the ones that kill awesome; maybe somebody else is going to try and kill awesome, and Microsoft has to play defense. So you're certainly better suited to discuss the IP issues than I am; but it does strike me that the game changes when the deep pocket at the other end is Microsoft as opposed to a small little Swedish company.
Colin: On a totally separate side note, I am somewhat familiar with the game because I have a nine-year-old child. And on an aesthetic note, I just love the fact how well this thing has done. It shows that you don't need those high-faluting graphics to have a compelling game. (Laughs)
Colin: I've always thought that from way back when. It was all about how interesting the interface was, not just how sexy the graphics were, and this stands as living proof of that. So I'm happy for the company; I think they've got a great game.
Denise: Yeah, me too. And they've been touting -- the nine-year-old sweet spot is definitely there, and they've been touting the educational benefits of the game and the fact that we're getting back to what software is used in schools. I have definitely read reports of Minecraft being used in schools as sort of an analytic tool, and Microsoft loves the fact that kids like it and the parents like it because it's an iterative, imaginative create kind of space. So again, it's just a question of how well they'll be able to preserve the universe that exists now, which has a very hands-off approach to taking any steps to quelch users' desire to use other people's intellectual property in the game. Anybody interested in the fact -- again, this is one we can skip if it's just not fascinating to either or both of you; but I do think it's worth noting -- it will be important to lots of people globally -- that there has been -- again, this is just sort of a tacit thing that has happened, and enforcement has been possible and not really cracked down on -- that NetFlix, the U.S. version of NetFlix, is only supposed to be available to persons with a U.S. IP address. That is very easily circumventable with a VPN, and there are -- I don't know the numbers, but thousands of people around the world exploit that loophole daily. The entertainment industry has now told NetFlix, We're going to put a stop to that. They want to ban VPN services that allow access to NetFlix, and they're somehow -- I mean, they call it piracy when you're accessing from an unauthorized IP address. Okay. I kind of get where you're going for there, just like it's piracy to have a movie that plays on your different region DVD player. All of the various ways that the entertainment industry tries to window and segment off who can see what when. This seems to be just a species of that. Was this just inevitable, do you think, Ben, that the entertainment industry would finally come in and say, Sorry, got to do something about the VPNs?
Ben: I mean, I think -- I should expose a personal interest here, is that I have VPNED my way to a lot of BBC Dr. Who stuff that's not available in the United States.
Denise: (Laughs) Yeah.
Ben: So I -- if the BBC's listening, it wasn't me. Pay no attention.
Denise and Colin: (Laugh)
Ben: These are not the droids you're looking for.
Ben: But -- so I think you're use of the word "inevitable" is probably the right one. This was a problem. The copyright holders, the entertainment industry -- and I don't want to come off as totally against copyright holders. A lot of my clients are copyright holders; a lot of us on this conversation are copyright holders. They want to control and protect their interests, and there's nothing wrong with that. And they want to limit what they make available and where they make it available -- also nothing wrong with that. This seems a little bit heavy-handed. It seems a little bit oppressive; but it's not unexpected. I mean, once it became a sufficiently widespread activity to pretend you were in New York whenever you were in Australia, then someone who wanted to control that, someone who wanted to say, Okay. I only want it in New York and not in Australia; they're going to come in and say, We need a way to stop this. They're approaching it by going to the major legal providers. I think that's actually good because the existence of Hulu, the existence of NetFlix, the existence of legal options to otherwise illegal and ethically questionable activities -- streaming, downloading, illegal downloading, things like that -- personally, I think as a matter of sort of policy, I want to encourage them. I want to encourage those options. And so going to them and saying, Look, this is the deal. We'd like you to help us stop this, instead of turning around and, let's say, suing NetFlix because they're making something available overseas. Or instead of chasing down the individual end users, which is -- see the RIAA cases and that nightmare.
Ben: I think it's the better way to go about it. Technically, I don't know how it's going to work. I mean, right now, they can spot a VPN IP address; but at some point, someone more clever than I is going to come with a mechanism by which you can adequately mask that without choking the onion routers or something so that it will be technically more difficult. But that's just the sort of traditional Whack a Mole game that any content provider has to eventually play.
Denise: Right. And this comes down to sort of jockeying between NetFlix and the entertainment industry as to how much assistance NetFlix is going to give them and how much credence NetFlix will give the idea that VPNs equal bad and/or illegal conduct. Of course, there are all kinds of perfectly valid ways you can use VPN, and businesses do it all the time.
Denise: And lots of individuals do it all the time for perfectly legal and valid reasons. So to get a company of the scope and reach of NetFlix to buy into the fact that we're going to block VPN access to the service is sort of a staggering idea. Colin, any thoughts on this?
Colin: I think this was inevitable. Ben used the term "Whack a Mole"; we could say cat and mouse. This seems just part of the game that goes on between folks that try to -- I don't think anybody's arguing that folks that are using the VPN improperly who wouldn't otherwise subscribe to Netflix have a right to that; but that doesn't mean that people aren't going to try and have a lot of fun trying to evade that. I'm not sure I agree with what I heard you say, that you think this is going to sort of spell bad news for VPNs generally. It seems pretty connected to the content that's being delivered. I don't know, though.
Denise: Right. I don't think it would do away with VPNs; sorry if that's how that came across. But I do think that there's almost sort of a -- how do I phrase this? It's perhaps overreaching by a private company to say, You may access our service if we can adequately identify your IP address and where it is emanating from. I mean, I suppose private companies can make that kind of decision, just like private companies can make the decision to plant an album on -- (Laughs)
Denise: Again, I don't know how many people were impacted. I was not personally, and I'm mystified as to why I was not because I actually checked, and I have automatic downloads selected in iTunes and I have a whole plethora of i-devices. But I did not wind up with the U2 album. I don't know what fortuitously let me off the hook there. But I do think that this is a fascinating development because of the way that it -- of course there was nothing illegal about what Apple did here. And if you read the terms of service in great microscopic detail and had the time to go through however -- 40 or 50 pages of very small text it would take to do that, I'm sure that Apple and U2 didn't do anything that could be a legal issue for them. But people were so taken aback by having something they did not ask for show up on their device that Professor James Grimmelmann, wonderful, wonderful thinker and writer, took the time to weigh in on it and say, You've really got to think about this because people's expectations of how a service is going to work are going to be jarred. And it becomes sort of a pseudo-contractual thing, what you can do, what you can do to people's devices without their consent. The whole story reminds me, and has reminded a lot of journalists, of the disappearance of 1984 from Kindles that happened last year or the year before. So this, I thought, was fairly interesting, certainly topical this week. Ben?
Ben: I mean, I don't have -- well, actually, I just want to really quickly go back to VPNs. There are a lot of good users for VPNs that are not about faking where you are or somehow tricking people. I just want to make it clear that I don't think that all VPN usage is for some sort of nefarious purpose. That said, I don't have a lot to add to what you just said and the Labritorium article. I think they both speak to something slightly broader, which is that we as consumers of Internet services, whatever that is, we have a conception of how things work. And when the facts sort of bump into that conception, that's when we -- I'm saying we, but -- when I -- you know, I am bothered, and I don't know exactly what's bothering me. I didn't get the U2 album; I have an Android device.
Ben: I feel like I'm very privileged. I almost feel -- as many Android device users will -- like, we have a sort of constant feeling of, Well, we're better than you.
Ben: But we're sheep not for being sheep. Separate discussion.
Ben: But this actually -- your segue was perfect because it dovetails very nicely with the VPN thing. We think we're getting a service and we use the magical intertubes and we get to that service; and we want it to be neutral. We want net neutrality because that's the way we think of it, and we want it to be not entirely caring about where the origin point of my computer is because that's sort of what VPNs do at some level. They make your computer think that my computer is somewhere else. And we want our stuff to be left alone, and those are all sort of social conceptions that we have built up, social constructions that we've built; and when they get violated, it's very troublesome to us.
Denise: Yeah. It's something that businesses have to remind themselves all the time of, even if it's not -- it's more an ethical and public relations and user experience issue than it might be a legal one. Although, if you've got enough lawyers in a room, you could start to have a discussion about when somebody's messing with your device, there are ways to go after them legally. I don't know that this would rise to that. But even here at This Week in Law, we had our own U2 moment with our very first episode of the show; and we didn't even realize, we just sort of backed into it; and maybe that's what happened to Apple here. TWIT, our flagship show on the TWIT network -- This Week in Tech -- was dark that week, the week that we recorded the first episode of This Week in Law; and so we all decided, Hey, no one's going to get TWIT in their RSS feed. Thousands and thousands of people subscribe to TWIT. No one's going to get it this week. Let's give them This Week in Law.
Denise: So we did. (Laughs) And it upended lots of people's expectations. What the heck is this? We've never heard of this. I think we were fighting back from the backlash of, Oh, I've heard this show. It came to me instead of TWIT -- (Laughs) -- for weeks, if not months, after that. So I mean, I think that people just stumble and move on, and maybe that's what happened with Apple here. And it bears reminding that upending users' expectations is one of the worst things you can do as a business. Colin, anything to wrap this up?
Colin: Let's not let Bono, or Bonehead-o, off the hook here, either.
Colin: I mean, I think he should have been -- the whole band should have been thinking a little bit better. And I think the expectations point is a good one to end on. People think they're being creative; they think they're being innovative; and to the user, it feels just creepy. And maybe creepy's not illegal, but it's just not smart to do. You don't want your sort of devices anticipating too many of your moves, though you like it if they anticipate some.
Denise: Right. Hey, we have another story where we can talk about expectations and things that feel creepy or illegal but may not be. And this one involves Yelp and a pretty significant Ninth Circuit decision. Let me pull it up. I have not committed the name of the case to memory yet. And it came out a few weeks ago; we've been waiting to talk about it. But the crux of the decision were various businesses -- I think there were perhaps several plaintiffs. And they were put off by the fact that Yelp wanted them to advertise on the Yelp site and came to them and said, We can do some things to help you if you advertise with us. We can surface positive reviews, order negative reviews in a way that they have less impact, etc. If you don't advertise with us, then perhaps you're not going to get that kind of treatment. So they were sued for various claims, some of which are still pending, including false advertising and security fraud; but the one that Yelp won a big victory on was extortion. The plaintiffs maybe overreached and said, we had to pay this money, or they were going to kill our business. And it's a testament to how important Yelp has become to driving business to all kinds of industries. But the extortion claim got knocked out by the Ninth Circuit. And it's notable that there was also a section 230 discussion in the trial court. This is the provision that insulates companies like Yelp from being illegal, some of the illegal actions of their users. The trial court thought that that was an important thing to consider here; the district court did -- I'm sorry, the appellate court did not at all and simply just threw out the extortion claim and found that that was not going to fly. So it's given some security to businesses like Yelp that, while they still have to engage in fair business practices and may have other ways that they can be liable for manipulating what they do to people who are featured on their site, that extortion is going to be hard to find. So Ben, do you have anything to add to this?
Ben: You got an awful nice podcast here, Denise. It would be a shame if something happened to it, like a [unintelligible].
Ben: I think that would be terrible. I think that's
Denise: Did I mention that Ben's in New Jersey? (Laughs)
Ben: That's right. Exactly.
Ben: Now everything goes black.
Ben: But I mean, it seems that -- I am of two minds. Yelp is a business; Yelp is doing what -- Yelp is not doing anything that it did not say it was going to be doing. Yelp is very open and says, These are the reviews. There is a concern because I don't think Yelp makes it clear to the end client, to the users of Yelp, that we -- that Yelp -- will up-vote or down-vote, to use the wrong language; but will move around the reviews. I go to Yelp, I assume I'm getting a fair representation.
Denise: "Host and sequence" the reviews is the language the court uses. So of course, hosting them --
Ben: I'm sorry. What'd you say?
Denise: Hosting and sequencing them. So the opportunity on Yelp's part both to make something available on its site at all, and then how are you going to present it on the site? Hosting and sequencing is what --
Ben: Hosting and sequencing.
Denise: Yes. What the court said they have
Ben: Well, I think -- I mean, if there's nothing clearly available as an end user, I don't know that Yelp is doing the hosting and sequencing decision-making. My assumption -- and it's an assumption, and I'm just an end user; I'm not -- I have no privity in here, in this situation. But my assumption is that Yelp is posting reviews sort of neutrally; and that is, I think, as you correctly say, that's an assumption, and that's an expectation that I have as an end user; but that's nowhere in the contract; it's nowhere in the rules. This tension as to what a private company can do and how it plays with the expectations is a theme. In this case, I think, at the end of the article that you posted, that you linked to, there's a mention of an FTC complaint from end users. I think that's where, if something happens to fix this -- which I perceive as a problem -- if something happens to fix this problem, it's going to happen on that side. And at some level, Yelp and companies like that are -- I don't want to say deceiving, but they're creating some sort of confusion on the consumer's side as to the unbiased nature of the reviews, as to the neutrality of the reviews. I know that in the search engine world -- so search engines have sponsored links and organic links; and there are constant [unintelligible], constant tension, and constant sort of battles over exactly where the line is drawn in terms of identifying what is a sponsored link and what's not, what the color has to be, what -- does it have to be a line? Does it have to be a different color of link? Does it have to be a different style of link? Is it a safe sponsored ad or not? That's the direction I haven't seen this conflict going in general.
Ben: I don't necessarily know that throwing the extortion claim out completely was the right decision; but I am not on the Circuit Court, and no one has called me yet.
Denise: (Laughs) All right. Well, and I made you put your phone away before the show, so you're going to have to check when we're all done.
Ben: That's right. (Laughs) You never know. Depends on who's watching the podcast.
Denise: Yeah. I think that's a really good insight in that there are very strong parallels between search results, which is how people used to find businesses and decide who was going to get their business before sites like Yelp, and the information that you now get from the Yelp or a Rip-Off Report or somebody else who's in the business of making sure that consumers -- the way these businesses sort of package themselves is if you're a consumer, we're going to make sure you get the best business. You're going to see the reviews, you're going to see the stars. If you're looking for the best plumber in your area, you're going to see the plumber that everyone loves. And I have picked plumbers based on that, and they've been very good. I mean, the system seems to work. There is a trust relationship that gets developed over time when you actually have used the service, found someone great, perhaps posted your own review that boosts that up, or if you've had a bad experience. So do you think that legislators will be concerned with the quality of the kind of data that is presented on those kinds of sites, and that this is not the end of this story?
Ben: Well, I think, in the case of the review, however, it's actually a stronger case because reviews don't work unless I'm seeing all the reviews. It doesn't -- there's an actual disconnect between what you say you're giving me if you are a review site and you say you're giving me sort of reviews; and if you're not giving me sort of an unbiased sampling of the reviews, then you're actually undermining the value of even the ones you do give me.
Ben: And more than ~ search and more than in other things because in the review thing, it's exactly what -- you're picking a plumber. You're looking for stars. If I see a 4-star plumber, 5-star plumber -- I don't know how many stars are on Yelp; I assume 5 stars, right? So if I see a 5-star plumber and I'm very excited, it undermines the value of that 5-star plumber if there's another plumber that's also a 5-star plumber but he's not on that page because he didn't pay Yelp. That's going to work against what I think I'm getting when I go to Yelp and what I rightfully think I'm getting when I go to Yelp and what Yelp has told me it's given me. And that's where the regulation should or could come in. It's going to be dangerous because of unintended consequences, but I think that's the direction it needs to go.
Denise: Well, and I think we'll see this -- as you pointed out, Ben, similar arguments made to what the search companies have always said. "Hey, we're a private company. We can present results however we'd like." And at some point, regulators and legislators have come in and said, No, you are the gateway to the world's information, and there are some responsibilities that go along with that. Colin, do you see us headed in that direction with review services?
Colin: Well, if you don't mind me switching the conversation ever so slightly because the case involved two separate allegations. We've been talking about hosting and sequencing, and the Ninth Circuit said that there was no extortion here, this was just economic hardball, you can do it. And some of the policy questions you've sort of been getting into. But as a civil procedure professor, I just have to talk about the other allegation, which involved the idea that Yelp employees were actually writing negative reviews and using those negative reviews as part of this extortion scheme, or what they were calling an extortion scheme. And the appellate court rejected that on Iqbal/Twombly grounds, which is the 12B6, the pleading standard. And I thought their reasoning in that part of the opinion was outrageous and shows you the danger of those decisions. to get a little bit in the weeds, one of the plaintiffs was a pet kind of store that does stuff for animals called Cats and Dogs; and they got two negative reviews that they thought were just terrible. And one of the negative reviews came from somebody that turned out to be a real person, Chris R; and the other negative review was from Kate K. And Cats and Dogs said this Kate K review was written by Yelp, and it's destroying our business and it's terrible, and they're only going to get rid of it if we pay for advertising. And what the court said was that it's not plausible that the Kate K review was written by Yelp. They said that there's no specific allegation to show that. However, what Cats and Dogs were able to plead was that Yelp employees had spoken about writing reviews many hundreds of times, including to the New York Times. It was a matter of public record. And the court said, Well, there's nothing specific to connect it here. And again, as a civil procedure professor, I thought, That's exactly what discovery is for.
Colin: The plaintiffs should at least have had the right to find out anything they knew about Kate K; because they didn't say it, but I'm quite confident that if the Yelp employees had actually written that negative review and that was part of this scheme, that goes beyond just the regular hardball that they said Yelp has every right to play. So just -- this decision, kind of outside the realm of tack and into the broader question of pleadings and what the plaintiffs have to do in order to get to discovery to find out if somebody has wronged them, I found this to be a troubling case because they had very specific allegations that show Yelp has actually done this before. And just because they didn't have a specific enough one here, I don't see how they possibly could have had it without discovery.
Denise: Right. And for our listeners who are not lawyers, that means that they don't even have the opportunity on that claim to go forward and try and prove it, to do discovery and see what they can learn about Yelp's tactics along those lines and what specifically happened here. That claim is just out of the case, and they're not allowed to pursue it anymore. So yeah, that's a really good point and does seem like maybe was a step too far on the part of the court. Can you give us, Colin, the court's justification for saying they didn't meet -- the pleading standards are very lenient. You just basically have to sketch out, have a -- well, why don't you give us the standard? You're the civil procedure professor.
Denise: What do you have to put in a complaint to have it pass muster, so people know?
Colin: Tell you what. There's a map for that. The civil procedure pleadings doctrine has changed quite a lot in the past few years. Back in 2007, the Supreme Court handed down a case called Twombly which involved a giant anti-trust allegation that essentially said all of the baby bells were involved in anti-trust. And the court said, We can't let this case go to discovery; it would just involve essentially looking at the records of every single person who had a phone over 10 years in the United States, which is just too big. And in so doing, they said it's not just that regular notice standard; you have to state a claim that's plausible. And then in a case that followed up a couple years later, Iqbal, they expanded upon that; and now, the standard is that you have to show that your claim is not just conceivable, that it's plausible. And judges are directed to evaluate plausibility, given their own common sense and context, which is a wide, wide open standard. So what the court did in this case is it said, If you look at common sense, if the first person was a real person who wrote that review, then the second person who wrote that review is also a real person. And they said that's just common sense, and that's just the context. And I think that is not at all common sense; it's not common sense to me. But that's the precise danger with the new pleadings standard that we have, is that it gives too much license for judges, if they just don't see it happening, they think it's not probable, they can justify dismissing a suit, not allowing it going to discovery even though they're not supposed to. The Supreme Court has also said this isn't a probability requirement. Judges aren't supposed to decide whether they think it's likely or not; but they've given them this out which the court took in this case. It's disturbing.
Ben: Isn't it
Denise: All right. We really appreciate your analysis on that front. I'm sorry, Ben. I cut you off.
Ben: No, no. Isn't it the case, though, under the Iqbal/Twombly standard, that they still have to take all the allegations as if true. I mean, I -- Colin, I'm asking; I don't know.
Colin: No, that's absolutely right. So what the court did is it took the allegation that Yelp has confessed to writing fake reviews in other cases as true; but that didn't permit the inference, according to the court, that they did it in this case. That inference was still implausible.
Denise: All right. So definitely there's a lot to come, I think, on the front of what review sites can and cannot do and what tactics are going to pass muster and what people are going to be able to talk about in court, even, if they're going to be able to get past the initial phase of filing a complaint and get into trying to prove that really bad tactics are happening.
Let's end the show on a copyright note.
(The intro plays.)
Denise: We've talked a lot about the monkey selfie case. Every copyright-interested lawyer anywhere on the planet has talked a lot about the monkey selfie case. We've probably talked too much about the monkey selfie case. But it's so fun, and I had to just highlight on the show, because I have not yet done so, that if you are as charmed by the whole monkey selfie situation as we all have been in past months that there's actually a 3-D printed version of the Macaque in question that is available from Shapeways. Some enterprising person over there has now added yet another twist to the various copyright ins and outs of who owns the copyright to the picture taken with the photographer's camera by the monkey itself; and now, who gets to profit from the 3-D printed version available for $15 on Shapeways that is just so cute, too. So I bring it up because Ben, you weighed in on this over on a comment on the Likelihood of Confusion blog, so I wanted to get your take on the whole question because even the copyright office, at this point, has weighed in. So do you --
Ben: Well, the copyright is what --
Denise: Right. Do you agree with them or not?
Ben: Well, I think -- I mean, the copyright office, they weighed in in a 2,000-page document about the various copyright procedures; and somewhere on -- I think it's, like, the 50th or 60th page, they mention what can and cannot be copyrighted or what can and cannot be considered authored. And they mention specifically a photograph taken by a monkey. I actually think that they weighed in too soon. I think they may have oversimplified matters. If you look at the comments on that Likelihood of Confusion posting, there was a post over at a blog called Duets Blog that I really think spoke to the issue. I'm not going to recap my comment that -- it's very interesting for copyright lawyers, probably not so interesting for anybody else. It's a lot of fun to think about, though, this monkey taking a picture of himself. This statue, however, is a law professor's -- I mean, it's awesome for a law professor.
Ben: There is case law, there is very strong case law, that -- you make a statue from a picture -- there's a Koons, a case involving Jeff Koons. Where you make a statue from a picture, that is essentially a derivative work from that picture. So the author of the picture the photographer -- in this case -- nobody, it seems to be determined -- I also think it's nobody -- has some rights. And then the statue itself -- but then the question becomes, how much of a slavish reproduction of simply trying to be accurate to the facts in the world is the statue of -- as opposed to the photograph? And so the person who developed the monkey selfie statue, Pete Bosdale, it seems like, whoever developed this sort of set of instructions to create a statue from the picture, they actually have added a layer of copyright complexity.
Denise: Sure. They have CAD files in 3-D designs.
Ben: Exactly. And the CAD files describe a 3-D object which is itself subject to copyright.
Ben: So it's a sculpture that's subject to copyright that is a derivative work of a photograph that would normally be subject to copyright but isn't because of the -- the way I come down on it is the lack of agency on the part of the monkey, which is a sentence I never thought I would say when I went to law school.
Ben: But there you have it. I think it's fascinating; it's a lot of fun. I will be getting a statue. I will totally be getting one of the monkey statues; it's going to go in my office, and I'm very excited for that.
Denise: Right. And just to be sure we're clear on your position, there is no copyright in this photograph; correct?
Ben: Yeah. The question of the copyright of the photograph. Actually -- I mean, it is worth thinking -- the question of any kind of these sort of attenuated copyright creation claims -- excuse the alliteration -- is always, in my opinion, a question of agency. The classic case is, a painter takes his paintbrush and puts the paint on the canvas; and there's no question that it's the painter that is making the choices that eventually express themselves in the work. But with a lot of art -- forget about With photography, with computer-generated art, with a lot of music now, a lot of things, there's no longer that direct connection. And so copyright authorship has to reflect some sort of core value, and I think what that core value is is the choices that the author or artist makes. So if I set up a camera to take motion-triggered photographs and a monkey walks by and he triggers that photograph, that, I think, is clearly a case where I do have the copyright in that photograph; whereas, when the monkey takes the picture itself, I don't think it exists there. And I think that the critical issue is agency. At some level, I have made a monkey an agent of my will by having it be motion detected as opposed to, in this case, from what is described -- and we're going -- all of this discussion is based on one blog post and one sort of ex-post analysis by the photographer and what he did and what he didn't do.
Ben: In that case, from what I see, I don't think the monkey was an agent of the photographer. So yeah, I don't think that this photograph is subject to copyright; but reasonable minds may differ.
Denise: All right. And ToadSloth offers a solution in IRC that the monkey should just incorporate, and then it will have rights that otherwise maybe it might not have, hearkening back to these recent Supreme Court decisions.
Ben: And apparently, there's enough interest in this that there might be some money there; so if the monkey would like to contact me, I think my information is at the bottom.
Denise: There we go.
Denise: Hey, speaking of Supreme Court decisions, recent and otherwise, although Colin is busy teaching and studying and doing all kinds of wonderful great things that don't involve mapping the Supreme Court, one of the most interesting things he's involved with is the Supreme Court mapping project. And that is going to be our resource of the week this week. Colin, we have a bit of video I think we could play to tee this up; and then we'll let you explain more about it, if that makes sense.
Denise: Okay. If we can
Unidentified Voice: Which video? I haven't been told which video you're going to play, so ...
Denise: (Mumbles) It's the Vimeo video that -- can you see it on the screen now, before it plays?
Unidentified Voice: Oh, yeah, great. Yeah, sure.
Denise: Yeah, yeah, yeah. So
(The video begins.)
Colin (in video): The X axis plots the date of an opinion. ...
Colin: That's the civil procedure -- that's the one explaining the exact doctrine I was talking about.
Colin (in video): The higher on the Y axis, the more liberal the pleading standard in that opinion. We'll also show via arrows the citations of one decision to another, with the green arrow representing a positive citation that follows the cited case; and a yellow arrow representing the one that limits the cited case or calls it into question.
Colin: I would skip ahead a little.
Colin (in video): ... triangles represent cases where a claim was found insufficient and dismissed under Rule 12B6.
Colin: There's a lot of set-up.
Denise: All right. Maybe we'll take a break here and skip up a bit; And we'll let you talk for a bit just, again, bearing in mind that a lot of the people that listen to this show are not lawyers. Certainly, the Supreme Court is in the business of making lots of interesting data available. It writes lengthy, lengthy opinions with concurrences and dissents; and they all have an impact on how the law develops and is applied. And you're trying to make some quantitative sense of that data. Can you tell us how it works?
Colin: So there's a few different types of maps that I have; but the basic idea is to -- lawyers often speak about lines of cases, and I wanted to take that notion of a line and make it literal. But when it comes to the Supreme Court, there's a fiction that all majority opinions are written by the court as if there's no author. Everyone knows that there is an author; but they later on refer to it as "The court did this in Citizens United," or "The court did that in Maryland v. King." But of course, as you pointed out, there are often dissents; there are concurring opinions. And the reason why we have dissents and concurring opinions is because the justices are jocking about trying to change the law. So the main -- original idea behind the mapping project was to try to tease out the competing lines within a doctrine. So you might have a Fourth Amendment doctrine around whether or not you need a warrant, and there's certain majority opinions that would suggest that you don't need a warrant; and there's other majority opinions that would suggest that you do. And then there's dissenting opinions in the other cases that are kind of flying the flag of those competing schools. And so what I've done is work on a way -- I've got a visualization tool working with Darren Kumasawa, an old high school friend of mine who continues to be a computer programmer. We've got a visualization tool that lets you plot competing lines of opinions; and then we've also been working on a mapping library that shows lots of different areas of doctrine using the schema that we're talking about. So you're showing the video from a line about pleadings doctrine, which we were just talking about before, Iqbal and Twombly. It's a video I did with Professor Scott Dodson over at UCHastings, who is an expert in the area of civil procedure much more than I am; and we trace how that doctrine has developed. And I'm currently involved in -- before the first Monday in October, there'll be a new release of the mapper that has new types of maps that combine it with the supreme court database, the so-called Spaeth database, and plot decisions using their methodology which a lot of imperical scholars of the court use. So it's a project that both has a visualization element and a substantive element about different doctrinal areas of the court; and its goal is to help people have a more nuanced understanding of what's going on, that it's not just the monolithic court doing things; rather, it's opinions that have authors staking out positions that are more or less controversial. And the basic visualization will let you see whether it's a very controversial case, a 5 to 4, or quite a unanimous case, 9 to 0. You can see that instantaneously using the tool.
Denise: Well, it also, I think, would be interesting to anyone who's developing a Supreme Court fantasy football league where you were all about trying to ballpark where a decision was going to go. Of course, we don't know until the decision comes out who's going to author what; but it certainly gives you a lot of insight into the court that you might not have if you didn't look at the mapper. I'm looking at your mapper library now, and there are lots of broad topics like the Fifth Amendment; the Fourth Amendment; same-sex marriage; right to privacy; the origins of Roe v. Wade. That would be an interesting one to delve into. So is your goal to just continue doing this on the big issues that come before the court or all the issues that come before the court?
Colin: It's moving to -- I wouldn't go to all the issues but more and more. One of the -- the next generation of the mapper which, as I said, is going to be released fairly soon, is doing an automated network analysis. The prior one was very -- the current version, let's say, is very dependent upon the user doing all the reading his or herself; and that's a laborious process. And so kind of the idea of computer-assisted network generation is what I'm working on now, to give users a quick snapshot of what's going on to be able to locate the key dissents or the key majority opinions that are hubs in larger networks. So we're using kind of a "six degrees of Kevin Bacon" algorithm, connecting two cases to each other over time.
Denise: (Laughs) Well, it's really, really cool, super ambitious. Love that you're doing it. For anyone else that wants to dive in and see what's there and -- do you have some sort of a way that people can help you with the project?
Colin: Yeah. I allow users to use the software; and in fact, I've just managed to get representation from the Software Freedom Law Center, I believe, so to get up some licensing agreements. But the basic idea is that it's free for people to use; exactly how that works out hasn't been done. So I'm looking for people to contribute to the library, people that were interested in using the tool. It's not quite ready to go, but in two or three weeks, I should be there.
Denise: Very cool. It's available at the University of Baltimore Law School site. It's got kind of a lengthy URL, so I would suggest that you go to delicious.com/thisweekinlaw/276 because it is there along with everything else that we've been discussing today. Or you could just Google "SCOTUS mapper" because that's going to bring you there, too.
Denise: And I have a tip of the week for you. It's kind of a twofold tip of the week. It has to do with Facebook; and it sort of resonates with a couple of the stories we've discussed on the show today dealing with trust and expectations. And the first one is — this definitely made the social media rounds. I'm hoping lots of you already saw it. If not, I want to highlight it for you because it was a fascinating experiment that a Dutch student named Zilla van den Born — if I'm saying her name correctly — conducted. And what she did — and again, the reason this worked is because she's posting things to her Facebook page, and she's an individual; she's not a corporation. She is not sponsored in any way. This was an academic exercise she went about at the suggestion of one of her professors, I believe. And what she decided to do was fake her Southeast Asia vacation. She never left Amsterdam, but she went around to restaurants and Buddhist temples and riding around in taxi cabs with Asian drivers. (Laughs) And jumped in the pool at her apartment and photoshopped in some fish.
Denise: And it was just a brilliant, brilliant exercise. Not even her parents knew that she was not in Southeast Asia as she did this. And she did it to point out that it's very possible, without too much effort, to entirely mislead people with social media; and I think her point was that all that you — I don't know about you guys, but every one of my Facebook friends live a far more dramatic and exciting and glorious life than I do based on all of their photographs and adventures. And I think that was part of her point, is that — take it with a grain of salt when your friends are off on these fabulous trips. (Laughs) And I think the other point to be drawn here is just that when you have someone's trust to the extent that you do in a relationship as you do with friends on Facebook, it's really possible to pull the wool over their eyes. And I think that goes to why it's so important that the FTC has disclosure guidelines that we were discussing earlier when you have to very clearly disclose what is sponsored and by whom. And so that is part of the tip. Part of the tip is to take what you see on Facebook with a grain of salt.
Part 2 of the tip has to do with how durable that information is. Facebook is rather notorious for not making your posts searchable in a useful way. It all sort of streams down people's news feeds and your page and then becomes difficult to find when you go and you use Facebook search. For example, my father is interested in a stand-up desk. He's having some back problems. He is not working in the tech industry in Silicon Valley, as you might guess from the notion of having a stand-up desk. Tom [unintelligible] did a really funny article about how the stand-up desk is the new [unintelligible] chair, but I digress. (Laughs) My dad wants a stand-up desk. I think Evan, if we had him here today — we're still missing him — uses a stand-up desk these days, which is good. Good for your posture, helps you stay engaged and avoids back problems. So I know that Robert Scoble just recently got this fabulous new stand-up desk, and he loves it. And I, to assist my father, really wanted to find the name of the specific desk that he was using. Impossible to do using Facebook search now. But Facebook has been testing a way that one's Facebook friends or anyone with access to that particular post might be able to search them in the future. Right now, they've been testing it on mobile, and still very limited release and not available to the general public at all. But it's — I think it was Gawker or one of — maybe not Gawker — Engadget said, "This one's a no-brainer." (Laughs) Why haven't they done it yet? But it is coming, and in the news recently is how they've been testing that on mobile. So Facebook data is getting both more searchable, hopefully in the near future; and you need to be careful about taking it literally because someone might be faking their Southeast Asia vacation. That was a rather long tip, but I thought both those stories were interesting and worth highlighting.
And with that, I think we'll go ahead and wrap up the show. Sorry, Evan, we missed you so much. And you're not going to see me or Evan next week because we're going to be dark next week. Both Evan and I have schedule conflicts on the 26th. But we will see you the week after that. And I just —even without our Evan, who keeps me on track and has so many brilliant things to say, this has been such a fun show. I really appreciated meeting you, Ben. Ben got in touch — and this is a good cautionary tale for you.
Denise: I always encourage people to get in touch with me after the shows if they have a comment or something to say; but if I decide that you're an interesting IP lawyer, I'm probably going to ask you on the show, and that's what happened to Ben. (Laughs) He got dragoooned into coming on the show.
Ben: I have to say that I am — I said it in the email, and I'll say it again. I'm a tremendous fanboy here; I've been trying to squash it down. I've been listening — I listen mostly in audio; I don't watch. So I've been listening to the show for a while, and I was very excited to get the email. It was a squee-worthy moment. It was tremendous.
Denise: (Laughs) Squeeee! I'm so glad that you could join us; it's been really fascinating talking with you. And I'm sure that we'll have the opportunity to do so again. If, like Ben, you want to — I forget; Ben, you were — what did you get in touch with me about? It was something you —
Ben: It was the circuit split on the registration requirement on the copyrights.
Denise: Yes. That's right.
Ben: I was actually tip of the week for 274, I think. (Laughs)
Denise: You were, indeed. That's right.
Ben: That's going on my website as a badge of honor.
Denise: Good. So if you want to follow in Ben's footsteps, please do get in touch with us between the shows. I'm email@example.com; Evan is firstname.lastname@example.org. You can find us both on Twitter. I'm @dhowell there; Evan is @internetcases there. And go find our Facebook and Google+ pages, too, because that's where you can communicate with us in more than 140 characters. That's always good, too.
And also, Colin Starger, it has just been a joy chatting with you. I'm so interested in your mapping project and in all of the work that you're doing at the University of Baltimore School of Law. It's just been a pleasure.
Colin: It's been wonderful for me to be on the show. I've really enjoyed meeting you and Ben. It's a — great, great, great topics for discussion. Really interesting.
Denise: Before I let our guests go, I always just check in with them and see if there's anything hot on their agenda they want to let people know about before we sign off and get out of here. Colin, anything going on at the school or any particular things with the SCOTUS mapper? I know you have the new library coming out soon.
Colin: Yeah. New library coming out before the first Monday in October. I think folks should pay attention to the news out of Philadelphia next week. There's going to be an exoneration, I believe, of a guy named Anthony Wright that I was involved in; and I think the story about PACER taking down a lot of the records might start growing up next week, so that's worth looking at as well.
Denise: Okay. Good to know. Ben, anything on your plate?
Ben: I have a couple of sort of popping cases or client matters that actually I can only discuss in sort of vague hand-waving ways.
Ben: But no, I'm actually — quite honestly, I'm going to go look at the mapping project to see if I can get involved and help out with that at all. It's brilliant; I think it's fascinating. That's my big thing for this coming week.
Denise: It is; it's really cool. All right. So we have been recording this show here. We started at 11:00 Pacific Time, 1800UTC, on a Friday; and that's when we do our show. So if you'd like to join us live, we hope that you will. It's really fun to have a live audience. And jump in chat and give us tips and jokes and everything else. But if you can't, don't worry about it; we have the whole archive of shows for you, too, at twit.tv/twil; at YouTube.com/thisweekinlaw; in iTunes; and hopefully, nobody's — CBS is going to keep fighting the good battle about distributing the show in what one would consider netcast or podcast form. So we're in all of those forms and on Roku as well; so definitely find us in a way that makes sense for you. Use your VPN or not; we don't care. (Laughs)
Denise: And we just love having you come back. We hope you'll do so, not next week because we're going to be dark, but the week after that by which time it will be October. So we will see you then! Take care.