This Week in Law 283 (Transcript)

Denise Howell: Hi, folks. Denise Howell here, and you're about to listen to This Week in Law with me, Venkat Balasubramani, and Melissa Sachs. We're going to take in the car crash that was Uber this week; take a visit up to the Ninth Circuit, see what it's been up to on the copyright and free speech front; we'll talk about some things you don't read; and copyrights in space. All next on This Week in Law. 

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Denise: This is TWIL, This Week in Law with Denise Howell, episode 283, recorded November 21, 2014:

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Hi, folks. I'm Denise Howell, and thank you so much for joining us for This Week in Law. We've got an incredible duo of folks joining me today to talk about everything that is happening at the intersection of technology and law. Well, maybe not everything, but everything that we found interesting this week, which is a lot of stuff, let me tell you. First, I'd like to introduce you to Melissa Sachs. She writes The Knowledge Effect for Thomson Reuters, a great blog. She's also the Westlaw Journal of Computer and Internet author and a first-timer on TWIL. So great to have you, Melissa.

Melissa Sachs: I'm really excited. Thanks for having me.

Denise: And not a first-timer, a regular on TWIL, is Venkat Balasubramani joining us once again. He is from Focal and also coauthors the Technology and Marketing Blog with Eric Goldman, a definitive source for all things related to Internet law. And we're so happy to have you back, Venkat.

Venkat Balasubramani: Thanks for having me.

Denise: So like I said, we've been bandying about lots of links this week of things that have caught our eyes. I think probably the thing that is on everyone's mind this week on the law policy privacy journalism front — I've gotten a lot of questions about legalities on this — so let's plunge into it and try and answer some of those questions concerning Uber. And the Buzzfeed report that Uber's executive vice president made some comments concerning Sarah Lacy to the effect — senior vice president, excuse me; I got his title wrong. His name is Emil Michael; and Buzzfeed reported that he had made some suggestions that perhaps Uber was setting aside money to be able to dig up dirt on journalists such as Sarah and use their own copious data to be able to have information that could be used to sway journalists or make them think twice about their coverage of Uber, which is very disturbing and has ruffled a lot of — not just the public's feathers and journalists' feathers but also now lawmakers' feathers as well, as we have seen Al Franken contact the company and take them to task on their privacy policy and their data management. And I think it's made everyone take a long, hard look at Uber and companies like Uber. I mean, obviously we're singling out Uber here because that was the thrust of the news this week; but they're not the only company like them out there that is new and has a lot of customer data and may have certainly not the regulatory attention that a lot of established companies have had. Uber flies under the radar on a lot of regulatory issues; or if it's not under the radar, it's certainly not squarely subject to regulation. So I wanted to put this on our table for discussion and ask the question that I was getting about the legality of these allegations if true, Venkat. If we could just assume for the purposes of discussion here that Emil Michael was serious about putting together a dossier on journalists and then using that in the company's favor, is there anything wrong with that as long as their privacy policy is sufficiently vague? And it seems like Uber's may well be.

Venkat: Wow, you're putting me on the spot. I would have to say that I would be hard pressed to say it was illegal or even violates the journalists' rights; and I think that privacy is amorphous, and there's certain categories of information that are off-limits and can't be disclosed. But the idea of digging up dirt on your opponents is, sadly to say, time-honored and probably goes on a lot more than we would think. And the journalists would be left to sort of assert a garden variety invasion of privacy or intrusion claim. Somebody digging through your trash or following at close proximity and is that outrageous. And I think it would kind of raise the question of, what's fair game when you're dealing with journalists? Are journalists public figures, and do they have the same privacy rights as ordinary citizens? And I think that's an interesting question that I'm sure a lot of companies, although they may not say publically, probably feel that, by trying to dig up dirt on Uber, journalists are putting their own sort of lives out there. I don't know that I agree with that, but I'm saying that's what I think the company's argument would be. And I think a slightly related issue, or a separate issue, is to what extent Uber can use information generated in the course of using the app? And there, I think, there might be a stronger privacy argument to say, You're generating information about me through my use of the app, and you have a privacy policy that says you're only going to use it to allow us to secure rides and maybe for some limited internal business purposes that probably doesn't extend to digging up dirt on where I go, who I see, and how I use your service. So I think it would be tough to make a legal — have it be a clear-cut illegality; but I think it's just turned into more of an ethical issue that people are saying, If this is the company's ethics, do we really want to be using this service?

Denise: Right. And of course, they have backpedaled and apologized; and as far as I can tell — maybe this is simply an access issue. But one of the things that came to light this week — it's not that it wasn't to light before this week but got a lot of attention this week — was a 2012 blog post from a data cruncher at Uber who did this kind of tongue-in-cheek yet completely seemingly factual post about rides of glory, where Uber was having some fun with their data and going through and trying to discern the percentages of people who might have gotten dropped off for a one-night stand and then picked up and dropped off again the next morning. When I go to try and pull that up this morning, I'm getting a 404; so I don't know if they've pulled that down now or not.

Venkat and Melissa: (Laugh)

Denise: It was an interesting, humorous read, but also kind of creepy in light of what went on this week. So given that —

Venkat: If I could add one quick thing.

Denise: Yeah, go ahead. Yeah.

Venkat: On a related note, I think, there was also this God view that Uber internally publicized, and I think Kashmir Hill might have written a blog post about it that basically said, There's this fully — a view that gives insiders who have a certain level of access much more detail about how people are using the service and what the identities perhaps even of the people are. And that certainly sounds problematic and the type of thing that the FTC might be interested in from the standpoint of a company telling people, the public, what their privacy practices are and then doing something entirely different or doing something that's completely different from the expectations. But coming back to your point about the data crunching, I think companies do it often. Netflix does it. And I think that you would be hard pressed to make a civil case about it. People bring privacy cases time and time again; and unless somebody actually finds out John Doe took a cab to do X, Y, and Z, and it was highly embarrassing, and publicized that fact, that could translate into a privacy claim. But sort of the garden variety, The company knows more about me than I thought they did doesn't really — it's tough to make a legal claim out of that.

Denise: Although the blog post I read about rides of glory was — and I hope that they did not pull that down — was very tongue-in-cheek, there was some serious, as you're suggesting, Venkat, correlations of data with activities and drawing some conclusions from those activities that may or may not have been justified. I mean, I suppose, if there would be a way to verify what activity people were engaged in that Uber was making guesses about — but at bottom, it was guesses, and guesses that could lead to some reputation-damaging stuff if you found yourself lumped into the statistics there. So Melissa, it seems like Uber's privacy policy has come under fire a lot this week, that it sort of gives with one hand and takes away with the other. Do you think, at minimum, they'll be addressing that?

Melissa: Yeah. From what I read, they already hired a law firm to review their privacy policy. But I think that what you brought up with the access question is more important. I'm surprised that they didn't also announce that they're having a law firm review their employee access policies and computer policies because I think that might be just as important to address in the media right now.

Denise: Right. I mean, I've seen some statements out there to the effect that, No, we don't access user accounts except in very specific circumstances where we're investigating fraud or seeking payment. But I think they do need to give some concrete assurances that, indeed, if you're giving us data, we are going to protect it from not just leaks and getting out but also from our own internal use. So Senator Franken found this troubling and asked for some clarification from the company. Venkat, taking this up a level, do you think that companies like Uber might find themselves more a target of legislative attention in general as the result of this or as more and more of this kind of thing becomes public?

Venkat: Undoubtedly. I think privacy rules are, as you would guess, kind of driven by public outrage. And a popular example is the Video Privacy Protection Act, which was passed in the wake of a nominee for Supreme Court, candidate Judge Bork. And they said, Well, let's check out his video records to see what kind of videos he's renting; and that created a huge uproar and resulted in the passage of the Video Privacy Protection Act. And perhaps — I can't tell if the attention is just outsized on typical Internet issues. Maybe the public at large doesn't care as much; but perhaps this could result in similar privacy legislation, either generally or specifically related to geotargeting information or whatever kind of information that it's revealed that was exposed. So I can definitely see this as ratcheting up the possibility of legislation somewhat; or at least somebody might introduce it to make themselves look good and see if they can push it.

Denise: Right. I mean, it just seems like, when you start considering the allegations about the NSA and its data gathering practices — we haven't thought about car services as a very fertile way to gather information about people; but when you look at Uber, you could gather not just location data but just this week, they've announced a partnership with Spotify, so you could pick up someone's playlist as you mentioned a second ago, Venkat, that there's probably the ability — I've never jumped into an Uber car that had video screens in the back, but I would imagine that the Video Privacy Protection Act could be triggered if a similar partnership were announced with another company. At the same time, though — I mean, maybe I'm just being overly sensitive to this because of the news this week. What do you think, Melissa? Is this something that people are going to need to pay attention to, or are we all just kind of up in arms for the moment?

Melissa: Well, I think that in the United States — I actually just edited a commentary about the difference between U.S. privacy law and privacy law in the European Union; and I think that we have industry-based privacy laws. So as you brought up, is this going to be something — if we did go forward with the law, would this be something that is a law that regulates geolocation services, mobile apps? What exactly would the law target? I think right now, the best article that I read was — and it might have been one of the links that you have — was about all the alternative services other than Uber that you can use; and I think that's going to be the easiest way to address this problem right now, is just to switch services if you don't like it.

Denise: Yeah. I don't think I have that one in our discussion points; so if you send that my way, I'll be sure and add it. And for people who do want to check out our discussion points after the show, they're at delicious.com/thisweekinlaw/283 is our episode today. Well, we were already talking about legislative concerns about Uber and similar services, so in a moment I'm going to shift gears and we'll talk about some legislative and policy issues. But before we leave this Uber story, I thought we'd just go around once and see — Venkat, do you have any final thoughts about this or anything that you would expect to see happen going forward?

Venkat: I think it's a big question of to what extent people are going to truly delete the app, or is the outrage just going to go away next week? And I've seen a few people here and there publicly say they've deleted the app; but beyond that, my instinct is, in a matter of a couple of weeks people are going to more or less forget about it, unfortunately.

Denise: Yeah, I tend to agree with you, especially because it's just — I think, for the people who use Uber, it is almost too convenient to give up, and it's good that there are alternatives out there and there's competition in the field; but I do think they do have kind of inertia that will work in their  favor here. What do you think, Melissa?

Melissa: I agree that they do have the inertia, and it's going to take a lot for people to delete the app; but I hope that it won't go away, and maybe we can all make a point to revisit this in a few weeks.

Denise: Right. And you never know. I mean, the company seems to be paying attention. They've hired David Ploof; that didn't prevent this from happening, unfortunately. (Laughs) But they do seem to be paying attention to having their Ts crossed and I's dotted now that this has happened, so I think this is going to be one to watch and see how they respond to Senator Franken's questions and what sort of public statements they make about this in the next month or so.

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Let's move on to those policy and legislation stories I was mentioning.

(The intro plays.)

Denise: So Venkat, you sent this over this morning, and I think it's a really nice

complement to what we were just discussing with Uber; and this concerns Handy, which I'd actually never heard of before, but I'm not surprised it exists. They are on-demand handymen for house-cleaning needs, fix-it needs, and I'm assuming that it is an app-based kind of scenario like Uber. Apparently, it is staffed by independent contractors like Uber. And in this particular case, the requirements on the Handy independent contractors, if these people were employees, would be running afoul of California Labor Code provisions. So do people get to just drive through a regulatory loophole, Venkat, once they have a staff full of independent contractors?

Venkat: I would say no. And this lawsuit filed against Handy basically raises that issue and says that the people performing the actual services are employees because Handy is very specific about how they have to act and what they wear and how to shake a customer's hand, and they're very detailed and controlling about the interaction between the "contractor" and the Handy end user. So basically, if they are a contractor, Handy has a lot of leeway; and it can wash its hands and say, We don't have to necessarily comply with — the wage rules are different, and ultimately it can, to a certain extent, pawn off on the end user the interaction that would otherwise be within the employment relationship. And if the workers are deemed employees, then Handy's much more restricted in having to pay minimum wages, overtime, give breaks; and there's a whole suite of labor regulations that apply to employees but do not apply equally to independent contractors. So that's basically what this lawsuit is about, is Handy as a platform is sort of attempting to make available this large workforce; and, the plaintiffs say, but not take responsibility and not shoulder the burdens of an employee — or of an employer, I'm sorry — in dealing with these workers. So I would guess the answer to your question is probably no; but this is an area that's important, as you noted, to companies such as Handy — there's oDesk and other kind of — Amazon Mechanical Turk, and huge areas where you can hire people to do tasks. That's another area where a similar issue is raised. And it's also raised for Uber, to a certain extent, because Uber, I'm guessing, wants to treat their drivers as independent contractors; but perhaps the drivers might come back and say, No, we're employees. And that distinction is very legally significant for a variety of reasons; and that's — this lawsuit, among others out there, are targeting that issue.

Denise: Yeah. This is a real, I think, hot-button issue right now because it seems like a lot of companies have decided, Okay, here's our business model: we are simply a go-between. We are an app. We are putting customers together with service providers and taking a piece of that. And we're not employing anybody; we're not working with anybody; we're just the go-between and facilitating these transactions. But it doesn't — as you point out — and this lawsuit's a good example — once you start putting a lot of requirements on people, they, at some point, become classified as employees. So does that mean that someone, Venkat, do you think, who had taken a different approach and just was careful to simply be a connector, sort of if you had taken Craigslist and made it into app form, that they would face a similar problem?

Venkat: I would think not, and I think that's a good example that you raise, Craigslist; and it's existed for many years, and those types of services are just pure hands-off connectors. And I think the fact that, to my knowledge — I could be wrong — but the Craigslists of the world have not been sued for these issues is a good indicator that it's a much tougher argument to make against a company like Craigslist. I think the key is, if a company exerts control and wants to be the concierge, so to speak, that that's really going to up the risk for the company in being treated as an employer.

Denise: It's a tough line to walk because, on the one hand, what makes an Uber car a reliable experience for a rider or any sort of housekeeper a good experience for the person retaining those services is some degree of consistency, some degree of security. They know that, as the consumer, you would want some requirements being put on your independent contractor. So I could see why companies get themselves tangled up in trying to walk this fine line and maybe not doing it properly all the time. Melissa, what do you think of this?

Melissa: I think that this suit reminds me of something Yelp — elite Yelpers sued the website based on the same reason in California. They said that they were treated as — they were hired as independent contractors, but they were really employees. And then, Google was also just sued in New York over this for someone who was a site merchandiser in the Google Play unit — I'm reading from the complaint. So — and he was told that he — or allegedly was told that he should get hired through oDesk, but he was doing the same type of job that people at Google were doing; so he sued based on the same theory that it sounds like is in the suit against Handy. So I think these suits are going to be more and more popular as employers, I guess, use recruiting companies and third parties.

Denise: Right. Hey, Melissa, I've been watching your Twitter feed and noticing that you're paying attention to net neutrality issues. Not too much new on that front this week, but I thought it would be fun to at least touch on a couple of net neutrality-related items since we're still waiting for the FCC to tell us how they're going to redo the rules. One of the things that caught my eye this week was something from The Verge and Addie Robertson sort of taking Mark Cuban to task for comparing the net neutrality scenario to Atlas Shrugged. And what Mark Cuban tweeted was, "In my adult life, I've never seen a situation that paralleled what I read in Ayn Rand's books until now with net neutrality. If Ayn rand were an up-and-coming author today, she wouldn't write about steel or railroads; it would be net neutrality." And I'm probably mispronouncing her name; I've heard it said Ayn [pronounced with long I] Rand as well, so I've never really quite gotten that one down for myself.

Melissa: (Laughs)

Denise: But Addie kind of went to town and told the net neutrality debate as — I think it's really more — yeah, I guess maybe it's Atlas Shrugged or — which is the other famous —

Venkat: Fountinhead?

Denise: Yeah, The Fountainhead. Wasn't Dagny Taggart from The Fountainhead?

Venkat: Oh, my memory's — I think —

Denise: (Laughs) Chatroom will tell me.

Melissa: I think Atlas Shrugged.

Venkat: (Laughs)

Denise: It's Atlas Shrugged. Okay.

Melissa: Yeah. (Laughs)

Denise: Good. All right. I'm confusing my protagonists here. But she's kind of got them all in there.

Melissa: (Laughs)

Denise: And her point is that opponents of net neutrality, and particularly opponents of Title II reclassification are in this fictional scenario cast in the role of those who are urging unfair regulation, constricting regulation that's killing business and preventing creativity, etc. So I don't know that I think the analogy fits. I think it's a far more complicated issue, what we're going to do, what the FCC is going to do with net neutrality and how it will all unfold. But I did think it was interesting that Addie had fun with this and drew the comparison. Do you think there's any kind of legitimate parallel here?

Melissa: Well, I didn't read Atlas Shrugged, so I don't know if I have the foundation to say if there's a legitimate comparison. (Laughs)

Denise: (Laughs) Right. I read it so many decades ago that it's pretty distant for me at this point; but I remember the crux.

Melissa: But yeah. I think that this issue is totally confusing, and I try to keep myself educated on this, but it's very nuanced. And I remember listening to your show a few weeks ago; and I think that that was the most heated show that I heard from you guys about net neutrality. So I can't really speak about what Mark Cuban said, but I just know that this issue is really complex, and I wish that the American public knew more about what net neutrality is, and it wasn't just a buzz word that takes on certain meaning. Yeah, that's all.

Denise: Yeah. What do you think, Venkat? Any sort of parallel here to the works of Ayn Rand?

Venkat: I have a tough time — I kind of push net neutrality to the side because it's such a tough issue that I just think other people are going to worry about it.

Denise: (Laughs)

Venkat: Our Internet service is probably just going to be mediocre for life; but it's never going to get that bad that people freak out. But I think — I don't know the answer to that question. I think that it does present a challenge for libertarians because non-regulation would probably not result in a scenario that everybody thinks is optimal for the consumer because we're — people aren't going to just get different connectivity and streaming, etc., if networks are left to themselves is my gut feeling. And from that standpoint, it seems like the libertarian view, which often pushes for non-regulation, is sort of flipped here; and they're saying, Well, we probably need some of you to step in, just to make sure that the companies treat everything the same and we have good connectivity.

Denise: I'm not sure — I'd love to be in on some of The Verge's editorial meetings because it seems like, in the absence of any real action on the net neutrality front, they're just trying to have fun with it over there right now.

Venkat and Melissa: (Laugh)

Denise: So we had the Ayn Rand post, and then The Verge decided it would be a good idea — and what a good idea it is — to send a Freedom of Information Act request over to the FCC and get at the email exchanges between FCC employees reacting to the last week Tonight sketch with John Oliver on Net Neutrality. And so then they got access to those emails, and they went ahead and published just some funny commentary from within the FCC — called Wheeler a dingos in one of them. Wow. Who watches this? Really, really funny just to see that they thought it was funny, too. "Love the Monopoly car." (Laughs)

Melissa: (Laughs)

Venkat: Yeah. So there was — I think you covered it many, many shows ago; but there was a series of articles about peerage, and it might have been on The Verge, too, or Washington Post, I forget. Maybe Timothy Lee. But those were good but also not easy to digest, that whole idea of bigger companies sort of making deals and trading traffic. And that part, to me, is — I'm curious to hear your thoughts, either of you, on that issue versus just simple — from the end user standpoint, is my Internet company charging me a certain price or treating me a certain way?

Denise: Yeah. I mean, that's — I think from their contractual standpoint, they're very careful not to make guarantees about what you're going to get for what you're paying for; so it's kind of back to the story about Uber. There's probably not a legal basis to pursue them for not delivering the kind of service that people might expect. And I do — As I continue to grapple with this issue over months and months of it unfolding, I would love for the FCC to find some kind of middle ground between ensuring access and consistency and enabling new business models as well. And I really don't know if those two things can be brought together. I'm hoping that they can, and I know that very smart people at the FCC are considering this and hopefully have those goals in mind. What do you think, Melissa?

Melissa: I think that everyone would agree that we should provide Internet access to everyone and not discriminate depending on the type of service or where you live or anything like that. I think that, again, this debate goes over my head when we start talking about Title II powers. I don't even know what that exactly would mean. (Laughs) And so — or the 706. So I think that those nuanced issues are what the public doesn't know about; instead, we hear Title II means that all consumers will have equal access to the Internet. But that might not be true because I think that Title II allows for paid — some prioritization; and so — yeah. Again, these issues seem so nuanced that I think it's funny when articles try to tackle them in 400 words or less. (Laughs)

Denise: (Laughs) Right. Well, over at —

Venkat: This is —

Denise: Go ahead, Venkat.

Venkat: Oh. I was going to say, on a very loosely-related note, there's a counselwoman in Seattle who's very progressive/socialist, and she actually suggested — this isn't related to net neutrality directly — but is trying to get funding for Internet access in homeless shelters. And I just thought it was interesting when you mentioned about all different people getting access that it was kind of odd that I hadn't heard a lot about that issue of homeless people not being able to connect to the Internet. But this counselwoman made a suggestion about funding and trying to explore that as something that we should do.

Melissa: Yeah. Actually, I'll jump in on that. I think that one of the things that I wrote about was the Lifeline program from the FCC, and that is for lower-income people to get credits to get either a wireline or wireless service to their house. And I think that the FCC could use a lot of its resources in that arena, and maybe net neutrality isn't the best topic for them to tackle now. I understand that the Congress is not acting on this, and some people say that this is something that we definitely need regulation for; but it seems that we haven't had rules in place; we've kind of let the market play itself out. And why not for a little bit longer? (Laughs)

Denise: Yes. I'm sure that's the position that Ayn Rand would take, right? (Laughs)

Melissa: (Laughs)

Denise: Certainly. What? Internet access in a homeless shelter! Just drop the globe, Atlas, it's over. This was interesting. Not trying to do any sort of thorough-going analysis of Title II and whether it makes sense to reclassify; but this week, U.S. Telecom filed an Ex Parte letter with the FCC asking it to review a study by a couple of economists, Kevin Hassett and Robert Shapiro, that — I haven't looked at the study, and I'm not sure what they're basing their information or their conclusions on. But they are concluding that if Title II reclassification takes place, investments in broadband providers will drop precipitously as much as 31.7 percent, and that — we're talking up to $45.4 billion in reduced investment in broadband providers, just as a result of reclassification. So what do you think of that, Venkat? I mean, obviously this is a plea to the FCC that — you're going to devastate our business if you go down this road. Do you think that kind of a visceral plea will work?

Venkat: I don't think so, and I think that it's typical for industry to come back and say any kind of regulation is going to just result in the entire foundation and investments just cratering. But that's — I mean, I'm skeptical. I don't know enough about the issue, so it's very — against two, I'm sure, well-respected economists, I don't know that I would take my off-the-cuff opinion on that.

Denise: Right.

Venkat: But I just — when I hear it, it sounds like typical industry kind of orchestrated backlash, for lack of a better word.

Denise: Right.

Venkat: And the other — I think that raises another point that I was just also thinking about, which is: Would reclassification have other collateral effects from a content standpoint? And what I'm thinking about here is, so much of the Internet has been hands-off, government shouldn't regulate content or who can access accounts, and we can terminate accounts and do what we want — CDA230 and all that stuff. Is allowing government regulation in this way and treating it as a public utility — would it potentially open the door to making other arguments that would perhaps hamstring companies who want a freer hand when dealing with users? I don't know the answer to that, but I was just — that came to mind.

Denise: Right. What do you think, Melissa, about the notion that Telecom investment will plummet if reclassification happens?

Melissa: I guess that might be true. I think that what Venkat said about, you kind of have to take what the industry is saying with a grain of salt, I think that that holds. But I think that his other point about, what does this Title II mean, especially with the new — there are so many changes happening with the Internet and regulating the Internet with the whole new domain naming system that I'm not entirely sure what the Title II classification would mean for content. And that's something, yes, I definitely would want to know. Is that — I'm trying to think about the FCC — things that I hear about it are, like, the Janet Jackson Super Bowl. (Laughs)

Denise: (Laughs)

Melissa: Is that going to be something that's regulated on the Internet? Probably not because it's not a TV. Or will this mean that the government will have more access to our communications? I have no idea. And I think that I am more educated than most of the American public, which scares me that I'm not very educated. So —

Denise: Yeah, I hear you and feel you on that one. Yeah. And the other thing to bear in mind, too, is, whatever the FCC does, it will — the fact that one FCC administration takes a particular approach doesn't mean that another one will. So the rules that are enacted need to be able to cross parties and chairpeople and be consistent and work well no matter who's running the show. So that's a tough challenge as well. So good luck, FCC; and we're hoping you get it right.

All: (Laugh)

Denise: On that note, let's take another break. Let's thank our second sponsor for this episode of This Week in Law, which is FreshBooks. Are you still using Word or Excel to create invoices? Goodness, I hope not. You've got to try FreshBooks. It's the easiest way to invoice clients, organize expenses, and track your time online. With FreshBooks' award-winning mobile apps, you can do it all from anywhere on your Android or iOS devices. Billing clients for your time has never been easier. Just open the FreshBooks app on your phone, set the timer, and go. I use FreshBooks in my own law practice; I have done so for a couple of years now. And it's one of those wonderful business tools that is great because it works seamlessly, and you don't ever have to really think about it. You just know when it's time to do timekeeping or invoicing. You have an incredibly reliable tool that's going to do the job wonderfully, practically invisibly. I mean, I think that's the mark of a really good tool, is that it doesn't get in your way; it doesn't get in your clients' way; it just makes sure that, if you're someone like a lawyer who accounts for their time and then sends out an invoice, it just works. It just does it great. It's so wonderful that it's online and seamless, and it's just a wonderful service. And it's built to support growing businesses. On average, FreshBooks customers double their revenue in the first 24 months. You know why that happens? Because people, when they're in growing businesses, they're too busy worrying about whether they got their privacy policy right or whether they're properly classifying their independent contractors. (Laughs) And things slip through the cracks, little things, little very critical things to keeping your business going, like making sure you get paid. So again, because FreshBooks works so seamlessly and wonderfully, that's just going to take that worry right off your plate. You're going to spend less time on paperwork, freeing up up to two days a month to focus on the work you love. You're going to easily invoice clients from your desk or on the go. In fact, FreshBooks customers are paid an average of five days later. And I think there's something to that, too. You get — it has to do with, I think, getting something in the email versus in snail mail. When I get snail mail bills I know, just as a consumer and bill payer, they stack up, and then I pay them all at once. When I get an email invoice, I pay it right away; and I find that's true with my clients, too. So FreshBooks will help you take advantage of that kind of scenario, assuming I have properly encapsulated the sociological phenomenon. You're going to avoid awkward emails and phone calls with your late-paying clients because there's automatic late payment reminder that helps you get paid faster. FreshBooks integrates with over 50 apps to help you run your practice, like MailChimp, ZenPayroll, Google apps, and more; and its award-winning support is always free, and you get to speak to a real live human being every time. Hallelujah!

Venkat: (Laughs)

Denise: There's an attorney named Nina who says that FreshBooks gives her practice a more professional look. "It also gives us transparency with our clients because they can log in to see what I'm doing and how much time I spend on their project. It's a great way to extend our services." So listen to Nina, listen to me, try FreshBooks for 30 days with no obligation at all. Go to FreshBooks.com/twil; enter "This Week in Law" in the "How did you hear about us" section when you're signing up; and start your 30-day free trial. That's FreshBooks.com/twil. And don't forget to enter "This Week in Law" when they ask you how you heard about us. We really appreciate your support, FreshBooks; and I really appreciate your support of my law practice as well.

All right. So let's move along to some of the other interesting things that caught our eye this week. I'll go to you, Melissa. You sent a bunch of links, so why don't you tell me which one that you're dying to talk about.

Melissa: Well, we can talk about the recent case out of the Ninth Circuit that upheld an injunction against California's Case Act, which was introduced as prop 35. And that law restricted sex offenders and how they use the Internet. Basically, they had to tell law enforcement within 24 hours what Internet they were using, what their screen names were, their email addresses, "any Internet identifier" is what it was called. And the Ninth Circuit said that this law does discriminate based on speech and — or it needed a higher level of scrutiny because it prevents them from engaging in free speech online.

Denise: Right. We're back to the access question again. So that particular — is it the entire law that got struck, do you know, Melissa, or just that particular provision of it?

Melissa: I believe that, right now, it's not that the law was struck; it's just a law enjoined from —

Denise: Enjoined from enforcement in that way.

Melissa: Exactly. Exactly. Yeah.

Denise: Okay. Got it. So because this was a 2012 ballot initiative here in California; and I've never lived in any other state besides California. I don't know how many states do things the way we do it here, where if you get a certain number of signatures, you can get your initiative on the ballot and you can make laws without — if enough people vote for it — without the legislature actually getting involved; and this is one of those kinds of lawmaking efforts here. And I remember this initiative vaguely; and it was about human trafficking. And I think this is one of those things where you have to be really careful what you're voting for because oftentimes things do get on our ballot in California that sound like they're a great idea. Who's in favor of human trafficking? But they might have some fine print that wind up having dire speech and access kinds of consequences. (Laughs)

Melissa: (Laughs)

Denise: And so the Ninth Circuit found that that's what was going on here. Venkat, what do you think of this?

Venkat: I agree with the ruling, and I think that it presents a serious First Amendment question when you say that a sex offender who has completed his or her parole must still register their screen name or identifier or kind of provide it to the state because, among other things, I think it gets at their right to engage in anonymous commentary. And also, I think it's one thing to restrict narrowly perhaps — I shouldn't even say this, but perhaps what sites they might be able to access or say certain sites are off-limit or what have you; that may be more defensible. But I think forcing a class of people to disclose their screen name essentially prevents them from engaging in anonymous political or other public commentary; and that's always tough. That's always tough to uphold, I think. So I think what I took away was I agreed with the decision, but I was curious as to whether a more narrowly-drawn law could work and could accomplish the goals. Perhaps unlikely, given the initiative process and how it's sort of a bludgeon — you know, sort of a hammer — not a very nuanced approach to lawmaking. But that was one question I had.

Melissa: Yeah.

Denise: All right. So — go ahead, Melissa.

Melissa: Oh, it seems that they could probably try and draft a more narrow law. I think that this law affected people after they finished their parole, after they were through with the criminal justice system. But if they violated this law, they could go back to prison for three years. So — and that means that there's this whole class of people who, as Venkat said, can't blog or go online or state their opinions anonymously because they have to tell police. And then there were also — the second thing that — if anyone put a Freedom of Information Act request, the police may have to turn over the list of the anonymous speakers to the public. So it wasn't just that the police knew who these people were, but potentially other people could find out as well.

Denise: Okay. That's — thank you for flagging that; that's good to know that that development occurred. And it's not the only Ninth Circuit story this week in our rundown. We could talk about another one that has to do with copyright.

(The intro plays)

Melissa: (Laughs)

Denise: I'm sure there are people listening to the show or watching the video when our bumper plays that have never seen a VCR before and wonder what the heck that machine is. (Laughs)

Melissa: (Laughs)

Denise: Very important bit of copyright law was put on the books because of that machine. All right. Garcia v. Google. This is the innocence of Muslims case that was decided last February by Judge Kozinski that people have been kind of scratching their heads over because it sort of novelly decided the principle that an actress, in this case Cindy Lee Garcia, had a sufficient copyright interest in her performance in a film that she could validly send a takedown notice to YouTube. This,— I hope you guys remember if you've listened to the show before — we've covered this one as it's been unfolding. The actress here was duped into — so she says — into appearing in a movie that — she did not know she was signing up for an anti-Islamic film, and once she saw the movie was appalled, really wanted to not be associated with it anymore, very much rejected being ... word I'm looking for ... did not want to have been involved in the film. (Laughs)

Venkat and Melissa: (Laugh)

Denise: And didn't want it out there associated with her name. So a lawsuit ensued; and in February, the Ninth Circuit decided that, indeed, she had a legitimate copyright interest in her performance. Hollywood — various aspects of Hollywood got frightened about this. Google warned that it would lead to Hollywood chaos. A number of briefs were submitted, both saying that this is going to be a terrible, terrible decision and, Ninth Circuit, you're going to have to rehear this case because this is the wrong thing; and that's what happened this week. The Ninth Circuit decided to do just that. So not much to say except for, this is going to get another look. What do you think, Venkat? Will the Ninth Circuit decide to do Judge Kizinski's opinion?

Venkat: (Laughs) Good question. I think it will — I think everybody somewhat acknowledged that the opinion kind of went out on a limb and took a tough set of facts and granted the actress relief. But I think there's — it's tough to tell; but I would certainly say — hope that it gets revisited. And I helped Eric Goldman file one of the Amicus briefs —

Denise: Did you?

Venkat: — saying that it's essentially a workaround of — it's basically, people are using copyright as a way to circumvent Section 230 and force content to be taken down. And as a general matter, I think it kind of falls within the pattern of people using copyright and perhaps the DMCA to take down content that's engaging criticism or is unflattering or is just political commentary.

Denise: Right.

Venkat: So I hope that it will be revisited, but I'm certainly sympathetic to Ms. Garcia's position because she was in a tough spot as well.

Denise: Yeah, she was. It's funny — just a bit of trivia. In reading the coverage here, I didn't go through and look at the docket it see who filed Amicus briefs and who didn't; but in reading Eriq Gardner's coverage here, it turns out that only one person came forward to argue that the ruling shouldn't be reconsidered, and I know that person; I worked with that person. His name's Charles Harder. He's been on the show; he was on episode 196 of This Week in Law. We worked at the same law firm long, long ago; and he has since gone on to have his own very successful and well-respected entertainment firm in Century City. So Charles came out and made the point that — here's what he's quoted in Eriq's article as saying. "Justice is and should be on the side of Ms. Garcia, who thought she was being cast in a Bee Movie adventure film, only to have her life turned upside down by an unscrupulous film producer and one of the world's wealthiest corporations that, on principle, refuses to remove a video that was created based on a fraud and has subjected her to perpetual death threats and hate speech." So definitely you could see how Ms. Garcia is in a very sympathetic spot here. But does she have some other remedy, Venkat, besides DMCA take down notice?

Venkat: Well I think that’s the challenge and the fundamental question the case presents. She may not have an effective remedy. Because she sued the producer. He’s kind of on the lamb or MIA. And what she really cares about is for Google to take down the content. And any kind of state law remedy publicity rights, etcetera, it’s tough to assert against Google because Google has broad protection under section 230. And as an intermediary, it has the ability to resist take down attempts. So I think she does have remedies but it’s tough to see a path that would effectively get the content taken down. Which I think is what she’s looking for. And to a certain extent maybe she’s already accomplished that. I think the content had been taken down pending the ninth circuit order. And it’s been down and it probably will be down. I might be wrong about this but it will be down until further court order from the ninth circuit. So let’s assume the film has been down for a year, give or take, maybe it just blows over at that point. So maybe the rulings revisit it but she has some effective release because at the height of everyone getting excited about it, at that point she was able to get the movie taken down.

Denise: Right. Melissa, what do you think about the notion of you defrauded me into appearing in this film? So what if she were to go after them saying this was fraud? And so the whole film has to just not be released or distributed. Do you think that would go anywhere?

Melissa: I think that’s a better claim than the one that was ruled on by Judge Kozinski. I don’t know much of the background facts of… Venkat said she had went after the producer. It is one of those cases where you feel for her but it’s bad-case law, I think. So I would say that she should try and go after the producer. But if she already has or can’t find him or a company, then she’s in a tough spot.

Venkat: I think what she’s trying to assert is sort of a moral right or sort of not directly copyright but just saying hey, I should have some ability to control how I’m portrayed in this movie. And whether she gets there by saying she was defrauded or through other means, I think that’s the crux of it. That she’s just trying to control that portrayal.

Denise: Well again we will keep an eye on that and see what the ninth circuit does when it re-hears the case. Let’s look at something that Melissa wrote about over at the Knowledge Effect and something we talked about on the show a few weeks ago. That is the fact that Google’s asking for the Supreme Court to review the API decision in Oracle versus Google. The Supreme Court hasn’t done anything about that yet. But there was some good substantive commentary over on Vox by Professor Timothy Lee. Basically describing in sort of a shorter-than-brief form why this is a really dire ruling that is important enough for the Supreme Court to take up. Melissa, do you think that… obviously there’s an opportunity to do a lot of analysis about this. And whether the court’s decision should stand or not. But I guess I have two questions for you. One is on the substance of that; are you sympathetic to the arguments here made by Timothy Lee? And secondly, do you think the Supreme Court’s going to do anything about this?

Melissa: I guess to answer your second question first I think that when I had listened to your show before, you said the Supreme Court usually likes to take up cases when they are procedurally ready. And right now the Federal circuit remanded the case back to the gesture court to see if there is a fair use defense. And I don’t agree that the case should stand. But at the same time it’s tough. When I was actually going into this, I was trying to look up exactly what job Google copied. And I couldn’t really figure that out. I don’t know if this is something, I mean… all the decisions say that this is something that was so fundamental for Java developers that Google wanted to introduce it into its Android system. And I understand that that is important. I just don’t know… it seems there are some factual issues of whether this was very creative or how creative it was. And whether it should get copyright protection. But I see where a ruling like this could be scary if they do have copyright protection. And if every single company has to defend a fair use defense, they might not have the resources that Google has to do that. So it will be interesting to see if the Supreme Court does take it up.

Denise: Venkat, do you have any thoughts?

Venkat: I agree with Melissa’s thoughts. Almost entirely. I think the internet gets easily agitated about cases. And I think we have a sense of importance that I’m not sure the Supreme Court necessarily shares. And so our perspective is yea, of course they should take this case. I think obviously the organizations and the people that filed grieves make a very persuasive case. I think there was a slew of computer scientists and people whose opinion the court takes seriously. It always seems unpredictable whether what cases and when the Supreme Court decides to take cases. And I also agree like Melissa, I quickly read the Federal circuit decision. Actually I should say I scanned then; it was a 40-pager. I think what jumped out at me was the label given to this isn’t the be-all-end-all. People are calling it an API but let’s look at was it actually copied. I didn’t actually see or couldn’t conceptualize exactly what was copied but I was curious about that. And I can definitely see the problems with a ruling that says you can assert copyright over what is essentially something that allows different systems to talk to each other. But I’m curious as to whether that will be further fleshed out or if the Supreme Court is going to take that up now.

Denise: Right. It’s funny to me to sit here and reflect on the history of copyright going back to the Statute of Ann. And know that nobody involved in the creation of the concept of copyright would have known what to make of an API. And whether it was creative enough to warrant copyright protection. So I think we’ll make our first passphrase, MCLE passphrase for this episode of This Week in Law: creative APIs. And we’ll leave it to the Supreme Court to decide if it’s going to jump into the Oracle versus Google mess at this point. Or perhaps at a later point. And shifting gears to something lighter: I saw this on Fred Von Loman’s Facebook feed in a… it’s a public post on his Facebook feed. And Fred does great stuff on Facebook. It’s kind of his medium somehow. He posted photos from comet 67P/CG, which are just some stunning images of the comet. But of course being the copyright nerd that he is asked people to chime in on the copyright status of the photos from the comment. So you have to consider whether your space agency holds such a copyright; whether such photos are copyrightable. Again, throwing in something that might be as foreign to the origins of copyright as APIs are. So this is just for fun. I wonder what you guys think of Fred’s question here. And the copyright ability of photos of the comet. What do you think, Venkat?

Venkat: Oy, I got to pass on that one. I’m still stuck on the monkey selfie. But I don’t have… that stumped me. I looked at the post and I don’t know the answer.

Denise: That was the very first comment to Fred’s post. It was from Michael Kwan. Copyright rests in the monkey that took the selfies. So what do you think, Melissa? Want to weigh in?

Melissa: Yea, this reminded me of the monkey as well. I have no idea who would own the copyright. I’m guessing maybe… yea, I have no idea.

Denise: I have no idea either. But my guess is that it’s not copyrightable. Again, I don’t know.

Melissa: Because this would be… well at first I was thinking this was maybe a government work. But I guess I don’t know exactly which government it is. So I’m going to go referring again.

Denise: I don’t know enough about how the probe took the photos. I have yet to make a first conclusion but I’m guessing they were taken in an automated kind of way. And once again, just with the creative APIs, I’m thinking the degree of creativity involved in taking these photos-lovely as they are-is rather low. So I don’t know. But thank you Fred for the wonderful thing for us to wrap our heads around. Let’s move on to a story that concerns the social web. Venkat, this was your post over at the technology and marketing law blog. Concerning LinkedIn and publicity rights claims based on reminder emails. You want to tell us what happened here?

Venkat: Yes. So LinkedIn has something where when you sign up for LinkedIn you can invite your contacts. And invite those of your contacts that are not on LinkedIn to join LinkedIn. But it does not give you very much control over how many emails are sent. And it makes it hard to stop the process. And so people joined and their contacts who are not on LinkedIn were sent emails saying, Denise Howell joined LinkedIn and wants you to join too. And connect on LinkedIn. And when they did not respond initially, sent a reminder email and yet another email. So they sent several emails that contained users’ names and that encouraged people to join LinkedIn. Obviously the purpose is to grow LinkedIn’s network. But the users filed the lawsuit and it was widdled down. They asserted a variety of claims but the claims that were remaining were all claims under California’s publicity rights statute. And the judge, the tenor of the judge’s order, Judge Ko’s order was if LinkedIn is sending these reminder emails encouraging people to join LinkedIn, but under the auspices that an invitation comes from Denise Howell or Venkat Balasubramani, the use of the publicity rights and users don’t agree to that and are complaining about that; there could very well be a claim there. So LinkedIn tried to get the lawsuit dismissed under several theories including the first amendment. And the judge said that was not persuaded by those arguments. She did find a small technical deficiency in the claim which is that to get a certain type of damages under the publicity rights statute, you have to say that you were emotionally harmed. And I expect the plaintiffs will have no trouble alleging that. So I’m guessing the lawsuit’s going to go forward in some capacity.

Denise: This is a little bit like the case that Facebook settled.

Venkat: It’s similar in the sense that I think Facebook’s case was around product recommendations. You know, I bought a product or talk about a product, and promoting that post or allowing the product or company to promote the post in a way that uses my picture and likeness. So in that way it was because they both use the likeness, but it’s slightly different from the standpoint that LinkedIn said these are just reminder emails that LinkedIn is using to grow its network. That was just really the goal of it. You want as many people to join as possible. There’s a slight difference in the context it came out then, but similar in that they both sort of used people’s profiles and personality rights to promote the platform.

Denise: Okay, Melissa do you want to weigh in on this at all?

Melissa: I think it’s an interesting case especially because as a LinkedIn user, I note that I got annoyed when I realized that I was sending reminder emails to a lot of people. And I had no idea how to stop it. So I think that it’s good that this case can move forward. Some of the facts that were in this case I believe were that people were concerned if doctors communicated with their patients. And some of the patients were part of their client contacts or lawyers. That goes where the sign-up emails that were getting sent out. So it does as Venkat said, it does seem like there won’t be that much of a problem to show emotional damages because of this, reputational damages. But yea, I was excited when I saw that this could move forward.

Denise: Right. When it does move forward Venkat, do you think… Melissa was just saying she couldn’t figure out how to turn it off. And I think that’s probably a big problem for people. If LinkedIn comes in on the case and says yes of course you can turn this off and here’s the easy way users could have done it. Do you think that will make a difference?

Venkat: I think it will be tough to undermine the claims. Certainly going forward and present an easier way to control the emails, they will be able to probably send these emails and not be on the hook. As for prior emails, certainly it could create a factual question. But my impression was they made it so hard that you could not control it on a group basis. The allegation was you have to go in each invitation and sort of undo the invite. And if you’re going to make it that hard, I can see a court just saying that’s not really meaningful control at all. So I think they’re going to have a tough time making the argument that well it’s partially the user’s fault because they could have controlled it. I don’t think that’s going to fly necessarily.

Denise: Yea, you cover this area pretty extensively, Venkat. And I’m wondering just based on the cases that you see and analyze, if you think websites are getting more grabby about this kind of thing? Or if they’re getting more concerned about this sort of lawsuit. Do you think it’s getting better for users who don’t want to be spamming their friends?

Venkat: I think it is getting better for users but only as a result of several lawsuits. This was one. I think there’s been a slew. Path was sued. There was this sort of practice when you sign up for a network of hey, invite all your friends and/or post about it. Auto-posting on networks. And there have I think as a result of a few of those lawsuits, networks are certainly thinking twice. And public uproar as well. I think consumers react negatively and companies perhaps social media or they’re just more receptive, but I get the sense that companies are either being more conservative or respecting consumers’ wishes more. I think there’s been a change for sure.

Denise: Okay, we’ll go ahead and make spamming your friends our second MCLE passphrase for this show. Continuing legal education is much on people’s minds as we get down to the end of the year and the end of various compliant periods. So if you’re looking for some credits, we have some information for you on the TWiT Wiki. If you go to wiki.twit.tv and find the This Week in Law page, we have a nice jurisdiction by jurisdiction list of who to contact and how to submit if you’re a regular listener or a one-time listener. And you have gained some valuable legal knowledge by carrying our guests’ wonderful insights and now sees then go ahead and submit… and see if your oversight board agrees. As we think this is a valuably educational shows in lots of ways. In addition to being quite fun for us when we get together and do it. In a minute I want to talk about some terms of service fine print kind of issues. But before we get to that, we have one final sponsor for this episode of This Week in Law to thank. And that is Blue Apron. I have been having a lot of fun with the Blue Apron meals that got sent my way. And cooking and eating should be fun. The reason that Blue Apron works so great is if you’re busy or health-conscious or both. Or you just don’t know your way around the kitchen, cooking can be a chore. And I’ll throw into that that shopping can be a chore. It’s one of my things that always go to the bottom of my list of things I need to do as I’m running around getting life, taking care of going to the grocery store and stocking up on stuff that might just sit in my fridge and go bad before I get to cooking it. It’s my least favorite thing to do. So Blue Apron solves that problem beautifully. And it really strikes a nice balance between dining out and loving to cook. Even if you’re not a great cook, it makes it possible for you. It does away with the expense and inconvenience of dining out and delivers food that you’ll swear you could have gotten in a restaurant. The food that you get from Blue Apron is super fresh. Who knows how long your food’s been sitting on the grocery store shelves? But with Blue Apron, the food is getting traveled directly from them to you. And it’s going to be really fresh and delightful. I’ve now made a couple of their meals. And I’m really a fan. With Blue Apron you get to cook fresh, delicious meals and they are easy and they also help you reach a bit. And try something that maybe you wouldn’t have tried before. Here’s how it works, for $9.99 per person per meal, Blue Apron will send you a refrigerated box with the right high quality ingredients in exactly the right proportions. And simple step-by-step recipe instructions. And they come right to your door. These ingredients come from local farms so you’ll be getting produce that is currently in season and at the peak of freshness. There are only 500-700 calories per serving and you’d never guess that based on how delicious they are. Blue Apron works around your schedule and your dietary preferences. Cooking takes about half an hour depending on the prep time involved in the dish. Shipping is always free. And the menu always features new recipes. They’ll never send you the same meal twice. You’ll get to make things like Yuzu coshew-glazed chicken drum sticks with Shitake turnip and rice salad. My neighbor across the street made that one for us the other night. And it was just scrumptious. I got to make the Muzaka-style lasagna last weekend. And we have some pictures of that. I don’t know if they’re cued up and ready to go. Maybe we can show them the next time around. Oh, there we go. There they are, yes. There was the recipe card I was sent and then here we are slicing up eggplant. Which is, I’m Italian by decent. So you would think I was used to cooking with eggplant but I’m really not. So to have the excuse to cook with it, see how it works, we discovered that the roasted eggplant… which you’ll see if we move forward a bit in the pics. There we go. That’s how it looks when you’ve drizzled olive oil and salt and pepper over eggplant and have roasted it. And I swear to you these almost never made it into our lasagna dish. Because they were so good, we were just mowing them down like chips. And I never would have discovered that if I hadn’t made it the way through this recipe. We did put it all together and made the lasagna. This had some great different spice aspects to it. Real savory and sweet with onions and ground beef and oranges complimenting each other. Wonderful spice packet that Blue Apron provided. And a meat sauce, there’s the meat sauce. And then a béchamel sauce. Here’s how it got layered together as a lasagna. See we had some eggplant leftover to use. And then there’s how it looked before it went in the oven. And then when it came out all hot and bubbly, it looked like this. And I’m sorry I didn’t save you any. It went very fast. But you can get your own if you’ll take advantage of the great offer that we have for you from Blue Apron. You’re going to cook incredible meals like that and be blown away by the quality and freshness. It’s fast, fresh, and super affordable. You’re going to cook like a gourmet chef; it really makes you look great. You can see what’s on the menu this week and get your first two meals free by going to blueapron.com/twit. That’s right, two free meals just for going to blueapron.com/twit. Thank you so much Blue Apron for the great meals that we’ve been enjoying around here and for your support of This Week in Law. Alright, so I promised you we were going to talk about things we don’t read. Things that find their way into terms of service. Interesting venue clause issue that you guys wrote about over at the Technology and Marketing law blog, Venkat, concerning YouTube. Can you tell us about this one?

Venkat: Yea, so this was a dispute that a musician and some related parties brought against Google for taking down a music video. And Google took down the video, or YouTube took down the video but then put back the video but put it back in a different location. And as a result the comments and the likes, etcetera, were not reflected in the video. And the people that uploaded the video have some financial incentive to promote the video and make money off of maybe advertising. I couldn’t tell exactly. But in any event, they sued YouTube in the District of Columbia for a variety of claims saying that YouTube should have put back the video in the exact same location. And the explanation given by YouTube as to why the video was removed was harming their business interests. And YouTube brought a motion basically to move the dispute to California, to the northern district of California. Where they’re located and the judge agreed and said yes. So it was a nice win for Google. I think they would much prefer to be in California for a variety of reasons including favorable anti-slap laws. And speech-friendly laws. And the fact that I think a lot of their disputes are resolved there. And judges are probably used to dealing with them. So this most recent ruling was just granting YouTube’s request to move the dispute to California and then the process finding that their terms of service was valid and enforceable.

Denise: So this case dealt with venue which for people who listen and watch the show but aren’t lawyers is where a lawsuit is tried, which is a separate issue from jurisdiction. Which is itself a separate issue from what law applies. Did jurisdiction and choice of law come into play here at all, Venkat?

Venkat: I think… I don’t think it figured prominently. My recollection is the court… so Google, the terms of service agreement says California law applies. My recollection is the parties didn’t really argue over it. And the court said you know it doesn’t matter what law we apply; the terms of service are enforceable regardless. And the dispute is going to be moved to California. But correct me if I’m wrong on that.

Denise: I do not know. But I always think it’s a fascinating, there’s a fascinating trio of issues in the internet age. Because all of that law is grounded in the notion that someone should be not be made to leave where they are in order to defend a lawsuit against them. You almost always have jurisdiction where the defendant is located. And that’s such a weird kind of concept to slap onto the internet era, don’t you think Melissa?

Melissa: It is a weird concept especially because things come up with this all the time where people are… I’m sorry, I’m just thinking about 15 other cases where venue was an issue. And it can be confusing. There is a law firm in California that was sued for trademark infringement because they started smuckerlawsuit.com. And so they were sued for trademark infringement in Ohio. And I feel like if I was practicing law and created that domain name, while maybe now I know that I should expect to get sued where the big company has their headquarters. But before that, I could understand why this law firm thought it was fine to put up that website. So I think that in the internet age, yea venue does become a big deal. But this one in this case a little bit more, I thought that something was very interesting about it was that the court said that the terms of service were enforceable against three people who didn’t sign or didn’t accept them. They said that the plaintiffs were all closely related. And so I thought that was interesting that it’s not just the person who accepted them but it was also all the people in this music video had to… they were considered closely related. So they also have to move the suit to California.

Denise: Right. That is a bit of a leap. How did the court get there, Venkat?

Venkat: Well I think the court recognized that the people involved had a business relationship with the person who ultimately formed the agreement with YouTube. And from that standpoint they should have reasonably expected that whatever terms were in the YouTube agreement equally applied to them. And so it was a little bit mushy. I think it made sense that it was clear that the claims were all tied together. And their claims were based on the music video as well. And it wasn’t as if it were some total happenstance that they didn’t know about that. That resulted in the music being uploaded to YouTube. It seemed apparent from the court’s discussion that they probably knew what was going on. And approved it or endorsed it or what have you. I think Melissa raises a good point whether these agreements should be enforced against strangers or people that didn’t sign them. But in this case I think the court said it doesn’t raise many concerns. On the topic of stuff we read, I recently came across I think it was a slate article talking about terms of service. And in it, it mentioned that a company put an Easter egg in the terms of service. The first person to notice this gets $1000. And I think it took a while for somebody to claim this reward. It wasn’t like the same day. It certainly wasn’t the same… it took time. It definitely demonstrated that people don’t get all the way to the bottom when reading a terms of service.

Denise: Right. I remember at least one example of that from a while ago. And I can’t remember who did it and what all the details were. But we’ll look for that and try to put it in the show notes if I can find it. What a great thing to do. So that’s a good Segway then to putting very broad language in your terms of service. That would enable you to… it sounds a little like putting very broad language in your privacy policy. You had a different case though here not involving Uber, Venkat that did involve something called IMVU...?

Venkat: Right. And so this is kind of a virtual type of lawsuit and I think IMVU is kind of a virtual world of sorts where you create avatars and maybe in the same genre as a second life. And basically people could buy music and other items in this game. And they spent real money buying these music clips that I think third-parties uploaded. And IMVU made a decision part way through that it would shorten the clips and you could only listen to a certain duration of the clips, like 20 seconds. And somebody who bought clips said well this doesn’t make sense. I’m paying for them but if I can only listen to part of them or use them in a certain way that’s different from what I expected when I bought them, it sounds like I’m getting short-changed and I should get my money back or something to that effect. So he sued on asserting a class action. And IMVU came back and said well we have a provision in our terms of service that says we can eliminate the stuff anytime. These virtual songs and what have you, sure you may buy them but you recognize user, that you only have a license to them. And we can eliminate them at will essentially. And the court, it was a court of appeals decision in California. They said that type of a we can do anything we want provision is unconscionable which means that it’s such an extreme contract provision that it sort of shocks the conscience and courts will not enforce it. So as a result, at least part of IMVU’s terms of service and big chunks of it at least are going to be unenforceable. So I think it’s a good illustration of companies really pushing the envelope and putting stuff in their terms of service. Which kind of reminds me of something else that I think it was the cleaning service terms of service included a provision that said if there’s a reclassification then either the consumers or the workers have to pay the difference. It was another similarly very extreme provision in a terms of service that somebody flagged. That said not only is this company not taking the risk or not treating these people like employees as they should be, they have a provision in their agreement that kind of puts of responsibility and makes a third-party pay the difference. And sort of make them whole if something goes wrong a court says that these people are truly workers. So I think companies tend to push the terms of service envelope a lot. And this is just one example of a court kind of putting the brakes on and saying wait a minute. This is maybe too extreme to enforce.

Denise: Now in this particular isolated incident, this was the outcome. But do you think this kind of outcome could have negative effects for other music services where people are essentially just renting the ability to listen to tracks, which is almost every music service out there these days?

Venkat: That’s a good question. I don’t know if it’s going to translate into… I don’t remember if it was like iTunes or which libraries could sort of remove tracks at will. Or you can put tracks and sort of get into the license for some ownership issue. And I think you raised a good point. I don’t think it was directly addressed and the context of the case is more virtual goods. But I think you’re right, maybe it is buried in there. The fact that if you’re essentially buying something and in a way that you’re charging somebody the same price say for a CD or an MP3 that they could use freely but you’re including contractual language saying we can eliminate it at will; maybe a court would take a second look at that and say that’s not conscionable and can’t be enforced. That’s a good point.

Denise: Yea, I haven’t read this case yet but I’m going to. It seems like it could have ramifications for what we’re discussing. Alright, I think we’re getting to the point where we’re going to give you our resource and tip of the week. Our resource is a virtual resource at this point. It does not yet exist. It is vaporware, but it would be fun if it happened. Fun for people who pay attention to the kinds of issues that we talk about on the show. That would be the restatement of the law copyright. Now we have these things in the law called restatements that are basically guide books to the law. There’s one for torrents, there’s one for contracts. There’s not yet been one for copyright. But the ALI, the American Law Institute did a press release saying that it’s working on one. Its press release has a typo in the word copyright, which no, no. They spelled it right. Never mind, I thought I saw a typo. But they are getting geared up to do a restatement of the law on copyright which would be a great thing. It says it would focus generally on applicable parts of the copyright law including the subject matter of the copyright, a scope of the exclusive rights granted by copyright, copyright formalities, the rules governing ownership and transfer of copyrights, the duration of copyright, the standard for copyright infringement, etcetera. So bravo ALI. We will look forward to that resource at some point in the future. And we have two tips of the week for you. The first one is from Venkat, it has nothing to do with law but everything to do with the fact that we all put our head down and look at our phones. And Life Hacker had a good graphic and discussion from a spinal surgeon about how that is equivalent to putting a huge weight on the back of your neck. So are you going to be more conscious about this now, Venkat?

Venkat: Absolutely, yes. I’m rolling my shoulders as we speak.

Denise: Yes, I know. I’m constantly… I do a lot of yoga and that really makes you put your shoulders back. But the rest of my life when I’m not doing yoga, they tend to slouch. It’s one to think about. I wonder though, this has the graphic of the guy hunching over his phone. And pointing out it’s like having an eight year old sitting on your head while you’re standing trying to read your text messages. But there are other things we slump over and do. Look at keyboards, look at books, so maybe it’s something to bear in mind no matter what you’re reading. Melissa, are you good about this or bad about this?

Melissa: I’m really bad with my posture. My mom will be very excited that you shared this link so that I can remind myself to sit up straight. Something else that my dad always tells me is to watch my thumbs. Because I guess we use our thumbs a lot on iPhones and he’s an orthopedic surgeon and he’s worried that there might be an iPhone thumb in the future.

Denise: Another species of carpel tunnel. iPhone thumb. Alright, one to keep an eye out for. Also, here’s a legal tip for you that I don’t imagine people having too much actual real life trouble with. But who knows? This is a warning at the Eiffel Tower in France that you’re not supposed to take pictures of it at nighttime because that would involve a copyright violation. And the way that that plays out is the lights that illuminate the Eiffel Tower at night are technically an artwork. So reproducing them requires the permission of the artist. You can think of maybe a lot of different situations where this would apply: the Bay Bridge in San Francisco is coming to mind. Venkat, what do you think about the warning and the notion to be careful of taking photos of the Eiffel Tower at night? And presumably using them commercially is when you would get in trouble about this. Do you think it’s likely that a lawsuit could ensue?

Venkat: I think it’s not out of the question. I think buildings have sued to protect their likenesses. I’m thinking of a museum in Cleveland maybe that did that. And iconic buildings do assert rights when people are trying to sell a likeness and make money. But you know, I think there would be public uproar and I don’t know. I feel like it’s just more like rattling the savers than actually… I can’t see people actually suing over it. That would be a tough sell.

Denise: It would be. There’s an article in the daily mail that fleshes through this a bit and does mention that many other buildings across Europe are protected by copyright. This one I thought was fascinating because it focused on the light show as the actual copyrighted work of art. More creative than an API I suppose, right Melissa?

Melissa: Yea, I think that this is interesting. It reminded me of when restaurants would stop people from posting pictures of their food on Instagram. And you saw the backlash that came with that. So I don’t think that there will be many lawsuits because of the public relations disaster. That would probably bring for the buildings by… I mean there is a copyright interest at stake.

Denise: Right, so bear that in mind. During your travels, folks, and if you wind up as the test case for the nighttime of the Eiffel Tower, do let us know. With that we’ll get back in and wrap up this episode of This Week in Law. Thank you so much Melissa Sachs for joining us.

Melissa: Thank you for having me.

Denise: Great having you. Do check out Melissa’s blog, the Knowledge Effect. She does a great job over there. And Venkat Balasubramani, it’s so great to have you back on the show.

Venkat: Thank you. Nice chatting with you both.

Denise: And your blog has an anniversary coming up, correct?

Venkat: That’s right. Yep.

Denise: Tell us how very ancient it’s going to be.

Venkat: It’s the 10^th year anniversary and I have been a part of it for I think five of those 10 years. And Professor Goldman put up a post asking for anecdotes and comments and how the law has changed and how the blog has helped you. Or whether maybe you haven’t like the way that it’s depicted in a case. So check out that post and email him any thoughts that you may have.

Denise: Great, we’ll be sure and do that. Wonderful again to chat with you and thanks so much to all of you for joining us for this episode of This Week in Law. We record the show every Friday at 11 o’clock Pacific time, 1800 UTC. That’s when you can join us live and play around in our IRC chat if you’d like to do that. If not, don’t worry. The show is there for you whenever, wherever you have the time and inclination to listen. Just head on over to twit.tv/twil and you’ll find our whole archive there. If you go to YouTube, we have a channel there. It’s thisweekinlaw, not surprisingly. And you can find us also on Roku and in iTunes. And the various ways that you like to move your web-based entertainment to a big screen. We’re going to be there in various ways for you to do that. What else should I tell you? You should definitely get in touch with me between the shows. I am denise@twit.tv. So send me an email with comments, suggestions thoughts about topics we might cover. Obscure cases that you’ve heard about that you think are really interesting. I would love to hear about that. Guest suggestions, too. And also, you should hit us up on Facebook. We’ve got a page there. Google Plus, that’s a great place to write about things in a little more length than you can on Twitter. Of course you can find me there too. I’m @dhowell on Twitter. I want to thank everybody who always gives us tips on Twitter, Facebook, and Google Plus for things to talk about on the show. They are much appreciated and with that we’ll go ahead and wrap up this episode. We won’t see you next week. We hope you have a wonderful Thanksgiving if you’re celebrating that holiday. I’m going to be celebrating it next week as are all the folks involved in making the show. And we’ll see you then the following week for our next episode! Take care.