This Week in Law 292 (Transcript)
Denise Howell: Next up on This Week in Law, Nabiha Syed, Peter DiCola, Sarah Pearson, and I are going to discuss a tiny, tiny new little report from the copyright office on music licensing and distribution. We're going to talk about journalism; drones; speech; and of course, the left shark, next on This Week in Law.
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Denise: This is TWIL, This Week in Law with Sarah Pearson and Denise Howell, episode 292, recorded February 13, 2015
My Left Shark
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Hello, and welcome to This Week in Law. I'm Denise Howell; I'm here with my co-host, Sarah Pearson. Hi, Sarah.
Sarah Pearson: Hello, everyone.
Denise: Good to have you. Glad you're feeling better.
Sarah: Thank you. I'm glad to be back.
Denise: I know. We've got a smashing panel today to talk about very interesting things that are happening at the intersection of technology and law, which is what we do here on this show. I'd like to introduce you first to Nabiha Syed. Nabiha is a —
Nabiha Syed: Hi, everyone.
Nabiha: I was just saying hi. (Laughs)
Denise: Oh, hi! Great to have you. We're having some video issues with Nabiha, but we have her on the line nonetheless, which is absolutely excellent. Nabiha is a media law maven of just absolutely top caliber. She's been a lawyer with Levine, Sullivan, Koch, and Schulz; she contributes to Slate and SCOTUSBlog; her work focuses on reporters, speech, access to information, security in journalism. She's also the co-founder of Drone U, which we've talked about before on the show, along with Trevor Timm. And Nabiha, you were telling us you're about to embark on — if this is public knowledge and you can share it — another turn in your career. You want to tell us about that?
Nabiha: I would love to, but it's not public, public yet.
Nabiha: So I'll ... [audio fades] ... about three days.
Denise: Okay, good. We can look forward to that. You've also worked with — you were part of the team that represented The Guardian with respect to the Snowden leaks; correct?
Nabiha: Yes. Yes, I was.
Denise: So wonderful background. And didn't you also co-found the Media Law Center at Yale?
Nabiha: I did. I did. That's probably the proudest thing I've ever done. It's so fun, and they are doing wonderful things every day, which makes me very proud.
Denise: Yes. We're very proud of you and very glad you're doing what you're doing and that you could join us on the show today.
Nabiha: Oh, it's my pleasure.
Denise: But as if Nabiha weren't enough, we have another fantastic guest joining us today; and that is Peter DiCola. Peter's a Bay Area — I'm sorry. No, I'm sorry; Peter is not a Bay Area — although you may have some ties there, Peter, but you're going to have to correct me on that, if I'm wrong.
Peter DiCola: All right.
Denise: Peter is a professor at Northwestern University, where he focuses on intellectual property and media law, specifically music licensing and distribution. Have you been to the Bay Area, Peter? (Laughs)
Peter: Sure. No, I visit all the time; and every time, I think, Why do I — what mistakes have I made in my life that I don't live here? But no, I'm a Midwesterner.
Peter: I'm a native Chicagoan.
Denise: Great, great. Well, we're thrilled to have you on the show. And I think we'll start our discussion in your area of expertise because we've had some new insights from the copyright office that affects music licensing. So let's talk about entertainment law.
(The intro plays.)
Denise: Peter, can you bring us up to speed on this? What has the copyright office handed down from on high?
Peter: Well, so they've issued a report. It's an extensive, 245-page report. Everyone, I think, is naming the number of pages by way of sort of complaint that it's so long to go through. But no, I'm happy that it's a thorough report. They're touching on a number of issues related to music licensing and just offering their thoughts, the idea being that maybe eventually, we're looking ahead to actual legislation from Congress in this area.
Denise: All right. So can you distill the 245 pages into something we could maybe try and understand?
Peter: Sure. Oh, yeah. I mean, I think they're talking about a couple of — let's say, four or five big things; and one of them is dealing with the streaming versus webcasting issue. The current copyright law treats services like Pandora that don't offer on-demand streaming — that offer a webcast even though there's some amount of tailoring to consumer preferences — differently than the on-demand streaming services like Spotify. And so the current system is that Pandora exists under a statutory licensing scheme. There's a process that the copyright owners and webcasters like Pandora go through under this thing called the copyright royalty board; and that process, as I've written in a couple of Law Review articles, hasn't been a smooth process. It hasn't been a policy success. And so there's a lot of — there's a wide disagreement about what rates, basically, that Pandora should pay for, in particular, the sound recording copyrights; although there are also disputes about how much they should pay for the composition copyrights. Meanwhile, on the other side, Spotify and the other services like it negotiate voluntary deals. They're private; they're not under the statutory licensing scheme. They're not handled with this copyright royalty board. However, as my colleague Dave Toovy and I have found in our research, it looks like those deals are very much shaped by the statutory scheme, even though they're voluntarily negotiated. And there are concerns about those deals. One of them is that they just take a long time to negotiate, even though they're all pretty similar; and the fact that they're similar suggests that maybe we're not seeing robust competition in terms of the product characteristics. We're not seeing different services get permission to do different things with the works in their on-demand streaming services; they're all kind of the same. And interestingly, some of the contracts seem to even borrow language from the statute. And so I guess, about the music licensing and stuff, what I'd say is that I think we're in a situation where we're getting like — we have a government scheme that's supposed to be really predictable and services like Pandora that hasn't been predictable; and we have a market scheme for services like Spotify that's supposed to be flexible, and it's not flexible. So we're really in, like, worst of both worlds. And they're not treated the same, and so there's this failure of what you might call regulatory parity. And so I think the copyright office is trying to make moves to bring parity to this marketplace, to have everyone at least going through the same kind of rate-setting process; and they've got their ideas about how to do that. And it's interesting. I think it requires some more study, what they're proposing; but I think basically what they're saying is that there would be — the first option would be to have rates negotiated in the market; and then this copyright royalty board would act as a backstop. And it's an interesting idea; I think it's worth thinking about. I'm not sure it's the right solution. There are reasons why we have the copyright royalty board because the reason you would set a statutory process is because the copyright owners are difficult to negotiate with or because they've been holding out in licensing or because they've asked for exorbitant terms. And there's a hundred-year plus history of music copyright owners doing that; so saying that, oh, we're going to look to the market first — I'm a little wary of that. But I understand where the impulse is coming from because they want everyone to be treated the same. So sorry, that's a long answer about one part of the thing; but that's, I think in some ways, the heart of it. There are other issues, like the pre-1972 sound recordings issue and other things we can get into, but that's the part that I was paying attention to most.
Denise: And do you think that the proposal from the copyright office is going to solve some of the problems that you were mentioning, that the services aren't treated with parity and — no one seems to be happy about the compensation that's arranged —
Peter: No, no one's ever happy —
Denise: — through the laws that apply. Is there any light at the end of that tunnel?
Peter: I think so. I mean, I think that the fact that we're not treating Pandora and Spotify totally differently in the regulatory scheme, I think, makes sense. I think that in the real world those services compete with each other. I think people decide whether they're feeling like using Spotify or something like it, or feeling like using Pandora or something like it. And so it makes sense that the federal government wouldn't be treating them vastly differently. I think there's something strange about the scheme. So I think recommendations to move away from that — that's a good thing; and so I think they are making steps towards that, yeah. And I should say, just in case it's not clear, I think the copyright office has been very thoughtful here. I think they're trying to do something really useful. This is going to be important input into what historically has been a really long process of negotiating and revising the statute. Copyright reform the last time, as you probably know, took 22 years before we got the 1976 copyright act.
Peter: To redo this stuff, I hope it doesn't take 22 years, but it's not necessarily going to happen this summer or anything. But I think that's why it's great that they thought broadly and thought about, Okay. How can we really change it? How can we make an actual structural change so that those services are treated more similarly? And to the extent they pay different rates, that's for good reasons rather than arbitrary reasons.
Denise: Well, we really appreciate the update and not having to read through the 245 pages of the report from the copyright office. (Laughs)
Nabiha and Sarah: (Laugh)
Denise: Although I'm sure some of our listeners are just dying to dive right into that, so maybe they can fill us in after the show as well.
There is a lawsuit that's pending that I thought that both Sarah and Peter might be interested in. Sarah is senior counsel for creative commons; and this seems like a similar sort of regime to creative commons but has, according to this lawsuit, a bite to it. There are two YouTube producers — Machinima, the video game-related web channel on YouTube, and CollectiveDigitalStudio. I'm not sure what they do. But what they are suing over is a service called FreePlay, which I have come across before, and I think I've used their music before and things. Their site says they have 15,000 songs, free music for YouTube and more. It's supposedly licensed music that you can use in your productions. But according to the lawsuit, what FreePlay is doing is "luring" the consumer in and then demanding, after the fact, that after you've used the music you have to pay what they call outrageous license fees; and if you don't, then they're issuing takedown notices, etc., and trying to get you to stop using the music. Sarah, what do you think is going on here?
Sarah: You know, I hadn't heard of FreePlay before this, so it was kind of an interesting and new thing for me. The accusations are pretty terrible, if that's really what they're doing. And it's interesting that you brought up CC licensing because it is something that, at least academically, we worry about a fair amount, is what if people are applying CC licenses to their work — whether it's music or anything else — and then turning around and saying, Hey, you violated this tiny little attribution problem; or you violated my moral rights, and doing it in a way that is intentionally like a bait and switch type of scenario. I don't know that we've ever heard of real life scenarios where that's happened with Creative Commons licensing, but it's definitely something that we think about, I guess, and fret about a lot as an organization. But yeah, I don't know the background about this FreePlay service at all, but it sounds like the accusations are pretty serious.
Denise: Right. And of course, they are denying the allegations. This is just at the complaint stage, and they say that this isn't actually happening; so we'll have to see how this plays out. Peter, any thoughts?
Peter: Well, I was just reading the complaints. I hadn't known about this service either or these accusations. I just was surprised the complaints listed as few causes of action as they did. I mean, I guess in California this kind of fraud and extortion falls under unfair Competition. I was surprised there weren't some counts of just good old common law fraud or other things. I just expected a longer list. But I can see why it's concerning. I agree with what Sarah said; you worry about what's getting distorted with these kinds of labels and being put on copyrighted content. And of course, it speaks to just this general problem that we don't have good information about who owns what. And so there's lots of talk now about trying to use different technology to attach information about who owns what and have some kind of more standardized system, to go even further than what creative commons has done. But I think episodes like this show that there would be a use for that.
Denise: Yeah, definitely. Hey, before we leave the topic of music, I know that we were talking before the show about your involvement with the Future of Music Coalition, Peter. Can you give us an update on — we've had representatives of the Future of Music Coalition on the show before —
Denise: — and I thought it'd be nice just to have you bring us up to speed on what they're up to.
Peter: Sure. Well, I serve as chairman of the board of directors right now; I have for the last year. Our new — well, he's not new to the organization, but he's got a new title. Casey Rae is now the CEO of Future of Music Coalition. He's kind of worked up the ranks; he's been incredibly dedicated. He's had a great couple of years developing projects. He testified before Congress about copyright this last year. But the funding environment for non-profits has been so weak ever since the financial crisis, it's really a testament to our staff that we've kind of been able to hang around. But now I feel like we're coming out of it. And so Casey's got great plans for different projects and gradually expanding the staff again. He and Kevin Erickson, our communications director, have been working hard and expanding Future Music's presence. And we've just added — the press release you saw was probably about adding all these new board members. So Merrill Garbus and Thao have joined, so we have a couple of musicians on the board again, which is great because we hadn't had that since Erin McKeown stepped down. Benji Rogers from PledgeMusic; Vickie Nauman; Dick Huey — sort of expert digital music people; Ken Umezaki; and then Ryan Chisholm was a music manager. It's just a great group to go with Emily White and then my colleague Kristin Thomson, who I know you know.
Peter: So right now, it's a big board. I think Kristin and I eventually will be sort of transitioning off as we hand things over to this new crew. But it's just really exciting how much energy there is. We're really making a push to develop a better network of musicians, especially through their managers. And so anyone who knows a musician or music manager who's interested in these issues, wants to participate, we've always sort of been an organization where lots of issues could be discussed, lots of perspectives. We're not — our goal is to be very much in favor of musicians getting paid, but also in a way that supports technology, just to try to have that moderate view. I know everyone thinks they're moderate, but we really are. We're really very moderate, so ...
Denise and Nabiha: (Laugh)
Peter: That's the idea.
Denise: We'll take your word for it. All right. Let's shift gears here into the realm of legislation and policy and talk about journalism and speech and drones.
(The intro plays.)
Denise: So Nabiha, you have been paying attention to all of those issues. You've been writing some great columns for the Washington Post on the status of drone regulation, and paying particular attention to drones' role in journalism. Can you give us your take on that in a nutshell? What's going on there?
Nabiha: Sure. The capabilities that drones have for journalism are potentially unlimited. I mean, some of the best examples were also some of the first examples from NewsCorp using their daily drone, where they were able to capture these really stunning panoramic views of destruction after a number of floods in Alabama and Mississippi. I mean, it really gives us a new vantage point. It can be helpful for investigative journalism. Also, my favorite example of that is, a man flying his drone around the Trinity River noticed that one of the river streams was strangely brown, zoomed into it, did a little bit of digging, and realized that a slaughterhouse was dumping pigs' blood into the river nearby. And that was a story he wouldn't have been able to get if it weren't for the vantage point that he had. And so on one hand, the FAA has realized actually explicitly that the newsgathering potential for drones is important, and it is one that they would like to encourage and help integrate into the airspace. But the FAA is taking a while in coming out with its comprehensive regulations and rules that would allow all drones — or all drones that want to fly into the airspace — to do so in a way that is compliant with what they think is safe and acceptable behavior. So back in 2012, the FAA was actually explicitly tasked by Congress with coming up with a plan to integrate drones into the airspace. They have missed almost every single deadline they've had that was laid out in that 2012 bill which wanted them to have a preliminary rule out by at least 2015. They've missed a lot of steps along the way; they keep pushing the date back where we're going to get just preliminary rules that will tell us very basic things about, do you need to have a pilot's license in order to fly a drone? Do you have to keep it in your visual line of sight, or can you use a radio line of sight — meaning, do I have to be able to see it with my eyeballs, or can I kind of guide it around corners and buildings and what have you? And they've given a lot of really uncertain advice along the way and also levied fines on people; so it's really this kind of uneven landscape that a number of states have rushed to fill the gap. So there's about 20 states now that have had a legislation, about 43 that have proposed legislation on the books, all of which are looking at regulating in very different ways. Some of them talk about regulating kind of public or private space or law enforcement use or the type of device or where you can fly and that kind of thing. And it's really just a big mess. So the most recent example is, California this week proposed a bill that essentially gives you a cause of action for trespass if a drone comes below 400 feet above your private property, which sounds great. Like, I also don't want drones flying over my home, so I can understand that. But if you think about the rule, and if you look into it a little bit more closely, what are we really concerned about? If you're concerned about a drone interfering with your ability to enjoy the property, they can do that — there's no real difference between 390 feet and 410, right? Same as if you're concerned about it recording what you're doing if you're sunning yourself in your backyard. The line that the proposed California bill is drawing, which is similar to what Oregon has just done, doesn't really give you anything. So a lot of the state rules, while well-intentioned, don't really make sense; and the place that should be creating the comprehensive rules for everyone — the FAA — is dragging its feet because of a lot of political reasons, which, to be fair, it's a hard task. They have to think about a lot of different things — not just safety but also, even though it's not within their mandate, what privacy impact the safety rules or other rules they have will have. It's a tough one; but I think every day that they don't give us something is another day in which there's more confusion, and then people turning to either their own interpretation of the rules or kind of seeking out their own piecemeal solutions. And it's just not a great time.
Denise: And there's a lot of confusion, isn't there? I know that you mentioned some fines being levied already. One of our listeners, after one of our recent drone shows, is involved in the hospitality industry and was talking about how hotels are starting to — despite the fact that there are no regulations in the United States that permit commercial operation of drones; but hotels nonetheless forging ahead and trying to offer services that will help lure in customers, are offering, particularly in the wedding context —
Denise: — come have your wedding at our venue, and we'll provide wonderful filming by drone for you and of course charge you, which makes it a commercial service. And I could certainly see those folks getting fined and getting themselves in trouble. And that can't be the only example of where people are just sort of forging ahead because the technology's available. A little knowledge tidbit I saw over the week we were getting ready for the show is that drone sales on eBay, just since last spring, have passed over 16.6 million dollars, just on that one avenue of sale. So what do you think's going to happen as people try and go ahead and do what they can do with these drones without the FAA acting and giving them solid guidelines?
Nabiha: I think there'll be a couple things. So on the commercial side, there are increasing reports of young engineers, for example, just up and moving to Canada or going to Mexico and starting their drone businesses there. I can tell you that places that want to use drones for filmmaking purposes are often using them on location outside of the United States. So if you really want a drone shot, you'll drive down to Baja, Mexico, or somewhere else in order to get that shot if it really means something to you. And that, to me — if anything should be a light under the FAA to get them going, that should be it. People are already starting to move across international lines to have their companies run. They're just not willing to wait. And it's worth noting that a lot of other countries have rules and regulations that are far more advanced than ours. I know that the FAA is working with some of those other authorities and they're working out kind of the best way to integrate things here. It is true that we have a very large country with some very different climates and different population densities, and it is a challenge; but people are already leaving in order to start industry somewhere else. For the average consumer who's buying their 300-dollar drone off Amazon or off eBay, I think people will keep playing with them using, hopefully, a bit of common sense. They probably won't be flying them over their local police departments. But already, when I go to the park on the weekend, I see a ton of people flying their drones out and about. And you get some shifty eyes to make sure there's no cops around when they're doing it, but people are flying. And we're seeing more and more of this. On kind of the newsgathering film side, I will just say that the FAA, realizing that this is happening, has exercised an exemption called the Section 333 exemption that says — you can basically write to the FAA and say, Hey, I know what I'm doing; this is where I want to fly; I'm not reckless; I've logged some hours; this is what I want to do. Could you please just give me temporary permission to do so? And the FAA has granted some of those — not a lot — there's a lot of petitions out there. They've granted a couple; but almost all of them have had a pilot's requirement in it. Now, if you think that, in order to fly something that you can buy for $300 off Amazon, you need a pilot's license, there's going to be a lot of people who aren't going to bother going through with that Section 333 exemption process. So it's a good effort, and it's a good effort for institutions; but for the everyday user who just wants to do it, they'll just try to do it away from the scrutiny of law enforcement or anyone who might catch them. The only point I will make on that is, you see a lot of people posting these videos on YouTube, and they'll do it under their own names. Enforcement is going through YouTube and other places where these are publicly posted; so if you do want to play with your drones and you would like to do so away from anyone's watchful eye, you probably shouldn't put your name on the videotaped evidence of it and then upload it to something public. (Laughs) Just giving a pro tip.
Denise: (Laughs) Yes. Excellent tip there.
We're going to take a quick break here before we move on in the show to issues of Twitter and speech, British spies, and of course the left shark. Before we go there, we're going to put our first MCLE pass phrase into the show. This is for folks who might be lawyers or other professionals who need to log continuing education hours in their profession to maintain their license, or otherwise just be a good employee. We put these phrases into the show so that you can demonstrate that you've watched or listened, and we appreciate your viewing the show as having the kind of information that would meet those requirements. We certainly strive for that. Our first pass phrase is "strangely brown river" from our recent discussion. (Laughs)
Denise: We'll put another one in the show a little bit later.
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Now, Nabiha, Twitter comes under fire from time to time for various things, various speech-related things; and there were a couple of stories in the news. Recently, there's been some speculation that due to complaints by British politicians, Twitter has been pulling down tweets and silencing trolls. And there's also a new French law that is being contemplated where Twitter could be an accomplice in hate speech if this law passes. My take on Twitter is, they don't view themselves as a speech platform; but it seems like lawmakers and individuals sometimes do. What do you think, Nabiha?
Nabiha: I think you're exactly right on how Twitter views itself. I think what we're seeing with both the French initiatives and also Twitter's attempt to try to stem some bad speech that happened in their platform is attention we're seeing elsewhere. It's kind of everywhere. It's an understanding that, while technology has democratized everyone's access to these amazing platforms, right — everyone has a printing press now in their pocket or on their phone, it means that a lot of crazy people also have the same access to it and can disproportionately use their power to intimidate others who are speaking about unpopular things or even just by virtue of having two X chromosomes, which is something that you see a lot about. I can say, personally, that when I was writing for SCOTUSBlog, or even sometimes talking about drones on Drone U, I would get truly bizarre hate mail from people. And on one hand, it's easy to say, Well, you should just shake it off, and that's the cost of doing business and the cost of being in the public sphere; but on the other hand, there's a real question as to whether taking that position means that some people will be subject to disproportionate pressure just by virtue of wanting to exercise their own voice. I do think that any initiative that actually stifles what people say — so for example, if Twitter doesn't allow someone to tweet at someone something that would be automatically understood as a slur or something offensive — forbidding them from actually posting it is a different type of solution than saying, Well, as a Twitter user, I can block other people that I know are doing things that intimidate me or that I consider to be harassment. And I think the solution here is really — and it's a tough one, I think. This is a really tough call, and it takes into account some of the tensions that are underlying the Aloneness case that's pending from the Supreme Court now about how one understands hate speech online or intimidating, true threats online. I think the solution is maybe giving users as much control as possible to on their own initiative be blocking people who are subjecting them to speech they don't like rather than having the platform as an intermediary doing it on their own. But I think this is really, really difficult. This is not an easy draw to make.
Denise: Peter, we were talking before the show about the fact that you're not on social media as much as maybe some other people are because of the time-suck aspect. Is that the only reason? Is some of the uncivil speech also a concern for you?
Peter: Oh, no. No, it's absolutely that. I mean, after the Lindy West story on This American Life a couple weeks ago, about her trolls and her opportunity to confront one of them — you know, I've been reading up more on it just to revisit what's actually happening. Just to put some context on this, 15 years ago in the copyright debates, there was all kinds of talk about, Get out of the way of the Internet. This is going to be great. This is democracy happening. This is the new public square. It's going to be even better than any other kind of infrastructure we've ever had for speech. So this is why Napster needs to win; this is why Grokster needs to win; this is why the copyright owners have to go away. And there was a lot of talk like that in some quarters about how great everything was going to be and that democracy was happening and that the activism happening on Facebook is true activism and all that. And there were people who questioned that even at the time, but it's just this idea that a comment section on any newspaper website in America, just, like, reading four comments in, I think, the only rational responses to spare.
Peter: So I think that one thing that we've learned is just that maybe some of the discussion of the medium and how great it is — is it the best medium ever — and no offense to you guys running your, like, Internet channel for TV and talk.
Denise: (Laughs) Thank you.
Peter: But honestly, what's built in is such a future bias and such a technology bias; and I think that's partly wrong. That's only half the story. But I also think that it's misleading to all of us to have this progress bias. Yes, everything newer is better. I think it infected copyright scholarship; I think it infects other kinds of scholarship. I think we have to recognize that there are some parts of these issues that we've just seen again and again and again. As there have been new technologies throughout history, the law in society have had to respond to them. Not every technology has turned out to be a great technology. Many technologies carry with them all sorts of risks. So I'm not saying — that doesn't translate into a policy; that's just more about an orientation towards this stuff that I think — I guess, if we want to translate it into law. And I wanted to ask you guys about what you meant by saying Twitter isn't a speech platform. I mean, really? Do you mean that, like, Twitter's not going to claim any kind of First Amendment defense that a communications platform would? Do you mean that just Section 230 is such a safe harbor for them that they don't have to worry about speech? Because in the copyright realm, we have this notice and takedown system where of course Twitter's a platform, and they have to take things down.
Peter: People are speaking on it. Sometimes they speak in the words of other people's copyrighted works; and when notified, and everything is proper, they have to take it down. So I would sort of question that. Like, of course they're a speech platform in some senses.
Peter: So I think — anyway, I lean on the side of, we're going to need reform in this area that's a little less blanket, safe harbor, they don't have to do anything. And I think we've seen a little bit of that in copyright, too. It's happened a little more in the marketplace where people have agreed. Like, okay. Yes, we'll do some filtering. YouTube has set up content ID. But I think, for speech, for comment sections, for Twitter, I think some kind of self-policing — it makes sense to me that they're looking in that direction before someone legislates something.
Denise: Yeah. I think you hit it on the head, what I was talking about when I was saying they don't see themselves, necessarily, as a speech platform in that that is of course what people use the service for; but they'd like to be as much as possible out of the way regulating.
Peter: We're just the pipes, yeah.
Denise: Yes. Exactly. We're just the pipes.
Nabiha: Right. They're not publishers, which is how I took that.
Nabiha: So they don't see themselves as publishing the information and going through the kind of detailed editing that you would need to with how publishers tend to see themselves. They're kind of this conduit for other people.
Denise: Right. And I think — again, you hit it on the head when you said self-policing is something that they're going to do if they're going to respond to the kinds of concerns that you and Nabiha have been discussing; but we constantly hear on the show from listeners and viewers who wonder how that can happen because we have this thing in the United States called the First Amendment. And folks who haven't gone to law school or paid too close of attention to how the First Amendment works oftentimes don't really get that non-government agencies aren't that impacted by the First Amendment, that Twitter can make decisions that — there are some narrow exceptions to that that Nabiha could talk about in far more knowledgeable detail than I can. But for the most part, Twitter can treat speech fairly autonomously. It can make decisions about what it's going to permit and not permit and let people decide whether they want to use the service or not, based on what goes on there.
Let's move this along, if we could — since we're in the realm of speech — to talking about reporters being able to do their jobs. Nabiha just gave a talk recently at the — let's see if I'm getting the organization right here — the Reporters' Committee for Freedom of the Press. Shane Gargan was on her panel; and you guys were all talking about protecting reporters and what steps they can take. This seems particularly critical to talk about, not just in the wake of what The Guardian has been through with the Snowden leaks, but also news recently that a British spy agency has intercepted the emails of journalists and considers them threats right alongside terrorists and hackers that came out in some of the Snowden documents and was written up at the Freedom of the Press Foundation blog. So Nabiha, I know that you could talk on this topic for a long, long time.
Denise: And we don't really have that luxury right now. But could you just kind of answer the question that I have, if it's even possible for reporters to do their job and do it without having to worry about spy agencies intercepting their communications and classifying them as terrorists.
Nabiha: Sure. I mean — so the law has entrenched this idea, right, of a reporter's privilege. Of course, that is something that has been slowly decaying in a variety of jurisdictions. But at bottom, the idea is that reporters in the course of their news gathering, in the course of providing this information and this service to the public that is of great utility, needs to be able to protect its sources and protect its content because if they didn't, then sources would just stop talking to reporters if they thought that, if you tell a reporter something, they have to turn around and hand it over to law enforcement, right? We would see a real clampdown on people speaking freely. And so for a long time, we've kind of had this idea of the reporter's privilege, the ability of the reporter to say, No, I'm sorry. I'm not going to give you the name of my source. I'm not going to give you my notes. It's been in the law for a long time. Now, what spy agencies are doing are kind of bypassing that through technology; and some of it is, if you have spy agencies that are vacuuming up immense amounts of data, they actually aren't filtering through whether it's journalists or not. They're just capturing everyone's information. But there are also, possibly, instances in which it's much more targeted. And this isn't just the GCHQ in U.K. or the NSA; there are other agencies that might be very interested in a particular journalist might be working on, and national security or drug cases or terrorist cases are one of them. It is certainly possible for journalists to do more, and this is where I think the burden falls on news agencies. For a long time, you might have one national security reporter or the other maybe having the ability to use encrypted chat or encrypted email or something along those lines; but now I think we are really seeing the need of doing this institutionally, of media organizations generally training their own employees on how to use this, encouraging them to use it, as much as possible because, if you only use it for the stories that really mean something, every time you encrypt something, you're basically holding a big old red flag saying, Look here! This is important! Something important is inside of this communication! And really encouraging them to use this as more of a practice in order to shield these communications that traditionally have been protected by the privilege and protected by law to kind of shore up the protection by other means. Now, to be fair to the media companies and news organizations, these are not tools that are the most usable all the time. They can, in fact, be somewhat complicated to implement for everyone. And for the legal nerds out there, it actually can create a number of headaches if you're anticipating litigation. If you think that you're going to have to do discovery and you need to preserve a lot of the records and you want to preserve the records and the emails and the communications just in case of the reporters who've been using these encrypted tools, well, that's a little bit more onerous now than calling your IT department, saying, Okay. Just grab all of it; just keep all of it; it's fine. Now you actually might have to go to the individual reporter and say, Hey, I'm going to need you to make copies of every communication that's relevant to this potential litigation as part of the litigation hold. And that's time-consuming. That's time-consuming. You also might have a reporter who says, No. Take a hike. I'm not going to do that. And then you have an in-house counsel, for example, in a really tough spot. So there are real obstacles to implementing these kinds of encryption tools, but I do think they're the best tools that we have if we understand spy agencies — not only governmental agencies — hackers or other people out there who want to get at the content of reporters' communications because they're juicy and they're useful and they're valuable, encryption is what we have; and encryption is what we should be using.
Denise: And "institutional encryption" is going to be our second MCLE pass phrase for the show. Thanks again for providing both the pass phrases this time around, Nabiha.
Nabiha and Peter: (Laugh)
Denise: Let's end the show on a copyright note.
(The intro plays.)
Denise: All right. So as much as we all enjoyed the Super Bowl, I don't think anyone enjoyed anything more than the left shark; and of course, we get to now talk about the left shark on This Week in Law because there is a lawsuit pending. Or maybe not a lawsuit; I think it hasn't escalated to that stage. But what happened is, in the wake of the popularity of the delightful left shark from Katy Perry's half-time show, a 3-D printer who goes by the handle Political Sculptor — and I think is based in Florida — came out with his own — there we are, if you're watching the video — his own 3-D printed left shark that you could either purchase, or the plans for being able to print that shark were being made available on various sites. And Katy Perry and her legal team — more specifically, her legal team — took umbrage at that and sent a demand letter stating interesting legal theories about how they could prevent having that done. Professor Christopher Jon Sprigman has stepped in to represent Political Sculptor and is now trading entertaining letters with Katy Perry's legal team as to why the shark is not Katy Perry's intellectual property. Peter, you want to weigh in on this?
Peter: Sure, I do. You were very generous to Katy Perry's lawyers for suggesting that they discussed legal theories in their letter.
Denise and Sarah: (Laugh)
Peter: I mean, what they really did is provide a lesson in how not to write a demand letter. It's just embarrassing for them. Greenberg Traurig — that's supposed to be a real law firm, right? I don't understand how that gets out the door. But it suggests something, actually, really important to broader IP scholarship, which is in someone else's hands — like if someone were to savvy a potential defendant or recipient of the demand letter if they weren't as sophisticated as Political Sculptor — would they respond by ceasing their activity and being scared? It makes you wonder whether this kind of letter comes out because it works; you don't have to put in the legal theory work to send a scary demand letter. That's just what we're worried about. There isn't a database of demand letters; we're not able to track it empirically very easily. There's the Chilling Effects website about notice and takedown stuff, but there isn't the same kind of thing for a collection of demand letters, to my knowledge. So anyway, that, I think, is the first thing. The next thing is just that costumes aren't really, in general, copyrightable in and of themselves; and so in the second letter, Greenberg Traurig has to sort of pivot to say that the drawings that led up to the creation of the 3-D costume — the 2-D drawings are what's copyrighted and what's protected. And that actually is a theory in the second letter; and Professor Sprigman responds to it appropriately, I think, questioning whether there's really anything that isn't functional about the costume, even if it came from a drawing, and also suggesting that the drawings themselves — because they weren't distributed on the broadcast — were not themselves actually copied, which would be a necessary element of infringement. I think some copyright lawyers might look at it and say, Well, maybe you can copy the 2-D drawing by copying the 3-D costume that was made from the 2-D drawing; but that's an interesting question. The other piece of it that was so sloppy was just that it isn't clear at all who owns the IP. Katy Perry gave quotes to a magazine that Professor Sprigman quotes back to Greenberg Traurig, saying, How do we know that you own it? The Super Bowl said that they — there were quotes about the Super Bowl controlling the content.
Denise: Right. Katy Perry was almost complaining about how the NFL so controlled her half-time show, and it really wasn't her own show.
Peter: That's right.
Denise: Not like a show that she would give in a venue where you pay to go see Katy Perry. So yes.
Peter: So it raises questions of authorship. Who's the real author? So step one of any copyright infringement analysis is, do you have a valid copyright? So part of that is, is it a useful article in making it uncopyrightable; but also, are you really the owner, and can we prove it? And so that is something that is often handled sloppily, certainly at the demand letter stage, sometimes even later; and I think it's appropriate for prospective copyright plaintiffs — for people asserting their copyrights through a demand letter — to document exactly what it is they own and whether they have the chain of title. People would be surprised how seldom the chain of title is properly documented because the industry — I think a lot about the music industry. In that industry, there's been so much consolidation over the years — different bankruptcies, different people taking things — the chain of title can be very messy. A lot of times we hear the assertion, Well, we probably own it. it's probably ours, instead of, Here's the paperwork showing it's ours.
Peter: So this is a nice illustration of all that stuff. Bigger themes, you know.
Denise: Yes. And law professors all over the country are celebrating that they have such a fun hypothetical — not-so-hypothetical — exam scenario to write up and throw at their students.
We have some equally fun resources and tips for you before we conclude the show today. Our tip of the week has to do with the fact that we are now, folks, in the era of emoji in the courtroom. There's a wonderful article at the Marshall Project where they give nine examples of how emoji have come into court proceedings as evidence and how — it says, "In none of these cases did the result hinge on how emojis were interpreted"; but the suggestion here is that that is certainly coming. So what does it mean when you threaten to kill someone and then put a winky face, smiley face next to it? (Laughs)
Denise: That is the scenario that's playing itself out, so our tip is to think hard about those emojis that you are putting in your either emails or, more likely texts, and know that they have been entered into courts already in evidence; and you can read some of the delightful samples at this Marshall Project article by Eli Hager. You can read it and everything else we've referred to on the show today at Delicious.com/thisweekinlaw/292. All our stories are there. So beware of your emoji.
Our resources, again, on the lighthearted side. For fans of Portlandia, there's a fun copyright theme in this week's show where Spike creates a SCA music oriented T-shirt of Bart Simpson. Bart SCAmpson, I believe he calls him. And Matt Groening comes to the show, and Spike represents himself in court and tries to make some copyright infringement-related arguments that involve how he came up with the idea long before Matt Groening did it; and he puts on a witness who is supposedly his inspiration for the character on his shirt. So if you're interested in that and missed Portlandia, you're going to want to catch this week's. And also, you're going to want to pay attention when you're making out your schedule for the panels that you're going to attend at SXSW or the ones you're going to watch or pay attention to when they're hashtagged on Twitter. Nabiha's panel's going to be one of them, where she's going to be talking more — at greater length than she's had the ability to today — about drone regulations and how we need to strike a balance of not stifling innovation in the way we regulate. Anything more you want to add to your upcoming panel for us, Nabiha?
Nabiha: Sure. We'll also be looking at Airio, Skiplagger, Uber — a bunch of places that are kind of pushing on what existing regulations are. And we'll be talking about how we think the best balance can be struck between innovation that plows the way forward and then actually protecting the people that the innovation is supposed to benefit. So it should be a really fun conversation, and I would love to see any This Week in Law listeners or viewers that are there. Come up and say hi.
Denise: Great. Thanks so much. One of these years, I'm going to make it to SXSW. Sarah, have you ever been?
Sarah: I have not, and I was just thinking the exact same thing, is that that is on my bucket list. I have never been.
Denise: Yes. CES, SXSW, I've missed them all up until now, and I'm not quite sure how.
Denise: But they would both be fun to go to; it just requires more time than I'm usually able to budget. But we're so glad that you have budgeted the time to join us here on this episode of This Week in Law, both our guests and all of you who've tuned in live. If you've done that, you've joined us at 11:00 Pacific Time, 1900UTC. That's when we generally record the show. And if you haven't listened live, that's fine because it's all going to be available for you on demand afterwards. If you go to twit.tv/twil, that's where you'll find our whole archive of shows. We have a YouTube channel, and there are various other ways that you can enjoy what we've been talking about here this week and every week on your TV or tablet or however you like to watch the show. Even your teeny tiny little phone, if that's what you prefer. So Sarah Pearson, great having you join us. Glad that you're back in commission.
Sarah: Thank you. Lots of fun!
Denise: It has been. Also, Nabiha Syed, you're just so busy and so interesting, and we're so thrilled that you've been able to make the time to join us. Anything else besides your SXSW panel that you want to let us know about before we're out today?
Nabiha: No; just thank you so much for having me. It was really, really fun; and I listen to TWIL all the time. So it was really exciting to be a part of one of the episodes.
Denise: Oh, thanks. We'd love to have you back; so whenever you can make the time and think, Hey, this month would be a great time to be on TWIL, be sure and let me know because we're constantly looking for fascinating people to have on the show such as yourself and Peter DiCola. Peter, it's been so great getting to know you and chatting with you today on the show.
Peter: Thanks; likewise. It was great to be on. I really enjoyed — I've seen a few episodes when Kristin was on, Joel Waldfogel. It's great; it's a great show. Thanks so much.
Denise: Oh, you're so welcome, and we really appreciate your time and insights today. Folks, you can get in touch with us between the shows. I'm firstname.lastname@example.org; and Sarah is email@example.com. Let us know what's on your mind there or on Twitter or Facebook or Google+. Those are all great ways to get in touch with us, let us know what topics are on your mind, what guests you think we should be inviting on the show and chatting with. And just basically give us your feedback, keep us posted, let us know what sort of drone use your hospitality-based industry business is engaged in —
Peter and Nabiha: (Laugh)
Denise: — anything else that's on your mind. We love hearing from you. Thanks so much for joining us today on This Week in Law. We will see you again next time!