This Week in Law 291 (Transcript)

Denise Howell: Hi, folks, Denise Howell here. And next up on This Week in Law, we have Sam Abuelsamid, Mike Elgan, and Ben Snitkoff joining me. We're going to talk punk rock sock-monkeys; net neutrality, of course; and keeping autonomous cars out of snowdrifts and drones off the White House lawn, next on This Week in Law.

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Denise: This is TWIL, This Week in Law with Denise Howell, episode 291, recorded February 6, 2015

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Hi, folks. I'm Denise Howell, and you're joining us for This Week in Law. I am so excited that you've been able to join us today because we've got an excellent panel; and we're going to talk about some very interesting developments, all the current stuff at the intersection of law and technology. Joining us from the TWIT studio, our news director and the head anchor of Tech News Today, Mike Elgan. Hello, Mike.

Mike Elgan: Hey, Denise. Glad to be here. Finally, I got on the show.

Denise: Yay! I'm so glad.

Mike: We've been trying to pull this off for so long.

Denise: We have, and it came together last minute, and I'm so thrilled that it did. It's wonderful to see you there.

Mike: Thanks for having me on.

Denise: Plus, you've been talking on TNT, and also earlier you did TWIG — was that just this week?

Mike: That was this week. I've done it before.

Denise: Yeah.

Mike: I've hosted it before as well. Love that show. That's another great conversation show. We go into all kinds of legal stuff on that show as well.

Denise: Absolutely.

Mike: The difference is that we don't know what we're talking about because we're not lawyers.

Denise: (Laughs) Well, you've been talking there, and also on TNT, much about what's coming down the pipe — see what I did there? — on Net Neutrality; so we're definitely going to touch on that today —

Mike: Right.

Denise: — as well as a whole bunch of other fun stuff. We've got two other great folks to do it with. We've got Sam Abuelsamid. I just butchered it, even though I tried so hard not to.

Sam Abuelsamid: Hi there, Denise. (Laughs) That's all right.

Denise: Let me try it one more time: Abuelsamid.

Sam: Perfect.

Denise: Got it. Yay!

Sam: Glad to be on the show today.

Denise: Yes. Sam is with Navigant Research and writes often and at length about automated cars, autonomous cars, and what we see coming in that area. We love talking about those issues on the show; and Sam actually reached out to me in response to a show that was pretty heavy on those issues and said, Hey, you should have me on the show. And he was absolutely right. So I'm so thrilled that we could do it. Hi, Sam.

Sam: Hi, Denise. I've been listening to TWIL since back somewhere around the mid-twenties episode count; and it's a fantastic show, and I'm glad to be a part of it today.

Denise: Thanks so much. And joining us, making a return to TWIL from about the mid-twenties of our episodes is Ben Snitkoff. Hi, Ben.

Ben Snitkoff: Hi, Denise. Great to be back. Thanks for having me on.

Denise: Great to have you back. It's been way too long. I don't know how we managed to go so long, but we're going to remedy that today. Ben is a practicing IP lawyer in the state of Massachusetts; and Ben, tell us what else has been going on with your practice lately, what you're focusing on primarily.

Ben: It's kind of a broad IP practice. Part of my goal is to help small businesses, entrepreneurs, and artists in developing and protecting intellectual property portfolios and enforcing that IP when necessary. So copyright, trademark, a little bit of patent here and there, and some fun things on the side like software and Internet law, terms of service, DMCA compliance, that kind of stuff, helping small companies operate on the Internet.

Denise: Great. All the kinds of things that we talk about every week here on this show. So I wanted to start out — drive this show in the direction of autonomous cars, to begin with because it's such an interesting topic; there's so many issues that come up in all kinds of contexts for autonomous cars. And what has been a lot on Sam's mind lately is the bad weather that we've been having in various parts of the country and the fact, Sam, that you've been driving around Michigan in a very high-tech Kia that's not really well suited to bad weather conditions, is it?

Sam: Yeah, and on Sunday we had 14 inches of snowfall here; and I was driving a Kia Sedona that's equipped with a lot of the latest advanced driver assist features. And, I mean, the problems I encountered are not at all unique to this vehicle; it applies to pretty much every vehicle on the road that's got these sorts of features. And these are the kinds of things — like adaptive cruise control, parking assist systems, lane departure warning — all these things that are — call them the building blocks towards autonomous vehicles because these are all the stepping stones. And basically, in less than ideal weather conditions, a lot of the stuff just stops working. And there hasn't been much discussion of that from all of the people that are proponents of autonomous vehicles. And I, in fact, am a proponent of autonomous vehicles; I think there's a lot of potential benefit to be gained from going to autonomy. But the technology is a lot farther away from general use than some of the folks in Silicon Valley would like you to believe.

Denise: Right. Well, we tend to have better weather here in California, that's for sure. (Laughs)

Sam: Right.

Denise: So maybe these things don't come up as concretely as they do for you folks in the Midwest and Northeast. So go into some detail about how the systems start to break down when you have a bit of weather on the road.

Sam: Well, one example is this vehicle. And you'll notice, on a lot of newer vehicles, they have these little — they look like little buttons on the bumpers, on the front rear bumpers. And those are ultrasonic sensors that are used for parking assist and also for detecting when somebody's walking in front of or behind your vehicle. If somebody walks past it, or you're backing up towards something, it'll start beeping and it'll usually show you a little alert on your dashboard. Well, what happened on Sunday when the snow was coming down — I was just sitting there; there was nothing around me. And just the heavy snow coming down was enough to get these sensors detecting it as though there was something walking up. Yeah, there you go. You can see a photo I took of the car, the van, after I cleared it off a bit after removing the snow on Monday. And what happens is, all the snowflakes going past these sensors — it picks those up as if there's somebody there or there's some object there; and essentially, it ceases to function. Another example is the lane departure warning. There's a little camera that, on this particular vehicle, is mounted in the middle of the grill; and you can see it's largely covered up by snow. But even when it's not snowing, when you're driving around this time of year, you get a lot of salt spray that comes up on the vehicles; and it obscures your headlights and your windshield, and it also obscures those cameras that are looking for lane markings. And when that happens, the system can't detect the lane markings, and the warning system just ceases to function.

Denise: Right. I was driving my car, which is a 2012 Ford Explorer, the other day through some really thick fog. We've had some really thick fog around where I live these days. And my son was asking me about its adaptive cruise control and whether it would work in the fog. And wonderful mother that I am, and safety-conscious parent, I went ahead and tried it out with my son in the car — (Laughs) — to see — because I wasn't quite sure how exactly it pulled that off. And I think I'm more well-versed, having read your articles about autonomous cars and weather now, that my car probably has some sort of radar that it uses so that it actually works okay in fog. It doesn't have to have line of sight to the vehicle in front of it. And that's what we learned in our test on the road the other day, is it seemed to do fine adaptive cruise control-wise, in the really dense pea soup fog that I was having trouble seeing through. So in that situation, it seemed like the autonomy feature of the car actually worked better than the driver could have pulled off knowing whether there was a vehicle in front or not. I'm right about the radar?

Sam: Yeah, you're right. The adaptive cruise control system typically is a radar sensor; and in fact, this van that I was driving also has that. And the radar sensors are able to see through things like fog. And as you go towards fully autonomous vehicles like the type that Google has been testing, and other auto makers have been testing like Audi and BMW and General Motors, they use a combination of sensors. So some of them work in some conditions but not in other conditions. So for example, the radar sensor can see through the fog, but the radar sensor — it can detect distance and speed as you're approaching another vehicle in front of you; but the radar signal can't detect what type of object it is you're approaching. So it can't tell if you're approaching a pedestrian or a tree or closing on another vehicle. So that's why, as you go towards more fully capable autonomous vehicles, they add other sensors like the Lidar sensors. That's the big spinning sensor you see on the roof of the Google cars, which actually uses lasers to scan around; and they also use optical cameras. So that sensor sitting on top of the car is what's called a Lidar sensor; and those can detect in more detail, in combination with cameras, what type of object you're approaching. And so in combination with the radar sensor for the speed to detect the closing speed in the Lidar sensors, they can give you that sort of fuller control. The problem is, the Lidar sensors, even in heavy rainfall — which I know California hasn't gotten much of that in recent years. But when it does rain heavily, the Lidar sensors get all confused, and they also can't detect what's around them. And even the radar sensors, if it gets caked in snow like the one on the vehicle I was driving, those sometimes don't work, either, in that kind of condition.

Denise: Mike, California is pretty lenient in its laws concerning autonomous vehicles and a handful of other states are following suit. What's your take on the policy issues developing around these technologies and whether lawmakers should be proactive or more of a hands-off approach?

Mike: Well, the whole world of automobiles is an example of how we legislate based on what people are afraid of and based on the various irrational fears and so on that people have, not based on what really harms people. And what I mean by that is that there are very few things in our world that kill as many people as cars do; and yet, cars are completely legal. There are lots of things that have been illegalized because of the risk to life and limb, and they don't have even a fraction of the risk that cars have. Now, self-driving cars are probably already safer than human drivers; and if we were just going by pure reason, they would be legal completely already, simply because the alternative to a self-driving car is a car driven by a human, which is really, really dangerous. And so that's one element of it that I think is really interesting. Nevada, I think, was the first to basically give robots these driver's licenses. But what we're going to see, I think, is a gradual shift to self-driving cars. They're going to become more automated for, like, ten years; and then eventually, they'll be so automated that it'll just be a banality to just say, Well, you know, just throw on — the auto-pilot will handle everything. And of course, we'll have sensors to be able to enable the car to seize control from the human driver. If the driver's nodding off, for example, there are already sensors being worked on in Spain that are built into the seat belts. They can tell from your heart rate and your breathing and so on whether you're falling asleep. And if they start to fall asleep, then a self-driving car that's capable of at least taking away control from the human driver and pulling over could save a lot of lives that way. There's so much that could be done in these areas, and it's an almost certainty that the lawmakers will be years behind what is possible, and a lot of lives will be lost unnecessarily.

Denise: Ben, do you see these things driving around Massachusetts?

Ben: Oh, no. I don't think I've seen any self-driving cars in Massachusetts. I'm sure some exist between MIT and the other tech companies in the area, but I haven't seen any on the road. As far as what we're going to see going forward, though, the thing that really interests me is liability issues. If I have a wholly self-driving car, it seems like any liability for that car getting into an accident shouldn't fall on me, the owner of the car, because I didn't have any say in using it. And I think it's going to be very interesting to see, over the next, probably, five to ten years, how that liability works out. Is Toyota going to insure everyone who owns a Toyota car, or is it going to be that, still, the people who own them have to take out the insurance policies, but there are certain caps and there's certain regulation as to how much they have to pay based on the mere fact that they own the car rather than the fact that they're operating the car.

Denise: Yeah. I think we'll probably, as Mike was saying, see a slow progression toward that issue needing to be dealt with. Sam, I'm wondering, since you pay such close attention to these issues on a daily basis, what the current thinking is on the liability risk allocation front.

Sam: That's a good question, and there's a lot of discussion on that. And right now, I've been to a number of conferences where there's been people that are in the business that are talking about that; and frankly, nobody's got an answer to it. (Laughs) Nobody knows whether the liability will lie with the manufacturer — with the supplier of the software, whether it will be with the human operator of the vehicle. So that's one of many questions. And something else that you guys have talked about on this show in the past is the idea of ethics and programming ethics into the system.

Denise: Yeah.

Sam: Because there will be a lot of scenarios that can happen in the real world where you've got one or more autonomous vehicles that will encounter each other, and they'll have to make decisions; and it's not clear — it hasn't been made — nobody's figured out yet how that decision process is going to work for autonomous vehicles as far as — I forget what somebody called it, I think, just a week or two ago. Basically, a scenario where you've got maybe a one-lane road and two vehicles approaching each other, and one of the things that's being worked on is, you've got sensors inside the vehicle that can tell how many occupants there are. If you've got a vehicle with one occupant and a vehicle with four occupants, including a couple of kids, and one of them has to run off the road, what do you do? Do you run the vehicles into each other? Do you sacrifice the vehicle with one occupant? So there's a lot of questions there still. And just to go back to what Mike was talking about, I agree for the most part with what you said, Mike, as far as the potential for saving a lot of lives is there. I mean, last year, there was 33,000 deaths in traffic accidents in the United States alone, and hundreds of thousands worldwide. And I want to reduce that dramatically, and the potential is there to do it. The problem is, the technology as it exists today works in such a limited scope, in terms of environmental conditions — basically, in good weather conditions on good roads — that most of the time, these autonomous vehicles cannot operate in autonomous mode. They're simply incapable of it, so they have to hand back control to the drivers. And as we go through that transition phase over the next 10, 15, 20 years — as we add more automated systems to vehicles — one of the issues that's going to have to be dealt with is, because we know that there are times when sensors will fail or they won't be able to detect what's going on, the vehicle will have to keep the driver engaged and ready to take over manual control at any time. So that actually poses an even bigger problem: if you're selling vehicles to consumers that you say can operate autonomously, but they've got to stay engaged, they're going to expect that they can sit back and relax and read a book or do some texting while the car takes over driving; and that simply won't be the case.

Ben: Right.

Denise: Right. At least not for a very long, long time. Mike, this is such a thorny issue, the ethical issue that Sam is discussing. And we talked about it on the show several episodes back. I forget if it was a Popular Science or a Popular Mechanics article that framed this —

Mike: Popular Science.

Sam: Yeah.

Denise: That was the one. — that framed the issue really well of your car making decisions that might sacrifice you in order to serve the greater good. What do you think about all that?

Mike: Well, one element that the article didn't go into was the fact that already people buy and make their choices when they're buying a vehicle — they're already choosing vehicles that will sacrifice other people for the occupants of the car. When you buy an SUV — when parents buy an SUV — many of them will actually say out loud that if there's an accident, they want their kids to survive the accident with a bigger, heavier car that's probably going to crush the other car. And so this is, essentially — they're selling it. They can't really say that out loud; but if you look at the algorithm version of that, you can imagine that car makers probably won't be allowed to, but they might be tempted to brag about their algorithms. in an accident, the Toyota whatever will make sure that the occupants of the car are safe, no matter what — that sort of thing. And so the reality is that eventually, self-driving cars are going to become so sophisticated that they'll have thousands or millions of scenarios for various accidents. They'll be able to identify, well, there's a bike and there's a bridge and there's wet pavement and there's somebody in the road and there's another car behind me and one on the side. And in that case, I have to brake; so what should I do? And I should do this; I should drive into the tree; I should do this. There's a million things that could happen. And they call it the trolley problem — do you plow through the farmer's market, or do you sacrifice the driver and whoever's in the car? And it's going to be a difficult thing legally; it's going to be a difficult thing from a marketing perspective. But these decisions will actually be made. Like, somebody is going to make these decisions about who lives and who dies in various scenarios. It's easy to say, save the most people; but that might not happen.

Denise: Right. And it has to be done in a split second, that decision; and maybe machines are better able to make those decisions than people are under those circumstances. There was an interesting piece I put in the rundown today that's sort of a little far afield from what we're talking about, but sort of related to it as well; and it was an interview with Andrew Ng, who was the co-founder of Google Brain. And it's talking about deep learning. He was cornered by Caleb Garling at a conference on deep learning, and they had a conversation about machine learning and the sophisticated avenues that it's taking these days. And I just wanted to bring it up to prompt Sam to talk to us about the AI aspect of self-driving cars and these difficult decisions that are going to need to be made. Tell us what you think about where we are and where this is going.

Sam: Well, that's an area — that's where a lot of the work is going on at a lot of manufacturers; and Ford has talked about this quite a bit in the last year or so with their work on big data. But other manufacturers are doing it as well. They're collecting data from vehicles in the field — I mean, they collect a lot of data on a lot of things. But among other things, they collect data from vehicles in the field that are being driven by people working for the company to record as much as they can and try to process all this information, figure out, what are all these scenarios that the systems have to deal with, and how do we process them? And one of the big issues as well is the fact that, unlike typical consumer electronics, vehicles tend to have a lot longer lifespan than consumer electronics. I mean, we replace our phones in some cases as frequently as every six weeks, if you're Leo.

Denise: (Laughs)

Sam: But typically, every couple of years. Whereas, for the most part, the average age of cars on the road today is about eleven and a half years; and the time to replace the entire vehicle fleet would be several decades. Last year wasn't a great year; we sold a little less than 17 million vehicles. And at that rate, it would take about 30 years to replace most of the fleet, but there are going to be manually driven vehicles on the road that autonomous vehicles have to interact with for many decades to come. And I think one of the potential scenarios that we can look at going forward is rather than — I think it's going to be a long time before we have general purpose, full-function autonomous vehicles on most roads; but where we will start to see them much sooner is in constrained environments — things like business campuses, college campuses, gated communities. And another potential area is things like, for example, the City of London has their central congestion zone, and a number of other cities have these. One potential thing that you could do going forward is to actually close off these central urban zones to traditional vehicles and just have a fleet of shared autonomous vehicles so that, instead of charging people 25 pounds a day as they do currently to go into Central London, you park your car at the perimeter of the central zone; and then you go in and you pop in one of these vehicles; go to where you need to go. At the end of the day, you come back; you hop in your own vehicle; and go home. So that's one way that you could handle it so you eliminate the need for these early autonomous vehicles to interact with traditional vehicles. There's a lot of potential solutions, but I think it's — even ten years is going to be very optimistic before we start seeing full-function autonomous vehicles on regular roads. I think it's probably — the more I learn about this, I think it's probably going to be closer to 15 to 20 years at best.

Ben: And Sam —

Denise: And — go ahead.

Ben: Chiming in on that comment — oh, sorry.

Denise: Go ahead, Ben.

Ben: One thing that I found interesting is, I drive a stick — manual transmission — and I have for about the last 12 years; and I really enjoy it. And it's not immediately obvious to me how driving a car with a manual transmission would be compatible with autonomous driving because you have that direct interaction with the shifter. And similarly for motorcycles. I imagine, even after autonomous cars are on the road, there are people who are still going to want to ride motorcycles; and those cars are going to have to understand how to deal with it. IN a way, it may be safer for motorcyclists if they're the only people who are actually controlling their vehicles on the road and the cars actually have sensors that detect them rather than relying on people to recognize that there's a motorcycle behind them.

Mike: I don't think there'll ever be a time when self-driving vehicles can't easily be switched over to human control. I think that'll always be an option. I don't think anybody will ever just always — some people will, of course; but I think that even the most advanced self-driving technology is going to involve people going back and forth, and some people just ignoring those features altogether. I think it's just going to be like cruise control is now. Cruise control's pretty commonly used, but lots of people never use it. Whoever's using it can instantly switch it off at any time, and it'll go off by itself if you tap on the brakes. And so I think self-driving cars will be a lot like that.

Sam: I agree with you on that, Mike. I think the only time when you'll see vehicles like what Google's proposing — that have no steering wheel or pedals, just a control screen and a button to tell it where you want to go — will be in those sorts of constrained environments where they don't have to interact with other vehicles. And out in the rest of the world, it will be vehicles that can go back to manual control. But to what Ben said, I don't think you'll be able — for autonomous vehicles, I think manual transmissions will just go away for those entirely. And I mean, as someone who prefers to drive manuals, I'm saddened by that; but I think the day will come in the not-too-distant future when the clutch pedal will just cease to exist for the most part except on older vehicles. But to what Ben said about motorcycles and other types of vehicles where autonomous control probably isn't really all that practical, one of the solutions there is actually connected vehicles, which is something that I've been looking at a lot lately as well. And that was actually — the conversation that originally prompted me to reach out to Denise a couple of months ago was, you were talking about connected vehicles. And in the near term, I think that's actually far more important and will have far more impact than automated driving systems, to have vehicles that can tell each other where they are. And not just vehicles, but even pedestrians having smartphones with what they call vehicle to pedestrian beacons in there so that drivers will get alerted when there's a pedestrian nearby and be more aware of pedestrians or cyclists or motorcyclists.

Denise: Yeah. Expand on that for us because it seems like it addresses the question that Ben was raising about how it seems like, in the next 10 to 20 to 30 years, we'll have a whole range of different kinds of vehicles on the roads, some of them much more autonomous than others; and they're all going to have to share the road together and get along. And the way that they're going to have to do that strikes me as through a wireless communication arrangement. How's that going to work?

Sam: Yeah. So what they're working on right now is what they call, in general, V to X communication. So it's vehicle to vehicle, or V to V; vehicle to infrastructure; vehicle to pedestrian; vehicle to cyclist; and so on. And the FCC several years back — actually, I think it was probably about a decade ago — set aside some spectrum at around 5.9 gigahertz specifically for what is known as dedicated short-range communications, or DSRC. And V to X communications uses this DSRC spectrum; and there's a number of test programs going on. There's a big one here in Ann Arbor with more than 3,000 vehicles that have been equipped with DSRC radios. And last August, National Highway Traffic Safety Administration put out an advanced notice proposed rulemaking to mandate V to V, which would — what it'll do, when we have these radios in vehicles, 10 times a second they will send out messages to the other vehicles and pedestrians and cyclists in the vicinity within a few hundred meters that give information such as "emergency braking activated." So if the driver slams on the brakes to avoid something, it'll send out a message to all the other vehicles in the area. Or "icy conditions detected," "slippery roads" — road hazards that have been detected by the ABS system, for example; or if the lane departure warning camera spots an object, it could send an alert to other vehicles. So these sorts of messages that are anonymized messages will be shared among vehicles; and they'll all be able to read the messages. And when the messages come into your vehicle, it'll put up an alert; and it can be done a number of ways, either with an audible alert or a visual alert on the dashboard saying, "Slippery road ahead," "emergency braking ahead," or "pedestrian detected" — that sort of thing. And the first automater to announce their intention to launch that is General Motors. At the ITS World Congress last September, Mary Barra, the CEO, announced that next year — in 2016 — they would make V to V available on the Cadillac CTS. And I think other manufacturers have announced their intention to do that in the next few years; and I think you'll see that technology roll out fairly quickly, although the regulation mandating that probably won't go into effect until about 2020. But we'll start seeing it rolling out pretty quickly in the next three to four years.

Denise: Well, we have a question from IRC that's a good one, I think, given what we're talking about. Will the wireless communications between cars warn about speed traps? And it relates to the fact that law enforcement is not all that happy with Ways and the way it works, with drivers constantly updating one another if they're using that app and its network as to where they've spotted the hiding highway patrol person. What do you think about all that, and will it even matter when we're in self-driving cars because speed won't be an issue, they won't be programmed to exceed speed limits — or perhaps speed limits become less relevant when safety is programmed into the driving at whatever speed.

Sam: Yeah. I think when we get to autonomous vehicles, exactly how they're programmed with regard to speed limits remains to be determined. There may be times when you actually do need to exceed the speed limit for whatever reason. But for the most part, that's still a ways off. As far as V to V communications go, right now, warnings about speed traps are not part of the set of messages that they're planning to transmit. They're working on standards for the sets of messages that will be available; and these are all automated messages that will be generated by the vehicle and transmitted to other receivers in the area. So it's not something where a driver — like, with Ways, you tap on your screen and give an alert that there's a speed trap there. This is not something that will require any driver interaction. It will be fully automated; it'll just be looking at signals from the vehicle. As I've said, if your stability control system detects that the road is a little slippery, it'll send out an automatic warning to other vehicles in the area and give an alert to the drivers before they get to that slippery part of the road.

Ben: And are —

Denise: One of the articles you were quoted in recently went straight to the security of those V to V communications and whether this is the next avenue of some dire cyber-terrorist threat. Someone else in IRC is asking about faking V to V messages. How do you feel about the security issue, Sam?

Sam: Security's definitely a major concern. Everybody involved in this space wants to make sure that there's no mechanism for bad actors to inject erroneous messages. The standards that are being developed for V to V include security precautions. They're going to essentially be using SSL; so it'll be a certificate-based system. They're still working out the details of that, but the messages themselves will be encrypted using SSL, and you'll have to have a valid — there's an authentication mechanism to verify that the messages are coming from a valid source before an alert will be provided to the driver, before the vehicle will accept the message. There's still a lot of details to work out there, but that's essentially how it's going to be handled.

Denise: Great. Well, as we've been having this conversation — first of all, who was jumping in just then? Was that you, Ben? Did you have a question?

Ben: Yes.

Denise: Yes.

Ben: My question was: Are the signals — the V to V signals — are they almost entirely warning signals? Because if they are, it doesn't seem like a false positive — obviously, we want to avoid hacking people's cars. But a false positive saying there's some danger coming up isn't the worst thing if there's actually no danger coming up, other than maybe slowing down traffic.

Sam: Right. Yeah, initially, that is the plan, that it will only be alert signals of that type; so for the near future at least, there won't be any active intervention in the event of an alert coming in. At some point, when everybody's got confidence in the system and they're confident that the security is good enough, manufacturers are working on mechanisms to feed those messages directly into the vehicle control, so if a vehicle ahead of you hits the brakes for an object, your vehicle can go into an automatic braking mode. Or if there's a pedestrian walking in front of you, the vehicle would be able to break automatically. But that's not part of the initial roll-out of the system, and it's definitely not part of what NHTSA's been proposing for the regulation. The mandate would only cover alert messages and no active intervention by the system.

Ben: Mm-hmm.

Denise: Well, as we've been talking, I've been realizing that we have an interesting eventuality coming down the road — ha ha — at us in nine years when San Francisco has put in a bid to get the Olympics. And that seems like a great situation, Sam, for them to try out — if they haven't already been trying things out before that in other big venues for World Cup or Olympics where you get huge crowds of people and getting people around is very difficult if they're all driving their own car — that at least, by the 2024 Olympics, if they do, in fact, go to San Francisco, that I would expect we'd see a lot of testing out of what the technologies are capable of for the crowd control and navigation of the Bay area then. Mike, I hope we're still doing these shows so we can report on that when it happens. What do you think?

Mike: I think we'll still be doing this show, for sure.

Denise: (Laughs)

Mike: Yeah. And the really advanced version of vehicle to vehicle will probably solve exactly that problem. You can imagine sort of an HOV lane for a certain type of vehicle that will essentially form [inaudible] trains that go very fast, where there's no or very little space between the vehicles. And that would solve a huge amount of congestion. If you can get into that thing and just have it all be controlled by the computers and go 120 miles an hour safely, that would solve a lot of problems.

Sam: Yeah. I totally agree that there, Mike. And they typically refer to that as platooning, where you'd use the V to V signals to coordinate. You'd have the lead vehicle setting the speed and direction, and then a series of vehicles behind it just following closely behind. And that's actually something we'll probably see sooner in use with trucks, heavy trucks. And that could have a way to both improve safety and also reduce fuel consumption by platooning those vehicles.

Mike: Yeah.

Denise: Okay. Before we leave the topic of cars, do you want to talk briefly about how we're all going to be sitting in cars, Sam? I saw you got quoted in the New York Times on that point.

Sam: Yeah. At CES, Mercedes introduced a concept car they called the FO15 luxury in motion; and it's a concept for a future autonomous vehicle. And one of the unique aspects of it is that the two front seats can swivel around to face the back to allow the four occupants of the vehicle to face each other, have a conversation, play a game, whatever. And I talked to [inaudible] who wrote that article; and essentially, for the foreseeable future, that's not something that — that concept of the front seats swiveling around — is not something that I can see happening on any kind of production vehicle, at least for the next several decades, until we get to a point where pretty much everything is autonomous and there's no manual controls left and we've got significant confidence in these vehicles. Because for one thing, with current occupant safety regulations, the occupants have to be in a specific location in the vehicle for the airbags to work. If the seats are swiveled around, you don't know where the occupants are facing; seat belts and airbags aren't going to work properly in the event of a crash; and then, because we still have to allow for the driver to take over in scenarios where the autonomous system can't function, having the driver turned around like that would probably take too much time to turn them back where they're supposed to be facing in order to take control. And if you encountered a scenario that the system couldn't handle, you'd have too much of a lag there before the driver could take over again. So I don't see anything like this coming in the foreseeable future, probably not in my lifetime.

Denise: All right. Well, all of this has been reminding me of a book that we used to read around my house when my son was younger. Do you remember If I Built a Car by Chris Van Dusen, where there's a —

Sam: Yeah.

Denise: — milkshake bar in the back, and the seats swivel; and you can go take a nap and the robot takes over and drives. So people should check out that book if they are not already reading it to their kids because our kids are going to have to figure out this whole world that's coming down the road here. (Laughs)

Sam: Exciting times for engineers and lawyers.

Denise: Yes. Definitely.

Let's see. Where should we go from here? I think I'm going to put our first MCLE pass phrase in the show, and that will be "If I built a car" in honor of that book. So if you're listening to the show for continuing legal or other professional education credit, kudos to you; we're thrilled that you do it. We put these phrases in because a couple of jurisdictions like to be able to have you demonstrate that you actually watched or listened and just didn't put down a show on a list somewhere. If you need more information about submitting the show for approval if you're a lawyer in the United States, you can go to and find the This Week in Law page. And we've got a jurisdiction by jurisdiction breakdown of what you'll need to do to go ahead and hopefully satisfy your MCLE requirement. So without much ado, let's shift gears slightly — God, the metaphors just keep on coming — (Laughs) — and talk about something that — a number of topics on the frontier of regulation and policy.

(The intro plays.)

Denise: So since we're already talking about autonomous vehicles, let's talk for a moment about drone regulations and maybe the synergies between these two topics. We had our Game of Drones show not too long ago when the FAA announced that it was going to have some more concrete rules and what the contours of those were going to be as they come toward us. Mike, I know you wrote a piece about that at the time. Do you want to remind us how you feel about the FAA's approach toward regulating flight-oriented drones?

Mike: Yeah, for sure. Right now the United States, for some reason or another, is lagging behind other countries in terms of approving the testing of drones. Let me give you one example that's happening in China that would be unimaginable in the United States today. The Taobao in China is going to be doing a test in three cities where they're going to be delivering little boxes of tea — they're very light 12-ounce boxes of tea in this test. But they're actually going to be using real drones over real cities, including Beijing, Shanghai, and Guanghzou, I believe; and this is real. They're over major cities. They're going to be flying these things under overpasses and over housing areas and everything; and we're so far away from allowing anything like that. Right now, the FAA is slowly approving very specific uses for a couple of people to do certain types of things; and Amazon's already moving a lot of their drone research to the U.K., where you can do more testing. Google had to test their drone delivery system in Australia because of the hostility within the United States. So I just think it's a barrier to innovation. And this is another example of what I was talking about before. There aren't mass casualties from drones. In fact, it's very rare; and yet, they're banned; whereas, cars are very dangerous, and they're legal. So I just think, in general, the U.S. needs to get with it and be a little bit more fact-based in terms of how it regulates drone use. And I think we need to see if we have a real problem with safety before we stifle an entire industry in its cradle.

Denise: Yeah, I tend to agree with you, Mike, and think that we need to let this industry develop. I do have concerns about drones flying over cities such as you described and hope that we do have at least some guidelines in place for how that's going to happen. What do you think, Ben?

Ben: I think it's a real interesting question. I'm also kind of surprised at how reluctant the FAA is to let people dive into this and kind of see what happens. I'm also not sure why current laws that we have aren't enough to kind of regulate the industry as is. As far as property rights go, you've got air rights above your property. If a drone enters those air rights up to a certain altitude, it's trespass; and there are private remedies for that type of thing. And if people are worried about privacy, there are privacy rules that protect people. I would love to see the regulation open up a little bit and let people play around with these, at least until we can have final regulations as opposed to a ban on commercial activity until we have final regulations.

Denise: Sam, at least an autonomous vehicle doesn't have much chance of landing up on the White House lawn unless it's a drone. What do you —

Sam: Yeah.

Denise: Go ahead.

Sam: At least, with autonomous vehicles, autonomous cars, they're operating primarily in two dimensions. I think, in response to what Mike said, I think the main concern for the FAA is more about the interaction between unmanned aerial vehicles and manned aircraft, particularly commercial aircraft. And I think the rules as proposed so far that Mike talked about in his article may be going a little bit too far. Maybe requiring daytime operations and a pilot's license and that sort of thing might be taking it a step too far; but I think there certainly are some restrictions that need to be in place for drones. I think perhaps something along the lines of what DJI did after the drone crash at the White House with pushing out a firmware update, maybe requiring drones to have GPS capability and then doing some [inaudible] to keep them away from airports and other secure locations. I'm not sure that, as far as the FAA's concerned, that they're particularly concerned about property rights. I think it's more of a safety issue. And one possible solution is maybe incorporating something like the DSRC, the vehicle to vehicle capability that going into cars — putting that on aircraft and drones so that they can know when they're in proximity to each other and force the control system of the drones to automatically move away from any other vehicle that they see or that they detect in the vicinity. If birds can bring down an airplane in the Hudson River, imagine what would happen if one of those drones got sucked into the engines of a 787 taking off from SFO.

Denise: That seems like a really intelligent solution. And would you want to see that rolled out to not just commercial drones like the one Mike was talking about in China delivering tea, but the ones that people fly around and parks for recreational purposes?

Sam: I mean, it would seem to me that at least above maybe a certain size or weight level, yeah. I mean, certainly anything used for commercial purposes, anything but the smallest — some of the little handheld drones that Father Robert's been playing around with.

Denise: Yeah.

Sam: Those types that are essentially toys — I guess it depends on how high they're capable of flying and how long they can fly because they can certainly be a risk if they interact with other vehicles and they get out of — Leo lost control of his drone the other day.

Denise: (Laughs)

Sam: And if that can happen, it can happen to anyone.

Denise: Right.

Sam: So if he was in proximity to an airport, that could be a serious problem.

Mike: The concern that I have is that, in the United States, we have a real problem with government agencies essentially acting as advocates for the area that they are in charge of regulating. And that's certainly true in multiple areas; and really, the FAA is by the pilots, for the pilots, etc. I mean, to acquire a pilot's license to fly what's basically a model aircraft kind of demonstrates that that's probably a big part of why the regulations are what they are in the United States. Because oftentimes, for this kind of use that they're being pressured for — for the commercial use, for filming things, for delivering things — the alternative to a drone is an aircraft. People are using drones, for example, to film at sporting events instead of helicopters. Well, the helicopter pilots and the helicopter manufacturers and everybody involved with helicopters, they see drones as a threat to their business; and so that's one of the things I'm concerned about. Of course it's a mix of safety and so on; but why can't Amazon go in the middle of the desert and test drones with no safety issue? There are vast spaces within the United States — just vast areas — where there's no risk of any kind to human beings to do drones, and it's still essentially banned. And I'm just really concerned about it, simply because you don't want to save the old industry in order to — stifle the new industry in order to save the old industry. That's just not how we make progress.

Sam: No, you're absolutely right on that, Mike. And yeah, the point you made about the FAA and other agencies working across purposes by being both advocates for an industry and regulators of an industry is a problem; and that's something that needs to be dealt with as well and dealt with separately, I think. And I think the FAA has definitely been overly cautious on the subject of drones. I don't think that there should be no regulations on drones, but I think what's being proposed goes too far and is not necessarily going to be effective.

Denise: Watching the video that we were just seeing — if you're watching the video with us today — of Father Robert flying the drone is reminding me that it's just sort of a wrong coast accident, that it wasn't Father Robert or Leo or some other tech hobbyist — enthusiast — who flew his drone into the White House. (Laughs)

Sam: Yeah. Absolutely.

Denise: And it could well have been any of us. And Ryan Calo has a great piece in the L.A. Times commenting on that and people overreacting because a drone managed to land itself at the White House, and is hopeful that there won't be an overreaction to that. And I guess I missed this when it happened; but I guess there was a hashtag going on Twitter called #DrunkDroneSongs. And Ryan's contribution to that was — he was hearkening back to Jimmy Buffett's "Why Don't We Get Drunk and Screw," and he says his first reaction was "Why don't we get drunk and screw up drone policy in the United States?" So ... (Laughs) I guess the moral of the story is not to get too riled up because a drone happened to fly into the White House. Hopefully, it's a good security wake-up for them, and people can continue to let things develop in this important area. And I totally agree with you, Mike, that we don't need an airplane to accomplish all these things. I loved the sort of visual you gave us before the show about how you think delivery drones are going to work in neighborhoods. You want to repeat that for us now?

Mike: Sure. It seems very likely that — picture Amazon ten years from now. Essentially, what I think is likely to happen is that a big truck will drive from the distribution center, what, 10, 15, 20 miles — whatever it is — and it'll go into a certain neighborhood. The doors will roll open; and out will fly, in every direction, a fleet of autonomous drones to do the actual package delivery. You could imagine that an entire neighborhood could get all their deliveries within a period of maybe five minutes. Instead of the truck going from house to house to house to house, they could all be delivered at once. And it's going to be a long, long time before drones can fly more than a mile or two or three; and so I think they're going to have to be brought to certain areas in this kind of a spoke and hub thing in trucks — which also, by the way, recharge their batteries and so on. And it just seems like a logical scenario.

Denise: All right.

Sam: Yeah. That's actually a really cool idea, a mobile hub and spoke system.

Denise: Yeah. Exactly. I think it's probably pretty likely.

Mike: One other point, if I may, Denise —

Denise: Go ahead. Yes.

Mike: — that has to be made about this in terms of the White House drone. There's always an element of technopanic about this, to steal Jeff Jarvis's favorite phrase. If somebody chucked a paper bag full of a mystery substance over the wall at the White House, we would never even have heard about it; but it would have injured and had the same threat to the President as this drone. But a drone is a new scary thing that everybody's flipping out about, simply because it's new. Drones really aren't that — yeah, they have rotating propellers and yes, there's a potential for a terrorist attack by drone; but that's not why people are flipping out. They're flipping out because it's new. And I'm sure you deal with this issue all the time — the new stuff is always what people are afraid of. They're not afraid of the old risk; they're always afraid of the new potential risk, even if it hasn't been demonstrated to actually be a risk.

Denise: Right.

Sam: Fear of the unknown.

Denise: Right. And we need to counterbalance fear of the unknown with the cool factor of everything that will be done with drones. SleeplessinVA always sends me good links on Twitter and sent a link to a great drone video. This one's not delivering tea; and the reason for its existence will be self-evident in just a moment when we play it.

(The video begins.)

Denise: It's the Millennium Falcon, people! (Laughs)

Sam: [Inaudible]

Denise: I tweeted back to him, "I can almost hear Leia inside offering to get out and push."

Sam: Yeah.

Denise: See? So you know. Don't ban the Falcon — (Laughs) — is our watch word for the day. All right; thanks, Victor, for pulling that up.

[The video stops.)

Denise: In just a moment, we're going to get into the thorny thicket of Net Neutrality and, later on this month, what we can expect to see the FCC put on the table this time. But before we get there, I want to thank our sponsor for this episode of This Week in Law.

One of the things I most love getting delivered to my house — hopefully someday by drone — is my Blue Apron deliveries. Blue Apron, if you have not already heard of it or tried it out, you really should. It is wonderful. What it is, is fresh food and recipes delivered to your house and ready to go. The deliveries I get include three meals, 10 bucks per person per meal. And think about the last time you went out and had a nice night on the town — really wonderful food — and how much you spent on that. It was definitely more than $20 when you and your significant other went out and dined together. When you subscribe to Blue Apron, you can definitely make that caliber of meal in your very own home and have a great time doing it. The thing about Blue Apron is, it takes all the time problem out of cooking. It's really hard to find time to find a good recipe that you want to use, find flavors that maybe you haven't explored before. Let's face it: we all get into ruts where we make the same dishes over and over again; we buy the same things over and over again at the grocery store. With Blue Apron, you totally bust out of that rut, and the meal does not compromise anywhere. It's a good value; it's quick to prepare; it's healthy and delicious. Blue Apron makes cooking delicious meals easy and fun by delivering fresh, ready-to-cook meals right to your door. So less than $10 a meal; it sends you the fresh ingredients; they're perfectly proportioned. It's kind of funny when you're getting ready to make a meal; and you have your two scallions, and you chop them up and you use them. But really, I mean, one of the things I most hate about grocery shopping is, you go out and you buy a bunch of scallions and you use two in your recipe and you wind up throwing the other ones away. So Blue Apron takes that out of your refrigerator for you. And the meals are healthy and easy and fun; and what I am constantly marveling at, as I'm making these meals, is the flavor combinations they put together. It is so delicious! The other great thing about Blue Apron is this was a 2 person meal, there’s my version of it – advertised as a 2 person meal but we have a 3 person family. We not only had this for dinner the night that I prepared it but we had enough left over and my son loved it enough that he begged me “mom can I have chili for lunch at school tomorrow” and yes there was enough left over that I sent it with him to school for lunch the next day. So it’s perfect for date night, it’s perfect for cooking with friends; it’s perfect for your nightly family dinners which are so important. The ingredients and the tastes are adventuresome and yet kid friendly. They’re really delicious and the whole family can eat well and have fun preparing the meal together to because everything is broken down into such nice step by step instructions. You could totally turn your kid loose in the kitchen either to prepare the whole meal, depending on how much you trust them with a knife. There does tend to be quite a lot of chopping involved in these Blue Apron meals but if you’re comfortable with them and you’re helping them along in the kitchen it’s a great way to sort of teach them how to cook as well. Each balanced meal is 500-700 calories per serving and so delicious you’d never know they were calorie conscious. Cooking takes about half an hour, shipping is free, and the menus are always new. They won’t send the same meal twice. So what you do is you set up some meal preferences. I think I have all the preferences turned on so I’m getting everything they’re offering but if you have dietary restrictions or don’t like shellfish or meat; you’re straight vegan they can definitely accommodate all of that. Blue Apron’s experts source only the best seasonal ingredients for incredible meals like citrus marinated chicken thighs with kumquat. You can get cauliflower steaks with einkorn and brown butter and crispy sage. Now there are ingredients that Blue Apron throws in that might be a little intimidating if you’re not a regular cook but they make them not intimidating. You might be cooking with ingredients that are from a kind of cuisine that you’re not used to dealing with. There was apple celery and celery root salad that I made recently that came with some chicken drumsticks and the side dishes are always just a wonderful compliment to the main meal. Sometimes they’re more delicious or at least equally delicious as the main meal itself. Things like celery root are the kind thing that I’m talking about that I just don’t think to pick up at the grocery store but when it arrives and someone has tested out that recipe and knows that it’s going to taste great once you mix it in with the apple and the celery and the… I think it was some sort of red wine vinegar. Absolutely delicious combinations that they put together and you’ll be blown away by the quality and the freshness. So I’ve gone on at length; Mike I know you’re a fan at Blue Apron as well right?

Mike: A huge fan. I can’t get enough of Blue Apron because my wife is – this is something that you might not think of when you’re thinking of a service that will help you prepare your own delicious meals but my wife is literally the greatest cook in the history of mankind; she just is a fantastic cook. But here’s the problem, because she’s so good and because she has such a refined palate she does all the cooking because if I cook dinner she’s going to be disappointed and I’m going to make grilled cheese sandwiches or something like that. So she likes to be cooked for as well and Blue Apron enables me to do that. She can take a couple of nights off a week and still get a meal that blows us all away; that she’s satisfied with and it’s easy for me too. It takes like you said 20 minutes to half an hour and is super easy. It’s always really amazing tasting, it’s shocking. It doesn’t make any sense because I don’t know how this stuff works. You were talking about ingredients; I made a dish here the other day that had several ingredients that I would never buy. In 1 case you’d have to go to the Mexican store to get it and they just throw it in there and it’s authentic ingredients. In another case it was ghee which is clarified butter. If you’re going to go buy ghee at the store you’re going to have to buy a big canister of it and then you’re going to waste it because you’re only going to use it in 1 dish. You just needed a scoop for the dish I was preparing and they just include that – a little scoop of ghee. It’s just so much fun. Here’s 1 more thing that I love about it. Sometimes we stay in B&B houses, they have kitchens and pots and pans and everything but how do you cook? You’re going to go to the store and you’re going to buy all the spices? No you’re not going to do that but with Blue Apron you just grab the Blue Apron package, take it with you and then when you get there you can make these perfect meals and you know you have everything you need. It’s a great way to go to another town and have greats meals that you prepare yourself without even thinking about it or worrying about it or shopping or wasting food or any of that stuff. I’m a huge fan of this. My son uses it as well. It’s just really good food.

Denise: I really love that aspect of taking them on the road as well and if you’re really a good planner and you know where you’re going to be on the road and you want the food to arrive there just as fresh as can be you can actually have it shipped somewhere else other than your regular delivery address. So that’s a great way to go too if you’re traveling or you want to share a meal with someone that week instead of having it delivered to your own house. So you guys can all check it out for yourself. I hope that you do by going to Their coverage – Now I’ve had some listeners from Texas who are sad that they’re out of luck and they can’t get deliveries. Their coverage is the 2 coasts of The United States quite well and moving in towards the mid-section of the US. I don’t know Sam if Michigan is covered or not but they do have a coverage map on their site so you can check it out and make sure that you can get these deliveries or at least express interest if you’re not in their delivery zone. But if you’re on either coast I think you’re going to be in good shape. Go to, you’ll get your first 2 meals free – that’s right 2 meals free just for going to and of course the more people who use the service the more their coverage will improve. So help out your folks in Texas and thank you so much for supporting Blue Apron and Blue Apron for supporting This Week in Law.

Alright, FCC chairman Tom Wheeler had quite a bomb to drop on of all places, where he came out and sort of gave the FCCs description of what we’re going to see coming on later this month. February 26th is the date that we’ve been told to expect the latest round of the FCCs open internet rules. Now for those of you who’ve been following along for several years you know that the FCC tried an open internet rule in 2010 and just about a year ago in January of 2014 the 2 big parts of that open internet rule were dismantled by a federal circuit court of appeals so the FCC has been trying to decide how to respond to that ever since. How it is going to respond is going to happen this month and we heard about it from chairman Wheeler and much to a lot of people’s surprise it sounds like the chairman is actually going to take the hint that was give the FCC by the court that took apart the 2010 rule when the court said “look you could do what you wanted to do here if you reclassified broadband services, internet services from the information services to telecommunication services”. That is known as if you’ve been hearing people talk about Title 2 reclassification that’s what they’re talking about. That definitional change gives the FCC a lot more authority if it decides to go that way and it sounds very much like that is what is going to happen. So Mike I know you’ve been paying attention to this issue. You think this is a very good thing.

Mike: A very good thing and a very surprising thing. In the early days of this before the big public comments portion of this the FCC in general and Tom Wheeler in particular were talking, making some very disturbing noises about this. Especially what he said before President Obama spoke on this issue. He said oh yeah, we’re going to have net neutrality. Carriers will be able to charge whatever they want to, and went in to describe his view of net neutrality which wasn’t net neutrality at all. And so everybody got really nervous and I think that drove a big push for public comments. There were a flood of comments and then President Obama made a video essentially saying he was in favor of full net neutrality and now this. First we heard rumors that Wheeler was going to propose net neutrality and then he actually proposed it and it’s very surprising. This doesn’t mean that we have net neutrality now forever, this is just a proposal. Congress, especially the minority of Republicans, Congress is going to fight this tooth and nail; the industry is going to fight this and we’ll see what we get at the end of this whole process. Also Wheeler pointed out that whatever rules he can pretty easily put in place his predecessor can pretty easily take them out and so that was a little disturbing as well. One political aspect of this is that people are jumping on the regulation band wagon. There’s a reflexive opposition in some quarters. There is some genuine thoughtful opposition too but there’s also reflexive opposition because it’s regulation - no government regulation, that sort of thing. But it has to be said that this isn’t like regular utility regulation, there’s no… ISBs don’t have to file tariffs, there are no unbundling requirements, so this isn’t forcing Comcast to allow a competitor to use their pipes into people’s homes and so on. So it’s the right direction for sure because we definitely do need net neutrality in this country even as it’s being restricted internationally in all kinds of countries. So far it’s surprising and it’s very good and I’m very much in favor of what’s happening so far.

Denise: So that thing that has struck me as we’ve been talking about drones and cars is the desirability of taking a hands off approach until we know that something is broken and at that point then lawmakers are justified in getting involved in and making sure that public safety and welfare and consumer protections are being regulation in a way that helps solve the problem. Do you think Mike that the net neutrality issue is at a juncture where that might make sense?

Mike: I think it’s somewhat a different issue because in the case of self-driving cars and drones it’s about safety. Are people dying or not with the new technology? In this case it’s not a life or death issue for the most part. I think we know enough about providers like Comcast to know they would screw the customer in a second for a dollar and that’s who would be in control of what your bandwidth would be. We’ve also heard all kinds of really disturbing comments over the years by various internet providers saying Oh consumers just need a trickle of very slow internet connectivity; they don’t care if it’s fast or any of that stuff. To me, my personal obsession is incentivizing a high performance. If carriers are required to provide high performance to some customers and for some traffic the only way to provide that under net neutrality is to provide that for everybody and I think that’s the right way to go if in fact they’re incentivized to provide better service for more pay. Then that incentive is to make sure that people are limited in their performance of the internet connectivity so that they want to pay to take it around. It’s kind of like Facebook where Facebook will only deliver a small percentage of your posts if you’re a business on Facebook to the people who followed your. They follow you cause they want to get your posts but they’ll only deliver like 12% or something like that unless you pay. So there is an incentive to throttle for carriers because they get paid when they un-throttle and that is not a good incentive, it’s a wrong incentive. We want an incentive where there’s competition and there are customers who need high performance in order for them to provide it to those customers and win that business they have to provide it for everyone and that’s good for the economy.

Denise: Yes, you were raising the question of deciding what content gets delivered to whom, based on pay. That sounds like it might be a net neutrality issue but that’s the kind of thing that would not be covered by the open internet rules and that companies will be able to play around with. Does that cause you any concern?

Mike: I’m sorry I don’t understand your question.

Denise: You brought up the Facebook practice of having you pay to boost posts.

Mike: Yes.

Denise: That sounds like a fast lane. That sounds like the kind of thing the FCC would like to see providers avoid but what we’re talking about in what the open internet rule is going to apply to is actual delivery of content at speeds as opposed to what content goes to what person based on an algorithm. In other words once this new open internet rule is provided you’ll be able to see companies continue to experiment with annoying the heck out of people like Facebook is doing.

Mike: Yes.

Denis: And that will still be ok but what you’ll also see if some minimum level of internet service that will be available to people and will not be part of someone’s business plan to have you pay more to actually have a reliable Netflix experience for example. So I think Sam that some of this relates to your area of expertise as we were talking about connectivity between cars although there are some services that have been called out by the FCC and there’s a much longer description of what the FCC has in store for us over at its site. Some of the examples they’ve provided there have services that don’t use the public internet for delivery and perhaps V to V Communications would fall into that category as well.

Sam: Yes that’s true. V to V is a separate section of spectrum that’s been set aside by the FCC specifically for this purpose and its non-commercial traffic, it’s dedicated for sending messages back and forth between vehicles and none of the messages traverse the public internet. There is a 2nd component of vehicle connectivity which uses generally cellular data which is the telematics systems like GM On Star, Hyundai’s blue link, Mercedes Benz embrace; those use cellular radios to communicate back to the manufacturers data centers to provide various services like navigation and concierge  services and roadside assistance. Depending on how they’re configured they could be using public internet if it’s just using straight up cellular data or if it’s making a phone call but in general the V to V stuff is not anything that’s impacted by any of the net neutrality regulations.

Denise: Ben, are you concerned at all about the contours of what seems to be coming our way? We seem to have legal traffic, lawful traffic, being barred impairment or degradation that paid prioritization is not going to happen. Do you think that there’s some wiggle room here in things here– that the traffic has to be legal. Are you concerned at all about that?

Ben: I’m having trouble conjuring up an issue where I see that being a big problem but we haven’t seen the full regulations yet. I’m looking at a little 4 page sheet that ARS Technica posted and it’s… I don’t know how a tech company wouldn’t pack and sniff well enough and fast enough and reliably enough to block content on the basis that it’s illegal. I don’t know how they would even say well we sniffed these packet streams coming in through Netflix and we don’t think that there is a copyright license so we’re saying those are illegal. That seems very far-fetched for me for a number of reasons; not the least of which it can be easily defeated by doing SSL encryption, intending encryption like that there’s really no way to packet sniff.

Denise: What if they’re not packet sniffing but making judgments based on what sort of traffic it is. If it’s peer to peer kind of traffic or from its place of origin say.

Ben: It’s an interesting view. I’d hesitate to say substantial but a nontrivial amount of peer to peer traffic that is legal, movies that have been voluntarily contributed through that. Some companies updating systems use peer to peer to more easily send the data around to their customers. So it would be very difficult for an ISP to say well this seems like peer to peer traffic, we’re going to block it on the basis that we believe that all of it is illegal. I think they’d have a tough time making that case.

Denise: Right. Mike what do you think about the ability of providers to do reasonable network management. Do you think that’s going to be a problem?

Mike: Well it’s going to be a problem because we don’t know what that means. It has to be defined so now we’re back to the FCC I imagine deciding yes this is reasonable, no that’s not reasonable. This is an organization that’s staffed by people in the industry including Wheeler himself presently. So that’s going to be something. That’ll be a give and take kind of thing, ebb and flow of the political currents in the country. You probably have to have some wiggle room in order for this to get through. You can’t just basically have a blanket no touching of anything, no monkeying about with any of this stuff. But I think that the larger issue is the classification under title 2 – the classification of common carriers . I think the biggest problem might be – okay so there’s a connection between the provider and the user and then there’s a connection between say Netflix and the provider. Those are very different things. The last mile part of it has got to be net neutrality and the other part maybe it shouldn’t. What I mean by that is maybe from Netflix which has like 1/3 of the internet’s traffic in the United States and maybe there needs to be a lot of money flying around to make that fast. They’re using up so much bandwidth that maybe that’s something that should be allowed to a certain extent. On the other hand once you’ve established that the Netflixes and the Youtubes can pay huge amounts of money to have high performance and essentially pay for the bandwidth they’re using then the cost of doing business against them as a competitor goes way up. If you’re a start-up and it costs 10 million dollars a month to essentially deliver a high performance video then if you’re a startup just getting off the ground and want to compete with Youtube or Netflix and you don’t have that kind of money then you just look like a slow poke with bad connectivity and you’re never going to succeed and that’s a problem unto itself. So I think that it’s kind of an unknown area. We never quite had net neutrality in this country but we do have experience with the kinds of deals that internet providers would like to make and we have had experience with kinds of packages that they offer to users. So we know that there’s a lot of risk there as well.

Denise: Alright. Ben any final thoughts or do we have to wait and see what’s coming later this month?

Ben: I would take the wait and see on this one. Like Mike mentioned we don’t know what reasonable network management means. It could be that the full proposal contains some more specific guidelines on that or it could be that it just gets worked out over the first few years of net neutrality with complaints being filed and the FCC doing some more rule making about what exactly comprises reasonable network management.

Denise: One thing that Chairman Wheeler was careful about and I think repeated more than once in his wired announcement is this notion of having bright line rules and what that means is rules that are easily comprehensible and don’t involve a lot of guess work and wiggle room. So I’m hopeful that we will see some definitions when we do see the final open internet rule that will help people understand better what they should and should not be doing. Sam, any final thoughts on this?

Sam: No, I just wanted to add something to what you’d asked Mike earlier about Facebook and them mucking around with what shows up in people’s feeds. I think that’s not quite the same kind of thing as what ISPs are doing. In the case of Facebook that’s something they’re doing within their own system and if you’re not happy with the way they manage that there are other options and it’s more straight forward for people to switch from Facebook to Google Plus or to some other system although despite the network effects than it is for most Americans to switch from 1 ISP to another. There tends to be a lot less competition at the ISP level and if I had a viable option besides Comcast I would almost assuredly take it.

Mike: If I can rebut that. I was talking about the incentives that companies have for providing less of a service. So Facebook has an incentive to restrict what it delivers; that just purely from an incentive point of view. Also I think that there is more choice in carriers than there is in social networks. Facebook has a perfect monopoly on everyone. In my case they’re the only social network where my mother and my sister and my brother and everybody I went to high school with – literally the only social network anywhere near that. So they have what I call a monopoly on everybody. Their monopoly is growing and they’re using that power to gain more monopoly so it’s essentially if you want to interact with people on a social network then the people are on Facebook. That’s where they are. I’m on Google Plus and I’m a huge Google Plus fan but I have to go to Facebook because 95% of the people I know are on Facebook and 95% of the people that I know are not on Google Plus. So there is almost no choice in social networks, it’s a monopoly. It’s not a legal or financial monopoly and it’s not a traditional monopoly but it’s a defacto monopoly because that’s where everybody is and everybody is there because everybody is there because everybody is there and that’s a monopoly.

Sam: That’s a very good point Mike. I will not argue with that at all.

Denise: Alright. Well there are a couple of Copyright stories I want to hit before we go ahead and get out of here so let’s turn to them next. The first one is something that we’ve talked about before. A chicken’s coming home to roost sort of a story as we bring it back up again and that is Keurig’s DRM with its machines only taking authorized K-cups has apparently bitten it pretty hard because it had an earnings call this week where it had to announce that brewers sales fell 12% last quarter. The quarter in which its DRM enabled system came online and the company had to acknowledge that its been too slow to get compatible cups into the retail shelves and there are lots of confusion now among consumers about which cups are going to go in which machine. So its been bitten by the DRM bugaboo and there is some good coverage over on The Verge about this that also points out that if you google Keurig 2.0 the first thing that auto completes is Hack. So not only is the DRM bad PR but it’s easily breakable, we showed one of the videos showing you how to break it back when we talked about it before. I think it was last June. So here we are and it’s a concrete detriment to the company that they’ve gone ahead and gone this route and I wanted to bring it up first just to kind of follow up on that story and secondly because it also jives well with what we’ve been discussing today with automotive technology where we’ve also seen and I think increasingly will see more DRM notions come into play as more automotive technology becomes more and more like a computer. So Sam I wanted to pick your brain about both k-cups and cars and DRM.

Sam: Well for what it’s worth I’m glad to see the market actually function in this case and people speak with their wallets and not buy these DRM Keurig machines. Personally the only time I ever use one of those is when I’m in a hotel room. It is particularly convenient for that but at home I just grind my own beans and make my own coffee. As far as DRM and vehicles I think it’s actually moving in the opposite direction. Traditionally auto makers have tended to be very proprietary when it came to things like software and their electronic systems in the vehicles. What we’re actually seeing now as people have become more dependent on their phones – their smart phones that they carry with them for their information entertainment. Automakers are increasingly opening up and moving in the direction of adopting things like Android auto and Apple car play. I can’t wait for those to actually arrive in vehicles. I got a demo of the 2 of them at the Detroit Auto show a couple of weeks ago and was really impressed particularly with the Android Auto. Those are going to be rolling out and most net cars probably starting later this year and probably coming out more and more. Increasingly automakers are opening up to common standards. For example all of this V to V communication stuff  - it only works if everybody can talk to everybody else and so all the automakers are working together to develop common standards that everybody can use. There will be open standards… similarly other automakers like Ford a couple of years ago opened sourced the code for their sync app link system that would allow other automakers and manufacturers of after-market radios to incorporate that so that developers could use that. So that app developers would only have to modify their apps once to work with app link and any vehicle that supported it could control those apps from the vehicle. So I think DRM is actually something that’s going away in the industry.

Denise: Right. So Ben I don’t know if you’ve been following this k-cup story or really seen how some people responded to the DRM. Victor in the studio was pointing out to me and I had read this before the show as well that 1competitor to the authorized k-cup products is going ahead and including a hack with their k-cups so that you can buy from them and be comfortable that it’ll work in your machine because they’re to include this thing called the freedom clip that circumvents the DRM and lets you use their devices. That sounds like they may well have a DMCA issue on their hands don’t you think?

Ben: I’m curious about that and I was thinking about it too because I hadn’t heard much of a report about how exactly this DRM works. I know that there is like a purple ring around the top of it but I don’t know if there’s really any copyrightable information within that. Based on what I’ve read in the articles it is all functional. The DRM system functions to tell the Keurig brewer how hot the water should be, what the temperature of the water should be. If you’re circumventing that you’re circumventing functional information that isn’t protected by copyright, that shouldn’t implicate the DMCA. It reminds me of the Lexar case. There was a case in the late 90s early 2000s where printer makers started including clips with some code inside of them that was protected…at least arguably protected by copyright. Somebody came along and made compatible printer cartridges that would get around this DRM. The court basically said that code exists on that chip for the sole purpose to be functional within the printer and therefore it’s not copyrightable and you don’t get DMCA protections and you don’t get copyright protections and you don’t get to implicate the DMCA for circumventing them.

Denise: Right. Alright, 1 other copyright related story and also some trade mark coming into play here Ben – it has to do, and this is in the wake of the Super bowl, it seemed like a good thing to talk about with small business in Seattle that makes onesies for babies and they had a design that had this Seattle Space Needle on it and a 12th man flag flying on top that was popular last weekend and I imagine still is. The problem that this small business has encountered is that another store that was carrying their products then copied it and began selling it themselves and you know – what’s a onesie maker to do? Are they really going to sue and will they really have any ability to prevent somebody else from putting the space needle on their work. And then the kicker to this all – and here’s where the trademark comes in is the original onesie maker got a notice from the space needle folks that they had to stop putting the space needle on their clothing because of trademark issues. So aside from the fact that this is sort of a law professor writing an exams dream Ben; do you have any further insights you can shed here on the design and trademark issues?

Ben: I’ll do my best. I was a little surprised with the trademark claims so I’ll address that first. It honestly had not occurred to me and I haven’t come across an instance where a landmark like that has tried to assert trademark in the landmark. In retrospect it doesn’t particularly surprise me that the space needle or whomever owns the space needle likely has some sort of trademark on use of the space needle for clothing…so they can sell clothing that’s branded with the space needle but the way it was used on this onesie is it’s a design on the onesie and it’s not a trademark use. So a trademark use is identifying the source of the goods. When you think of that you think of the little polo player on the shirt, that seeing the little polo player indicates to you that the shirt is from Ralph Lauren. Seeing a gigantic space needle on the front of a shirt doesn’t indicate, to me at least, that the shirt is authorized by Space Needle incorporated. It just to me says it’s a design of a space needle on a shirt. So I’d question whether or not they’re actually implicating trademark by having a large design on the front of a onesie….relatively large because it is a onesie. The copyright issue is also interesting. It would protect that exact expression, that exact design, the one that you’re seeing if you’re on the feed right now, which is a space needle with a little blue flag on top of it. If somebody came around and designed a similar one, didn’t use that exact art, there may still be a copyright claim saying that it’s substantially similar rendering of the space needle. In this case there’s clearly access that the original retailer first was buying these authorized and then started to make their own. But it’s tough for something like that. You get to a point where the idea of a space needle with a 12th man flag – the idea of that merges with the actual expression of it. There are only so many ways that you can express that idea and that’s something in copyright called merger. If the idea and the expression of the idea are too close then you can’t get copyright protection on it.

Denis: Right and this also…the occasion of the sad saga of the punk rocks sock monkey. 3 years ago there was another entrepreneurial person named Clarity Miller who came up with the classic sock monkey but decided it would be really cute if they looked like Sid and Nancy and apparently Urban Outfitters either wholesale adopted her idea or came up with it on their own or some combination of the 2 but wound up selling a very similar product and Clarity was told by lawyers that the idea of a punk rock sock monkey is not something that you’re going to be able to pursue and inforce and prevail on. So this is precisely the kind of issue that you talk about on your blog Ben. The ModRen legal blog at and your blog is one of our resources of the week because I first of all love your design and everything that you’ve done with your professional web site there and secondly the blog is very practically oriented. You tend to focus on issues that people either deal with in their daily lives or businesses do and they’re very succinctly written up and digestible. So I think it’s a great resource. Is there anything else you want to tell us about it?

Ben: Just please go over and check it out. If you have questions feel free to email me. If I think the question is useful and I can deal with it on the blog in a quick way I’d be happy to take some ideas. I’m always looking for new ideas for something that I can write up and post on the blog.

Denise: Cool, where should they email?

Ben: The email on the website there is That is That’s a great place to get me.

Denise: Wonderful. I have 1 other resource to give folks this week and that is public knowledge did a lengthy AMA on Readit about this week’s net neutrality news and for folks who still have questions… Lord knows I’ve had questions all along concerning this issue. It’s a great place to go and try and hash through them so thank you Public Knowledge for doing that AMA and people can peruse it at their leisure. You can also pull up all the links to everything we’ve been discussing this week on the show at I think we’re going to have to put a 2nd MCLE passphrase in and that the 2nd one should be Seahawks onesie let’s make it, so that we have those taken care of. I also have a tip for you, a tip of the week. This one unfortunately is fairly regional in nature although I’m sure there will be good information available online after the fact. If you are in northern California on February 19th however and you’ve enjoyed some of these issues that we’ve been talking about today on the show you might want to shop by Stanford Law School room 190 where from 12:45 to 2pm they’re going to have a free discussion and lunch on artificial intelligence and the law. And specifically focusing on the rights of artificial intelligence systems – Jerry Kaplan is going to be speaking and is going to explore such issues as what sort of rights and responsibilities and controls there should be on artificial intelligence systems. He’s positing that like an artificially intelligent lawyer should be at minimum required to pass the bar exam. That people cutting hair or artificially intelligent systems cutting hair should be required to pass the same sort of exams that a person would pass etc. So there is some interesting stuff there and I’m sure it’s going to be a great talk if you happen to be in Northern California area on February 19th. So I wanted to highlight that for you folks. With that I think we’re just about ready to wrap up the show. I’ve had such a fun time finally getting you on the show Mike, great chatting with you today.

Mike: Thank you so much and thank you for having me on. I just wanted to have 1 last space needle related tip for people.

Denise: Sure.

Mike: Go to, it’s really a cool website and scroll up. That’s all I’m saying – go to and scroll up and you’ll be thrilled to see how they’ve designed the home page. It’s very cool stuff.

Denise: That’s really cool, we’ll have to do that. Anything else you want to let us know about Mike? Obviously folks should catch you every day on Tech News Today and read your writing at Computer World, follow you on Google Plus. Am I leaving anything out?

Mike: No not really. Tech News Today is at 10AM pacific, 1pm eastern every single week day. So we’d love to have you come, come into the chat room and watch the show live or download it and subscribe.

Denise: Awesome. Ben I’m so glad that we were able to chat with you one more time here on the show and it’s not going to be all these years until you’re on again please tell me!

Ben: Yes I’m happy to come back and thank you again for having me.

Denise: Good and good luck with your snow removal in Massachusetts and anything else that may come your way as I guess we have what? – 6 more weeks of winter per the ground hog.

Ben: At least.

Denise: So anything coming your way during those 6 weeks that you want to let folks know about?

Ben: No, nothing big to plug right now but again thank you for having me.

Denise: Oh it’s been a pleasure and I really appreciate your thoughts and insights and time. Sam I’m going to get your name right. It’s Abuelsamid

Sam: Right, absolutely.

Denise: Yay! Sam Abuelsamid, so glad we could get together with you today and pick your brain on what is probably one of the most interesting and wide open areas of technology and law. We’re glad that you’re out there covering it and driving a Kia.

Sam: Thanks for having me on. It was a lot of fun and any time you’ve got any questions about transportation feel free to reach out to me. You can reach out to my company that I work for – Navigant Research through the – there is a contact link on You can also find me personally either on my blog or through Google Plus. Just look for my name and you’ll find me there. I just wanted to second Mike’s recommendation of I just took a look at it while he was talking and that is a pretty cool site. I really like that so definitely take a look at that when you get a chance.

Denise: We’re showing it now for those of you watching on video. Oh this is really cool.

Mike: I think that plane is flying a little close there.

Sam: It needs a little proximity sensing.

Denise: It needs some vehicle to vehicle…vehicle to space needle communication. Alright folks thanks so much for joining us all today. If you’ve done so starting at 11:00 Pacific time, 1900 UTC then you’ve been watching us life; that’s when we record the show live every Friday. We’re thrilled if you’re able to join us live but don’t worry about it if you can’t. Head on over to, that’s where our archive resides. You can see all our shows going all the way back to the beginning. We’re also on Youtube and on Roku and there are various other ways to subscribe to the show that you’ll see there on the show page. I was just watching Tech News Today before the show on my little ancient Kindle Fire here and that’s the great thing about our shows it that they’re available on all your mobile devices and most of your TVs one way or another and they look great on a big screen TV too so however you decide to subscribe to the show we really appreciate you joining us. We love hearing from you between the shows. This was going to be the first official week that my co-host Sarah Pearson started, I’m sure people were wondering because I plugged her last week that she was going to be on the show this week. Unfortunately Sarah got ill this week but she will be with us next week however and so stay tuned for Sarah. She is council with Creative Commons and I’m really excited that she’s going to become a regular part of TWIL. So join us next week when she is back and get in touch with us between the shows. Sarah is and I’m Let us know what’s on your mind; what you’d like to see us discuss, guests that you might like to suggest for us to be on. Thoughts and insights you’ve had on the issues we’ve discussed. We’d just love to hear from you all around. We love to hear from you on Twitter and in the other various social arenas as well because we check them all and that’s a great way to get in touch if you have something that you’d like to kick off a public discussion with we enjoy that as well. So this has been a really fun discussion and we will continue monitoring all the latest and greatest at the intersection of technology and the law for you and be back with you again next week! Take care.

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