This Week in Law 295 (Transcript)

Denise Howell: Next up on This Week in Law, Konstantinos Stylianou and Saurabh Vishnubhakat join Sarah Pearson and me. We're going to discuss Net Neutrality permutations, patent complications, right to be forgotten conflagrations, and how not to wind up in a boiling kettle of Superfish, all next on This Week in Law.

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Denise: This is TWiL, This Week in Law with Denise Howell and Sarah Pearson, episode 295, recorded March 6, 2015

The Remote is in China

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Hi, folks. I'm Denise Howell, and you're joining us for This Week in Law. Thank you so much for joining us. We have two wonderful scholars joining us this week to help us understand what's going on and what's controversial at the intersection of law and technology. Joining us today is Konstantinos Stylianou. Hello, Konstantinos.

Konstantinos Stylianou: Hello. Very nice to be here.

Denise: Great to have you. Tell us a bit about your scholarship. I know you are at the University of Pennsylvania where you are doing scholarship and studying for a degree; correct?

Konstantinos: That is correct; and the degree is called SGD. It's a confusing name for PhD in Law.

Denise: Got it.

Konstantinos: And my focus is communications law and policy.

Denise: Wonderful. We will certainly be discussing a heavy dose of that today. Also joining us is Saurabh Vishnubhakat. Hello, Saurabh.

Saurabh Vishnubhakat: Hi there. Thanks for having me.

Denise: Wonderful to have you, too. Saurabh is also a student, a post-doctoral student, at the Duke Law School; and he's focusing on intellectual property, and specifically patent law.

Saurabh: That's right. Most of my work deals with the intersection of patent law and civil litigation and how the patent system operates, both on the administrative side and in the federal courts.

Denise: That's great. There's certainly tons of interesting stuff going on in your area of study; so you're a lucky man that you get to examine those interesting issues every day. Also joining us is Sarah Pearson, my co-host. Hello, Sarah.

Sarah Pearson: Hi, Denise. Happy to see you.

Denise: Great to see you again, too. What's going on?

Sarah: Nothing new here. I'm just looking forward to the show to be able to pick the brain of two scholars who have expertise in stuff that I do not. So I'm excited about that. (Laughs)

Denise: Yes. I'm excited about that, too. We talked a lot about Net Neutrality last week in the wake of the announcement of the FCC's new open Internet rules. I think we will start there and try and flesh that out a bit more this week as well. So let's talk about Net Neutrality.

(The intro plays.)

Denise: Konstantinos, in addition to your work at the University of Pennsylvania, you've also been involved in doing scholarship and policy in Brazil; correct?

Konstantinos: Right. Yes. I am a fellow at the Center for Technology and Society at FGV Law School in Brazil. I am currently in Rio de Janeiro; and you can be jealous because it's around 80 degrees here.

Denise and Sarah: (Laugh)

Denise: I will definitely be jealous. Lifelong goal to visit Rio, so definitely on my bucket list. Glad that you're there. Give us one thing that everybody has to do when they visit Rio.

Konstantinos: I mean, you have to go to the Christ. The view is breathtaking. I know this is a very tourist thing to say, and most of my BRAZILIAN friends will probably hate me for that; but the view is just spectacular. You have to do that.

Denise: All right. It's on my list. All right. So we're going to get to talking about the Internet Constitution in a little while that you've been studying and working on while you've been in Brazil. But you're also — and I think there's some overlap, too, between Brazil's Internet Constitution and the Net Neutrality rules that the FCC here in the United States just enacted. But why don't you give us your impression of the open Internet rules that we've now adopted, and sort of your take on whether they were a good idea and what sort of international model they might provide.

Konstantinos: Right. So I have to be careful about my statements about the rules. I'll start with saying that the rules mean well. A lot of people think that there is a problem to be addressed. There are players with a lot of market power; there are players that are positioned in such a way to be able to affect how content flows. And having some rules to prevent that, prevent unfair discrimination, is a fair thing to ask. At the same time, I would say that, surprisingly — and we can talk about why the rules were so surprising. Surprisingly, the new FCC rules were much, much more strong than people expected. So my overall impression of the rules are that it's a good move. It's a good thing that we have Net Neutrality rules; but they do go beyond what the industry might have needed at this point. The reason why I said it's surprising — and if there is any interest in that direction, we can go in more detail — is that the last thing we knew about FCC's position on the matter was a notice of proposed rulemaking that came out in April 2014; and it is significantly different than the order that actually came out in February. And most people are theorizing about why that happened. The two Obama interventions — one with a video and a couple of media appearances in the New York Times earlier in September — made a lot of people think that he caused Wheeler, the chairman, to change his mind. But the rules are very different from what the FCC proposed last year, and I actually think that the rules contained in the notice of proposed rulemaking of April 2014 were better, were more flexible, less black and white than the current rules, and adequate to address the concerns of people that are in favor of Net Neutrality.

Denise: Right. It's sort of a double-edged sword for the FCC, isn't it, that if they wanted to have sufficient authority to be able to mandate Net Neutrality, they needed to ground themselves in one of the ways that they had guidance from the D.C. Circuit in the Verizon case. And the way they've opted to go is Title II; however, there's a lot in Title II that — I think this is what you're referring to — that may be more than the FCC needs to accomplish its goal here; so it's making people concerned about the scope of the FCC's authority now over the Internet and what it might be able to do, even though it's saying, No, no, we're going to take a very limited, hands-off approach despite this authority that we've grounded ourselves in. We got a really, really sophisticated series of questions from one of our listeners, Jeff, who wrote in after last week's show with some questions regarding the decision to reclassify, and some of those concerns, I think, that putting the Internet under the jurisdiction of Title II raises. And the first concern that he raises is the extent to which Title II would permit the FCC to regulate content. In other words, not just to say, You have to treat all traffic equally; but if some traffic is hate speech, for example, you, as the ISP, might have to take some steps to make sure that that is not promulgated. What do you think about the notion that the FCC might have authority to regulate content under Title II?

Konstantinos: Right. So let me just say a few words about Title II. The decision to classify broadband Internet as a Title II telecommunications service was not, strictly speaking, necessary for the FCC to promulgate rules. The reason why the FCC did it is because it wanted to have as much authority as possible to promulgate whatever rules it wanted to pass. But even with the previous Title I information service characterization plus the Section 706, the FCC did have some authority that would permit it to adopt Net Neutrality rules. So to say that the only way the FCC could go to adopt meaningful Net Neutrality rules would be the reclassification as a Title II service is wrong. But once it opted to do it, it's also one of the things that changed since April 2014 in that [inaudible], the FCC said that they will probably stick to the original information service characterization. But anyway, it decided to characterize it as a Title II. The issue with content regulation is that Title II does not affect that. Full First Amendment protection applies to the Internet for the past several years since Reno v. ACLU. So we do know that the Internet enjoys full First Amendment protection, and Title II does not in any way change how content can be created in the Internet. To the extent that there was hate speech allowed or not allowed with the previous regime, it's precisely the same under this regime. It has no effect on the type of content that can be generated and hosted on the Internet. So one shouldn't worry about — when we say that the FCC now is taking a more heavy-handed approach to Internet regulation, that does not affect the type of content. It only affects how the content flows in the network as a matter of technical and economic relationships, not as a matter of freedom of speech expression.

Denise: Right. And we were talking before the show about the fact that we're still waiting for the actual 300-plus-page —

Konstantinos: Yes. That's going to be —

Denise: — detailed version of the open Internet and rules from the FCC. Those haven't come out yet. And presumably, the FCC will go into greater detail about what it thinks its authority under Title II permits it to do here.

Konstantinos: So the truth is —

Denise: Go ahead.

Konstantinos: Right. So most of the 330 pages are going to be spent on the provisions from which the FCC will forebear. Because once you characterize a service as Title II, it automatically incurs the entire set of obligations that come with Title II; and there are, like, hundreds of them.

Denise: (Laughs)

Konstantinos: And so the FCC, then, has to explain from which obligations it will forebear because they are not necessary; and it has to do that in a way that is compatible with the statute. And there are some steps that it needs to follow. It needs to explain that it's in public interest that there is enough competition to not need those provisions, in which case it can forebear, and so on. So the FCC, again, meaning well to protect the open Internet; but at the same time is creating an immensely Byzantine-complexity, regulatory regime for the Internet. But I mean, I guess that's a side effect of trying to create as detailed and good rules as possible.

Denise: Right.

Konstantinos: I guess it went a little over its original purpose.

Denise: Okay. So listener Jeff has a couple of other additional good questions. I am going to put our first MCLE pass phrase into the show before we get to them, though. MCLE stands for mandatory continuing legal education; and some people listen to this show because, as lawyers — and sometimes in other professions, too — we have these ongoing education requirements that are imposed on us in order to continue practicing law, in my particular case. So for people who are lawyers who listen to the show, we put these phrases in so that they can demonstrate to their various oversight bodies — wherever they may be — that they actually did listen to or watch the show. So our first phrase is going to be "There are, like, hundreds of them." (Laughs)

Konstantinos: (Laughs)

Denise: So file that away somewhere. And we'll put another MCLE pass phrase in the show at a later point. Saurabh, do you have any —

Saurabh: Excuse me. Denise?

Denise: Sure. Go ahead.

Saurabh: Yeah. So I actually had a question for Konstantinos.

Denise: Yes. Please.

Saurabh: The administrative process, more generally, has this requirement that when we put out a proposed rule in the public and whoever wants to comment can do so. Based on that, the administrative body that's promulgating the rules will then come out with a final rule saying, Here's what we took into account; either we agreed, or we didn't agree. And in those cases, where the administrative body basically just goes way further out of left field, perhaps, from what the original mandate and purpose of the rules was, it's customary to go to a second round of notice and comment and say, Look, we're changing direction. The public should give us additional comments on what we've now changed our direction to. Is it your sense, Konstantinos, that the FCC will do so, or will it be sort of left to litigation to say that, look, the final rules were so far removed from what the original idea was that the public didn't have a chance to fully comment as they should have?

Konstantinos: Well, I mean, the rules have been voted on, so there isn't, now, any margin for getting any more feedback and incorporating that feedback. What the FCC will do, though, is — and that's why the rules are not out yet — they will incorporate the dissenting opinions of the two commissioners that voted no into the rules and explain why, despite their opposition, they still went on with whatever rules they adopted. So it is true — actually, I also have to note this. Even though the FCC took a different course from the proposed rules in 2014, that doesn't mean that the issues were different or that they were not raised or that the public didn't have a chance to comment on those issues. In a way, there's nothing new in the 2015 order that has not been discussed extensively.

Denise: Right.

Konstantinos: So the public has had a good chance — and they did so by submitting almost 4 million comments — has had a good chance to comment on the rules. It's just that the FCC, in the NPRM of 2014, provisionally stated that, This is the way we think we should go. And then, in the rules it adopted, it went the other way. But that doesn't change the fact that both sides had been raised and discussed in the debate.

Saurabh: Yeah.

Denise: And even in April 2014 when the FCC put out various issues for comment at that time and received its many millions of comments in return, Section 706 versus Title II was on the table then. It was not the direction the FCC seemed to be heading, but they did solicit comment on, Which way should we head?

Konstantinos: Correct. Correct.

Denise: Right.

Konstantinos: And they solicited comments as well on whether they should reclassify as Title II, although at the same time noting that that's not the way they think they should go at the time.

Denise: Right. All right.

Sarah: Can —

Denise: Let's get back to Jeff, who asked a couple of — sorry, Sarah. Did you have one more thing?

Sarah: I was just going to ask a follow-up for Konstantinos, which was, You mentioned that you think that the rulemaking goes too far. Is that just because of the Title II reclassification generally and the breadth of things that they will be able to do, or were there specific things in the order that concerned you beyond that?

Konstantinos: There are a lot of things in the order that concern me. One of the things is, again, once the FCC decided to go with Title II, it was inevitable that the whole thing will get too complex and they would have to go into very intricate details about how to deal with the just and reasonable obligation that common carriers have under Title II and the rest of the provisions; but that's not the only issue. The other problem is that, unlike previous recommendations about how the FCC could deal with those issues, it decided to go with black and white rules in this case. It clearly said, No blocking, no throttling, and no paid prioritization. And the problem with this kind of absolute treatment is that, yes, in many cases blocking, throttling, and paid prioritization can be harmful; but at the same time, there are instances that they may not. And in those cases, they should be allowed. And under this kind of thinking, it would be preferable if the FCC had adopted a flexible rule that would only ban unreasonable discrimination, which is the approach that it took in the NPRM of 2014. So that's another way that the FCC kind of went a little further than necessary. Let's say, like, in terms of percent, let's guess 80 percent of blocking, throttling, or paid prioritization could be harmful; but there is a 20 percent that should be allowed. And it should have gone with a rule that it would allow to let this 20 percent pass that would be good for the industry and good for consumers and good for developers and service and application providers; and then that rule would also allow it to ban the remaining 80 percent that could be harmful for the industry. So that's another way that it went a little further than it should have. It was also surprising because, for the first time, the FCC has assumed authority over interconnection agreements. Now, traditional interconnection on the Internet is not a data interconnection, so Internet traffic interconnection is not regulated under the assumption that the market for data interconnection is competitive and there is no need to regulate it. And then we had this Comcast/Netflix dispute in February 2014. I don't know if you remember the case, but Netflix complained that Comcast is throttling its data. Typically speaking, it was not actually a violation of Net Neutrality for some legalistic reasons. We don't have to go into that. But because it generated so much publicity around it, the FCC decided to say — it didn't have authority. Under the previous Net Neutrality rules, even if they had not been invalidated, the FCC would not have authority to scrutinize what happened with Comcast and Netflix. And it actually didn't. And Chairman Wheeler came out in a public statement and said, This is not a Net Neutrality issue. And the case closed there for the FCC. But because it became so public it it kind of illustrated how important those interconnection issues can become — meaning that you can get similar effect with throttling an interconnection agreement instead of managing traffic inside your network, which is something that the Net Neutrality rules would prohibit; whereas interconnection agreements would not fall under the previous Net Neutrality rules. So you can get similar effects and get away with it, in a way bypass Net Neutrality protections. So for this reason, the FCC decided to assume authority over certain interconnection agreements as well; and this really came out of nowhere. I think, actually, going back to the question of Saurabh, now that I think about it, I don't remember this issue being raised in 2014, whether it should go and regulate interconnection agreements as well because they decided to keep the scope of the new rules the same as the previous rules. So that's another way that the FCC went a little further than it might have been necessary to protect the industry against anticompetitive practices.

Sarah: So when you say interconnection agreements, you're talking — that would cover peering agreements? Is that another term for —

Konstantinos: That would cover — so this is one of the things that we don't have details on from the FCC. Peering agreements among backbone providers will probably not be the kind of agreements that are scrutinized by the FCC. More like ISPs and backbone providers, or service providers. So a direct interconnection agreement between Netflix and Comcast would fall under the new rules. But a peering agreement between Comcast as a backbone provider and Sprint as a backbone provider would probably not fall under the new rules of the FCC. Although I'm saying this with caution because we don't have details on that yet. I'm basing this on a tweeting session that Gigi Sohn from FCC held a few weeks ago. And I think one of the issues that was raised was whether this could cover CDN, content delivery networks, like Akamai or Netflix's own content delivery network, with ISPs; and they said no because they don't interface directly with consumers, or something like that. So I'm not exactly sure which agreements will fall under the new authority of the FCC; but peering agreements among backbone providers, for example, are likely to not be covered.

Sarah: Okay. Going back to your other comment about the black and white rules, I guess the argument I always heard in favor of those is that it provides certainty, and that kind of enables more stability in the market. And then the other thing I guess I wanted to ask was, Do you think any of those 20 percent of situations you mentioned, where throttling and those things are reasonable, they would not be covered by the reasonable management standard? Because that's part of the rules as well, right, that you can still engage in reasonable network management. But you don't think that would capture any of those situations?

Konstantinos: So the thing with reasonable network management is that, as an exception — because that's how it's treated in the rules — it's meant to be interpreted narrowly. And that means that it applies only for technical reasons; so the justification for network management has to be technical difficulties that the network faces that make aggressive network management necessary. And it also applies only within the ISP's network. It does not apply in the connection part between the service provider — say, Facebook or Netflix — and the ISP. In that part of the connection, the previous FCC rules and the exception for reasonable network management does not apply. So we could see cases of discrimination of traffic, technically or economically. An example of technical discrimination would be throttling; an example of economic discrimination would be a zero rating agreement where consumers don't pay to access a service, whereas they pay to access the rest of the Internet, for example. So these cases could theoretically and potentially be, under certain conditions, harmful if they distort competition, and at the same time would not be covered under the reasonable network management exception. In those cases, it could be useful for the FCC to have authority to intervene. But these cases, if you ask me, fall in the 20 percent. And the FCC is basically also assuming authority for the remaining 80 percent of the cases that would, under most circumstances, be innocuous. So yes, black and white rules do provide certainty; but that doesn't mean that they cannot be disproportionate for the purpose they want to serve. So again, the FCC means well. Their rules, where necessary, probably not in their current format.

Sarah: Gotcha.

Denise: Okay. Still trying to understand what all the ramifications of them in their current format will be. Listener Jeff had another good question — actually, two more good questions. One has to do with whether anything in the new rules requires ISPs to open their infrastructure to third parties. I haven't seen any discussion on this point; but, Konstantinos, maybe you can shed further light. He's wondering whether this would be an enhancement to competition for broadband services in areas that might be served by only one or two carriers.

Konstantinos: Sure. It's actually a very reasonable question because, in 1996 when the Telecommunications Act was passed, there were these so-called un-bundling provisions, which required local exchange carriers — which is like the last-mile carriers of telecommunications services — to open up individual elements of their network to competitors so that others could offer last-mile communication services. And these provisions, although they still remain in written law, they have been struck down in a series of cases, the last one in 2005. And so, at the moment, the United States does not have an un-bundling regime. Although it is stated in the law, it's not applied. And so the new FCC rules, even despite the reclassification to Title II telecommunication services, will not affect the lack of un-bundling in the industry. So the answer is a clear no; and the FCC has clearly stated that there is not going to be any type of sharing obligations imposed by the new rules. It's one of those provisions that the FCC will forebear from imposing.

Denise: All right. And then finally, Jeff asks about the aspect of the FCC vote that relates to municipalities being able to set up their own government-run, or government-sponsored, Internet access locally, which some states had been trying to prevent. And he's wondering if that regulation also prevents municipalities from granting local monopolies on becoming high-speed ISPs using that municipal infrastructure. What do you think of that one?

Konstantinos: So the Net Neutrality rules do not really cover that particular topic. It was raised in February's meeting, but the rules were voted — the first statement of Chairman Wheeler was that they will prevent the states from prohibiting power companies, for example, to install their own broadband Internet facilities. So the new rules do not say anything about that. It's not regulated under Net Neutrality rules. But regardless, the problem remains whether the FCC actually does have the authority to say something like this; and some people say that the FCC does not have authority to preempt states from imposing such a prohibition, and others say that federal law allows that. It's an open question, and it will be decided on a case-by-case basis until, probably, it reaches the Supreme Court and there is a more generalized response onto that. So for now, what we have is that the FCC is orienting itself to warrants preempting states from imposing such obligations; but this is not something that has to do with Net Neutrality.

Denise: All right. Well, let's think about — obviously, we have a lot more to understand about how the Net Neutrality rules in the U.S. are going to work. But the U.S. is just one country that's been struggling with Net Neutrality and their parameters. Netflix has come under some fire this week because of their decision to partner with an ISP in Australia to exempt Netflix traffic from something that the customers have to pay additionally for. I am stating that in a more complicated way than it needs to be stated, Konstantinos. Help me out here; tell me what happened.

Konstantinos: So essentially, many ISPs in Australia have a data cap. They say that users can download up to, say, a hundred gigabytes per month; and then, because that's a limitation, they exempt certain services from that data cap. And Netflix signed an agreement that exempted its traffic from the data cap. Now, what this means for other companies is that, whereas if you watch, say, Hulu, for example — another popular online video service — you will consume part of your allocated 100 gigabytes per month; whereas if you watch Netflix, you will not. And that may mean that Netflix is in a better position in terms of competition. Now, this is a form of discrimination; I don't think that anyone would disagree on that. And this is something that, in the U.S., would probably not fly. But the difference is that' in the U.S., there are no data caps; or if there are — I think Comcast, at some point, had a 250-gigabyte data cap — if there are, they're so high that it's unlikely that users will reach them. So it's as if they're not there. But in Australia, this is pretty common. So Netflix came under attack because, even though it is a form of discrimination and it could, theoretically, go against Net Neutrality — which Netflix in the U.S. so fervently supported — then it goes to Australia and does the opposite. The situation there is different. First of all, there are no similar Net Neutrality rules; and second, the industry practices are very different. And so if Netflix didn't do it, it would mean that it's in a competitive disadvantage.

Denise: Right.

Konstantinos: So I understand why some people feel that it was sort of a bit of a hypocrisy on Netflix's side to argue one case in the U.S. and act in a different way in Australia; but the circumstances were different, and this matters.

Denise: There's a good quote from a piece on this by Peter Noack in [inaudible], where he sums it up by saying, "This is all happening because Australia has no Net Neutrality rules. For its part, Netflix can't be faulted entirely for trying to make veritable lemonade from the lemons it has been handed." So his point is that, as we're discussing how Net Neutrality is going to look in the United States, that Australia may need to look at that as well if it wants to give its consumers similar kinds of protection.

And then I guess we should close out this discussion by looking elsewhere in the world to Net Neutrality issues. I know that the Internet Constitution that you have been working on in Brazil — and then you mentioned Chile as well — take into account Net Neutrality concerns, too; right?

Konstantinos: Yes. This is correct. There are only a handful of countries around the world that have adopted Net Neutrality rules; Chile and Brazil are two of those in Latin America; Netherlands and Slovenia, in Europe, also have Net Neutrality rules; and then there are some countries that have very @ la carte protection. Telecom Authority in Canada very recently came out with a decision banning zero rating, for example. And unlike in the U.S., where the previous Net Neutrality rules — strict or not strict doesn't matter for this point. They hadn't really been [inaudible] an opportunity to show their teeth. Both in Brazil and in Chile, and in the Netherlands and Slovenia, Net Neutrality rules have actually been applied in real cases. Most of those cases had to do either with exemptions from data caps or cases of zero rating. So this is an example of how these rules could play out in the U.S. And there is an interesting case from back in 2011 that Net Neutrality opponents can point to to say that Net Neutrality rules should not have been adopted in such a strict form when the Netherlands decided to adopt those rules. KPN, which is the biggest mobile telecom provider there, announced that it's going to raise its prices. In the end, it didn't — or it only raised them in a way that was justified by inflation — but it's an example of how companies threaten that Net Neutrality rules will actually do more harm than good. And AT&T had done the same in the U.S. by saying that they will freeze investments. But we haven't really seen any signs of industry degradation once Net Neutrality rules have been adopted in any of those countries; and it's hard to actually notice generalized trends because the cases are very, very few. We have two cases in Slovenia — zero rating again, and data caps; two cases in the Netherlands; and two cases in Chile where they banned free access to Facebook and Wikipedia. Again, a lot of people said, You know, maybe it's not a bad idea to have free access to Wikipedia because let's not forget that maybe, yes, Facebook is a for-profit corporation and it can harm competition to other social networks; but I don't think that anyone would disagree that free access to Wikipedia is a good thing, or free access to government services. All these under a zero-rating regime, would be banned. The FCC has not come clear about that. I'm not saying that they would be banned in the U.S. It's one of those details that we are waiting to see how they were going to play out in the U.S. But I'm just noting here that some of the cases of application of Net Neutrality rules abroad have brought good results, and some cases have brought more controversial results. So these are good examples for the U.S. to keep in mind when — well, now the rules have been adopted, but when applying the rules. And that is precisely where a flexible standard would help. You could allow certain services to have a zero-rating agreement where others, where you think that they would act anti-competitively, not.

Denise: Yes, I think those are excellent points. I want to hear, too, before we leave the topic of Net Neutrality and international law — although we will come back to that when we talk about the right to be forgotten in a little bit. But we are going to do an ad here; and when we come back, I'd like to hear a bit about the Internet Constitution in Brazil because that seems like a very interesting experiment.

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All right. Why does Brazil think that the Internet needs a constitution?

Konstantinos: Well, it's a very grandiose name, to begin with. It's partly explained by — how it all started, it was like — it has a long history that goes, like, ten years back. It's one of those laws that have been crafted part as a civil rights movement. It was crowd-sourced; there was intense participation by the public. It was used as part of a political campaign by President Dilma. So it's one of those laws that basically express the public sentiment very, very strongly. It was also the first law that attempted to comprehensively tackle the issues that it does, like Net Neutrality, data protection, citizen participation in the information society, and so on. And so this kind of a sentiment that gave rise to the movement affected the rules that ended up being enshrined in the law. We also have to — from the viewpoint of Net Neutrality, I do have to note that, unlike other countries and in the U.S., that Net Neutrality is a regulatory issue, meaning that the rules were voted by a regulatory agency. In Brazil, it was a law. And this shows something about the political importance of the topic and a broader representation that they wanted to achieve with creating a law and not simply a regulation that would deal with those issues. Of course, the other way to explain that is whether the regulatory authority here would be capable or willing to come up with a law. There's a lot of skepticism about how independent, or how competent, Anatel — the telecom authority — is here; so in a certain way, a law might have been more necessary in Brazil rather than in other countries.

Denise: All right. So the status of it — is it still being developed? You've been working on it there in Rio. Anything in the future we should look for as to the Internet Constitution?

Konstantinos: Absolutely. So the law has been passed in April 2014; however, many of the details of the law remain open. And they were expected to be filled in by the executing law, which is what is now being contemplated in Congress here. And there is an open consultation process, and the center that I work at has been actively involved in that process. So a lot of the details about, for example, what reasonable network management is, or about what kind of personal data should be protected in the relevant provisions of the law. All these issues remain open and up for grabs, and that's why they have this ongoing consultation. So we expect that, by the end of the year, there's going to be the executing law; and it is going to be quite important because, as EFF has noted, the devil does hide in the details. And a lot of the issues in Marco Civil have been dealt in a way that tried to find a compromise between extreme sides. The participation and voice of the civil society was incredibly strong, and the participation of companies — again, I think they were taken aback; but, like, the very last moment, they managed to insert some provisions in the law. So some of the provisions seem kind of sloppy, and this is where the executing law has to come in and do a good job. And it would define, to a very large extent, what the actual content of the rules say. But it's a very interesting piece of legislation. It's quite important, both for its scope and for the process that led up to it. And Brazil being the biggest and most important country in Latin America, it kind of sets the tone for other countries to follow. So I mean, let's not forget that, when the bill was signed, it was signed in a very celebratory environment in Net Mundial last April, which was the world Internet governance forum hosted here; and President Dilma attended, and she presented the Marco Civil as the most progressive bill of rights internationally. So it's an interesting piece of legislation. It does have a lot of problems; but again, much like the rules by FCC, it means well.

Denise: (Laughs) Yes. And we'd love to have you come back at some point in a few months —

Konstantinos: Sure. My pleasure.

Denise: — and let us know what's going on with it and how it is faring.

Konstantinos: I will certainly keep you updated on the developments.

Denise: Good. All right. I think we're going to shift gears and look at some items on the patent front.

(The intro plays.)

Denise: Saurabh, you've been doing some really interesting research and work —

Saurabh: (Laughs)

Denise: You like our little bumper there? (Laughs) Things going up in flames. Well, one thing that goes up in flames from time to time with patents is the patents themselves, not because they're declared invalid — although certainly people fight back and forth on that front every single day. But patents have a much shorter life than copyrights in the world of intellectual property; and they actually do expire. And so you get works in the public domain that used to be under patent, and we never really explored that too thoroughly on the show. You've written and researched quite a bit about it, Saurabh; and I'm interested in getting the results and your impressions of what happens when patents expire. I know that you have done a survey of what sort of patents, what sort of devices, are available in the public domain for people to use; so tell us a bit about that, and also tell us if it leads to problems once something's in the public domain, was subject to patent once upon a time and has fallen out of patent — do people sometimes try and re-patent formerly patented ideas?

Saurabh: Sure. So to unpack that a little bit, the study that you cited of mine looks at a five-year window — 2008 to 2012 — and it's actually just the full universe of cases in which a patent that used to be under protection expired. And the reason it expired was not because it was litigated and was found to be invalid, not because it was sort of brought before the Patent and Trademark Office and was challenged as to its validity and the PTO said, Yes, you're right — this is invalid, and we should not have granted this. But really just a very pedestrian reason, which is that the maintenance fees that patent owners have to pay periodically every four years were not paid. And for that reason, they simply lapsed quietly into the public domain, and now anybody can use them, right? So the fees themselves, by comparison to the very large numbers — millions and tens of millions of dollars — that litigation is often associated with in patents, the fees themselves to keep patents enforced are pretty modest. They range in the sort of 1,600- 2,000-dollar range; and you have to pay them four years, eight years, and twelve years from the date of issuance. Now, an invention that was once valuable enough to get a patent on, and later on somebody decided, No, this isn't even worth $2,000 to keep it in force for another four years in which we could do any number of things with it, that tells us something interesting. And that was really the motivation for this research, something else probably took precedence. We thought, Okay. We're going to patent these ten things. Nine of them turned out, in retrospect, not to be very valuable; one of them maybe did. And so that's the one we're going to renew and maintain. The other nine, we'll just let fall to the wayside. And the interesting thing is, that's what's supposed to happen, right? When you get a patent, what you're really getting is a claim on further development in the economic and commercial spheres. And when somebody decides, Okay. This isn't worth our time anymore; we're going to focus on something else, then we let it slip into the public domain, as we should. And then, somebody can take that knowledge and build on it in their own ways. So if we look at the patents that expired during that time period, and look at the patents that were newly granted in that same period, and compare them — in terms of how valuable we think they might be, in terms of what technologies were more important than others, in terms of what kinds of inventors and what countries these inventors were coming from — that tells about how the balance of innovation is shifting in — not realtime, but something pretty close to it. And so what we find is that technologies like biotech and pharmaceuticals — these are the patents that live the longest before they die. They tend to, at the median, live for about eight to nine years and sort of fall into the public domain at that point. Computers and communications patents — what are sort of colloquially referred to as software patents — those tend to expire much more quickly. And that's maybe not surprising because product lifecycles in software are much shorter, right? So after eighteen months, two years, three years, the patent really doesn't get you that much more competitive advantage in the market anyway, so it's better to just let it expire and then move on to other things. So that's what the study finds. Now, to your question about, are people going to try and take this stuff and re-patent it, well, in theory that's not supposed to happen because the Patent and Trademark Office, when you file an application, will review all the prior patents that are out there, all the non-patent literature and trade journals and things, and say, Okay. This really is a new contribution to the state of the art. And if they find something in the prior art, as it's called, that describes the invention — or in light of which the invention would be obvious, they'll tell the inventor, Look. This is already out there. You can't patent it as you've currently claimed it. If you want the patent, you have to narrow what you're claiming to sort of take account of all the prior knowledge that's already out there. So in theory, that shouldn't happen. Obviously, search costs are a practical concern for the patent office, and the quality and the amount of time that patent examiners are given, as a practical matter, is also another constraint on the ability of the patent examination process to sort of fully take account of all the prior art that's out there. And there's a lot of economic literature that has looked at this and is currently looking at this. So in theory, I think, it's not supposed to happen. Does it happen? Sure. And something else to keep in mind is that something that would have been obvious or would have been anticipated by the prior art ten years ago, maybe isn't today and vice versa because the law changes, right? The Supreme Court has become much more active in sort of addressing what the standards of patentability should be over the last 10 or 15 years; and so, as a result of that, the legal landscape has just changed under our feet, and what used to be patented and patentable no longer is. And so that's not something that the administrative system can really do much about at all because it's more a question of the predictability of the legal system in which we operate more broadly.

Denise: Right. We've had a flurry of recent Supreme Court cases on the patent front, and one that's on the docket right now that could be very interesting that doesn't seem to deal with patentability so much as infringement. Can you tell us a bit about the Commil — if I'm saying that right — v. Cisco case?

Saurabh: Sure. So you're right that it deals much more with the litigation end than it does with the patent quality and patent examination end of things. The issue in Commil is basically  that Commil owned a patent — and still owns it — and the patent was on short-range wireless communications. They sued Cisco, and the two theories on which they sued Cisco — one is what's called direct infringement, where they're saying, Cisco, you practiced our patent; and for that, you should be penalized because you did it without our permission, and so we want money and we want you to stop doing it — damages and injunctions. The other theory on which they sued Cisco was what's called induced infringement. This is where Commil is saying, Not only did you practice our patent — and in fact, even aside from that — you induced others to commit infringement. Other people who use wireless routers without our permission are violating the patent infringement statute which says you can't make, sell, or use a patented invention without permission. And so these people who are using the router without our permission are infringing; and you contributed to that. You induced them to do so. And so the question in the Commil v. Cisco case, as it is in the Supreme Court, is what the standard of inducement liability should be. And inducement is sort of one of these things that's hard to wrap your head around because you're contributing to somebody else's wrongs; and so intuitively, we understand that that's a bad thing and it should be discouraged. But how do you know that the actions that you're taking today are or aren't going to induce somebody to do something illegal in the future, right? So inducement has always been the sort of dicey doctrine. And it's not just limited to patent law; it comes from copyright, it comes in any number of tort and criminal areas. Are you aiding and abetting an action that leads to a crime? Well, what if you didn't know it was going to lead to a crime? So this is something that the law deals with very broadly, and it's a difficult issue to deal with. In inducement, the way we sort of try to deal with it is by saying, If you knew that the action that you are inducing will infringe, then you're liable. If you didn't know that — if all you knew is that you were inducing some action, but you had no reason or no basis for thinking that that action was wrong — then you are not liable for inducement. All you're doing is inducing an action. You don't know that you're inducing a wrongful action. So you have to know that a patent is going to be infringed in order to be on the hook, as Cisco is on the hook — or will be if it comes down in favor of Commil. The question in particular is, Do you have to know a patent is valid in order to believe that it's going to be infringed? Because in this case, Cisco said, Look. We knew about the patent, but we didn't think it was infringed because we didn't think —

Denise: Or that it was valid, right?

Saurabh: Well, no. They're saying, We didn't think it could be infringed because we didn't think it was valid.

Denise: Right.

Saurabh: Now, it turned out that it was valid. The court found that the patent that Commil holds is valid, and so Cisco's on the hook for direct infringement regardless. The question is, even if they had a good faith belief that the patent was invalid and that good faith belief turned out to be wrong, should they still be penalized even though they had this good faith belief that turned out to be wrong? So I will say, in the interest of full disclosure, that I've filed an Amicus brief in the Supreme Court on this issue in favor of Cisco's position. I think that it conceptually just is impossible to infringe an invalid patent, and there are a number of reasons for that. But the main one is, in the statute, it says, "Whoever, without authorization, makes, uses or sells the invention is liable." So if the patent turns out to be invalid, you can't infringe; and so if what you need to do is believe that it's being infringed, you first have to believe that the patent is valid. And here, Cisco did not believe it was valid.

Denise: Right. Isn't that kind of a sad statement on the patent system, though, that you could have such a good faith belief that a duly issued patent would be invalid? Isn't that just one of the problems at the core of the system?

Saurabh: Well, so there's a fair amount of research that's been done on this, and it's this idea that patents are really nothing more than a probabilistic right. What the patent office issues is a piece of paper that's going to turn out to be either valid or invalid.

Denise: (Laughs)

Saurabh: There is a statutory presumption of validity, right? The law says, "Patents shall be presumed valid." They have to be proven invalid in court; but short of that, we're going to presume them valid. I think Kommel makes a good point here, that says, ‘Look, If we allow good faith beliefs of validity to be a defense, then we’re going to just encourage people to hire lawyers who say, ‘Yes. I hereby opine that this patent is invalid. There’s your good faith belief. Now go forth and do what you like.’

I think those concerns are trumped, ultimately, by the idea that we need that sort of trial clarity and that you do need to first believe that a patent is valid at all in order to infringe it. If you believe that it’s valid and that you still don’t infringe it, design around it. That’s good evidence that you thought it was not infringed.

Ultimately, though, if you believe that the patent is valid and that you don’t infringe it, you’re going to design around it. You’re going to have to accommodate the patent, one way or the other. If you believe that the patent is invalid, for this rule to come down in favor of Kommel, the public is going to say, ‘Okay, we believe this patent is invalid, but we still have to accommodate it.’ That’s a nonsensical position, in my opinion. And that’s why I ultimately come down in favor of Cisco in this case. But I think there are some substantive arguments on Kommel’s side. The solicitor generals filed a brief in that case in support of Kommel’s position and I think they raise important points that the court is going to have to address.

Denise: Yep. This will be a thorny one for the court to make it through. I guess that’s how you get to the Supreme Court, is that you have these important and complicated issues. Sarah, there’s a copyrights aspect to this patent issue that public knowledge has weighed in on and filed in a ---brief, and that is, as public knowledge reminds people in its write-up of the case-that back in 2005 when the Grokster case came out from the Supreme Court that—MGM versus Grokster—it also involved inducing infringement. But it involved inducing infringement of a copyright. And because the court there imported an inducement standard from Patent Law, public knowledge is quite anxious that the court now not decide, ‘Oh well, we don’t really have an intent requirement under Patent Law, and so if we’re going to import these things back and forth, the intent requirement goes out the window. If it goes out for patent, it also goes out for copyright. Do you have a take on that? 1:02:33

Saurahb: So, I think that public knowledge as concern is well founded. I think that the extent to which they think it’s a problem as a practical matter may be overblown. So, first of all, in Grokster, what the importation from Patent Law was, was to say, ‘Look, if you do something—if you provide a service or a platform or a component (right?) that can be used for infringing activities—what we then need to ask is, ‘Could it also be used for something non-infringing?’ If there’s a substantial non-infringing purpose—and that idea of substantial non-infringing purpose is something that you find in many areas of patent law, as well as copyright law—then you’re much less likely to be inducing the sort of wrongful conduct we’re really worried about. Whereas, the thing you provide—the contribution you make, or the component you furnish—is really only good for one thing, and that one thing does infringe…Then, even if you didn’t have the subjective intent to infringe, then it’s reasonable for us to say [that] this is clearly contributing, because that’s the only thing it’s good for. So, that’s the idea of contributing to infringement, or inducing infringement in the Copyright sense and in the Patent sense.

Now, it’s worth noting in the patent case, “contributory infringement” and “induced infringement” are separate doctrines. They do track each other, but the patent case and the copyright case are different, I think, for three reasons that make public knowledge’s concern—I think—less dramatic than might first meet the eye. One is that Copyright Law recognizes a defense of independent creation. If you write a song and copyright it, and I sitting in my studio soundproof walls and everything, happen to come up with the same song, and I can demonstrate that, then I have independent authored something—fixative tangible meaning of expression, and I’m not infringing on your copyright. That can be hard to prove as a practical matter, but copyright law does recognize that matter of independent creation.

Patent Law doesn’t. Patent Law says, ‘You may have originated this in the sense that you didn’t copy anybody, but this was out there in the world. And the fact that you are the second comer means that you are still infringing. As long as the patent’s enforced, we’re not going to recognize an independent creation defense.’ So, the concern about the ability of people to get tripped up by rights of which they are unaware is simply less problematic, in that respect, in Copyright Law. There’s a safety valve in this independent creation defense.

The second thing is that Copyright has a very well-developed—although there’s some debate about how effective it is—idea of fair use, right? You can infringe, but the uses for which you infringed are such that we will allow it. Journalistic uses are an excellent example of this. Educational uses are a good example of this. So, there are reasons for which, even though it’s infringement of the copyright, we’re going to allow it as a society. The closest thing Patent Law ever had to that was a research exemption. You could take a technology and use it for non-commercial academic purposes. Right? Academic research. That was always sort of thin to begin with. And in a case called Madey v. Duke University, about ten years ago it was pretty much put to bed, and there’s no real fair use analog in patent law, as there is in copyright law.

So, again, there is an analog—a safety valve—for getting people off the hook in copyright side that patents don’t have. So, and the third thing—the cost of actually infringing—the cost of copying things, especially in the digital age, is much lower for Copyright than it used to be. Whereas; the sort of fixed cost of getting a new operation up and running, which is often necessary to do things that will infringe a patent, are very different. Copyright: much cheaper, much lower cost. Patent: much higher cost. And so, these differences mean that the practical effects of the inducement doctrine—they look really different in the copyright case than they do in the patent case. And so, I think—patent does take a lot from copyright, and vice versa, at the high level at which the Supreme Court operates. But at the end of the day, I think that even though the Supreme Court in Grokster took from Patent Law, how far they go next and how much they change the intent doctrine, is probably something on which they’re looking much more at the statutory text. They’ll be much more sensitive to the practical realities of the industries of publishing and music and film, as opposed to the different industries in which the patent rights are more important. 1:07:45 I think the Supreme Court will be much more sensitive to those things, and will tread much more cautiously.

Denise: Yeah.

Saurahb: So I think public knowledge is right to sound the caution on it. I think, happily for them…I think the problem is not as big as ----. 1:08:03

Denise: I hope you’re correct. Sarah, do you agree that we need to keep the intent to induce infringement aspect in copyright law, and that there’s a concern if it’s removed from patent law?

Sarah: I definitely agree that we need to keep the intent requirement. This is the first that this case had come on my radar through the public knowledge piece. But I actually took the time to read Public Knowledge’s brief, and also some of the Kommel brief. And I just came away kind of thinking [that] it seems to me like a no-brainer. That I can’t imagine how you can have the requisite intent if you honestly believe that the patent was invalid. So, just knowing that—whether or not public knowledge is right that this really is a huge threat for copyright—I mean, the blog post was definitely written in a dramatic way and probably potentially a little bit overblown, but I also think that they’re making valid points about the influence of patent law in the Grokster case and certainly that keeping the purposeful requirement in copyright law, and in patent, makes sense. It’s a good check on secondary liability.

Denise: Right. Okay, we’re going to make GROKSTER our second MCLE pass phrase for the show, and we’re going to take our second sponsor break here to talk about Blue Apron. I’ve been busy here cooking up some Blue Apron food, and I want to tell you about it. If you’re not familiar with Blue Apron yet, it is a service that delivers fresh, delicious food and recipes right to your door for you to make up. And I can tell you from a good deal of experience with it now that whereas I love to get in the kitchen and mess around a bit, I always feel like I’m kind of messing around a little bit in the kitchen. Despite the fact that I should be an excellent chef, given my genetics—both my mother and my father are excellent chefs in their own rites—I’ve always sort of struggled in that regard. I like to try, but I always feel like I’m trying, and things go awry somewhere. There’s some technique that I just never got down. Solid in the beginning, that sort of just trips me up on some dish that I’m making.

Well, Blue Apron just takes all that guess work out of it, and so not only do I feel like I’m competent in the kitchen making their meals, but I feel like I’m a gold-earned chef, okay? It’s just a really, really wonderful system for cooking up great, delicious meals with really adventuresome ingredients. Recently, just this last week before the show here, I made something called Crispy Chicken Thighs with Braised Lettuce, kimchi and Maitake mushrooms. And this is actually a recipe they took form someone who was on Top Chef. Her name is Mei Lin. And they do this as Guest Chef Series, where they don’t just come up with the recipes on their own. This is one of her recipes, and in fact it won one of the—I forget it was an episode or a season—of Top Chef. And again, just like the hallmark of all the Blue Apron recipes. The combination of flavors they put together. This worked really well in my family because we love chicken, obviously.  And also sort of for the Asian-influenced cooking, the kimchi went over great. I would have never thought to do braised lettuce, but it was a delicious way to have a vegetable with the meal. So, this one was a huge hit in our family this week.

And then, I also want to show you—I mentioned over the holidays when we were thanking Blue Apron for their support of the show—that one of the things I was doing was giving my clients from my law practice—this was my holiday gift to them—was three Blue Apron meals for them to try out for themselves to say, ‘Thank you for giving me business.’ And so one of my clients actually made something this week, as well, and sent me the picture. He made—oh gosh, I’m going to say this wrong—za’atar-spiced steaks. Again, ingredients that you might not just pick off the shelf yourself. With rutabaga-barberry tabouli and labneh cheese. And there’s his crack at this Blue Apron dish. It looks very close to what happened on their recipe card. And so, he really enjoyed what he made, and thought that it was a great way to incorporate some new flavors in his own life, too.

So you, too, can be cooking incredible meals like this, and can be blown away by the quality and the freshness. Definitely give it a try if you haven’t yet. Blue Apron: It’s a better way to cook. This week’s menu is available, and you can get your first two meals free by going to <blueapron.com/twit>. That’s right--two meals free just by going to <blueapron.com/twit>.  Thank you so much, Blue Apron, for the delicious meals, and your support of This Week in Law.

Saurahb: You’re making me hungry, there.

Denise: Yes, I know. It’s definitely a great way to be cooking up some yummy lunch or dinner. I want to quickly go through some privacy stories and begin to wrap up the show. So, let’s talk about some things on the privacy front.

You know, I stuck this under “privacy” but it’s really more of a security story and a judgment story. But much in the news this week has been the news of Hillary Clinton’s use of her own private e-mail server while she was Secretary of State that she actually never had a State Department address that used for her day-to-day e-mails as she was performing her duties as Secretary of State. I’ve seen people go sort of back and forth on this, on both sort of the wisdom and judgment front and the legality front, so I just wanted to toss it out to you all to see if you had any thoughts about highly ranking government officials deciding, ‘Well, at least here, unlike some other folks like Mitt Romney and Sara Palin, at least Hillary had her own server.’ Right? She wasn’t using Yahoo! Mail. She wasn’t using Gmail or another private service out there. Does that make a difference, Sarah, do you think?

Sarah: I mean, that makes a difference from the perspective of whether they’re secure. It doesn’t make a difference from the transparency perspective. And that’s the angle, to me, that’s incredibly depressing about this. From what I’ve read, it’s not clear at all that she violated a law. There’s a new law in place that would be prohibiting this sort of thing, but it wasn’t there when she was Secretary of State. But certainly it’s sketchy to know that she was using this private e-mail account. It sounds like she opened the account as she was sworn in. This was intentional, and it’s really hard not to be suspicious of her motives in terms of open government and transparency. It seems like the opposite to me.

Denise: All right. Any thoughts, Konstantinos?

Konstantinos: For one thing, I am just wondering why did this whole thing actually happen? Why did she need her own server? I don’t see a very good reason behind it. But as a security issue I’m guessing to the extent that they abided by very, very strict protocols on this. I don’t see why it was blown so much out of proportion.

Denise: Right

Konstantinos: So If I’m not mistaken, the problem is [that] they don’t have access to the e-mails now—even those she asked them to release them—so I’m not sure, actually, if the same policies about retention apply. In which case, this could be a transparency issue. Not so much a security issue as a transparency issue, so I guess I’m siding on this with Sarah.

Denise: Yeah. I mean, I suppose if you were a highly-ranking government official, and fairly technologically-savvy (or at least capable of hiring people who were), you could set up a server that would comply with the various transparency requirements and the record retention requirements, and maybe feel pretty good about your control over that data. But I’ve got to think. It just smacks me as something… Although I was always a person, when with working with big organizations, to try and have my own e-mail access to things, just because it was more convenient. But it does seem like she’s “going rogue” here, to borrow from Sarah Palin. What do you think, Saurahb?

Saurabh: So, I think the points about transparency certainly are well-taken. I’m not sure, in terms of security. I mean, there’s physical security, and because it was in the Clintons’ home in New York, which was…there was Secret Service protection, and all these things… Physical security was probably about as good as it could have been, under the circumstances. But—and I don’t know the details about the way in which the server was set up—but if there wasn’t off-site backup protocols, if there weren’t those protocols in place, if there weren’t redundancies built in, and if there weren’t necessarily, the level of counter-measures against hacking that there would be in a government system, then I’m not sure security was up-to-snuff, either, and that’s something we may not know. But in terms of access to information—right—if it were a federal server, then the Freedom of Information Act attorneys that each Executive Department and agency has, would basically just go in and say, ‘We think it’s responsive to whatever Foyer request we’ve gotten, so we’re just going to go in and collect the information ourselves.’

If it’s a private server, there’s a layer of separation between the Foya attorneys, who are involved in the process, and Secretary Clinton’s own attorneys, who are sort of running interference between her and whatever requests are coming. It’s not going to be a presumption in favor of delivering Foyer-responsive documents. It’s going to be a presumption against that. And the attorneys for Miss Clinton are going to have to step up and say, ‘Yes, we think this is worth turning over.’ They’re at least going to have a crack at making those arguments before the documents are released. So, that’s really the transparency concern.

Denise: Yup. All right, Konstantinos, I promised earlier in the show we would bring up the right to be forgotten. I wonder if this is something that you’ve been paying attention to, with your focus on more international studies and implementations of law. The article that we have in our run-down for today—and you can access this article and everything else we’ve been going to today by going to <delicious.com/thisweekinlaw/295>--everything we’ve been referring to, as a link. This piece in Slate is highlighting how there is a discrepancy between implementation of how Google is--How do I put this? I already said “implement,” so that’s not the word that I want. But, there’s a difference between D-listing something on a country’s local search results and D-listing something globally. And Google had been struggling with that in responding to the hundreds of thousands of requests that it’s gotten in the EU that have people have asked for information about them to be taken out of Google Search listings. Do you have any take on this, Konstantinos—the global versus local issue?

Konstantinos: Can I just first say that I think Europe is hated about the right to be forgotten, or seen as a hero, depending on what side you see yourself on. It’s one of those cases that I think that European courts—European Union courts, in particular, have been activists in trying to show some sort of European sovereignty, because there is an ongoing complaint that Europe is being overtaken by American companies. And we can see that in ____ (1:21:12), we can see that in privacy, we can see that in net neutrality. Europe takes pride in the stricter protections that it has in place for its citizens. And I guess that the right to be forgotten came out from this tradition that Europe is more protective of human rights and citizens’ rights. But at the same time I’m not quite sure that it was a well-developed doctrine—The Right to be Forgotten—and the kind of implementation issues that your raised show that maybe it was a bit premature to have a court decide how a business practice like Shoulda would flow. (1:22:00). Now the difficulty with implementation is obviously that Google de-lists the results from the country that has been requested from, if there is a local Google version. But, obviously, you can route around it if you visit another Google site. And I think that’s fair, because the Right to be Forgotten has to be understood somehow as a topical issue, right? I mean, it has to affect the person in the community that this person belongs, and in the community that is in a bidirectional relation with this person. So you can’t really asked that something that has happened and that is online be removed from every searchable list because on the Internet that would practically mean that it disappears from the Internet. If you cannot find something through search engines, it may very well be there, but if search engines don’t return relevant results it may be the same thing as not having it hosted anywhere.

So, you know, sometimes you’re watching TV and the remote is in the armchair on the couch next to the one that you’re on, and you’re like, ‘Well, it may as well be in China. I’m not going to get up and pick it up.’

Denise: [laughing]

Saurahb: So, it doesn’t really matter that it’s there. What matters is the sort of transactional costs to get to it are so high, that would mean that it’s almost equal to completely removing it from the Internet. And that would be, undeniably, a violation of freedom of expression. So, I would side with Google on this and I am sympathetic to the European Court of Justice and to the people who want some results de-listed. But at the same time, I do think the Principle of Proportionality that lawyers so much love is very, very important here. De-listing it from local countries under the strict conditions that the court and Google have worked together to find—and Bing—I don’t know if Yahoo! is part of it, but Bing is certainly part of if—I think it’s a fair compromise. Asking to be removed from every index globally, that would be too much. Disproportionate. Eventually it might even be ineffective. But this is a discussion that we should be going through. I think that for the regional purposes that this right was constructed, it has served its purpose.

Denise: All right. Well, again, this is something to continue to watch as Google and EU go back and forth about it. And again, more in our discussion points if you want to look further how Google is implementing its response to the EU’s directives.

We have a Tip of the Week for you, and it’s sort of an esoteric one, but it’s an important one, I think. It comes to us at the prompting of listener “Caleb,” who wrote to me about armchair lawyering and how he frequently is confronted by people who, either on T.V., or in print, or online, are purporting to tell him what the law is on things, or how the law works. And he’s rightly skeptical, and he oftentimes thinks that they’re full of hot air, and either they don’t know what they’re talking about, or there might be more to the story. And I think that his point pretty much encapsulates why we do this show every week—why it’s such a long show, why we have such wonderful, esteemed scholars come on our show such as our guests today—because the law is a complicated beast. And I found a great article. The tip, by the way, is “Every Telling is Interpretive.” And that’s a quote from Anthropologist Edward Bruner, as featured in a Law Review article by Paul Schiff Berman. And the article is called “Telling a Less Suspicious Story: Notes Toward a Non-Skeptical Approach to Legal/Cultural Analysis.” It’s sort of a mouthful, but the whole point of the article is that everyone brings their own baggage to the table when talking about the law, explaining the law… Whether it’s their own opinion about how they think the world is, or their own opinion about how they think the world should be, you’re always getting a slightly skewed perspective when you’re listening to folks like us each week talk about the law and the way that it works.

So listener “Caleb” wants you to be cautious and skeptical. So do I. “Every telling is interpretive,” as says Anthropologist Edward Bruner. Read the article if you really like some more detail on that, on how the law is a difficult beast to nail down and make behave in a black-and-white way. And I think it’s just a fascinating topic. And yes, it’s very good advice and a good Tip of the Week.

And then we have a cup… [Talking to Konstantinos] Go ahead. Thoughts on that? Yes.

Konstantinos: Denise, if I may have one minute?

Denise: Yes.

Konstantinos: I’m reading in the chapter that a lot of people have raised the issue of extra-territorial application of laws.

Denise: Mmm-hmm.

Konstantinos: Extraterritoriality is a well-defined concept in international law. I wouldn’t be quick to say that—legally speaking—this is a problem of extraterritoriality, because what people are asking is that results are not received in a certain country. Now, Google can find whatever way it wants, technically, to make those results unavailable. And that doesn’t mean that the rule applies in other countries. It means the law doesn’t care about what technical ways Google will find to block those results in a particular country. Now the reason this is not happening is because you can go to <Google.com> in the US, but if you are in Germany you can go to <Google.de>.  And if <Google.de> blocks certain results, but <Google.com> does not, this is a bypass mechanism.

Denise: Right.

Konstantinos: And the European Union is not asking for Google in the US to remove listings, or anything like that. All it asks for is that in Germany those results are being blocked, and let Google decide how to do that. And so, I wouldn’t say that it’s an extraterritorial effect. Besides, these kinds of effects that bleed out of a certain jurisdiction are common on the Internet.

Denise: Mmm-hmm.

Konstantinos: We see that in defamation cases. We see that in privacy cases. And many countries, including the European Union, and Brazil with Internet constitution—they impose obligations to companies doing business, offering business in their respective jurisdictions, to respect their own local privacy laws—even when they are not headquartered in those states. Now, what that means is that we don’t ask European law to be imposed in the US, or Brazilian law in the US. What we are asking is for them to find a way to comply with US, or with EU or Brazilian, for example, rules, when they offer services in that jurisdiction. Now because of the fact that traffic flows internationally on the Internet, this becomes very difficult. But legally speaking, this is not an extraterritoriality issue…

Denise: Right.

Konstantinos: unless the people are using it as a common vocabulary.

Denise: Right, right. In that spanning multiple territories.

Konstantinos: So sorry for running over my time, but one of the issues that came up…

Denise: Oh, no.

Konstantinos: in the chat room and I thought I would address that.

Denise: It’s an excellent point. And one of the quotes that jumped out at me from this Slate article about this issue—it’s by Julia Powells—she wonders why Google concedes to implementing copyright requests at a level exceeding privacy requests by three orders of magnitude, in her estimation. So again, it’s sort of a code is law problem—how you implement it ends up dictating where the remote is, you know—if it’s actually going to work for you, or not. And I get what you’re saying. I think that’s an excellent point, Konstantinos.

Konstantinos: Mmm-hmm.

Denise: I do want to leave our listeners with a few Resources of the Week. One is on the copyright front. It comes from listener Ben Cotton, who actually put together a license that he did to solve a problem that he confronted. He came up with it a few weeks ago. So, as someone had posted to a licensed discussion mailing list about the problem he had with the BSD license in China. The judge didn’t know enough English to understand the license, and ruled against someone who brought an infringement suit. So what Ben did was try and simplify—he did it as a weekend project—to attempt a version of the license that used only the words on the Oxford 3000 list, and he’s calling it the Permissive 3000 License. It’s on GitHub. We have a link to it. You can find it in our discussion points at <delicious.com/thisweekinlaw/295>. Ben thought his fellow TWIL listeners might find it interesting. And it also highlights, in his opinion, the difficulties of using licenses across languages and jurisdictions. So, [a] great resource if you want to check it out. See how you think Ben did on the Permissive 3000 License.

And then, one final resource for you is—Mitch Tannenbaum wrote in as a result of our SuperFish Lenovo discussion last week, and thinks this is a much broader problem than just Lenovo and the vendors in question in that dispute, and the litigation that is going to ensue from that. He thinks it’s a big risk assessment problem, and supply chain problem, and it calls out how it’s very unusual for a developer to do a full-scale cyber risk assessment on each and every third-party software component that they license, and that that’s really something that they should be doing if they don’t want to wind up in a pot of boiling hot super fish…like Lenovo [quietly remarks]. Oops, sorry.

So, those are our Resources. It seems like some people had some final thoughts that they might want to make before we close out the show. So, Saurahb, was that you that wanted to chime in a moment ago?

Sara: [chuckles]

Saurahb: So, yes. I think Konstantinos’s point about the Right to be Forgotten and the “extraterritorial”—I use air quotes for that—the sort of “extraterritorial” nature of it, are well-taken. And it’s worth noting that it’s not really the Right to be Forgotten that we’re talking about. The Right to be Forgotten by people, but rather, by history. And others have made this point in print. My friend Eric Goldman is a professor at Santa Clara that wrote about this on his blog. It’s a desire to go back to a time when we could take comfort that [with] whatever we did, peoples’ natural attention span and memory would just push us out and make room for something new. And if something was really historically bad enough, then someone would dig up the New York Times article in a microfiche somewhere, or we’d wind up in the Encyclopedia Brittanica under “Bonehead”.

So, what Google Indexing has done is really just lowered the transaction cost for remembering as a public matter, and it has, as a result of that, lowered the bar for what’s publicly remembered in practice. And if you look at is as to say that there should be no Right to be Forgotten because this is the same principle that we’ve always had, you could always go to a library in Stone Mountain, Georgia and dig up the news article from 1985, proving this or that. Well then, okay, that somewhat downplays the newness and the power of the Internet. The other way is to say that the Internet is something altogether new, altogether new rules. And it’s not just a difference of degree. In that case, maybe the Right to be Forgotten isn’t the worst idea. I personally tend to view search engine indexing as an extension of historical precedent. We have this in libraries. We have this with microfilm and microfiche. And so, although I’m somewhat sympathetic to the idea of having a Right to be Forgotten, I think the principle behind it is somewhat weak, and I think Google’s approach to this is one that is ultimately driven by technology as it should be.

Denise: All right. Sarah, any final thoughts to close out the show?

Sarah: No. I was…Well, I guess the one thing I was going to mention, the exciting thing, is the Creative Commons icon and logo are in the MOMA.

Denise: Oh, very fun.

Saurahb: Nice.

Sarah: I just happened sometime recently. There’s an exhibit going on that’s about design experience. It’s called This is for Everyone: Design Experiments for the Public Good. And then I think the MOMA is going to retain the logos and icons for its permanent collection, as well. So that’s sort of an exciting Creative Commons news.

Denise: Oh, I love it. Thank you for sharing that with us. Konstantinos, anything you’d like to share before we go ahead and sign off?

Konstantinos: No. I think that I abused my time. I just want to mention one last thing that I’m very sympathetic to—What Saurahb said—but I don’t think cold-blooded lawyers are open to the sensitivities like the desire of people to forget their past. This is not something that would stand in court although I like it as an argument a lot.

Denise: All right. And this is an ongoing conversation, as are so many of our topics here in This Week in Law are. Again, “Every telling is interpretive.” And none of these issues are easy or straightforward, and that’s why the EU does things differently than we do in the US, and in the US we do them differently than they do elsewhere in the world. And all of us are struggling with how to come to terms with these very important issues in the digital age. So, we’ll continue doing so every week on the show at 11:00 Pacific Time, 1800 ETC, starting this weekend when we switch back to Daylight Savings Time here in the United States—or in the Western United States—at any rate. So, please join us live if you can at that time if you can. If you can’t, never fear. The show is on-demand in many, many formats. Go to <twit.tv/twil> to learn all about the various ways that you can watch the show on your own time and on your own device of choosing.

What else? You should get in touch with us between the shows. I’m Denise@twit.tv. Sarah is sarahp@twit.tv. Look us up, send us e-mails, start a discussion on the Right to be Forgotten or anything else that you think is critical and important and warrants having folks try and flesh it out and come to terms with all of the policy ramifications of various technological decisions because that’s what we grapple with here on this show every week. And we’re looking forward to seeing you next week when we do it all again! Take care.