This Week in Law 296 (Transcript)

Denise Howell: Next up on This Week in Law, we've got Eric Goldman, Jeremy Bock, Sarah Pearson, and me. We're going to talk about how the copyright plot has thickened; the Streisand Effect has gone apartment; and is that an octopus in your open Internet rules? All this and more on This Week in Law. 

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Denise: This is TWIL, This Week in Law with Denise Howell and Sarah Pearson, episode 296, recorded March 13, 2015

ICANN Has Cowbell?

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Hi, folks, I'm Denise Howell; and we are so thrilled you joined us for this episode of This Week in Law. We have an amazing panel for you this week and tons of great stuff going on at the intersection of technology and law, much of it a little long, some of it we haven't gotten to yet. But fortunately, we have two great law professors with us here this week who are going to help us make some sense of the important things that have been going on. Welcome back to the show, please, Eric Goldman. Hello, Eric.

Eric Goldman: Hi, Denise.

Denise: It has been far too long. I think you haven't been with us since our infamous episode 230, during which we talked a lot about Section 230 of the Communications Decency Act, something very, very much in your wheelhouse. It's great to see you again.

Eric: I'm glad to be here. Thank you.

Denise: Your blog has been busy turning ten years old since we last saw you, so congratulations on that.

Eric: It's starting to become a little pre-tweeny on me, starting to give me some attitude.

Denise: (Laughs) Yeah. I gotcha. Yeah. Not much you can do about that except kind of ride it out. Joining me, of course, is our co-host, Sarah Pearson from Creative Commons. Hello, Sarah.

Sarah Pearson: Hey, Denise.

Denise: Great to see you again.

Sarah: Thanks. Great to be here.

Denise: And coming to the show for the first time with us is Jeremy Bock from the University of Memphis, where he's a professor at the Cecil C. Humphreys School of Law. He teaches patent law and civil procedure. And I have some things to ask you this week on both fronts, Jeremy, so it's great to see you.

Jeremy Bock: Great. Thanks for having me.

Denise: Wonderful to have you. So we've got a lot, a lot, of stuff, a lot of different places we could start this show. The open Internet order has finally come out from the FCC, though I think I'm safe to say it is somewhere in between 3- and 400 pages long. I haven't read it yet; it came out yesterday. Anyone here even gotten to the opening introduction of it yet?

Sarah: Nope. (Laughs)

Jeremy: Not me.

Denise: No. No. Ultimate TL;DR. But I think we're going to take some time to sit with that and digest it and see what other smart people out there, who are fervently — even as I talk now — reading and digesting it, have to say about it. And we'll get to the nuances of it on a later show. But another big thing that happened this week was a federal trial court decision in the case — this was actually sort of counterintuitively, if you — this is a civil procedure kind of maneuver that they did here. Robin Thicke and Pharrell Williams filed a lawsuit against the heirs of Marvin Gaye to settle the issue of whether there was copyright infringement involved between their "Blurred Lines" song and "Give It Up," the Marvin Gaye song. So we're going to start talking about that very music- and Hollywood-oriented case.

(The intro plays.)

Denise: Now, Victor, when we were — Victor's our technical director in the studio. When we were chatting right before the show here, I neglected to point out to you that I did stick a YouTube link under your nose in our rundown document that it would be good to start this discussion with. For anyone who hasn't listened to the Robin Thicke and Pharrell Williams song, and for anyone whose memory may not go back to the 1970s and the Marvin Gaye track in question, there is a great side-by-side comparison of them that someone has put on YouTube and that I am comfortable playing here on this show because we are going to engage in lots of commentary about it very shortly. So Victor, if I've given you enough time to queue that up, you can play it now.

(The video begins.)

Denise: Here we go. So this time — everyone feel free to groove out a little bit. (Laughs) This would be "Blurred Lines."

(The video continues.)

Denise: And here we have "Give It Up" by Marvin Gaye.

(The video continues, playing clips from each of the songs.)

Denise: All right. I think we get the idea, Victor. Thank you very much. God, I love both those tracks. I love that sort of '70s feel; that's right in my musical sweet spot. But it was not in the jury's sweet spot that Robin Thicke and Pharrell Williams were inspired by that sort of music, and particularly the Marvin Gaye track in coming up with "Blurred Lines." And what happened this week is, a federal court jury in Los Angeles came out with a decision awarding 7-plus million dollars' worth of damages to the heirs of Marvin Gaye on the notion that the "Blurred Lines" track was inspired by "Give It Up" without any willful copyright infringement. So there is much hand-wringing going on about this and what it's going to mean to the music industry and to copyright law. Eric, I'm sure you have some thoughts about the case.

Eric: I do. Let's start with the premise, I'm not a musicologist. And so a lot of the case discussions focus on the mechanics of measuring the copying in the case; and my understanding is that there are no lyrics that are overlapping between the two songs. There's also very few actual notes that are a copy between the songs. And since I'm not a musicologist, I don't think I can say much more except acknowledge that, if we had a lot of notes copied, that would be a pretty good sign of copyright infringement; but the absence of notes being copied is also a pretty good sign, maybe there would not normally be copyright infringement. And I think the thing that's troubled so many people about the ruling is that it appears that the jury felt that the music just seemed to feel too much alike. It had the same vibe, the same mental impressions, even though we can't point to lyrics or notes that were actually copied. And the problem is that many songs invoke prior songs, either deliberately or unintentionally; and normally, we think that having a song the same vibe is not copyright infringement. And this jury verdict makes us wonder if, in fact, maybe, when we put the question to our peers, there'll be a bigger footprint for copyright infringement than we had anticipated.

Denise: Well, here's where we get into some of the civil procedure questions I alluded to because I think, in addition to this being an interesting music case and copyright case, the procedures around the case are very interesting and, in some instances, may have been a huge influence in the jury's decision. One procedural thing that happened during the case is the judge's decision not to do what we just did: give the jury a side-by-side, track-for-track comparison of the two songs because of the judge's decision that, actually, the heirs of Marvin Gaye did not own all of the copyrights in the "Give It Up" track. They owned certain aspects of those rights. And so the judge did these pared-down audio duplications of the portions of the tracks in question, so you could sort of recognize that they were the same songs; but they did not sound like what we just played for you here. Do you think that that might have been a big deal in the case, Jeremy? I know that certainly the Williams/Thicke side thought — they've used the term "poisoned" the jury as to this.

Jeremy: Well, the interesting thing about this case is that — well, first of all, it was filed as a declaratory judgment action, which means that the Thicke/Williams team wanted a declaration. They actually affirmatively filed suit against the Gaye Estate to get, essentially, a clearing of sorts with respect to who owns — well, whether or not they infringed the copyright. And it kind of is a funny situation where you have the declaratory judgment plaintiff actually losing; and that issue that you just mention — why wasn't the jury able to hear these songs side by side, kind of like you had with the YouTube video— is because it's my understanding the Gaye Estate doesn't actually own the sound recording. So what you just heard on the YouTube clip is the sound recording, which is different from the music composition. The Gaye estate, I think, either fully owns or has some ownership interest in the composition itself — the musical notes and the lyrics — but not the actual sound recording which is what we heard in the YouTube clip. So they didn't have ownership over that; and in addition, the judge thought that having those two tracks, both the Thicke track and the Gaye track, side by side may, I guess, be a little prejudicial because there are elements in those sound recordings that weren't actually in the original music composition. So the background chatter, some of the instrumentation — the instruments that you hear — might not actually be in the composition, which is what the Gaye Estate owns. So the pared-down presentation nonetheless appears to have still carried the day with respect to convincing the jury that there is some identity of the look and feel; but, as Eric mentioned, having copyright infringement premised on re-creating the vibe or the look and feel is, in fact, problematic, especially if the elements that are protectable under copyright aren't really copied.

Sarah: One thing — Denise, do you mind if I jump in with one thing on that?

Denise: No. Jump away.

Sarah: Okay. The point about owning the composition versus the recording is really interesting because, in this case — from what I understand, at least — the Gaye Estate owned the composition, and they deposited the sheet music with the copyright office, which then defines the scope of the work. So anything that wasn't in the sheet music technically shouldn't have been an issue at all in terms of whether or not that was copied. So I think that's what motivated the judge to limit having the recordings played. And, theoretically, I think that would have helped Thicke and Williams as opposed to hurt them because the recordings are more similar, perhaps, than the music itself.

Denise: Yeah. It's difficult to know which way that would cut. And I wasn't following the case closely enough to know if they were arguing vehemently that, No, we need the full recording for the jury to be able to appreciate what's going on here or not. But I'm sure that it will give them something to talk about on appeal. Eric, I'm curious what you think, from a policy standpoint, about having juries decide cases like this. Do you think that's a good thing or a bad thing?

Eric: That question is loaded with overall perspectives about juries and whether we trust juries to do the things that we want them to do; and I'm not an expert in that area, either. But in general, I think juries play a pretty valuable role in doing certain types of fact decision-making, especially when it comes to things like credibility. I think juries are pretty good at figuring out when they think someone's telling the truth or lying. When it comes to figuring out if music is too similar, juries have some problems. They can be easily swayed by things like musicologists who come in and put together flowcharts and diagrams that make it look like there's a lot of copying going on that the law might not actually recognize. The question that's normally posed to the jury is something to the order of whether what was copied was what the lay listener would find pleasing. And if that's the question that's asked, actually, I think juries are a perfectly fine sampling of what lay listeners find pleasing about a particular song. But because of the fact that we have the experts who are guiding that inquiry, I think it's possible for the juries to be overwhelmed by the expert as testimony and to lose sight of that much more simple question I think they're normally being asked.

Denise: Another question I had on sort of the procedural copyright front about this case and wanted to get your reactions to is the damages. In much of the coverage on this, the damages are being described as very, very high; and I think the Gayes were asking for something like $25 million in damages total. They wound up getting 7.4 million against Williams and Thicke only. The labels wound up getting off the hook here. And so what we're talking about is lost profits and other things that go into the damage calculation when you're not doing statutory copyright damages. Of course, they couldn't do statutory damages here, Eric; and maybe that deserves some discussion. Could you flesh that out for us?

Eric: My apologies; I haven't looked at the eligibility for statutory damages and why they chose actual damages.

Denise: Okay.

Eric: So if you want to fill that in, we can talk more about that.

Denise: Well, I was thinking, since we're not talking about — the jury never found there was a willful infringement here; so we're not getting into those really stratospheric copyright damages that can be triggered when you have a willful infringement. That's what I was driving toward.

Eric: I actually don't think it would work that way. The statutory damages are capped at, with willful infringement, $150,000 per infringement. Actually, in this case it would be per infringed work. So I actually think, if they had elected for statutory damages, they would have been capped at the $150,000, even if they had gotten the willful infringement finding. So that might explain why they didn't pursue statutory damages. It might very well have been, they thought there was a lot more upside on the actual damages side.

Denise: Yep, that could very well be. Sarah, any thoughts on the damages part of the case?

Sarah: No, I think Eric's right. My understanding was that they chose actual damages over statutory because they had the potential for getting a lot more money, which they did. I tried to dig in a little bit to how they came up with that number in the articles I read. Maybe I should have gone straight to the jury verdict. But the most information I could find was, I guess the song had made $17 million in profit since it came out, and the Gaye Estate argued that, if the song had been licensed, they would have received 50 percent of the publishing revenues, which would have been 4 million. And then they had the artists pay another almost three and a half million of their profits. But I don't know exactly how they came to those numbers.

Denise: All right. So let's talk about the ramifications. And here's a civil procedure question for you, Jeremy. For our non-lawyers out there, this is a federal trial court that has issued this decision. It's a federal trial court in Los Angeles. So if and when there's an appeal, it will go to the Ninth Circuit, and that's the appellate court that will have review over the issues that we're talking about here. But as a federal trial court, can you discuss — most state trial courts, when they issue decisions, their decisions that follow from jury verdicts don't have precedential value. Can you discuss the extent to which a federal trial court's decision does?

Jeremy: I would say, on other federal trial courts, the decisions of another federal trial court really just has persuasive precedent value. It's not binding precedent at all. It's the Circuit Courts' decisions that have binding effect. And this decision came down — was it this past week?

Denise: Yes.

Jeremy: So we still have almost three or so weeks during which the motions for judgment as a matter of law — that is, one way of sort of overturning the jury verdict — might be filed by the parties. And so I would say that this case is far from over. The appellate process, I'm assuming, is going to have much more impact than what we've seen thus far.

Denise: Yeah. It's just — I guess what I was driving at there is that it's always seemed to me, simply because the trial court's decision does get published — and this is a weird sort of esoteric inside legal baseball distinction, whether a decision gets published or not. But published decisions can be cited, and there's a whole — as you were saying — discussion we can have about how much weight those citable decisions can have and how, yes, it might be more persuasive on another trial court than it would be on a court of appeal at the appellate level; but still, they can get cited and discussed.

Jeremy: Absolutely.

Denise: And so when I — yeah. This goes back to my question about having juries decide copyright cases in general and cases of similarity of music in particular, they've got a jury process going on; and then at the federal level, when it results in an opinion that's actually published, that has a pretty broad effect that a lot of state trial court decisions just don't have; right?

Jeremy: Absolutely. So for the time being, we just have a jury verdict. When we have — I'm assuming a JMOL motion — that's the judgment as a matter of law motion. When that gets filed and decided, the opinion that comes down from the trial judge either granting or denying JMOL I'm assuming will have some persuasive precedential effect for those cases that might have similar facts or similar circumstances, where the issue here is really the look and feel.

Denise: Right.

Jeremy: So unless we have an opinion — because a jury verdict doesn't really tell us much. It's just the jury saying yes or no. I would say that, to the extent this case — I mean, if there's no appeal or if appeal just takes a really long time, in the interim the opinion that would probably count would be the one that decides the motion on the judgment as a matter of law.

Denise: Right. So we're looking while the appeal is pending. There's a case on the books that says that —

Jeremy: That's right.

Denise: — non-willful inspiration can be infringement; and that brings us to the Reddit that reached the front page of Reddit at some point over the last week, posted by user — let's see. Can I tell? Henawina. (Laughs) It posited the question, if Marvin Gaye's estate can sue Robin Thicke and Pharrell Williams over similarities between "Gotta Give It Up" and "Blurred Lines," I bet we can do this for every song on the current Hot 100. And Henawina starts it out with "Uptown Funk" versus "Jungle Love," and he or she provides the YouTube links to both of those. And sure enough, when you go through and you listen to that underlying sort of funk groove, it's a very similar experience to what we just listened to with the songs at issue in this case. And then the Reddit community went crazy and came up with all kinds of other comparisons that could be litigated if this is going to be 'the law. Does this cause you concern, Eric?

Eric: It actually reminds me of one of our classic copyright cases: the Arnstein case from — I believe it was 1946; and it involved a guy who thought that Cole Porter had ripped him off. And the Second Circuit Federal Court of Appeals laid down the law and basically cleaned up the music copyright litigation that had been plaguing the court because there was a whole group of experts who were advising songwriters to basically go look for possible patterns in current music, and then would bring lawsuits. They'd get the musicologist expert; they would go and say, Look at the similarities. And even if those cases did win, they were very expensive and meddlesome. And Arnstein is a very famous figure in copyright law for the precedent he set because he lost almost every case he brought. And he was in the Yiddish music community; and there was a whole group of people who did Yiddish music who thought that the latest current hot hits at the time were variations on this Yiddish music and brought substantial litigation based on that. And the 1946 opinion made it a lot harder for people to bring those kinds of claims, simply pointing out similarity in a small number of notes and using that as the basis of litigation. So for the last seventy years, we've kind of been able to see relatively few of those kinds of lawsuits. This big jury verdict, even if it doesn't have the same kind of legal precedent effect, it's going to potentially re-invigorate the lawsuits we thought got cleaned up over seventy years ago.

Denise: Sarah, we've been getting some questions in IRC about the effect of this case, or whether it says anything about the laws on the books now, about sampling. Do you have any thoughts on that?

Sarah: I don't think it has much to do with sampling. Like we talked about, Marvin Gaye's family only owned the composition and not the sound recording; and so as far as I know, there were no allegations of sampling at all. It was only about whether or not they were copying the underlying musical work.

Denise: How do you feel about the labels getting off the hook?

Sarah: I guess I don't know enough about why they did get off the hook. Maybe Eric would have thoughts about that, but I just don't know enough to know why.

Eric: My only thought is that I believe that the jury verdict has some potential inconsistencies in how they handle the different questions asked of them; and I would suspect that that would be the basis of the judgment, notwithstanding the law that Jeremy was talking about, asking, why did the jury treat Contributor A differently than Contributor B in this particular musical work? And so I expect that that would be something we're going to get more perspectives from the judge about.

Sarah: Yep.

Denise: Okay. I think we'll put our first MCLE pass phrase into the show. These are phrases that we use to help people who are listening to the show for continuing legal education credit or other professional education credit. You can demonstrate you've actually watched or listened to the show to anyone who might be curious. So let's make it "Let's get funky" for this first phrase. We'll put another one in a little bit later on in the show. And I wanted just to make sure I've gotten all your thoughts on the "Blurred Lines" verdict before we move on and talk about some other topics. Jeremy, any final thoughts on this?

Jeremy: Not at this time.

Denise: Okay. Sarah?

Sarah: I mean, I think it sets a dangerous precedent, maybe not in the formal legal way, but at least in terms of what Eric was getting at, in terms of getting people to — encouraging litigation and also just cease and desist letters to people that can't afford lawyers, and going after people whose songs just sound similar in a way that really shouldn't be a copyright infringement at all. I think it's, in some ways, a dangerous precedent in that regard.

Denise: Yep. Eric?

Eric: Yeah. Two things. When I took entertainment law in law school, my instructor taught us a phrase: "where there's a hit, there's a writ."

Denise and Sarah: (Laugh)

Eric: Writ being the basis of which you start a lawsuit. And so it's not particularly surprising, when we have a massive hit like "Blurred Lines," that somebody's going to want a piece of the action. It's a fact of life — perhaps troubling, but still nevertheless a fact of life — that any big hit, whether it's in movies or music, is going to bring out somebody who wants a piece. And so it's unfortunate in this case that the jury verdict came out the way it did; but this is just a fact of life. It's just part of the entertainment business. I do have one more thing on my mind about this case. We haven't talked about the cowbell.

Denise and Sarah: (Laugh)

Denise: Talk about the cowbell, please.

Eric: And as you may — well, actually, I would like to talk to my co-conspirator on this one. Jeremy Bock is well known in the intellectual property community as being a master cowbeller.

Sarah: (Laughs)

Eric: And my main question for him is whether he had the opportunity to actually perform on this song, or did he turn it down?

Denise and Sarah: (Laugh)

Jeremy: No, I was not given the privilege of performing on this song.

Sarah: (Laughs)

Eric: Do you have any perspectives about the cowbell performance in this particular song? Did you find it —

Jeremy: I think it was adequate.

Eric, Denise, and Sarah: (Laugh)

Jeremy: They say it's sort of cowbell-directed, but I think it could have used more.

Eric: (Laughs)

Denise: You always gotta have more cowbell.

Jeremy: That's right.

Denise: That's right.

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Now, one thing you're going to want to beware of if you are a domain registry is when you need to manifest your consent to new language in your contract with ICANN because that can have some wide-ranging effects. We're seeing this week that ICANN is being pushed to enforce some language in its agreements with registries that have to do with what registries are to be policing and not policing by their users, the registrars. Eric, are you paying attention to this? The most fascinating aspect of this, to me, is how it all comes down to this seemingly innocuous language that got slipped into the contract.

Eric: So I try to avoid anything that has the word "ICANN" in it.

Denise and Sarah: (Laugh)

Eric: I find the ICANN procedures overwhelmingly baffling, arcane, Byzantine, and just not welcoming to anyone who doesn't live and breathe it. So it's not particularly surprising to me that ICANN does things that don't make any sense because there's a community of people who do ICANN things, and then there's the rest of the world; and the rest of the world doesn't really pay attention very closely to what ICANN's cooking up. I would point out, more generally, that we know the ultimate endgame for how the Internet's going to be run. We know that we're going to deputize people at the highest levels of the infrastructure to go and do censorship and policing of people downstream from them. We built an Internet that didn't require that to be the case. We had a couple of great decades where we didn't have our Internet access providers policing the Internet. We didn't have the domain name registries policing the Internet. And slowly but surely, that default is switching to the opposite direction, that more and more Internet access providers are policing the Internet and being required to do so; and more and more domain name registrars and registries are policing the Internet and being required to do so. So to me, this is just another brick in the wall that we're building that changes the way that the Internet has been fundamentally architected. And it makes me sad, but I guess I will celebrate the couple of decades we had where we didn't have to worry about things like this. Maybe we got a freebie for a little while.

Denise: Yeah, absolutely. And it would be interesting to know — although like you, Eric, it's really hard to get your head around how ICANN works. I've always felt like quite an outsider trying to understand their procedures and thought processes. So it would be interesting to know from someone on the inside what the motivation was for including this language in their agreement with registries and deputizing them, as you say, as folks policing the activity — and ultimately, the content — of the people who are using their domains. But what got inserted, however it got there, were various public interest commitments where the registries have to make sure that their end users do not distribute malware, abusively operate botnets, phish — that's with a PH — (Laughs) — pirate things, engage in trademark or copyright infringement, engage in fraudulent or deceptive practices, counterfeit or otherwise engage in activity contrary to applicable law. So it's very broad, what the registries are undertaking to police here; and maybe they felt okay about undertaking that responsibility knowing that it would be hard for someone to come in and say, You're falling down on that responsibility; we're going to do some specific enforcement and make you comply. But that's exactly what the RIAA and the MPAA are seeking to do here. They think that there's more that the registries should be doing as far as policing intellectual property infringement and are trying to put some teeth in that clause.

Eric: Denise?

Denise: Yes?

Eric: Let me just add also that I'm going to take the position — at least under U.S. law — that registries and registrars would have no liability for copyright infringement that's committed by their downstream customers. So the ICANN position, at least as a matter of U.S. law, goes well beyond what the default rules are today.

Denise: Right. So this is a good example of how, if you're not careful, you can be agreeing to something that would not otherwise be required under law. Sarah, do you have any thoughts about this?

Sarah: I mean, I agree with Eric that this is going above and beyond what copyright would do. I mean, they're trying to use contract law to get at the question. I think it's troubling for a lot of reasons, the biggest being that we don't know what ICANN is going to think is appropriate — or I'm not sure that was the exact language that the provisions in the contract used. But will there be any sort of due process for people that get — if they get a takedown notice, do they have to just shutter it without — it seems as if the domain registries are going to have every incentive to overenforce in these situations; and that's problematic for a lot of reasons.

Denise: Yeah.

Sarah: So I think it's troubling, yeah.

Denise: Okay. Jeremy, what do you think about all this?

Jeremy: Well, to be honest, this is sort of outside my area of expertise; so I honestly haven't kept up. So I guess I'll need to pass.

Denise: Yeah. No, I totally get it. And we're going to talk about copyright reform in depth in just a moment here. But since we're still in the realm of how the entertainment and Internet worlds interact with each other — and this could be a big deal if the MPAA and RIAA actually get what they're asking for — it's interesting that they have been paying attention to this language. No doubt they were involved somehow in the process of it making its way into the registries' agreements to begin with; and now they want to follow through and put some teeth in that language. So it's sort of an end run around the defeat of SOPA and PIPA in particular as far as trying to regulate the content from the domain registry level. So something to keep an eye on; and definitely scary, as Eric is saying, to move in the direction away from the Internet as we've known it for quite some time. Any final thoughts, Eric?

Eric: No. As I said, I hate being so cynical about the future; but the future is clear that we are going to have all these roadblocks to being able to communicate with each other over the Internet because all these other people in the middle will be deputized. And as Sarah was pointing out, deputizing the intermediaries, like Internet access providers or domain name registrars or registries, is a really blunt instrument. It means that lots of collateral damage can take place if there's an attempted fix of the problem. So to me, I see nothing but good news here; but the cynic in me says maybe there's really no other outcome that we can expect.

Denise: Sure. And I am really concerned about — we're talking about IP infringement here because that's what the Riaa and MPAA are most concerned about; but there's some very broad language in this contract that is very open to interpretation whether something is fraudulent or deceptive or "otherwise contrary to applicable law." So there is a lot of room for abuse in here if someone's not real careful.

Speaking of abuses and trying to remedy them, I mentioned patent reform; so let's get to that.

(The intro plays.)

Eric: (Laughs)

Denise: (Laughs) Ka-boom! All right. So the Innovation Act is headed our way once again after it died, never making it to the Senate floor, last year. Bring us up to speed, Jeremy. I know that you signed on to a letter to Congress encouraging them to get serious about patent reform. A slew of other law professors and economists came back in and said, No, no, no; we don't need reform. The Supreme Court is doing a bang-up job of making sure that the patent system is working according to plan. So where do things stand right now, Jeremy?

Jeremy: So for those of you who are not familiar, there are two camps of academics. 51 law professors sent the letter; I was one of the signatories to a letter to Congress saying that the Supreme Court is doing a nice job, but we still need patent reform. There is more things to be done. Shortly thereafter, 40 — I think it's 40 — economists and law professors drafted a response letter, also sent to members of Congress, saying that, given the empirical evidence thus far, we are not in a position to really tinker further with the patent system. Let's just allow the court cases to sort of run its course. And so one group of law professors takes a more cautious approach; the other group of law professors thinks that there's more work to be done. I'm sort of in the camp, mostly, where I think there's still more work to be done because the Supreme Court cases have been helpful; but they don't really go to what I would consider the meat of the problem; which is the very expensive nature of patent litigation. So the Supreme Court cases don't tackle, for example, the pleading standards. So when filing a complaint, you have to plead sufficient facts. At least under current law, there are a couple of cases — Twombly and Iqbal — which have raised the pleading standards somewhat, so that you have to plead a plausible claim. that doesn't actually apply to patent cases, according to a Federal Circuit case which says that Form 18 of the Federal Rules of Civil Procedure govern; and Form 18, if you've seen it, provides a model for a very, very bare-bones complaint. All you need to do is state the patent number and assert, pretty much, that the defendant's product infringes your patent. And so it's a very bare-bones complaint. And the Supreme Court hasn't had any cases that really go to the pleading standards issue — although, that being said, there is actually a change in the Federal Rules of Civil Procedure that has been adopted by the judicial conference — and right now I think it's been sent to the Supreme Court for consideration — where Form 18 will be abrogated so that the heightened pleading standard under the prevailing case law, Twombly and Iqbal, would then apply to patent cases. And this heightened pleading standard issue is one of the topics on which the Innovation Act is sort of being looked to as sort of helping with the problem with abusive litigation in the sense that what the Innovation Act does is that it actually goes beyond the heightened pleading standard under Twombly and Iqbal and would require complainants — the patent plaintiffs — to actually specifically identify, element by element, your claim term and how that relates to the accused device. So it's more rigorous, and that's one of the sticking points between the people who want the Innovation Act to pass and the ones who are opposing it. Fee shifting — this is an issue that comes up pretty frequently in discussions relating to the Innovation Act — where those individuals who are opposing say, Well, the Supreme Court has decided a pair of cases making fee shifting easier under the law. So under current law, you can shift fees upon a showing of an exceptional case; and this is a somewhat rigorous standard — or a high standard — to meet. Although it is subject to the district courts' discretion, it is not, by any means, automatic — not nearly as automatic as what you would have under the Innovation Act where there's almost a presumption of fee shifting in the absence of a showing that your position was justified under the law or that fee shifting would be unjust. So the heightened pleading standards, the fee shifting issues, are two of the more major sticking points that the Innovation Act has as its centerpiece which the Supreme Court cases don't, at least in my opinion, fully — well, they won't necessarily be substitutes, in other words.

Sarah: Jeremy, do you know what the argument is for having the lower pleading standard in patent cases? I mean, is the argument that the patent owner wouldn't have any way of knowing those details without discovery? And if so, is that a reasonable argument, or is there really no justification for having such a low pleading standard?

Jeremy: So the pleading standards — it's interesting. There are many district court's out there — I think maybe 20 to 30 — that have something called patent local rules — that, in fact, have the kinds of pleading requirements that the Innovation Act seems to impose. So in those district courts with these patent local rules, you do, in fact, have to give what is equivalently a claim chart mapping your claim terms to the products sometime after you've filed. So there might be some discovery that occurs, perhaps — I guess it depends on the specific court. But having that kind of rigorous pleading up front at the complaint stage, the argument goes, would arguably discourage or block meritorious filings by those individuals who may not have the financial resources to do the kind of detailed analysis that is required so early in the case. And so it's really a matter of, I would say, court access that has been the sticking point when it comes to making the pleading standard more rigorous.

Sarah: Okay. Interesting.

Denise: Eric, didn't you guys do a patent law and patent reform summit at Santaclara last year?

Eric: We actually did two. We did one to talk about the specific issues related to software patents; and then we did one where we basically took the premise that patents were a problem and tried to brainstorm different solutions. And I will say that the Supreme Court has done a lot of important work in the area that has addressed some of the issues; but there is a lot of room, I think, left for statutory intervention by Congress.

Denise: Do you think the Innovation Act goes far enough?

Eric: (Laughs) You know, patents are a little bit like a pendulum. We go through decade-long shifts where we go from having too much patent enforcement to too little patent enforcement. And it's a little bit hard to know where we are in the pendulum shift. We're clearly going from too much patent enforcement, and we're shifting towards less. I personally think that the Innovation Act does a really good job at keeping the pendulum swinging in the right direction without going too far.

Denise: Mm-hmm.

Eric: But we never really know when the pendulum swings too far until we see what happens in the field; and then we've got to shift the pendulum back.

Denise: Right. Well, Rick Santorum thinks it goes too far.

Sarah: (Laughs)

Denise: And in reading his opinion piece on it, he pulls out the bogieman of China and how, if we go ahead and pass this, we're hamstringing our U.S. companies from being able to compete with China. And he doesn't come out and say this, but he seems to infer that Chinese infringement of U.S. inventions will be far easier if the Innovation Act is passed. Do you have a response to that, Jeremy?

Jeremy: Well, with patents, it's really difficult in terms of causality — as in, if you were to make patents somehow more difficult to obtain, or more difficult to enforce, would that necessarily result in less RND or somehow a detriment to the ability of American businesses to compete in the market? I've always had an issue with causality because, to me, it's not entirely clear whether there is a direct causal relationship between patents and innovation, mainly because it takes several years in some industries to get patents unless you're in an industry that has a very — I would say something like hammers. If you're invention is a hammer, you'll probably get a patent on that in about a year; but if you have a software invention, if you have a computer invention, if you have a pharmaceutical invention, you might be looking at anywhere between three to five years to get a patent. And in some industries, the lifecycle of a product might be over within 5, sometimes six months. And so, by the time your patent issues, your product is already off the market, potentially. It might be obsoleted. And so it's not entirely clear to me — I also read Santorum's OpEd — whether what he's saying will come to pass in the event we make it more difficult for weak patent suits to be filed.

Denise: All right. Sarah, any final thoughts on this?

Sarah: No. I mean, I read the Santorum piece, too. It felt very — there wasn't a lot of substance there. It was kind of just a lot of bogieman. I imagine that there are legitimate arguments against the Innovation Act, but it didn't seem like there were many within that OpEd. (Laughs)

Denise: right. I mean, he seems — to me, at least — like he's actually arguing for it toward the end where he says, "Patent reform — it sounds great, right? But" — let's see. I lost my quote because I'm looking up at the beginning. Toward the end, he is talking about all the problems with patent law that the Innovation Act actually would go a long way toward solving. Here we go. "Might there be areas that could be tweaked to ensure quicker processing of patent applications? Sure. Might we also want to consider focusing our efforts on minimizing patent trolls rather than targeting universities and small inventors? Absolutely." But he says that the bills floating around Congress don't achieve these goals; and, to the extent that they do, they do it by burning down a house to fix a leaky faucet. So I'm sure that we'll see that kind of rhetoric and back and forth in Congress as our lawmakers here in the U.S. consider whether the Innovation Act is going to rise like a phoenix from its ashes.

Sarah: (Laughs)

Jeremy: There —

Denise: Go ahead.

Jeremy: There's actually — this is Jeremy again.

Denise: Yep.

Jeremy: There's actually a competing bill that was introduced called the Strong Patents Act, which commentators say really have no chance of passing. But what it tries to do is to make patents more difficult and validate at the Patent Trial and Appeal Board. That's sort of the — for those of you who are lay people — sort of like a mini court within the patent office that decides patentability issues after the patent has issued. And in the Strong Patents Act, they were actually trying to turn some of the proceedings there in a manner which is more — I would say, solicitors of the patentee, for example, would want the presumption of validity to apply in the proceedings at the PTAB — that's the acronym, Patent Trial and Appeal Board. They also want to make it easier for patentees to amend the claims; and they also would actually eliminate Form 18 as well. And in the district courts they would have a punitive damages provision. So there are other proposals that are out there; but they're not nearly, I wouldn't think, as prominent as the Innovation Act, which — there's one thing that I forgot to mention about the Innovation Act which I think is very important, is that it actually focuses on — let's see. In addition to heightened pleading and the fee shifting, another provision that attracted a lot of attention was the limitation of discovery. So they want to limit discovery before this procedure called claim construction, which is where you ascertain the scope of the claims and the judge issues a ruling on what the claims means. And before this claim construction occurs, there's oftentimes a lot of discovery that goes on that's extremely expensive. And after the claim construction order is issued there is oftentimes a settlement. But getting up to that point might cost a couple of million dollars. And so what the Innovation Act tries to do is to stage discovery, to limit discovery, prior to this very important, I would say, settlement decision point. And it also asks the judicial conference to think of ways to reduce the costs of patent litigation discovery. So heightened pleading, discovery, and fee shifting — those types of issues, for some parties, almost has the look and feel of tort reform. And so you have the Trial Lawyer Bar opposing this type of — well, I guess, this piece of legislation as well.

Denise: Right.

Jeremy: And so you have the universities, trial lawyers — I think those individuals who had opposed this bill last year are still opposing it this year. So the lines have been drawn, and we're hoping that — well, at least, I'm hoping that it actually passes this year because there is a lot of things in here that the Supreme Court, just because of the nature of appellate practice, will never see.

Denise: Yep. There's only so much they can do, and there are only so many patent cases they take with issues that they can reach. So I see where you're going with that, Jeremy; and we will continue to keep an eye on the Innovation Act this time around. I was wondering, Jeremy — we've had a couple of changings of the guard, one in particular at the Patent and Trademark Office. Michelle Lee is going to take over as head of that office. She's a former Googler, and the tech industry seems to think that this is a good change. Do you agree?

Jeremy: Absolutely. I think she's probably, by my opinion, one of the best-picked candidates out there to serve as the director of the PTO. I mean, she was responsible for patents and patent strategy at Google, so she has, I would say, experience in all the relevant areas. So she's been on the side of building patent portfolios, so she's been a customer of the PTO for many years while at Google. At the same time, she has had a lot of experience dealing with the kind of litigation abuses that has necessitated the Innovation Act. And so, in my view, I think she has somewhat of a balanced perspective on patent issues; and it's my hope that she takes, I would say, concrete measures towards making the patent office — I guess, run better in terms of taking patent quality initiatives. I think she has a patent quality initiative meeting later this month that she has set up. My only concern is that she's a political appointee, and I think — when does Obama's term end? Would it be January of 2017? Is that sort of when everybody changes over?

Denise: I think that sounds right, yes.

Jeremy: Right. So she has two years. We're not sure if she's going to be staying on after Obama leaves office, but it'll be nice if she — I mean, given these two years, whether — well, I'm not entirely certain how much she'll get done. Maybe she might need more time. But I'm actually quite optimistic about this particular director.

Denise: That’s great.

Eric: Hey, uh… De…

Denise: Eric, thoughts about Michelle?

Eric: Yes. I did want to pipe up. Michelle is well-known in our community here. She was on our advisory board for the High Tech Law Institute and we had a chance to work with her. I think many people in Silicon Valley are excited that someone who understands our issues firsthand is able to articulate them in D.C. But, what I think is so impressive about Michelle, I think a lot of other parts of the country are also cheering her appointment. So, she’s a really great candidate for pulling together people from all different facets of the patent community. I actually taught in my IP Survey class this semester some material she had posted when she had just taken the job. I’m just gonna read a couple sentences out of it because it captures exactly how I feel if I can quote for a moment… “I wouldn’t call myself anti-patent nor would I call myself pro-patent whatever those labels mean. But let me be clear, I am without reservation pro-patent system.” And so, I love that introduction to her piece because it captures how I feel. I believe in the patent story but I’m not sure if we’ve executed on that patent story properly. And I think having someone in her position who is a believer in the system but willing to question whether we’ve done it properly is as about ideal a candidate as we can imagine.

Denise: Yeah, that does just sound like a great perspective. Any thoughts on Danny Marti who is going to be our next Intellectual Property Enforcement Coordinator as appointed by the White House and approved by the Senate now?  He’s a lawyer from Washington D.C.

Eric: Yeah, this is Eric, and I apologize. I have not had a chance to get to know him but I am looking forward doing so. He’s a little bit of an unknown quantity for me.

Denise: Alright. How about you Jeremy? Do you know him?

Jeremy: Uh, No I don’t, unfortunately.

Denise: He’s the managing partner… well, has been, the managing partner in the D.C. office of the firm Kilpatrick Townsend and Stockton. He’s represented clients in different kinds of Trademark, false advertising, unfair competition, copyright, trade secret, cybersquatting, and computer fraud and abuse matters. Those clients tended to involve businesses selling high end and mid-range consumer fashion products such as: Torey Birch, ADIDAS, American Eagle Outfitters, etc. to protect their trademarks and other rights… so, he’s going to have a pretty significant role as well. Uh, let us move on… if you guys are ready to do so… We’ll thank our second sponsor for this episode of This Week in Law… and that is FreshBooks. So we’ve given you two great tools to help run your business. You’ve gotta, you know… Sign up for Nitro to do your document management and have your built in signatures on your PDFs etc… And then… when it’s time and you’ve been doing your business, it’s time to get paid and that’s when you’re gonna want to turn to FreshBooks. Because FreshBooks is just an amazing cloud accounting software. It’s designed from the ground up for entrepreneurs, small businesses and is perfect for attorneys. I use it in my own practice. It makes my monthly billings and accountings completely streamlined and easy and a pleasure. And those can be really quite a drag if you’re not using the right tools. So, FreshBooks just takes all that stress involved in that process and puts it away for you. As lawyers, of course, we bill by the hour as many of us do anyway. If you’re using a watch to do that, whether it’s an Apple watch or not, you’re gonna find that tracking your time has never been easier than when you’re using FreshBooks because you just open FreshBooks on your phone, you start the timer, and you go. And then when you’re done, that time gets captured and immediately imported into an invoice which you can then keep up and make sure it’s perfect before it goes out to your client. FreshBooks is built for a growing business. On average, FreshBooks customers double their revenue in the first twenty-four months. And get paid an average of five days faster. Are you still wording Word, Excel, or Google Docs to create invoices? Well, while those things might work, FreshBooks is far easier and it’s gonna look much more professional when you’re sending out your invoices… which is a very regular way that you are communicating with your clients and you really have to be putting your best foot forward there. You can also set-up recurring profiles and automatic billing for things you do routinely every month for a client. So that’s just done and ready to go for your client. The customers of FreshBooks spend less time on paperwork freeing up to two days a month to focus on the work they love or maybe even other things they love… Rockin’ out to “Blurred Lines” or Marvin Gaye if they so prefer. So, do you keep your receipts in a shoebox still? That’s not the greatest way to go when you can snap photos of receipts from your phone to instantly capture expenses. And again, those go right onto an invoice to go to a client. You can completely access complete financial reports that you can keep track of expenses and be ready for tax time. FreshBooks integrates with your apps… if you’re a Google Apps person, PayPal, Stripe, Chimp, Fund Box… send payroll, and many more… And if you ever need help, you’ll talk to a real person every time… and support is free forever. So please try FreshBooks right now for free with no obligation and start your 30 Day FREE Trial TODAY by going to and don’t forget to enter This Week in Law when they ask how you heard about us. That helps us a lot! We really do appreciate it when you do that. Thank you FreshBooks, too. For your support of This Week in Law.

Denise: Uh, Eric, we’ve got you on this show and I don’t know how we avoid talking about the social web.

Denise: And in particular a lovely apartment complex somewhere in Florida called Windemere it just sounds delightful until you get in and start reading your agreement. Your rental agreement with them which prevents you from writing any negative reviews and you sign over your rights to your photographs taken of or around the structures of the apartment complex. Can you tell us about this?

Eric: Yeah, so, this is not a new idea. About half a decade ago there was an enterprise called Medical Justice that was going around to the doctor community telling them that they can control the consumer reviews that were written by their patients through a contract that Medical Justice provided them. Now the contract went through various iterations it included at some point a categorical ban on posting any consumer related reviews online. And then in a later iteration, it purported to take a copyright assignment of the unwritten consumer reviews patients might write in the future and then put the copyright in the hands of the doctors which they could then use to send take down notices to the consumer review sites to purportedly scrub the reviews from the web.  It was a terrible system. It was problematic in every respect. Ultimately, the good news is, everyone realized how stupid an idea it was. So after getting a lot of pushback including from a team that I was on, a critical advocacy group that was against Medical Justice’s system. Medical Justice &quote& retired the form, told its doctors to stop using the form and in theory, we all lived a happier life. Doctors now realize consumer reviews are an essential part of building their practice instead of suppressing consumer reviews they should be encouraging them from their patients. Ninety percent plus of reviews that are written by patients are positive about their doctor. So the entire premise of the Medical Justice system that we need to suppress consumer reviews was deeply misguided and we learned a lot. Unfortunately, the system that Medical Justice developed had the capacity to leak over into other industries. At times, we’ve seen other industries come up with either the same system copying from Medical Justice or independently came up to the same conclusion. What if we told our customers don’t review us online and we’ll take a copyright of your unwritten consumer reviews that you might write. So, the discovery of this particular system in an apartment building was I think, perhaps inevitable, but nonetheless was very sad. It shows that the Medical Justice problem has leaked out of the medical industry and is no affecting other segments of our economy. This particular form was particularly poorly drafted, as you pointed out, it had a flat ban of taking any photos within the apartment building and then sharing those photos. Which would interfere with lots of ordinary behavior by their tenants. The fact that we’ve spotted this form now in other sectors of our economy, we’re going to have to go and fix that as well. Just as we did in the Medical Justice problem in the medical community. So, I look at this as an opportunity to go and teach the landlord community don’t do what this is doing and hopefully everyone else will get the message don’t do this. This is really not a good idea.

Denise: Alright, and you pointed out in your quotes when you were interview. They can actually, you know, not only is it not a good idea as far as the Streisand affect and the terrible repercussions they reap in suffering, they went from having very few, very innocuous Yelp reviews to a whole flurry of negative reviews that are not focused on the quality of apartment living experience that you can experience at Windermere but are focused on this Social Media Addendum they tried to ram down people’s throats. The publicity they are getting out of this is just horrific. In addition to that, they may well also be opening themselves up to lawsuits, correct Eric?

Eric: Yeah. That’s my position and we actually have a pretty relevant case on point… Back in 2003 there was a case where a software vendor put into its standard EULA that consumers of the software couldn’t post product reviews about the software. A New York court held that that violated New York’s Unfair Competition law. Simply asking consumers not to review the product was its own form of impermissible competition whether or not they enforced the clause. I think that case is a good lesson for any business that thinks they can suppress consumer reviews. We haven’t seen a lawsuit against the apartment building but as a legal proposition, I wouldn’t want to be in a lawsuit… I’m sorry apartment building’s shoes. I think that the legal risk is significant. And I would say more generally, that I think we’ve learned in the last decade or so that there’s an unwritten rule in our society. That maybe caught a fire in other particular types of law whether it is or not, we’re going to reach this outcome. Consumers should be free to talk about the goods and services that they are consuming and efforts for businesses to gag their customers is simply not acceptable in our society. We’re seeing that, I think, over and over again. There was a law made active in California recently that banned businesses from trying to gag their consumers… That only applies to California. The Florida apartment building won’t be governed. But there is going to be an initiative in Congress to try to create a federal nationwide ban against gagging consumers. I will support that law. I hope that TWiL listeners will support that law. I think that that is the only logical outcome for our society.

Denise: Yep. It makes perfect sense to me. Sarah, I know you read about this, learned about this situation. You know, of course this is pure speculation on my part but, I did not envision an evil property owner or really a savvy enough property owner to realize how badly they were shooting themselves in the foot here. What I did envision was a poorly educated and non-common syndical lawyer who decided that… Gee, we’ve got these social media sites out there and they could really be harmful and I’m going to try and do my job and make my law degree mean something by acknowledging that. And giving my client here some value and try to give them a little more protection in this social media addendum I’m going to put into the lease. Do you think I’m just way out in left field there? I really feel that it’s probably not the client’s fault but the lawyer’s fault.

Sarah: No, I think you’re absolutely right. I mean its bad legal advice from someone who is trying to get fancy and use copyright law, too. I thought that that was a really interesting part of it that not only was it just written content that involved the property but also photos. That seemed like an odd extension of what they were trying to do. But no, I think you’re probably right. There was a lawyer somewhere giving bad advice and whether or not it’s against the law I hope Eric’s right about that unfair competition law kind of being something that would apply beyond, he said that case was in New York, I think. But certainly beyond that, it was a bad PR move. And like he said, this is just violating the unwritten rule that you can’t gag consumers. I would love to see legislation along those lines too though I hadn’t heard about that but that’s great to know.

Denise: Jeremy, can we drag you out of your face palm? Do you have any thoughts?

Jeremy: Well, I guess I’ll have to defer to Eric. I mean, he’s sort of the expert on this issue. I just have not a lot of familiarity with the underlying laws. It did strike me as something that does pop up occasionally. It did strike me as something peculiar, but honestly, like I said, this is sort of outside my realm of expertise. So I don’t think I have anything much more to add than what Eric has said.

Denise: Right. Great. There’s a great law blog that’s been around forever. I hope it’s still around. I haven’t visited in a while, it’s called Overlawyered. I feel that this is in an instance of someone coming in and over lawyering something for their client and I hope that it’s something in your fine law schools, of course, but everywhere we try and discourage so clients don’t fall into this trap too frequently. Are you pessimistic about that too Eric?

Eric: Haha, I’m pretty much pessimistic about everything so that’s an unfair question. But certainly in my classes we talk about the law, we talk about our intuition. Especially in internet law I beg my students not to ignore their intuition. The battle between the formalists and the realists… Formalists being the people who say, unless you told me otherwise in an explicit rule I could do it… And the rule is saying that there are some things that we just can’t do in our society and we’ll stretch the law to fit those rules. It comes up in internet law all the time this formalism versus realism battle. So this is an example of where the drafter took a very formalistic approach. Let me come up with a series of rules that I think could give us control of our future. But the realism interpreters of that action are gonna say no period. So I tell my students to listen to their intuition because that’s going to lead them to a better place than being overly formalistic. .

Denise: Yep. Good advice. Let’s look at one fun, sort of lighthearted issue I don’t even know if it’s even an issue, we’ll talk about whether it’s an issue on the copyright front.

Eric: Do you have copyright permissions for that bass line?

Denise: Hahaha. I believe all the music used in our bumpers is either Creative comments licensed or otherwise podcast safe. And we’ve been careful about that in the creation of the content that goes into this show.

Eric: Because it kind of sounds kind of like the genre of music that I’ve heard before but… After we’re done recording this, you should go get Jeremy to lay down a cowbell track to that…

Denise: Oh, please! Yes! We just, our intern Sam Doe, we have a bunch of topics that we talk about regularly before we ever had bumpers because one of our great interns over the summer did these great bumpers for us and only had time to do a few. And our intern right now just filled in all the gaps and just sent me a whole bunch of other bumpers that we’ll be seeing soon. So hopefully we can get some cowbell tracks in there somewhere along the way, Jeremy if you’re willing.

Jeremy: Well, this is Jeremy, Eric has mentioned my cowbell on this show a couple of times. If you give me heads up I would have actually brought it.

Denise: YES! Well, next time we have you back on this show.

Eric: Well, Jeremy maybe you can do some air cow belling for us?

Denise: Only if you air-slinky, Eric.

Eric: I’ve got Slinky’s there’s no doubt about that.

Denise: Air slinky.

Eric: Right here…

Denise: Oh yea, here we go! No need to air slinky it. Okay, so yea, along these lines of fun and frivolity. A couple of weeks ago, and I’ve been wanting to talk about this on the show for a while but we’ve had some other things that needed discussion. And I don’t know the octopus that took over the camera as it was being studied needed to be discussed until as of right now… But it does, definitely need to be discussed. Now what happened was a group of scientists were studying octopi as they want to do. And they brought in a filmmaker to film the octopi they were studying. The filmmaker was using a GoPro camera that has a setting on it that can allow it to take a continuous stream of photographs that works beautifully in all kinds of situations. And apparently, it works really really well when you hand it to an octopus. Because the octopus really couldn’t go wrong. The octopus at one point tried to eat the camera but in the course of batting it around and turning it around it managed to direct it to take some great shots because it was set to where the shutter goes off every so many seconds. This hit Reddit and the Washington Post is just kind of how cute, the octopus took pictures and of course everyone who listens to the show will be reminded of the monkey selfie situation. I don’t think there have been any copyright claims or controversies about the octopus’ photographs but the new copyright office compendium speaks to this issue explicitly. Now, it is 1,288 pages long… the new Copyright Office Compendium law. Not only have we not yet read the new open internet rules from the FCC, but I certainly have not read, and may never read the entirety of the Copyright Office Compendium of which you speak, Eric. You have found a place where octopi were taking photos?

Eric: Not exactly. The Copyright Office Compendium is really a treasure Trobe for copyright geeks. It’s basically the distillation of the copyright office’s wisdom about how it does its job. And so it covers both procedural aspects of copyright registration and ministration but it has sustenance topics as well. Like what’s copyrightable. In the Copyright Office Compendium they came out I believe it was in December of 2014, they had a discussion on ownership of copyrightable work or edibility of copyrightable works. They specifically said photographs taken by a monkey are not copyrightable. So, the Copyright Office’s position is if a monkey takes a photograph, then no one owns that photograph and anyone who tried to register that photograph will be denied. So the copyright office wrote in on the infamous monkey selfie debates. Now, this case is slightly different because the human turned on the recorder before the octopus actually grabbed it. So it’s very possible that the human will be able to take ownership over the recording because they’re the ones who pressed the button not the octopus. But were they to have handed over the GoPro and the octopus’ tentacles brushed over the on button to turn it on then the Copyright Office’s position would be that the photo is in the public domain. Neither the human who owned that camera nor the octopus an inanimate… or as a non-human entity would be able to own the photo.

Denise: Poor octopi so very down trodden by the Copyright Office.

Eric: You should have seen the animal rights activists in objection to the monkey selfie debate. You know, we’ve got to stand up for octopus or octopi’s rights. I’m just kidding, PETA did not get into that topic at all.

Denise: Sarah, isn’t is a little whacky the topic that Eric was just discussing of the filmmaker who gave the camera to the octopus whether he flicked the auto-shutter setting or not?

Sarah: I think it comes down to whether or not they had anything to do with it or any sort of artistic choices and I saw in one of the articles I read… I can’t remember if it was one of the ones you posted but the filmmaker who looks like a scientist in the picture I think he’s actually a filmmaker says I think the octopus’ timing was great. I was just in the right place at the right time. And to me, that’s exactly right that proves that this should not be copyrightable. We don’t need to incentivize people to be in the right place at the right time in order for an octopus to take their picture. It seems to be that this should definitely not be copyrightable.

Denise: I’m being reminded that the monkey of which we speak was a Macaque. I don’t know if that means if it’s also a monkey but that seems to be the implication. Let’s get onto our tip and resource of the week. I’m gonna try and channel my best Taylor Swift to do the tip which is we never, ever, ever, ever use the term Browsewrap, except to mock it. This comes straight from our wonderful guest here today, Eric Goldman. Because there is a further… there were already muddy waters in the courts about these terms Browsewrap and Clickwrap agreements and what sort of legal ramifications you might get from either and those waters have gotten even muddier. So our way through this tunnel of muck as per Eric is to just not call these things Browsewrap agreement is no sort of agreement at all. Can you explain that for us, Eric?

Eric: Yeah. First of all, thank you for channeling Taylor Swift but I do believe she watches TWiL and she is notoriously litigious. But we’re back at this copyright problem we just can’t escape it but you rocked it. That version was better than hers. I think there’s a market for you’ll never, ever, ever use the term Browsewrap again. I think that will be more popular than her song. In 2014, we had a case from the Ninth Circuit Court of Appeals that analyzed the difference between Browsewraps and Clickwraps. It did so in a way that you would expect a non-internet user judge to try and understand the issues. I’m not saying the judge that wrote it doesn’t use the internet but that’s kind of how it read. The result has been that the courts who tried to apply this 2014 ruling are trying to figure out what this ruling meant as applied to their facts. We had a couple of cases earlier this year in 2015 where the court said, I see these things called Clickwraps and I see these things called Browsewraps and the fact pattern that I deal with has a little bit of elements of both of them. This kind of stuff drives me absolutely bonkers because that means the typology is not precise enough to tell judges if Clickwraps do this, or Browsewraps do that. The judges are saying well I see a little bit of both I’m not sure what to do here. So I teach my law students to never, ever use the term Browsewrap. Then they turn around and say Professor Goldman, you just used to term Browsewrap. So I say Browsewrap with a sneer. BROWSEWRAP. Just to make it clear that I’m mocking the term not using it as a term of precision. My hope is that nobody that’s listening to this will actually use the term Browsewrap ever again. What I tell people is that there’s a thing called a Click-Thru agreement where someone clicks on something on a webpage signaling their consent to the terms and that is legally enforceable. There’s not really a lot of debate about that. There might be some sort reasons why the agreements are not enforceable but the procedure will satisfy contract law. And everything else that’s in the contract and anyone who tries to enforce it is probably engaged in bad lawyering and/or desperation. So if we could just scratch the phrase Browsewrap I think all of our lives would be better. We’ve certainly seen that when the courts are just beating their heads against concrete walls trying to figure out what the term means.

Denise: Right, and I’ll throw in a corollary tip of the week for those of you in an entrepreneurial business bent I think we could really use a one-stop click-thru agreement service out there. And maybe some exist, but you guys can tell me about them if they do. But as Eric has pointed out, there’s all sorts of confusion in the courts except about the fact that if you do a click-thru agreement and you do it right, there’s some detail to doing it right, then you’re going to have an enforceable agreement. And I think there’s a missing commercial piece of service out there that business can readily go to and say, Okay! I have this thing, we have terms or contest or something that were doing that we need to have people to agree to and I need one-stop shopping to just to the mechanics of that agreement. You know, lawyers can draft up all you want. But like the judges that Eric’s referring to, they may not know exactly the fine point of implementing a proper click-thru agreement and I think we could use some help along those lines. Eric, do you know of anything that’s available?

Eric: No, but it’s a great idea. And actually, I think you should try and get the patent on that ingenious idea and Jeremey might be able to help you out with it.

Denise: Yeah, there we go. We got it all buttoned down on this one show. Alright, well we’ve got a resource of the week for you too before we get out of here. We do need to put a second MCLE passphrase into the show. In honor of our forthcoming resource, that passphrase is going to be What’s Next? Because our resource of the week is an article by Harold Feld a quick and dirty rundown… as quick and dirty as it can be because it’s very complicated the answers to the various questions on what’s gonna happen next in the whole Net Neutrality procedural chess game. So the open internet rules we now know are there and available when you have the time to sit down and read through 400 pages. Which we will all hopefully do in the next week or so. But then there will be steps after that, right? It has to be published in the federal register then 60 days has to go by and people can then start filing appeals to get those rules in front of the court and bottom line, you can look through Harold’s article on all of the steps and when they are expected to happen. And you can see that and everything else we’ve discussed today at

Denise: But the bottom line in that piece is that if federal regulation publication happened, say next week, if the rules are published and ended up in the D.C. Circuit which is the court that heard the Verizon v. FCC case… we’d probably get briefing done by Fall with argument beginning next year, might be sooner if the parties agreed to an accelerated briefing schedule. So as far as final resolution by court of whether the Open Internet rules will pass muster and be enforced you’re looking at early next year at the earliest. You can read more by Harold Feld. Thanks everyone for being with us for the show today it’s been a huge pleasure to meet you Jeremy. Tell us if there’s anything going on at the University of Memphis that want to let people know about.

Jeremy: Well, it’s Spring Break this week. I don’t believe there’s much happening this week. I was really excited to be here and thanks for inviting me.

Denise: I’m very excited to meet you too and I’m very excited to have you and your cowbell back. I hope that somewhere on your campus there’s a competition you’re gonna be running off to very shortly here. And maybe we could get some video of that for our next show as well. It’s been great talking with you, we’re excited about the Innovation Act coming back and we’ll continue following your writing and scholarship on patents and patent reform.

Jeremy: Thank you.

Denise: Eric, such a great pleasure to have you back on the show as always. You are never not awesome. You were certainly wonderfully awesome today. I know you just had a conference at Santa Clara that I would have loved to talk with you more about but we’re sort of out of time now. It was the 5th Annual Internet Law Works in Progress Event. Any quick take a ways from that?

Eric: The Work in Progress Event is a chance for academics to talk about their draft papers before they’re finalized. They get peer feedback so it’s really about seeing what’s coming down the pipeline as opposed to learning what people have already come up with. The main take away from that event is that the Internet Law academics love to play games with each other. So we have game night afterwards and the big hit, a new revelation for us was Cards Against Humanity. We had a couple of tables with Cards Against Humanity playing going on and a lot of ruckuses there. I would say though Cards Against Humanity was a little bit tough for me because there were a lot of terms there, I must confess I did not know. Half the time I just tried to look up the terms to get hip with the new lingo.

Denise: So there we go, our second entrepreneurial business idea for the show. A cheat sheet for Cards Against Humanity for those of us of the older generations. Eric, so glad you could join us again. We hope you’ll do that again soon… and congratulations once again on the 10th Anniversary of your technology and marketing law blog. If you’re not already reading it, you have to be reading it. It’s the seminal of both academic and general informational resource on internet law and policy. So, thanks so much for providing that to all of us for the last ten years.

Eric: Yeah, thanks Denise and thanks for including me on TWiL I’ve lost track of the number of times I’ve been here but it’s a delight each and every time. I personally view you as a national treasure.

Denise: Aw, thank you so much. It is very mutual and again, you know every time I have you on the show, I’m like you know… they have Michelle Lee running the U.S. Patent and Trademark Office and this guy, Daniel Marti is the Internet czar, or whatever his title is, Intellectual Property czar in the White House… Someday, Santa Clara is gonna lose you as a national treasure to all of our benefit I hope and trust. So thank you so much Eric for everything that you do and for joining us today.

Eric: Thank you.

Denise: Sarah, wonderful to chat with you. We were talking before the show about talking more about Creative Commons on an upcoming show. I would love to do that with you and have you answer people’s questions about Creative Commons so we’ll have to make sure and do that very shortly. Maybe on our next show, which is not gonna be next week, we’re taking next week off. But on the 27th of March when we’re also gonna have University of Wisconsin Professor Shubha Ghosh and Stanford Research fellow Andrew Gilford joining us. I look forward to that in late March. And, uh, Sarah it was great chatting with you. Is there anything you would like to let people know about before we get out of here?

Sarah: Um, well, the one thing that I’m really excited about at Creative Commons right now is we’re doing a new initiative where we’re helping companies and non-profits develop business models around CC licensing or revenue models in the case of non-profits. And I’m really excited about that work so I’ll probably be updating people about that as we go. It’s an exciting new thing.

Denise: It is, and you can tell us more about it then when we talk more about Creative Commons…

Sarah: Yeah, perfect.

Denise: Alright folks. Thank you so much to our audience members as well for joining us today. If you have done so at eleven o’clock, 500UTC with us Live then you can do that… if you can’t do that, don’t worry because the show is available on demand in many myriad ways. If you go to you will find all of the ways that you can subscribe, download, stream… however you would like to watch the show there are various ways to do it there. YouTube is one of them, you could go to our YouTube Channel at 

Denise: You can also interact with Sarah and me between the shows. She is, I’m  Hit us up on Twitter, Facebook, or Google+ there are pages for the show on each of those social networks where you can chat with us at much more length than you can on Twitter. We love to hear from you however, whenever, wherever… We love to hear from you about your thoughts on the topics that we’ve discussed… on things you think we have to discuss, shouldn’t miss discussing… and also, guests… we love to hear from you about who you think we should have on the show because I’m not afraid to invite anybody. I think we should just, you know, take a flier at it. Sometimes we get great people like the guest we got today. We are very fortunate to have had them and to have had you joining us and we’ll see you not next week, but the following week for our next episode of This Week in Law. Thank you so much, take care!

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