This Week in Law 279 (Transcript)
Denise
Howell: Hi folks, Denise Howell here, and next up on This Week in Law we’ve
got Kevin Thompson, Ron Rychlak and Michael Nelson. We’re
going to talk about cyber-gambling, parents’ liability for their children’s
social media misdeeds, archiving the web, a Silk Road catch-22, and lots more,
next on This Week in Law.
Advertisement: Netcasts you love from people you trust. This is TWiT! And
This Week in Law is provided by CacheFly at
cachefly.com.
Denise: This is
TWIL This Week in Law with Denise Howell, Episode
number 279 recorded October 17, 2014.
Blame Kevin.
Hi folks, I’m Denise Howell and you’re
joining us for This Week in Law. We’re so glad you could this week because
we’ve got a really wonderful panel of folks to talk about the most critical
issues at the intersection of technology and law. Returning to the show,
joining us once again is Kevin Thompson. Hello, Kevin!
Kevin
Thompson: Hello, Denise. Thanks for having me.
Denise: Great to
have you. Kevin is, I can’t remember Kevin if this is the first time you’ve
joined us since you’ve switched firms, but he is now with the firm of Ladas and
Parry in Chicago in their digital brands practice.
Kevin: Yes, thank
you. It’s been quite an interesting few months.
Denise: Good,
we’re glad you could make time to join us, and I understand you just had lunch
with our good friend and my former co-host, Evan, and you reported he’s doing
well?
Kevin: Yes, he
is. He is looking forward to getting back on the show once his new job settles
down a little bit.
Denise: Good.
Kevin: He is
missing the show already I’m sure.
Denise: Alright. Well,
we miss him bunches. But we are soldering on and we’re going to do so today
with the help of two great professors in addition to Kevin and myself. From the
Ole Miss University is Ron Rychlak. Hello, Ron.
Ron Rychlak: Hey, Denise. How are you?
Denise: I’m great.
It’s great to have you on the show.
Ron: I really
appreciate the opportunity. I’m looking forward to this.
Denise: Alright. And
joining us from Old Dominion University is Michael Nelson. Hello, Michael.
Michael
Nelson: Hello, Denise. Thank you for having me.
Denise: Great to
have you. Now, Michael, unlike a lot of the professors we have on the show and
unlike Ron, is not a law professor, but a computer science professor, which I
think is just great, because we have a lot of sort of more technically oriented
stories in the rundown today. And, Michael is in charge of a project. Why don’t
you tell us about it right now, Michael, called Memento, that is working to archive the web.
Michael: So, the
Memento project, its joint work with Los Alamos National Laboratory, and it was
originally funded by the Library of Congress, and it continues, and basically
what we are trying to do is make it so that it is easy to access the various web
archives that exist. So a lot of people know about the Internet archive, and
it’s the first, the biggest and most popular. What people don’t realize is that
there are a dozen or more public web archives in addition to the Internet archive.
Now, they are not as big but if you could access them, their holdings actually
add up to the size of the Internet archive, or are roughly equivalent. So,
basically the idea is Memento is a way to simultaneously access 12 or 15 public
web archives all at the same time, and you don’t have to be aware of their
location or how they are indexed, or a variety of other aspects about Memento.
Denise: Very cool.
Well we will get more into Memento a bit later in the show. I think we will
start off the show with some stories that relate to sort of criminal justice,
and how folks can make sure that they are staying on the right side of criminal
law. And one of the areas that has been ripe for
discussion that we certainly haven’t paid enough attention to, relating to law
and the use of the online world, is cyber-gambling. We sometimes touch on that
topic, it’s a very large and complicated topic, but we are fortunate to have
Ron with us today, because he has spent a lot of time thinking and writing
about the subject. I think we are pretty topical getting into it right now,
because there is legislation pending in Congress in the United States that
seeks to make all online gambling illegal, under the Wire Act that seeks to say
that the Wire Act makes it illegal for any sort of wagering to happen using
anything like a phone line, and I guess the Internet would fall under that
rubric. Also, at the same time, the tension in the United States is that three
states have legalized online gambling, and others are set or perhaps desirous
of following suit, so we’ve got a little conflict there, and lots of money to
be made. So, why don’t you bring us up to speed, Ron, on where things stand
legally as far as online gambling in the US goes.
Ron: Well, that
was a great set up you gave. There have been places for people to gamble online
going back at least a decade, so online gambling has existed. The thing is it’s
largely been illegal, certainly for the operators. There have been very few
prosecution of people of have gambled themselves, but in terms of operating
one, the Feds have taken the position that the old Wire Act, they took the
position the old wire Act in fact prohibited this at the Federal level. We go
to court and the court said, this isn’t really phone lines, it’s not what the
law was written to cover, and so it doesn’t really apply. Now there is
legislation that you mentioned going through Congress trying to extend the Wire
Act to explicitly cover Internet gambling, so you’ve got that issue. You’ve got
states that are designing gambling within the state, and keeping entirely
within the state. If you can control the Net that way, if you can handle the
logistics to do that, gambling is a matter of state law. If a state wanted to
have legalized online gambling and could contain that within its boundaries, a
state theoretically at least can do that. Now, you’ve got land based casinos
who both sort of are fearful of what’s going to happen if we going all online. Will
people stay home and gamble instead of coming out to the casinos. So, in some
ways they are applying pressure to tamper this down. On the other hand they are
thinking, if this is going to happen, we want to be in
it, so they are lining up, they are getting their pieces in order so that they
can go fully into online gambling. The issues are manifold. There is the issue
of, number one, do we trust the operators? If you are at a casino, you can have
regulators there on site, checking the dice and making sure the machines are
legitimate. Online that is much harder to do. The gamblers trust that. We’ve
found in some states that we try to go to a computerized form of lottery,
instead of the ping pong balls, the more traditional ping pong balls. Gamblers
didn’t like it, and actually we’ve had some glitches that have come up when
we’ve gone to those kind of things. So there’s a whole lot of issues here.
Denise: So, in the
US we have Nevada, New Jersey and Delaware where it’s all legal. Am I understanding correctly that in order for them to have
legalized online gambling, they have to have measures in place that ensures
that someone like me in California can’t go to a Nevada online gambling site
and wager?
Ron: Exactly. And
that’s why while the legislation is in place to do these kind of things, they
are not really up and running for traditional casino style gambling. Now, there
are near gambling sort of venues where you can play poker with one another
where you may play $20 a month, let’s say, and then you play poker for fun and
you can maybe win some money. But they take it one step away from traditional
gambling. If there is any risk of anything going across state lines. Which means we really don’t have regular online gambling legalized
anywhere in the US right now. I think that technology needs to catch up
before we have really the kind of online gambling we envision when we talk
about this.
Denise: That
doesn’t mean it doesn’t happen, right?
Ron: Oh, of
course not. It happens and it’s been happening for a long time.
Denise: So, how
does that shake out from a policy standpoint? It’s one of those things I guess
we could analogize it to illegal substances, right? There is a lot of passion
around legalization of marijuana. Some states have done so. There is Federal
tension around whether that is okay or not, but the ones that have done so now
have something to tax, and revenues for people within the state to be able to
legally earn. Is there a similar kind of course of policy thinking that geos on
concerning gambling?
Ron: The push
for gambling is tax revenue. The states that have lotteries, that have casinos,
have made a lot of money off those, and they see the possibility of extending
to online gambling the same way. Of course, I think realistically the real push
I think that the Feds have their chance to get their nose in the tent with
online gambling. So far, gambling has been a state matter. If we’re really
going to go to online gambling, it’s almost going to necessitate Federal
intervention. If the Feds get involved, there will be Federal taxation, and
that can change the balance significantly. That’s why even though state that
are lining up for some kind of online gambling are really kind of concerned
about where it’s going to go if it gets fully implemented.
Denise: Michael,
as you are listening to all of this as a computer scientist, I’m curious as to
what’s going through your head. The whole notion of being able to lock down a
state’s gambling operation to keep out others from outside the state, outside
the country, whether that seems practical or not, and also whether all of these
legal niceties really make any sense at all when people are already flaunting
the law and probably will likely continue to do so, don’t you think.
Michael: Yeah, I
don’t see how you could enforce the borders on something like that. I can
understand the state’s interested in doing that, but people purchase goods and
services without regard to physical location all the time. And,
often without jurisdiction. And once you have bit coin or something else
in, making it hard to track the exchange or currency, I’m not sure how it would
be done.
Denise: Right, our
previous week’s show was all about bit coin and putting things on the block
chain. Specifically, how that could have other applications aside from just enabling
a currency, but adding bit coin into online gambling does seem to be taking, I
don’t know, maybe it’s taking two headline grabbing things and putting them
together, but it seems like a very logical thing to have happen, don’t you
think Ron?
Ron: Well, if
we’re talking about an operation that‘s perhaps offshore or in a different
country, where the United States does not have jurisdiction, then yeah you’re
right. That is a possibility. The thing is right now if you open up in Nevada
an online casino, and I’m sitting here in Mississippi and I can get to it,
Federal authorities can go there and shut it down. It’s not that the state
wants to keep things within its boundaries, it that the Federal government
doesn’t allow gambling across state lines.
Denise: Right, so
they have to be careful.
Ron: Exactly.
Denise: Yeah. What
if you’re an online casino based in Nevada and you’re doing your best to make
sure that only Nevada people are your customers, and you have decided to accept
bit coin. Is there any problem with that that you know of?
Ron: I’m not
aware of any problem that would exist for accepting bit coin. Doing your best
to limit it to Nevada is not good enough, and there is a clear case precedence
t that you have to make sure that you don’t take bets from a different
jurisdiction.
Denise: So do you
have a good feel for what people are doing to make sure they have that degree
of certainty?
Ron: Yeah, well
they are avoiding it, there are really not casino style online gambling
operations run from the United States right now. There are from other nations,
from other jurisdictions, but if those folks come into the United States they
are subject to arrest, and there have been a couple of arrests like that.
Denise: So where
do you see this going if we have three states where it’s legal, but it’s still
too risky to operate because the Federal government will shut you down. Do you
see any kind of movement there?
Ron: Well the
only way it’s going to happen is if the Federal government ultimately amends
its laws and authorizes Federal law to come into play. If the Federal law would
authorize cross-jurisdictional gambling, we then would have simply the
practicality of how to we enforce the regulations we have put in place. I’ve
written a couple of articles where I propose a gateway where, for instance, a
gambler that wants to gamble can go through the authorized Federal gateway, get
an authorized casino, which would presumably, you know the games would be fair,
and you would get paid and they wouldn’t abscond with your money, or you would
have the option of going to the illegal places, the unauthorized places maybe I
should say, but you wouldn’t have any guarantee that the games are fair, or
that they might not close down and keep your money, which has happened a couple
of times.
Denise: Kevin, you
do a lot of stuff in the domain name area. I know that .vegas has launched and is for sale now. Do you see any overlap of gambling oriented
domains and our discussion here?
Kevin: Well, I
think there is going to be certain websites that come up that are certainly
going to be wanting to be snatched up and used by
these casinos as they branch into what hopefully for them becomes a legalized
trade. I certainly can recall certain instances we’ve had in the past trying to
enforce against other things that are happening currently. The major problem
you are running into there is the fact that it’s a foreign jurisdiction as Ron
was mentioning. It’s rather difficult to do anything about that, but I think
some of these new domain names are certainly going to be used in that context. The
thing I was going to mention is that I couldn’t help but think of some
discussions I remember hearing Professor Lessig having about Codis law, talking about this is one of
those ideal situations that he would be talking about in his book, where here
we have a purely digital enterprise, this online gambling. We’re trying to impose
a brick and mortar approach to regulating it, when in reality we have computer
systems as Michael would say and point out to us, that certainly aren’t designed in a brick and mortar fashion. Here we are trying to
impose this regime on the top and coming up with things like Ron’s mentioned,
gateway and so forth, as ways to try to regulate that. It’s certainly a
different approach. If we were to come at this from a different angle, I’m not
really sure what it would look like, but I think if this comes around where
online gambling becomes more legal, or less legal, depending on which ways
these laws go, what sort of forms these regulations are going to take.
Denise: What’s
your take, Ron, on the restoring or restoration of the Wire Act that is pending
now? Do you have a good feel for what sort of support or lack of support it
has?
Ron: I think
it’s unclear and we will have a better view probably after the elections in
November. The ironic thing, or the unusual thing about
gambling anyway is it’s not clearly a Democrat or a Republican issue. There are
folks on both sides for various reasons that support or oppose gambling. If I
had to make my guess I would say that that legislation is more likely than not
to go through. That’s more likely than for us to have fully legal online
gambling within the United States in the next decade:
Denise: Wow, that will be interesting to see because that
legislation would make it illegal across the board, right? So, Nevada, Delaware
and New Jersey would be out of luck as would everywhere else.
Ron: Yeah. I
mean, that’s right. That’s really how they are right now. They can’t
functionally operate. That what Michael explained. Logistically even though
they have the state law, they can’t make it work anyhow right now.
Denise: Let’s see.
Morgan Stanley released a report last month that gives some of the numbers. Morgan
Stanley forecasts, and this is all just sort of saying
if various planets align and things become legal, they forecast that the online
gambling industry in the United States might hit $5,200,000,000 by the year
2020, but there are some numbers there about what’s going on in the states
where it’s legal. New Jersey, it says collects about $120,000,000 in online gaming
revenue each year. Nevada has about one tenth of that, roughly $12,000,000, and
Delaware’s top month (laughs), poor Delaware, only $240,000 in online gambling
revenues. So, I guess New Jersey is somehow forging ahead; $120,000,000 is not nothing, right Ron?
Ron: Well now,
it’s not, and I think what they probably include in a lot of that is revenue
collected at race tracks from bets. You know, you can bet at distant race
tracks when you go a race track. That’s one type of online gambling that the
Federal government has approved, so I think that’s what you probably see the
majority of that money relates to.
Denise: Right. Well,
it will be really interesting to watch this unfold. It’s obviously, if Morgan
Stanley is right, and there are those kinds of numbers at stake in the next
five to six years, certainly this is going to be a hot button issue in
Washington as there is a bill seeking to make all illegal. I was curious to get
your take, Ron, on something that I’m not even sure qualifies as online gambling,
and that’s something that our chat room as been asking too. Should we, can we
define what constitutes gambling for the purposes of this discussion. Start
there, and then I will ask my follow up question. Can you tell us what
constitutes gambling?
Ron: Right,
well the traditional legal gambling definition has three elements. There has to
be the consideration, that’s the bet you place. There has to be the uncertain
outcome, which usually has to be based on chance. Some states vary on that, so
sometimes you can avoid having something categorized as gambling, because it’s
a game of skill, so that’s how some states allow poker online, because it can
be a game of skill. Then of course there is reward, that’s the payout you get. So
it’s consideration, chance and reward.
Denise: So, my
follow up question had to do with fantasy football, or
fantasy sports in general, and maybe that counts as a game of skill because you
are picking players and wagering based on their abilities, etc.?
Ron: Yeah, well
I clearly have no skill on my team. (Laughs) That is the argument about fantasy
sports. Some people play it not for money, actually my league is not for money,
but the other argument, if you play for money the argument is that it is in
fact a game of skill. There are some operations that have the daily, I should say the weekly fantasy games, where you pick
a new team each week. That’s as close to gambling, I think, as you can do
online. That’s got to be based upon the theory that it is a game of skill and
not of chance. Some states, and I know Tennessee and
Arkansas, recently spoke in both of those states. They don’t care whether tis
still or its chance. You can’t bet on a game even of skill. But, many states,
the traditional rule is that you can bet on a game of skill. That is why a bet
placed on a golf course in many states is not illegal. Some states it is.
Denise: Gotcha. Well,
Michael, I thought you would get a kick out of this, that three law professors
have gotten together and this is taking me back to Episode 276 of our show a
few weeks ago, when we had Collin Starger on. He is
of the SCOTUS Mapping Project. This is a fantasy Supreme Court of the United
States league where these law professors have gotten together, and they think
they have a model, a data crunching model based on, goodness, you can
definitely go to the article and dig deep into how they have come up with this
model. I’m sure it’s based on who has authored what opinion, sort of taking
this supreme court in a very methodical way, what the
past decisions of the justices have been. I’m sure all of that factors in. But,
they have this model that they think can fairly accurately predict the outcome
of Supreme Court cases, and they want to test it, sort of a la IBM big blue
against people, and see if man can beat a machine as the article here that we
have in our discussion points puts it. So, you can go to this fantasy SCOTUS
league and you can handicap the Supreme Court, give your predictions, and,
let’s see, how do you win the $10,000? The human with the most accurate
predictions wins $10,000. So, they are putting their league to the test. What
do you think Michael?
Michael: Well,
that’s very interesting. I haven’t studied it in detail, but I can see how you
could do it, right. You have a large body of, machine learning works best when
you have a ton of training date. So, you have all of these decisions. My
understanding is that these legal opinions are written and highly regimented,
nearly artificial language. So, mining them is going to be relatively easy. And
you can attribute who wrote which opinions. So, I’m actually only surprised
that it has taken this long for this to come out. It’s one of these things that’s obvious in retrospect, and I’m really excited about
it.
Denise: Well, it’s a pretty funny backstory
here. One of the creators tried a different, a similar kind of fantasy SCOTUS
site back in 2009. It says he launched it as a joke and didn’t think anyone
would want to play. But, 25,000 people signed up and the best player predicted
80% of the cases accurately. So there are people who definitely get into this. You
can read more about it as well as the rest of the topics we are discussing
today. You can find the link at delicious.com/thisweekinlaw/279.
What do you think, Kevin? Are you going to sign up and start trying to predict
the outcome of Supreme Court cases?
Kevin: (laughs) I think that that’s a losers
bet there. I think that there’s plenty of factors that
go into it that computers can’t predict. But, that’s kind of the fun too. Maybe
they could come up with some sort of wild weasel type of algorithm where they
can figure out which cases are most likely going to go
a little differently. But, I think it’s all in good fun hopefully. Personally,
I always enjoy following up on a SCOTUS activity through sites like SCOTUS blog
and sites like that. I’d be real curious to see what somebody like that who has really followed SCOTUS opinions that
close, who somebody like that might fight fair against the computer.
Denise: Yeah. Well, Thomson Reuter seems to think
there is a business model in this. They have something called Let’s Predict
that is attempting to empower, here’s their marketing language. Empowering the
Future of Legal Decision Making by purporting to be able to predict for you how
your case might come out, and they talk about taking this beyond the Supreme
Court to cases in lower courts too. And as I think through this, I think that
as soon as a judge who is a human being and has real engrained biases against
being predictable, I would think as soon as a judge thinks that someone is
trying to ballpark them, they are going to start going the other way. What do
you think, Ron?
Ron: Well, I think this is a brilliant
insight. Number one, I’m interested in the game. I can see getting some
students involved in that and just have some fun with it. I have had investors
contact me before when there is litigation involving a gaming entity or
something, and they don’t know how the outcome is going to be, so they want an
analysis of what I think is going to happen with the case, and if it goes one
way, the company is a good investment, and the other way the company is a bad
investment. If there is a market, if you can get a collective opinion from a
lot of people who study something, that information is far more valuable than
my opinion. You could get the predictive ability of a large group of people,
and so I absolutely think there is probably is an investment interest business
interest in something like this.
Denise: Well, you are not alone apparently. Let’s
take a break now and put our first MCLE pass phrase into this show. We put
these phrases in in case you are listening to this show in hope of receiving
professional credit in either the legal or another field. And sometimes the
oversight bodies who monitor that credit like to have something concrete you
can show you actually watched or listened, so we imbed a couple of phrases in
the show. The first one for this show is going to be Fantasy SCOTUS. So, jot
that down if you are listening to the show for professional credit. And, if you
want some more information on that, head over to wiki.twit.tv, find our page
there, the This Week in Law page, and there is more information there about at
least receiving continuing legal education credit in the various United States
jurisdictions. Let us move on down the Silk Road briefly. Kevin, you pointed
toward a story earlier this week that [points out an interesting criminal
procedure conundrum in the prosecution of Ross Ulbricht. Can you tell us a bit
about it?
Kevin: Sure. I’m certainly not a criminal
lawyer myself, but I thought this was an interesting case and was worthy to
share. Basically, Silk Road servers were seized and there is some concerns by Ross as to the legality of that. The problem from his
perspective is that he is trying to show that he is not affiliated with that
and the catch-22 situation is that he can’t object to the seizure of the
servers unless he were affiliated or if he has some personal standing to
object. And since he didn’t have the ability to object, while at the same time
preserving his argument that he is not involved, sort of the catch-22 situation
that he is in there.
Denise: So, there is information that he would
like to block the prosecutions use of, but in order to come in and say, hey you
seized those servers improperly, he has to exert some
degree of control over them, or admit, hey, those were my servers that you
seized improperly.
Kevin: Those are my servers, yeah, that have
been illegally seized. That would go against the argument he is trying to make
in the case. The catch-22 situation is he can’t do one thing without getting
himself messed up in the other way.
Denise: Poor Ross. The case drags on. Ron, as a
law professor, do you see any problem with this?
Ron: I think this is fascinating. Very
similar to the discussion I had just this week in my criminal procedure class. Denise,
if you and I are speaking to each other on the phone, and the police listen in
without a warrant and they get some information, they find out that I am a drug
dealer or something. They try to use that against me. I have standing to object
for the 4th Amendment and have it excluded because they have
violated my rights and violated your rights. If, on the other hand, we end up,
we’re talking about Kevin, or say Kevin is a drug dealer and they want to use
this information against Kevin, he has no standing to object to what they did
to us, and that’s kind of what we have here. You have to have standing to say
that my rights were violated in order to have the stuff excluded, so the
defendant here, if it’s not his computer, he doesn’t have standing. The
evidence is not suppressible.
Denise: Could you see a court having an issue
with that, though? Just as it would seem like Kevin would have standing if
there were some sort of intrusion that someone else could object to but did
not, shouldn’t the third party once removed have some way of asserting an
objection that doesn’t tie their hands?
Ron: Yeah, I get your point, but there are
cases. This has kind of old law that you only get to invoke the exclusionary
rule if your rights have been violated, and if these were not his computers,
his rights were not violated.
Kevin: So, Ron, what about questions of scale?
Again, I’m not a lawyer, but in your telephone example, there is a limited number of parties that are likely to be
involved, but what if we are illegally seizing computers that have millions of
names or something like that? Is any precedent in that area?
Ron: I haven’t seen that exact case, but the
premise is that exclusion is a remedy for someone whose rights have been
violated. So, if I seize your computer, your rights are violated and anything I
learn about you can be suppressed. If I learn information about somebody else,
the theory goes that you could have voluntarily turned that over to the police.
So, since you could have voluntarily turned it over and you had it in your
possession, those people’s privacy was not violated by what happened in your
computer. Does that make sense?
Kevin: Yeah, again I was just wondering if
something on the scale of Gmail or something like that, right, where there is
such a large volume of data that one could illegally seize and then just mine
for whatever you are looking for. I was just wondering if scale made any
difference in this, or I guess it hasn’t been tested yet.
Ron: Well, I would say that, for instance,
if we went to Google, Gmail, whatever and took all that information, we are at
some level, we are invading everybody’s privacy when we take that. That’s
different than if I just happen to take your computer and get information
that’s on your computer and it relates to Denise. Her rights were not violated.
Your rights were, so anything we try to use against you would be suppressed,
but not what we try to use against her. I don’t know if that answers your
question.
Denise: It’s making me wonder the fact that I
actually did really well in criminal procedure in law school (laughs) because
I’m feeling kind of lost at sea with all this right now, but I think I’m not
alone in that sense. It probably bears mentioning that when people do, and this
happens routinely all the time, that law enforcement and others are constantly
serving court orders and subpoenas to entities like Google and phone companies
where there is lots of data about lots of people, that they, aren’t they Ron,
required to demonstrate, they can’t just go on a fishing expedition for all
emails of Southern Californian’s between March 31st and July 31st.
There has to be some specificity to the request, correct?
Ron: Absolutely, there not only has to be
specificity, but there has to be probable cause. A reasonable person would
believe that we are going to find a particular thing at a particular location. So
we are suspicious of someone involved in terrorism, we have to have a reason to
say why that is, and a reason to say we expect to find evidence in these
emails, in this particular defined timeframe, or whatever.
Denise: Alright, so if you are running something
like Silk Road, beware of who has your servers and what sort of objections you
want them to assert on your behalf, I suppose is the lesson to take away from
this (laughs). In tongue in cheek, of course, don’t be running something like Silk
Road. Let’s move on to a copyright issue that I think will be interesting. It
certainly has import to the world of technology.
So folks,
remember the Oracle verus Google case? We’ve talked
about it a lot on the show over the years. There has been a recent development
there. Hey, were just talking about handicapping the Supreme Court. Someone
might want to handicap what on earth the Supreme Court will do with Google’s
request that the court get involved in the case. Google has filed a petition
for search to the Supreme Court claiming that this is a very important juncture
that the Supreme Court has to get involved and hold that Oracle does not
actually the copyright that it was deemed to have in the lower court case here.
That copyright is in snippets of code that make up the API’s that were at issue
in this case, and according to Google in their petition very wide ranging
effects. In Google’s view they write a newfound copyright on Java API’s akin to
granting a company a monopoly over the qwerty keyboard
or the familiar automobile arrangement of steering wheel, accelerator and brake
pedal. I will pull up the petition and tell you exactly what Google is asking
the Supreme Court to look at, if I can scroll to that part real quick. Here we go, the question is whether copyright protection extends to
all elements of an original work of computer software, including a system or
method of operation that an author could have written in more than one way. So,
Michael, I’m thinking whether or not the Supreme Court decides to take this on
would be important to folks in the computer science arena.
Michael: So, I can’t predict what the Supreme
Court will do in this case.
Denise: Right.
Michael: I can’t imagine asking any technologist
not affiliated with Oracle that would think this is a good idea. The essence of
API’s is really sort of like alphabetizing the names in the phone book and some ofo the other things that we know aren’t
copyrightable. There is an element of our design to API’s, but their essence is
about public exposure and being used in new and different ways. My limited knowledge, not again from the legal grounding, but wow,
what a terrible decision. I hope Google is successful in getting this
case heard and hopefully appealed. Implications for technology development are
going to be huge if you can lock up API’s like this, then you’re going to really stunt development and innovation.
Denise: Right, so Ron, do you want to take a
show, first guess in your Supreme Court fantasy prediction league, how this
petition might go?
Ron: Well, I hope that the court will listen
to experts like Michael because this is something I wasn’t very familiar with
until looking at just this week. But it seems clear to me that if this is
upheld of the lower court it’s going to fundamentally change the way everyone
uses the Internet. So, I hope that the court will accept the petition and
reverse what the holding is below. In terms of knowledge, I don’t know whether
the justices, the issue will be whether the justices understand the technology
behind this, and I think with their clerks and such they will. But if they do,
I think from a practical matter we need to have the decision of return.
Denise: Alright, Kevin, any thoughts?
Kevin: Well, my review of the article showed
that there were only certain claims that we made. It wasn’t the whole API that
was protected. I believe there were certain calls that were made to, getting
into the Java interface there, I’m afraid, I’m certainly not a computer science
expert myself so I’m probably messing up in my explanation here, but there were
certain calls that were made, such that it evoked the interface, and I think
the copyright was limited to those particular elements of the API, and it
didn’t cover the whole, inner range of options that were available once you
were in there. I think that that’s sort of a limited scope to it, so whether or
not this is doom and gloom for the entire software industry, it’s hard to say. I
think that if the Supreme Court decides to hear it, we should know in the next
few weeks or months whether or not they will grant. All we know at this point
is that the petition has been made, and we’ll have to see whether or not the
Supreme Court will actually agree to take the case. Otherwise, it will still be
back for proceedings, which conclude at this point Google determination as to
whether or not Google might have a fair use type argument to make here. There
may be a fair use of these particular code snippets as part of the API, but
before that issue was determined, Google requested this immediate petition, so
procedurally that’s where this is at. I don’t think it’s as doom and gloom as
it might otherwise be, but at the same time, it’s certainly no laughing matter
that the fact that the copyright could go to certain parts of an API could be
problematic for the future.
Denise: Yeah. In my Supreme Court prediction
league, I think I would ballpark this as a now, that the Supreme Court probably
won’t take it up now because Google is teeing up in an interesting and
unconventional procedural time. Its remedies in the lower courts are not
exhausted. You’re supposed to go back, they are supposed to go back and have,
as you said, Kevin, more proceedings about the defenses to the infringement
claims that were asserting against them. So, the Supreme Court usually takes a
very small amount of cases to begin with, and certainly likes them to be
completely resolved in the lower courts before deciding to engage. Google’s
point here is that this is such a critical issue that we need your help now court, and maybe they decided to do this knowing that this
was a long shot, because hey, sometimes long shots pan out. And even if it
doesn’t, at some point there may be an opportunity to put this case before the
Supreme Court in a more procedurally conventional way, and by doing this now,
Google is sort of seasoning the court to what the issues are here, and maybe
that will be good in the long run. So, I thought it was an interesting
development. Speaking of Google, let’s look at something that is still in the
copyright arena, but because it involves YouTuber’s,
it also involves things that entertain us, so I put it under entertainment. A
couple of points related to Google, YouTube, DMCA, and Content ID this week. Number
one, just a factoid interesting thing to bear in mind when juxtaposed against
the second story that we are going to get to in a second, is that YouTube has
released numbers that demonstrate that it has paid a billion dollars since 2007
to rights holders using its content ID system, so content ID was Google’s and
YouTube’s response to the various infringement claims brought against it over
the years, including the Viacom vs. YouTube suit, and apparently it is becoming
profitable for those using Content ID. The problem as pointed out by Megan Geuss, if I am saying her name right, at Ars Technica is that Content ID,
that while it’s a good compromise for Google on the rights holders, is far from
a perfect system in as far as the creator and uploader goes, and tends to act
in a way that can be over broad and imperfect, and take down things, or come up
with matches for things that are just fine and legal. Our second story has to
do with DMCA takedowns on Google, not from Content ID, but from a company
employed by Microsoft. Chris Pirillo and others found
themselves on the wrong end of some DMCA takedown notices just this last week,
and they did not involve any sort of content in their videos that were found to
match Content ID and then be a problem, but because some product keys for the
use of Microsoft products apparently were posted to the comments section of the
videos. So, Microsoft has employed a company that is helping it suss out misuses of its intellectual property and one of
the things it did was identify the product keys in these videos and send DMCA
takedowns for the videos. So that’s a bit of a reach for the DMCA here, and
Microsoft has apologized and says it’s working to reinstate the videos, but
Kevin, what do you think about the chances of a legitimate DMCA claim being
levied against something because an opportunity for infringement took place in
the comments to a video?
Kevin: Yeah, that is a bit of a stretch. I
think the purpose of the DMCA is to get content down that has been directly
infringed. Here you have a video and somebody else has the same content up,
they’ve got their rip of it and they are putting it up under their own
advertising, their own branding. They are the ones making money off it, not
you. That’s one of the ways that the DMCA is designed to protect. Merely having
it in the comments, as Microsoft acknowledged, that is a bit of a stretch. And
they have apologized for that action taken by their vendor. Something that I
urge people to keep in mind is that just because you hire a vendor for it, it
doesn’t get Microsoft off the hook. Microsoft could be liable for sanctions for
improper use of the DMCA procedure in these types of cases. If they show a
pattern and practice of this, but each takedown is supposed to be judged on its
own merits, and you’re supposed to either conduct a good faith review or
whether or not something qualifies as a takedown under the procedure. In this
case, it’s hard to say that some live person at Microsoft actually went and
actually reviewed what was happening. If they would have done that before, then
they likely they wouldn’t have had to apologize. But at the same time, you have
to acknowledge the fact that there are hundreds of thousands of these types of
things going on , and that is why Microsoft engaged
this vendor in the first place.
Denise: Right
Kevin: Sort of this impossible situation that the
DMCA puts certain people in who are content providers is the fact if they’ve
got popular things that now they are 24/7 copyright police as opposed to being
the creative people that they would otherwise prefer to be.
Denise: Right, the company that was working
with Microsoft, this is from WIRED’s reporting on this, Klint Finley there, it was called Marketly, and was founded
by former Microsoft engineer Pulin Thakkar, and it
uses algorithms to spot piracy and counterfeiting on the Net and according to
Google’s transparency report, Marketly has requested
Google remove nearly 11 million different URL’s from its search engine on
behalf of Microsoft alone. So, none of this is giving me a whole lot of faith
or optimism about how Microsoft is going to treat its new property Minecraft
and the various copyright infringements on that. If their solution is just, here,
we are going to turn it over to Marketly have let them
send out takedown requests. Popular MMO’s and other YouTuber’s that cover Microsoft are going to find themselves in the same situation as
Chris Pirillo is. Ron, any thoughts about either the
efficacy of Content ID or overreaching with DMCA notices?
Ron: It just seems like it’s very difficult
to keep track of these things, and we find so much Internet stuff like that. What
it reminds me of is a gambling issue, when we try to prohibit gambling sites
and you’ve got to keep track of what is a gambling site, and people change the
names and just the idea of any entity that is trying to monitor all of the Internet looking for copyright infringement,
looking for various kinds of illegal activity. It’s really tough, so you rely
on computers, and that always removes the human element, and that’s where
mistakes happen. I think we need to understand mistakes will happen and just
correct them as quickly as possible.
Denise: Alright, Michael, any thoughts before
we move on.
Michael: Yes, this was clearly a mistake on
Microsoft’s part, or their contractor. But, on the other hand, to be fair, if
you were in the business of distributing a product key or other illegal
information, setting up a site or going to YouTube or something like that and
then having agreed upon URL in which people post content spam. In this case,
the content spam is the actual intended target, right? You can imagine a
scenario in which you used a popular service to distribute this material, and
then you had some kind of defensible position , well sorry I didn’t remove that
comment that was, I don’t know how that got there. That was just a video of my
cat, or something like that.
Denise: Right.
Michael: In this case, I’m sure it was a
mistake, but you could easily imagine a scenario in which people do actually
distribute information in this way.
Denise: Yeah, I mean I definitely just anecdotally
am familiar with people with inactive blogs for example, with still active
comment systems and you go and you see that there’s a whole burgeoning life
going on in the comments because it’s sort of an anonymous under the radar way
for…
Michael: Right, the weeds have taken over the
yard or something like that, right?
Denise: Yes, exactly. (laughs)
Michael: So, I actually have some experience. For
recreation, I blog about music and I link to YouTube videos in the blog, and so
I’ve received one of these automated takedown requests where the blog post was
automatically removed because, and of course, I was pointing to things that
existed on YouTube, no content that I uploaded, and it still managed to get a
takedown request. So, I’ve been on the receiving end of that, and that was
disappointing as well. But the interesting thing, we actually did a study a
couple of years ago based on my experience with blogging and wanting to link to
videos. And actual half-life of a music video on YouTube is actually quite
short. It’s in the matter of weeks or months. But at any given time, you will
find literally hundreds, sometimes thousands of copies of the same song on
YouTube. So, the individual URL often will die very quickly, and so you will
come back to the blog a month later and the link is broken. But, if you knew
what the content was, you will issue a search and you will find multiple
versions. And each one of those might die as a result of a takedown request or
something, but the content actually never disappears. It just moves from place
to place.
Denise: Right. Hey, let’s get into talking a
bit more about Michael’s project, Memento, which because it archives the web,
also has some privacy overtones. So, Michael, we talked a bit at the top of the
show about Memento. From what I understand, it’s a way to surface not just the
way back machine, but other ways in which the web is archived and make that
more easily accessible to folks. Can you tell us what sort of pushback you have
gotten, if any, from the EU or how you all are thinking about what Google is going
through with the right to be forgotten?
Michael: So that is something that hasn’t hit us
yet, but I think it will. It’s disturbing on a number of levels, because on one
hand the EU ruling says that you can’t remove the information, you just remove
it from the search engine. So you inhibit discovery, not the essence of truth. So
if it’s a newspaper article about something. The original site might hold onto
it. We try to archive it in the web, in multiple archives, because any
individual archive might die as well. But, when you inhibit the
discoverability, that’s a whole different issue of sort of editing the
historical record and what actually happened. So far, web archiving is not
popular enough or well-known enough to have really, as far as I know, hasn’t
been addressed in these legal decisions. That’s just a matter of time. I’m not
sure what we’re going to do on it. It’s interesting because Old Dominion is a
member of the IIPC, that’s the International Internet Preservation Coalition,
or Consortium, I forget. It has the Internet archive, the Library of Congress,
a handful of people, but it has many European members. And the European’s, if I
can speak in generalities, the National libraries, the National archives, they
do a tremendous job of archiving their top level domains, the UK websites, the
.fr websites, etc. And they have a very much an
interest in preserving their cultural heritage as it’s represented in these
websites. Some of those archives are currently public. A lot of them are
currently dark, and so they are archiving the material, but you can’t access
it. So, for those archives, these rulings, it’s not clear how discoverable it
would have to be in a dark archive. So, for example, for the French national
web archive, you have to go to a special room at the BNF in Paris to access the
material. So, if Google gets a takedown notice, does ti propagate to the reading room in the BNF? That hasn’t been explored. That’s
something that we’re really concerned about.
Denise: Well, you
were talking about the top level domains getting good treatment in the EU. Kevin
and I were talking before the show and maybe now is a nice time to bring it up,
about just the proliferation of, and maybe Kevin you can explain what
constitutes a top level domain these days. You know, .com, .net and .org seem
to have a lot of company and it seems to me that .vegas and .nyc might understandably get different treatment
than things like .com, .net and .org. Any thoughts on this?
Kevin: Well,
there are these new top level domains as you mentioned. Very briefly, a top
level domain is anything to the right of the dot. So, .com, .net, and .org are
the most famous ones because they’ve been around for so long. ICANN in its
infinite wisdom decided that there should be thousands more, and so they
started a process allowing for people to come up with new, in their mind, what
they call generic top level domains. The idea being that it should be something
that would allow for website on a particular topic or geographic area. In this
case, .nyc is designed to indicate people living in
New York City or relating to Ney York City, but it is not exclusively for that.
The whole purpose of doing this is to open it up for people to express an
interest, and there is a whole procedure that ICANN has gone through and the
ones that have gone live are the ones that have actually made it their way
through this whole process. It’s a very expensive process for someone to
operate these new domains. It’s an incredibly expensive proposition, you know,
there are certain brands that have decided to do this as well, and so they’ve
got domains coming online eventually for their own private use. For the most
part, these are things like .nyc and so forth. For a
private company that’s come in, there’s a lot more, we would call a land rush
type situation where people are coming in trying to register these domains. There
are procedures in place for trademark owners to register their trademarks with
the trademark clearing house. At least you get notified before somebody registers
these domains that match your character strain. It doesn’t necessarily prevent
it, but at least you are notified and you can go about and there’s a quick and
dirty resolution process, the Uniform Resolution System, the URS, and it’s for
these new top level domains, but it’s the article that you link to on our show
notes involves land rush in the .nyc and pointing out
that there’s a lot of squatters that are on names. I’m trying to remember
exactly which ones are which. Let me see if I can figure out here in my notes. I
think New York Jets that .nyc is owned by somebody
named John Kallman that lives in New Rochelle that
has nothing to do with the Jets organization as far as the person that wrote
the article knows. In fact, it points out that the domain is for sale so it’s
certainly not that.
Denise: But you
could certainly envision the guy that is the hugest Jets fan ever that decided
that I’m going to run my fan site for the Jets on a .nyc domain and I’m going to call it NY Jets, and you know, obviously there are
trademark issues there but he’s got at least a colorable claim to having the
site under those circumstances, right?
Michael: Well,
except for that person put up a for sale sign.
Denise: Right, no
I was spinning a hypothetical.
Michael: But, okay,
you take that out. So this case, that certainly could be that that could be a
legitimate use that comes out and that certainly is a possibility that they
could do that. That could be a legitimate fair use under the regular dispute
resolution procedures that that could be taken in consideration. Whether that’s
going to be into consideration on all these dispute resolutions systems, I
believe that the URS still looks at whether or not something has been
registered in bad faith, but it is supposed to be a quick and dirty type
system, and certainly possible that that could go wrong, too.
Denise: Michael,
with all of these thousands of these top level domains out there, it seems like
your job would be complicated over and over again.
Michael: Well, yes
and no. So, as far as discovering sites, basically, archives function as
crawlers. You load a page, see what it links to, load those pages, see what
they link to, and repeat until they grab everything. So in that sense, you just
crawl and as long as people are actually linking to these sites, then they will
be discovered and archived. Now, aside from that, the proliferation of top
level domains is a remarkably bad idea, and I’m very sorry that it has been put
in place because it leads to these land rush scenarios. I’m going to say I’m
going to blame Kevin because I heard earlier that his company was involved in
handling squatting issues. I think it was Kevin and we will say it’s Kevin’s fault for the proliferation of top level
domains because there is really no overarching need for them. If you are the
world’s number one Jet’s fan then you can create your site under a different
name. Since search engines are the primary source of discovery, if your site is
popular than it will be discovered. So, I mean, I think the main reason for
proliferation of domains is you make money by selling them, and two, you make
money by confusing customers. The whole operation seems to be in bad faith from
my opinion.
Denise: Alright,
Kevin, what do you do for clients with all of these thousands of new domains
coming online? You mentioned there is some sort of notification if you have a
registered trademark, but I mean, are people looking
that that stuff?
Kevin: Well, they
register with the trademark clearing house. One of the things that my new firm
does is, we are affiliated with the registry that operates it’s own registry that operates as a registration
agent itself through the clearing house. So that is certainly a thing we
provide for our clients. But, in terms of that, watch services are certainly
enabling. There’s an option depending on the client. Just because you register
with the clearing house, it doesn’t mean you are off the hook for your
obligation to your client to look for things that may develop, so that’s
certainly one thing that we also do for our clients is to provide these watch
services to look for these types of things. In essence, help them prioritize
what’s going on out there.
Denise: Right,
maybe if you are Coca Cola you get coke.nyc and
everything else there is out there. Or Coca Cola. But
if you are not, then, it probably just is cost-prohibitive to try and lock them
all up.
Kevin: It is
extremely cost-prohibitive and that is why you know, depending on the client
obviously, it will take sort of a wait and approach to see what happens with
certain domains. Certain things we’d pounce on right away, just looking at the
URL there is no way possible it could be used for anything other than
infringement. But, other things, might develop into
something as you said earlier, which is a fan site or something, in which case,
then, depending on the client that might be an option. At the same time, we
also have clients that are very sensitive depending on the particular domain. The
article that you had linked to gives Disney as an example. They felt that they
were extorted when the xxx domain came online. They felt the need to go out and
spend money on domains that they had no interest whatsoever in using for their
own business purposes, but merely they went out and they reserved them so that
others couldn’t use them and the xxx domain system under the Disney brand.
Denise: Right
Kevin: That’s
obviously a concern, but I think that ICANN implemented this system over the
objections of the trademark lobby. I don’t think those of us in the practice
were that thrilled that these domains came online, but it’s a fact that ICANN
has done it and we as counsel, it’s our job to help our clients figure out a
reasonable approach to handle these types of things as they occur and how to do
that and live within budgets. It would be wonderful to go against everybody in
the world that’s infringing, but that’s going to cost more money than many
legal departments want to spend.
Denise: Yeah, I
think you just gave us our second MCLE pass phrase for the show and that’s
going to be snowwhite.xxx. Poor Disney! I’m sure they
had many of those they had to squelch when .xxx came online. Um, let’s circle
back to the privacy ramifications of archiving the web. We sort of went down a
little side tour there based on domain names, and archiving the various
proliferating world of them out there. So, what are you going to do, Michael,
when someone from the EU comes to you and says, “Okay, we need a way to make
sure that this website from 1998 is no longer viewable?”
Michael: So, this
is I guess going to be dependent on who is running the archive. So, places like
the Internet archive Brewster Kale has been pretty proactive about taking down
the sites that people don’t want in the archive. There is a form you can go and
fill out, but that works when there is one well known archive. Right? So when we go to dozens or at some point in the
future hundreds of public web archives, because they are springing up as people
are trying to figure out how to commercialize them, and that’s going to be a
lot more difficult as far as handling these takedown issues. Now, it might not
show up strictly in the EU context because right now web archives or the pages
of the web archives are not indexed by Google and other search engines, right? So,
in that sense the archived web pages are not discoverable from search engines
and so will not get caught up in the initial EU ruling, but this is something
that we’ve internally struggled with. So, for example, one of our studies
generated a lot of attention a couple of years ago. One of my grad students is
from Egypt, and he was here, and as the Egyptian revolution was happening, he
was of course tracking it remotely. And then, one year after the resolution was
over, we acquired a whole bunch of tweets of and about the Egyptian revolution,
and we looked at how many of the tweets disappeared, and the resources that the
tweets linked to that disappeared, and we were really surprised. So, about 11%
of the resources the things that people were linking to in tweets disappeared,
and then we found maybe a similar percent, maybe 10% or 11% of the tweets
themselves had disappeared. So, in many ways this was the first revolution that
was taking place in social media, and social media playing a huge role in this.
So people were crafting history based on this material. And, of course, now,
and at the time we were thinking that this is great, we are trying to preserve
this material for posterity. But, now you have to think about the past for our
five or ten years who is running the country at this point, and will people
want to be associated with the things they said in 2011? Because there could be
repercussions further on, right? So, often times as technologists we sort of
view ourselves as we are the good guys forming the watch dog operation on bad
government because there are just too many examples of governments trying to
edit their own archives, and web archiving is a great tool for capturing that. But,
then you have to think about what if the bad governments are in fact using web
archives for cultural purge or something like that, and to be honest we don’t
have a good answer for this.
Denise: Alright,
well we wish you luck as you face those daunting challenges. Another daunting
challenge is being a parent of a teenager using social media and our final
story has to deal with a lot of the social web, and it’s going to be our tip of
the week.
Okay, the tip part of this story is
going to be real simple. I can’t distill a more sort of practical, this is how
you handle your child’s use of social media tip, because it’s kind of
complicated morass here that I’ll get into a second. But, my tip is going to be
if you have a minor, if you are apparent with a minor child legally using
social media. So, they are probably over the age of 13, show them this article.
Show them that this happened. And what happened here is there was a middle-schooler in Cob County, Georgia and actually two middle-schoolers who decided that they did not like a classmate,
and for whatever reason, whatever motivation, were going to set up a fake
Facebook page for one of their classmates and populate it with a bunch of stuff
that was both unflattering to her physically and suggesting that she was a
racist, was a lesbian, various other things that were defamatory in nature. So,
the parents of the victim child who was a girl ultimately decided to sue over
this. I think they probably went through many steps before then, but they
brought a civil defamation lawsuit against the parents of the two students who
sat up the Facebook page, a boy and a girl. One of the groups of parents that
were sued just didn’t respond. There is a default against them in the case. I’m
not sure what will happen with that. The other parents did respond and asked
the judge to end her summary judgment in their favor saying, “Hey, hey, we
can’t be sued for the acts of our child” I guess would be the assertion in the
summary judgment papers. I have not read them. On appeal, a three judge panel
decided, no, that’s not true. We are going to go ahead and let this go to trial
against you, parents. And, one of the things the appellate court noted was that
the site remained up for quite a long time and that the parents did not monitor
it at all, take any steps to bring it down, and so, let’s see, let’s read you
from the appeal judges themselves. “During the 11 months the unauthorized
profile and page could be viewed, the Athern’s made
no attempt to view the unauthorized page, they took no action to determine the
content of the false profane and ethnically offensive information that Dustin
was charged with electronically distributing, they did not attempt to learn
whom Dustin had distributed the false and offensive information, to whom he had
distributed that information, and whether the distribution was ongoing. They
did not tell Dustin to delete the page. Furthermore, they made no attempt to
determine whether the false and offensive information Dustin was charged with
distributing could be corrected, deleted or retracted.” So, here the court is
saying, “Look parents, you should have taken some of these steps, and in the
absence of taking some of these steps, can be potentially liable for defamation
for what happened here with your child.” Now, I don’t know too many parents
that could keep tabs on every single Facebook page or social media page that
their children might be involved in, but that seems to be the expectation from
the court here. And also worth noting and noted in the coverage of this is that not only civil liability might be the result. There
are many, many states that have anti-harassment and anti-cyber bullying laws on
the books where criminal liability might well be triggered by this kind of
conduct too. So, I’ll kick this to our crim-pro
professor on the show today, Ron. What do you think of this particular case?
Ron: Well, it’s
a fascinating case. You are right in talking about it’s an extension of the
bullying stuff we’ve heard so much about. And, normally
though, people are responsible for their own torts, even children and parents. So, normally, you don’t see parents held responsible for things like this their
kids did. The difference I believe in this case is that the court held that the
parents knew for 11 months that this Facebook page was up there and they did
nothing to take it down. In some ways, suggesting, because probably the parents
are paying for the Internet access, the ability to be on Facebook, all those
kind of things. So, in some ways you can say arguably that they joined into it
in this case. Now, you can avoid all liability by being a reasonable person and
finding out that if your kids do something like this that you punish your kids
and you make them stop and you take it down. That’s what people should do. I
think that’s appropriate that people do that. Whether the parents should be
civilly or certainly criminally punished, I’ve got some concern about whether
the law should extend that far. But I certainly agree that this is a bad thing
and if you know about your kids doing something like this you should put an end
to it.
Denise: Yeah, and
that’s why I made this our tip of the week just to share this article with your
teen kids if you have the chance because just having observed this species in
the wild, this kind of thing, even though these kids clearly crossed a cruelty
line that I would hope most kids would not. Without crossing that line, I could
certainly see kids because they can, because they don’t care about terms of
service, thinking it would be funny and a joke and maybe they would make their
friend laugh by coming up with a Facebook page for them. Yes?
Ron: Denise,
what I didn’t see in that article and I don’t know if that show up elsewhere,
is perhaps the parents of the offended child, I mean, Facebook has a
well-documented takedown procedure. At some point, it would seem that you would
contact Facebook to try and get this page removed, right?
Denise: Right.
Ron: It’s a
clear violation of their terms of service. I mean, obviously the other parent
should have done something, but the original set of parents, maybe they didn’t
pursue the best course of action either.
Denise: Yeah, I’m
not sure. The original reporting on this came from the Atlanta Journal
Constitution, and I don’t think it goes into that particular aspect of what
other steps the parents took, but even if they were successful in getting the
Facebook page taken down, that wouldn’t eliminate their ability to also go
after someone for defamation.
Ron: Sure, but
it said that one of their original points was that “Hey, you did nothing for 11
months” and I’m thinking, “What did you do in this 11 month time frame?” Facebook
is very clear that you can only have accounts in your actual name, and you
can’t have these fake accounts, right? Facebook has gotten all kinds of
pushback for the takedown of accounts for transvestites and so forth where they
don’t use their real name, and so forth. So, what did the original parents do? And
I guess we don’t have all the information on this, but it does make one wonder
what happened. Did anyone do anything in this 11
months?
Denise: Right. And
my guess is that Facebook gets hundreds, if not thousands, of these requests,
these kinds of requests every week and I just don’t know the alacrity with
which they can respond to them all. What were you going to say Kevin?
Kevin: I was just
going to say that it linked to with that article the 28 page opinion from the
core granting the reversal and I do believe there were some facts in there, but
I don’t remember all of the exact details. I believe that the parents did try
to take some steps, but exactly what steps they took and whether they took
steps that would have been effective if they tried it is an open question,
because I simply don’t recall those particular facts. The ones I was focusing
on more were the legal theories in which the core was holding the parents
liable for, and it’s pretty clear that they are holding liable on a negligence
standard and that they were aware of it, and that they punished their child. They
were aware that the school had punished their child. They did their own
punishment at home for a week, but at the same time they didn’t take any steps
to take it down. There was an alternative theory of liability in which the
parents of the child that the site was about were tried to hold accountable
under sort of a chattels approach saying “You’re the one that was responsible
for it.” This is essentially said that they couldn’t hold the parents liable
under that theory because it was not an account that the parents had the
password for. It was not an account that the parents themselves had set up or
directly controlled. In essence, under this theory, they could have had their
child take it down, but that wasn’t enough to say that they controlled that
particular account sufficiently for them to be directly liable for having it. Instead,
the sole theory that is going to go back to the lower court on is whether or
not the parents were negligent in their handling of this situation.
Denise: Yeah. I’m
back to being with Ron in that a whole lot of communication and guidance for
kids using social media is a good idea. If you can also hold over their head
it’s not just you that are going to get in trouble for this potentially. Mom
and Dad are too, that maybe it will take on some more force and importance. And
also just that, you know, we’re all human. I think a lot of the stories we talk
about on This Week in Law have to do with the fact that people do what
technology lets them do without necessarily thinking too much about the
consequences of it, and the consequences definitely come into play. It’s, I
think, why we have a show. Going over those consequences with kids who are,
again, having observed the species in the wild a lot, they are all about what
we can do, and isn’t it cool that we can do it. Let us move on to our resource
of the week, which is Memento, Michael Nelson’s project and project of Old
Dominion and the Los Alamos Lab. So you told us a bit about the project at the
beginning of the show, Michael. Anything you want to add to that, or any way in
which people can contribute or help the project?
Michael: So, the
page that you have up right now is a good page. This shows an extension that
you can download and install in your Chrome browser, and it makes it easy to
bridge between the past web and the current web. So, basically as you’re
viewing the current web, you can right click on any link on any page, and say I
would like to query all of the archives for this page as it existed at a
particular time, and that’s what that image shows right there. It says get near
in some date, and at that point this extension will query, again, a dozen or
more archives and try to find the page closest to the date that you specified. Now,
it doesn’t guarantee that you’ll find it. If nobody archived that page on that
date, or maybe they didn’t archive that page at all, then you won’t get
anything. But if it exists, in existence in place that you’ve probably never
heard of, Memento will go out and find it. So, this is one of two clients we
have that will do this, and this is probably the easiest thing that you can do
to get involved. One of the things we are trying to do is raise awareness about
the past web. Because, many people are largely unaware of web archiving and our
web experience is sort of stuck in the perpetual now. You click on things and
always get the current version, which is often what you want but not always
what you want. So we want people to be aware that the past web does exist, and
these clients help, they hide a lot of the details so you don’t have to worry
about it. These clients help you navigate back and forth between the two webs.
Denise: So, as a
complimentary resource of the week, every now and then we throw a book
recommendation out there for you. I’m in the middle of reading The Circle by
Dave Eggers, which is a nice compliment to talking about Memento. I have not
gotten far enough into the book to know where it’s all going to go, but it is
about a company that seems to be in a glomeration of Google, Apple and
Facebook, maybe. Certainly a fictional Silicon Valley company that has its
hands in everything, and very gregarious and engaging founders, and a very
committed group of people who live there, and the world’s most beautiful
campus. They are all on a mission to make the world a better place, but again,
I’m not far enough into the book to know exactly where it’s going to go, but it
reminds me of reading The Firm back in the day. You’re going to work at this
wondrous place, but there is something very dark going on under the surface. What
is so dark in this story has something to do with the fact that the company
knows everything about everyone, and continually does initiatives. I think at one point early on in the story there is the introduction of some
surveillance technology that the company is going to put out there for people
to use, and the motto that goes along with it is “Everything that can be known
should be known and will be known”, so it’s somewhat in keeping with the
sentiments of archiving the web and making sure that we have access to the
historical web. I’m not suggesting Michael that there is anything nefarious
about what you guys are doing, but it’s a nice kind of thought experiment, I
think this book is, for the things that we talk about on the show, and what
else did I want to say about The Circle. Oh, there is just some great humor to
it too. People getting snowed under by their social media, and it’s definitely a good read. People that like this show will like the book
for sure, so check it out if you have not already. Oh, there was a great
discussion in the part I referred to where they are introducing new
surveillance technology about how so much of human knowledge was lost in the
dark ages, and how we owe our knowledge of the history of the times to a
handful of monks who wrote everything down, and that’s part of the
justification for their having surveillance cameras everywhere on the planet,
including, not to give away too much of the book, but clandestinely installed
in family member’s homes without their permission. It’s a good book to read,
and entertainingly written, so check it out. Guys, it’s been really fun to chat
with you here today. Really great meeting you Michael Nelson! Thanks for the
good work you’re doing and for all of your thoughts and insights here today.
Michael: Thank you,
Denise.
Denise: And,
Ronald Rychlak, I wasn’t going to butcher your last
name at the end of the show. I hope I didn’t just then. Great
meeting you. Great chatting with you. You’re
also, in addition to being involved in teaching Crim-Pro
and other subjects at Ole Miss and paying close attention to online gambling
issues, aren’t you also involved in the athletics program there?
Ron: I am. I’m
the faculty athletics representative, chair of the athletics committee. We’ve
got a big game against Tennessee tomorrow, so big excitement on campus. I
really enjoyed and learned a lot today so thank you for having me on.
Denise: We learned
a lot from you. Really great that you could join us. We
really appreciate the time. And, Kevin, great to see you again. So good to see that you are doing well at your new position
and to chat with you on the show.
Kevin: Well,
thanks again for having me. I really appreciate it when I do get a chance to be
on and look forward to chatting with you again in the future.
Denise: Alright,
we will do that soon. In the meantime, we have been recording this show on a
Friday. That is when we always record the show at 11:00 Pacific Time, 1800 UTC
that’s when you can join us if you like to watch the show live. If you would
rather watch the show on your own time, it is available on demand on YouTube,
at our own site at twit.tv/twil, and on Roku and
iTunes and however else you like to tune into this kind of programming. You
should get in touch be between the shows too. I’m denise@twit.tv and I’m @dhowell on Twitter. We have a Facebook page and a Google+ page for the show. Great ways
to let us know what’s on your mind, what you thought about the topics we
discussed, what you’d like to see us discuss, and who you think we should
invite on the show. We love all of your suggestions and feedback, and encourage
you to get in touch with us in any or all of those ways. Until next week, we
will see you! Take care. This has been This Week in Law.
