This Week in Law 297 (Transcript)

Denise Howell: Next up on This Week in Law, Sara Pearson, Shubha Ghosh, Andrew Gilden and I discuss lots of interesting things. This week we’re going to talk about those SpaceX photos. Are they really in the public domain? We’ll talk about fair us for the rich and fabulous, a novel free speech argument tempted by Pandora, good flags, bad flags, and much more on This Week in Law.

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This is TWiL – This Week in Law – with Denise Howell and Sarah Pearson. Episode 297, recorded March 27, 2015

Copyright or Sticky Tape?

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Denise: Hi, folks, I’m Denise Howell and you are joining us for This Week in Law. Welcome back! We were on a break last week, but, we are thrilled to be back at it, this week. On This Week in Law, we’ve got a fantastic panel, as usual, we bring you some of the brightest people in the land, to discuss and ponder the thorny issues at the intersection of technology and law. Before we introduce you to our industrious guests, I’m going to introduce you, once again, and welcome back to the show, my co-host, Sarah Pearson. Hello, Sarah.

Sarah Pearson: Hey, Denise, how are you? I’m glad to be here.

Denise: I’m good; it’s good to see you.

Sarah: Good to see you!

Denise: Did you have a good week?

Sarah: Yeah, I did, I was at the University of Minnesota working on an OER project up there, the beginning of the week, so that was kind of fun.

Denise: And, we have good, Creative Commons related stuff that’s been going on since we took a hiatus between now and our last show. For those that haven’t been following on too closely at home, Sarah is council to Creative Comments, and if you’re not familiar with what Creative Commons is, we’re going to talk a bit about that, quite a bit about that, actually, in the show, today. So, before we get to all that, we’ll introduce you to the two panelists, today, uh – today, joining us, we have Andrew Gilden, who is a research fellow at Stanford. Hello, Andrew!

Andrew Gilden: Hi, Denise, how are you?

Denise: I’m great, how are you?

Andrew: Great! Thanks for having me.

Denise: It’s wonderful to have you, uh – tell us about the interesting work you are doing at Stanford.

Andrew: Sure, so, my research mostly looks at … property and internet law, and I’m particularly interested in questions of creativity, expression, and identity development, um, which covers a broad range of law in tech issues.

Denise: It sure does! Alright, well, we’re going to get into a lot of that in the show, today, um, but, we’re going to do so along with yet, another illustrious guest, Shubha Ghosh from the University of Wisconsin. Hello, Shubha!

Shubha Ghosh: Yea, hi, Denise. Thanks for having me on!

Denise: It’s wonderful to have you on, and congratulations to the Badgers for making it to the elite 8.

Shubha: Yep, uh, I’m happy! You can tell from my picture.

Denise: Yes! (laughing) Shubha is in a technical situation where he is not able to join us by video, but, we’re happy to have you with us, live. And, we’re happy to just chat with you in whatever way that we can. I’m sure that the atmosphere around campus is pretty giddy, right now?

Shubha: Actually, I’m in Washington DC this year, on sabbatical, so, I’ve been enjoying it from a distance, but, uh, yea, it is pretty giddy.

Denise: Oh, wonderful! Good – good!  Well, no wonder you are able to do things like attend Supreme Court oral arguments. That’s very convenient.

Shubha: I’m going to attend some, next week, yeah! Just down the block from where I’m working.

Denise: Alright, well, uh – we’re going to discuss a broad range of things, today, and we’re going to start things on the copyright front.

(music and picture of FBI copyright warning law)

Denise: Ok, Sarah, I think we’ll get into one of these Commons related topics right away, with SpaceX and the sort of strange saga that ensued when (Elon Musk) made a bunch of available photos, uh, put a bunch of available photos on Flickr, and licensed them with the Creative Commons licenses that Flickr uses. Then, got called out by someone on Twitter, who said, “Hey, Elon, why don’t you go ahead and put these things in the public domain, why just use a Creative Commons license?” Elon Musk tweeted back, “Hey, that sounds like a great idea, the pictures are now in the public domain.” But, does that really get him where he needs to go, Sarah?

Sarah: Yea, so, that was kind of a fascinating twist to me, that it was just some random person on Twitter that kind of prompted this pretty big change. Um, but, no – yea – the question of just saying in a Tweet that the photos are in the public domain, that’s definitely debatable. Um, but, I think, so, now, what has happened in the few days following is the photos are actually now up on Wikimedia Commons, um, under cc0 which is our public domain dedication tool. So, part of the problem is that Flickr doesn’t actually integrate with cc0 capabilities. So, they only have the six regular cc licenses and they don’t have the public domain dedication. Although, we’re hoping to kind of work on them through this, because what happened is they ended up losing the photos. Maybe they’re still on Flickr, too, but, now, the photos are also up on Wikimedia Commons, just because they wanted access to the cc0 tool. So, that’s kind of the history of what happened, uh, so far at least, and it’s probably kind of a continuing story in some ways – to the extent that Flickr changes what they are doing.

Denise: Well, how does it work if they are still up on Flickr and, we have, you know, attached to them, there one kind of license and they’re up on Wikimedia where people can see that they have this cc0 license attached to them? Do you see that being a problem?

Sarah: Yea, it’s certainly confusing. All cc licenses are non exclusive – you could technically put 6 different cc licenses on your work and people have access to use under the terms of any of them or of any of the ones that they’re a licensee to, which just means – if they got the work on Wikimedia Commons, then, they could rely on cc0. If they got the work under Flickr, they could, uh – I guess, technically…that would be questionable, I would think that they would also, you know, they are in the public domain, now, so you wouldn’t have to comply with the license that it says on Flickr. But, it is definitely confusing, for sure.

Denise: Right – as a practical matter, nobody is going…as long as Elon and friends are comfortable – that they want the works out there, they aren’t going to be enforcing any, even if they have a slightly more restrictive license on Flickr, correct?

Sarah: That’s right, that’s right! And, I think, I’m not certain, I don’t even know if they say who the photographer is, um, so, it would be interesting – who would people even attribute, um, if they were going to use the photo and…lots of times, when photos are in the public domain, you still try to, you know, give attribution, even though it isn’t legally required, just because it is the best practice. But, um, it would be interesting – I don’t think that the photographer has actually been named. I’m not certain of that, but…

Denise: Right!

Sarah: One other thing that, um…

Denise: (starts to say something)

Sarah: Go ahead…

Denise: Go ahead, sorry!

Sarah: Oh, I was just going to say, one other thing – one of the links in the show notes had a talk about whether or not you can really dedicate a work to the public domain and kind of an interesting discussion about the cc0 tool and its potential limitations, and I think it is interesting, um, but, the way cc0 was created, which was long before my time, so I can’t take credit for it, but, it’s pretty ingenious, understanding that not every jurisdiction allows you to, affirmatively put works in the public domain, it has a fall back – a couple of different fall backs. So, one is – if the waiver doesn’t work, then cc0 just acts as a license to do anything that you want with the work with no conditions. And, if for some reason that is held unenforceable, it is also a non-acert promise, basically, by the person that is applying the cc0 tool. So, it has a couple of different mechanisms to try to deal with jurisdictions that don’t – um, unlike the US, where there is, uh, I think there is, uh, binding authority – well, not binding authority, but, there are cases that say that you can dedicate something to the public domain, here – but, I think it’s not the case everywhere in the world. So…

Denise: Shubha, do you have any thoughts on that, other than the fact that this whole episode seems to give you a lot of fodder a copyright exam, for example?

Shubha: (laughing) I try to think beyond that, but, yea… It is a really interesting development – just a comment on things outside the US – I would worry about moral rights issues, especially on that. The attribution and some of the other things, moral rights tends to have its own logic to it, separate from copyright, and so, it’s not completely clear to me how the Creative Commons license works for that. I think there aspects of the license that can deal with that, but, that’s going to be a concern, outside the US. But, copyright is a different IP regime – it’s the most like sticky tape. It really is hard to get rid of – short of simply not enforcing, but, that requires a lot of forbearance by whoever the copyright owner might be. But, it seems like the Creative Commons license is certainly a positive step on this, and, you’re probably fairly accurate in saying that these images are in the public domain. Though, how stable that domain is going to be, is left to be seen.

Denise: Shebha, can you explain, for any of our listeners who are lawyers, and, I’m sure there are plenty who are not – what the difference is between copyrights and moral rights?

Shubha: Oh yea – sure! So, copyrights deal with, uh – I think copyrights have existed longer than moral rights. ‘Moral rights’ probably is a creation of the late 19th century, following a European tradition that’s trying to respect the integrity of author. It is almost like a personal right of the author in the work to keep it from being misattributed, from being destroyed, from being altered. And it really is about protecting the personality of the author, as being embodied in the work. While copyright just treats the work as if it is just another commodity that can be bought and sold. It is really protecting the economic interests. They are parallel…the United States is sort of avoided moral rights until the late 1980’s. I guess if you want to think of the US adopting moral rights – probably 1989 when it entered into international treaty, called, The Berne Convention. And, in order to enter that international treaty, or to protect the US interests in copyright law, the international treaty also required the US to recognize these things called ‘moral rights’. And, um, moral rights, as they exist in the US, are fairly narrow. I could go into more detail, but, that is the big distinction between the two. A copyright deals with the economic interests while moral rights deal with the rights of the personality of the author. Um, so, I hope that is helpful in sort of setting up that distinction.

Denise: It is! It is still confusing to me since we don’t really have that principle in the US, right – or did you say that we actually do?

Shubha: Well, we sort of do – this is where it gets interesting…in order to enter into the Berne Convention, the US had to ensure the other signatories, which were largely European countries, that it did recognize moral rights. So, in order to comply, the US did alter the copyright law to introduce a narrow band of moral rights for works of visual artists. It includes photographs, it includes…in a very narrow way, it also includes, mostly it includes graphic and design works. But, if you actually ask somebody at the US Administration at the time, their position, in the international arenas, if the US always had a type of ‘moral rights’… For example, if somebody altered somebody’s work, the US position was – well, under US law, we don’t have something called ‘moral rights’ in name – we have something like defamation in law. Or in some situations, we might have some aspects of unfair competition or trademark law that protects the same sort of interests that are separate from copyrights. So, that is where it does get confusing…part of the confusion really stems from the half-hearted way that the US adopted it, in order to be able to sign on to the treaty. And, really they wanted to sign on to the treaty at the Berne convention, to protect its copyright interests overseas.

Denise: Got it! (Sarah starts to talk) Yea, go ahead Sarah…

Sarah: I think another reason it is kind of confusing for Americans is just because the tension with the First Amendment, at least with the right of integrity, this idea that you wouldn’t be able to touch a work because of the author’s, um, you know, this kind of romantic notion with messing with the author’s creation seems, in a lot of ways, is in tension with the First Amendment and the way that we view things in the United States. So, I think that is part of why it is a little bit uncomfortable from an American perspective.

Andrew: What is funny about that – when you talk to artists about why they would want some sort of IP protection, it would be because they get attribution, protect their reputation – and these are actually things that copyright doesn’t protect. So there is an interest and disconnect between what the international regime provides and what artists expect. It is just interesting tension – both around the First Amendment and between what artists are asking for.

Sarah: I absolutely agree – and I assume that a big part of that is because American copyright has become more focused on the copyright holder and not the artist or author, which is in tension with moral rights – which is, as Shubha noted, is really about protecting the author. So, I think – it just seems like the way the American law is skewed in recent years.

Shubha: And, not to add to the confusion, but, even the ‘freedom of expression’ is confusing within copyright, because, usually, we think about it terms of, let’s say, somebody who is making a parody or some type of a derivative work, saying, “I have the right to express myself, building on what somebody did before.” But, at the same time, we think about, or at least the Supreme Court has sort of talked about ‘free speech rights’ of the author. That itself is sort of split, I mean, the ‘free speech rights’ of the author and the ‘free speech rights’ of people who want to build on the author’s work.

Andrew: An interesting twist of, potentially an intermediary, I think we may be getting to that later in the discussion.

Shubha: Yea, exactly – freedom of press issues and things like that, yea!

Denise: Alright – we’re going to go ahead and put our first MCLE pass phrase into the show. It’s going to be, author author. These are phrases that we drop into the show in case you are listening – in hope of getting continuing legal or other professional education credit. We do have these wonderful guests on, every week, who are leaders in their field on the topics that we discuss. I think it is a great idea to your MCLE oversight board and say, “Hey, I listen to TWiL, throw a little credit my way.” We have some resources for you, if you are interested in doing that. If you go to - one of our wonderful interns put together a list of all the 50 jurisdictions in the United States and how you would go about it – at least for a lawyer – communicating with your local bar or state bar about getting credit for listening to the show. So, that is there for you, and we will drop another phrase into the show at a later time, so you can actually show one of the oversight boards – if you have to – some states require this, that you’ve actually listened to or watched the show.  Let’s also, since we’re taking a quick break here, thank our first sponsor for this episode of This Week in Law, and that is Nitro. Nitro is an amazing tool, it is a deleting alternative to Adobe Acrobat from individual users to large enterprises, Nitro gives you everything you need to easily view, create, prepare and sign (that’s really important if you’re dealing with the legal aspect of things) PDF files. Delivering more value through a clean UI, simple deployment options and the best customer service in the business. Easily connect and host documents in the Nitro Cloud, enabling you to securely complete transactions with legally binding esignatures, print to PDF form any application, using the Nitro Pro virtual printer driver, simple one-click PDF conversions to any MS Office format, and, back, again. You can add text, anywhere, on a PDF document, even if it doesn’t have interactive fields for that. You have intuitive editing tools, that let you manipulate text, change fonts, and customize layouts and more. And, the Nitro Pro UI is based on the familiar Microsoft Office Ribbon, so, it is going to be very intuitive and easy for you to pick up if you are already working in that universe. You can transform any scanned document or image into a searchable and editable PDF with OCR, you can offer feedback and collaborate with others using simple mark-up and review tools. And, Nitro Pro is used by over half a million businesses, including 50% of the Fortune 500. So, you know that this thing is well tested and reliable. If you haven’t checked it out, yet, you should – and you can do that by going to To learn more about Nitro and their document solutions, and, as a special offer for fans of this show, you can try it free for 14 days. No credit card required, just go to  Thank you so much, Nitro, for your support of This Week in Law.

Denise: Let’s talk about artists and artistic inspiration and, Andrew, you’ve done a lot of research and given a lot of thought to the artistic process, and, particularly this notion of ‘raw materials’ being something that might not be subject to copyright – as we think about it. Can you explain that for us?

Andrew: Yeah, so, in the past decade or so, there has been a shift in how courts address the question about whether a use is transformative for purposes of – primarily copyright ‘fair use’ but, also in the right of publicity context, as well. And, the courts have been asking whether an artist used a pre-existing work as “raw material” and if so, it is likely to be transformative. And, this inquiry has gained steam in some well known cases involving artists Jeff Koons and Richard Prince and this inquiry has been celebrated, because it has generally expanded the rights of authors to…of artists to free the copy from the world around them. But, what I argue in the forthcoming article is that is a kind of problematic way to think about the relationship between the artists and their sources. Often, artists don’t take from the public domain or from cultural environment, and take works and think of them as raw materials. They aren’t raw – they are actually rich with cultural meaning. There are movies, books, um, photographs that artists often have a very significant emotional connection to and if the courts are requiring them to treat them as “raw material”, then, again, we have this distortion between what copyright law is devising and encouraging and what artists are actually doing on the ground.

Denise: Right – so tell us about Jeff Koons.  I think once upon a time, a very long time ago on the show, we talked about his suit that involved making a sculpture that was based on a photograph, and the sued. It was a photograph of couple with a bunch of puppies. (laughing)

Andrew: Right…a string of adorable, blue German Shepherd puppies.

Denise: Right!

Andrew: So, in the early 90’s, Jeff Koons lost three lawsuits that were to challenge some of his sculptures. One was a – he took a photograph of the couple with these German Shepherd puppies and turned them into this sculpture. Another one involved a sculpture of Odie the dog from Garfield. Another one was a photograph, I believe it was, of two children with a wheel barrow – and the authors of the underlying images sued and there is a second circuit case called Rogers vs. Koons where the second circuit said, ‘this is not fair use’. Jeff Koons is not commenting about anything – kind of inherent in the original and that was – in some respects – a low point in artistic fair use. That was actually before the Supreme Court’s game changing case in Campbell, where it said that the Two Live Crews parody of Roy Orbison’s song, Pretty Woman was transformed and brought in this idea of transformative works being fair. And, fast forward to 2006, there was another case in the second circuit about Jeff Koons, where he took a photograph of a woman’s legs from Allure magazine and collaged them into a painting and the second circuit had a completely different tune, saying he was using these images as raw material, he was commenting on commerciality and society, generally – and that was enough. So, the landscape really has changed in a way that has expanded artistic freedoms, generally. But, my concern – I’ve read about this a bit – is that there’s been some unevenness in that expansion. That, if you are an extremely famous artist, like Jeff Koons or Richard Prince you can use all the raw materials that you want. But, if you are a less known artist, things are a little dicey-er. And, the case log has born that out over the last few years.

Denise: Right, and you have a wonderfully titled article on that topic called, Fair Use for the Rich and Fabulous. (laughing)

Andrew: Yes!

Denise: That, along with everything else we are discussing, today, is in our discussion points at if you want to look it up and read it in its entirety, but, um, your point, there, is the one you just made. If you are Jeff Koons, you might have a better – even though he lost his case when it happened – today, you would have a better chance of having your work pass ‘fair use’ muster, but, if you, for example, the person who made the GIF I saw this morning, that was some sort of commentary about copyright law – I was trying to find it just now as we were talking and can’t find it – but, it was a GIF based on My Little Pony and…oh, I remember what it was in Parker Higgins and Sarah Jeong’s wonderful – oh, there it is, I just found it – so, if you want to look it up, too, go to their ‘5 Useful Articles’ newsletter, which I highly recommend. They are so funny and wonderful. There is a GIF that they feature in there with all the Little Ponies jumping around in there and they say, ‘All I want for my birthday are reasonable copyright terms’; because, they are talking about the Happy Birthday lawsuit that is going on – the Happy Birthday to You song lawsuit. So, for the person coming up with that GIF, getting back to my point, they might not be in as comfortable of a situation as Jeff Koons, even though they are hitting all the ‘fair use’ factors – or quite a few of them, by having commentary. What they aren’t hitting is necessarily commenting on My Little Pony in their copyright related GIF. Right, Andrew?

Andrew: Yes, and courts are fairly inconsistent about whether they require this commentary in the original. So, there are a few cases, last year, in the Central District of California where artists were, seemingly…were taking images of…photographs, specifically of Sid Vicious from Sex Pistols. Photographs of him doing, kind of War Halian takes on his work and the court said, ‘you aren’t really commenting on the original’, even though in the Jeff Koons’ case, the second circuit didn’t require such a narrow requirement. So, what you see happening in some of these cases is that there really are some, almost surprising language about…at the Richard Prince opening there was JZ and Beyonce were there as were Anna Wintour and maybe Brad Pitt, I think was in the list…you actually have a, kind of, celebrity list from the Goshen Gallery that comes into covering opinions and, not everyone has access, you know, to JZ on speed dial.

Denise: No, not like you and me, Andrew…(laughing) Uh, Shubha, do you have any thoughts about this raw material doctrine – or not doctrine, but, - the interplay between raw materials and ‘fair use’?

Shubha: Yea, no, I think, uh, I mean, I think Andrew hit on a lot of the big points, I mean part of the background, I’ve written a little bit about using raw material when you are looking for protection for data, but, that is a completely different area. You know, which overlaps with privacy. In some ways, the whole idea of something raw versus processed might work there when you are just dealing with basic, really basic underlying information that hasn’t been put through some sort of creative or other type of process. But, I think Andrew is right – it is very hard to operationalize what is transformative and the courts are all over the place. I think 20 years ago there was satire versus parody distinction that came out of the Campbell case and that distinction, that always has alluded me, I think it has alluded most people, I mean you can articulate sort of a distinction, the court sort of says, ‘are you commenting on the work or are you commenting on something else outside the work?’, but, you don’t have to be very deep in literary theory to realize those boundaries between the work and the what is outside the work is just pretty permeable. So, I don’t have – I think it is very hard to come up with a substance of standard. But, the one thing I’ll add to his comment, and this kind of dovetails with some things I’m working on, now, in other areas, is that a lot of this is really reflecting some of the problems in the federal litigation. I mean, I don’t want to oversimplify it, but, I will just for the sake of our discussion. But, a lot of it depends on access to good attorneys and, you know, just sort of access to justice issues more broadly, and, so, it would be interesting to think about these issues from those terms to see if there could be some alternatives to a federal system of adjudicating this, but, that is just extremely costly and I think it does favor, I forget Andrew’s exact term, the rich and fabulous, certainly the rich and possibly the fabulous. (laughing) So, that’s the one wrinkle I would add to this and I think that is important to keep in mind.

Denise: Yeah, absolutely! Sarah, obviously, ‘fair use’ is much on your mind and in your work, anything to add?

Sarah: Yeah! First of all, I want to say, Andrew, this article was fascinating. I wasn’t going to read the full article last night, but, I did. I just got totally sucked in, and I want to spend more time with it, too, so, I actually have some questions for you.

Andrew: Sure!

Sarah: The great thing about it was it really got me kind of challenging, like you said, I think it is easy to kind of reflexively say, ‘of course, these, you know, these opinions are good for artists, and I really liked how you kind of challenged that conventional wisdom. Um, I guess one, kind of, question I came away with is, do you think that there is anything to the fact that, you know, maybe rather than it being about the defendant side and whether or not they are famous, whether it is actually about the work on the plaintiff’s side, so the copyrighted work that is being used, whether that is famous or not? And, so, what I mean by that, I guess, is, you know, I think that this idea of kind of ‘building block’ versus ‘raw material’, you made a really compelling argument that we are kind skewed more toward thinking of raw in kind of literal sense. Um, and it having to devalue it and, kind of, strip it of value, um, and in some ways that makes sense for those defendants to be making that argument, because they want to minimize any idea that they are, or any perception that they are capitalizing on the fame of the original, so, um, you know, for right or wrong, it kind of feels to me like that is a logical outcome, not necessarily a good one or not. But, um, I wondered, it seemed like a lot of the examples of ‘fair use’ not working on the ‘raw material’ side were examples of non-famous artists using famous works or in the publicity rights sense using famous celebrities in images. Do you feel like this also translates to situations where non-famous artists are using non-famous works as ‘raw material’? I don’t know if I’ve articulated that very well, because I’m kind of…..

Andrew: I think you are spot-on, that it is a lot easier to think of some guy in Jamaica who no one knows of as ‘raw material’ for a famous artist like Richard Prince that it is to think of the Catcher in the Rye as ‘raw’, as sort of ‘unworked’ and ready to be transformed in a variety of different ways. So, I think you are right, when it is sort of a ‘big-guy versus a little-guy’ it is very difficult to map onto this idea that artists need to use pre-existing materials as ‘raw material’. Um, the ‘small-guy versus small-guy’ example, um, I don’t… I think there are a few… I’m not seeing a whole a lot of a trend there. I think it is actually pretty scattered. Probably, because I actually don’t think the metaphor does a whole lot of work, there. And, if judges are using this ‘raw material’ metaphor to make decisions, um, it’s not going to be very helpful unless it is fits the mold of, um, the romantic author who, kind of, purveys the ‘raw materials’ of the world, and , um, yea, and that tends to skew in one direction, and, so, hopefully, as we see ‘fair use’ expanding through this inquiry, it isn’t going to stop here, and this is just the beginning of the discussion about, what is the range of creative freedoms artists need and how can courts capture that adequately.

Sarah: Yea! I’d love to hear you talk a little bit more about, too, how you would re-envision… because it seems to me like you are not necessarily… I don’t want to put words in your mouth, so, correct me if I’m wrong…but, you aren’t necessarily finding fault with this idea that work builds on itself, and, um, you know, this idea of building block versus…it is more the ‘raw material’ aspect…the ‘rawness’ you are finding fault with. Is that correct? And, also, could you talk a little bit about how you would kind of re-envision us seeing some of these transformative cases?

Andrew: Yea! I mean…absolutely! Part of creativity is working with what came, before. But, a lot of times it is not about erasing the origin of the work, it is about being inspired by a book, a movie, a painting, and, my concern is…I would like artists to be able to talk honestly about their relationship to there sources without feeling like their legal situation is being jeopardized. I think that is actually one problem…I don’t want to get off topic with some of the blurred lines….

Sarah: That is exactly what I was thinking, yea…

Andrew: Yea, is that you…if you…you need to think about only terms of mocking or parodying, maybe satiring, or erasing the person on the other side, that is a very narrow understanding of what artists do, so, what I argue in the paper is some notion that if what we’re trying to get at with ‘raw materials’, and actually, transformative use, more generally, is creativity, then maybe we should just be asking whether their work is being used as part of the creative process. It is not going to… that does sweep a lot of…will probably sweep more uses within the umbrella of ‘fair use’ than were before, but, I think that is asking the question that we are trying to get at, but, for some reason, we are hesitant about going there.

Sarah: So, more on the subjective intent of the person reusing the work and how they actually came to use the original…is that…my understanding correct?

Andrew: Yea! There is some controversy about a subjective intent test is the way to deal with the ‘fair use’…I think that can be abused a bit, but, looking at the artists’ creative process to understand…get a sense about the ‘who, what, where, when and why’ of the process at issue. I do think that there is a possibility that someone with a good lawyer will produce a better deposition testimony, but, it is at least asking the right question. My concern is that, right now, the courts are asking…are sympathetic. They seem to be increasingly sympathetic to the importance of ‘fair use’, but, have a difficult time figuring out how to best capture it.

Sarah: Right, and….

Denise: And, they’re not alone, because if the courts can’t figure it out, then all of us who want to exercise our ‘fair use’ rights have a really hard time figuring that out, too. Shubha, what do you think about the notion of adding…you know…looking at the reuser’s intent in doing so and adding that as a factor…maybe replacing what one of the other factors with that?

Shubha: I don’t…I actually like it. I need to run off real quick, though, sorry about that, but, uh, just to answer your question – I really don’t think courts are going to be able to gauge it, I think they try to do this in another area of copyright – having to do with protection for designs, protection for industrial designs, where there is a test asked, ‘did you make this sculpture as a sculpture so that it would serve as a bike rack? …the famous ‘bike rack’ case. Or did you make this armless figure to serve as homage to the Venus de Milo? Or, was it meant to be a dressmaker’s dummy? And, I just don’t think those cases make much sense to me or that they work. I would really just go back to the basics of copyright and really ask, first of all, whether the alleged infringers work, really somehow, undermines the creative process? That is a very broad question, but, to really look at it, structurally, as to whether it actually undermines the creative process that led to the original work, and, also ask whether absence…some sort of finding of ‘fair use’….this gets to Andrew’s point about creative process. Really, would it affect the creative process of the alleged infringer So, I’d really like the court to get a little bit deeper into really understanding how the works are made, and, really develop a record that way, rather than trying to gauge, after the fact, what the artist intended.

Denise: Let’s let you jump in – in a second, Andrew. I know Shubha needs to go catch a train and we definitely don’t want to have him miss his ride. So, thank you so much for joining us, Shubha, it has been too short, we’ll need to have you back fairly soon.

Shubha: I really enjoyed it. Thank you, again!

Denise: Ok, you, too!

Andrew: Bye, Shubha!

Sarah: Thanks!

Denise: Alright, Andrew, what were you going to say?

Andrew: Sure, I mean, um… I actually, totally agree with Shubha’s endpoint that what we really need is a better sense of – how does copying harm the copyright holder. I think we are trying to use this… Is it transformative enough to, kind of, do this line drawing between what is infringing – what’s not infringing, but, we don’t have a great sense of…I think it is kind of goes back to our earlier discussion about what we are trying to protect in the first place. And, whether the said issue creates some sort of cognizable or foreseeable harm to the creative process of the plaintiff and I think that is ultimately where we are going to have to go. So, I second his…ultimately where he wants to go and I think that is the challenge for courts and scholars and all of us to focus, going forward.

Denise: So, I think I’m going to go ahead and put our second MCLE pass phrase in the show. Since Andrew mentioned, a moment ago, that something was skewing in one direction, the only thing I’ve been able to think about is Zane (Malik) Maleek or Malek…I’m not sure how to pronounce his name, but, he is going to be our second pass phrase for the show in honor of his burgeoning, solo career. And, since we are moving into all things musical let’s…we’ve already been talking to the blurred line case, let’s play our bumper for Hollywood and Entertainment.

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Denise: Alright, I don’t know if there is too much to talk about, here, with Pandora, but, I wanted to get into it with you, Andrew, because, we’re talking about…and we’ve discussed on the show and have had music law experts on the show, before, this ongoing dispute that Pandora is having, regarding pre-1972 recordings, and it is too bad that we lost Shubha, because, he has done some really interesting research work and thought on this… The Federal circuit – and I’m getting out into the legal weeds a little bit, here, but, basically, the whole notion that there is a tension, in general, in United States law the extent to which Federal laws and State laws play nicely with each other. And, when Federal law gets to trump State Law and when State Laws get to trump Federal Law…and we’re sort of getting into that issue here, in this Pandora case, because of the nature of the 1976 copyright act and the fact that State laws, according to Pandora, govern sound recordings from 1972 backward. And, they say they get to play those songs without paying royalties, the record companies disagree, and, much litigation, of course, is the result. So, in one of these cases, and I think it may be the prominent one, it involves Flo and Eddie, the artists from the Turtles, and, the argument that Pandora floated there, quite creatively, from its Lathem & Watkins lawyer, did not, all that surprisingly, go well in the trial court, but, they have the opportunity to appeal, and certainly, they will. And, the thing they tried is kind of in Andrew’s wheel house, because Andrew likes to study the interplay between copyright law and the First Amendment. And, there are often interesting ways in which the two collide, and here is one of them. Pandora argued that in California and in various other states, we have an anti-SLAPP law. And, what SLAPP stands for is Strategic Lawsuits Against Public Participation. And, what those laws are trying to prevent is someone filing a lawsuit against you, not because they really have a legitimate claim against you that they are dying to pursue, but, because they want to stop your speech. And, so, that is what Pandora came in and argued here, that the record companies, by preventing them distributing pre-1972 music, we’re inhibiting their free speech rights. So, they lost, Andrew, do you think they have a prayer on appeal?

Andrew: Uh, I think they have a prayer but probably not because of their first amendment rights. So this is actually a pretty interesting case for a bunch of reasons. If you’re a (inaudible) geek or a copyright geek and if you’re a music fan, there’s lots for you here.

Denise: Yes.

Andrew: So there’s no question that federal copyright law does not apply to pre-1972 sound recordings. It’s an expressed carve out of the copyright statute. Um, so state law does apply here but the nature of state copyright law is very murky in California and elsewhere. So there’s this question about what does state copyright law protect for these pre-1972 works that are carved out. And the district courts did look at the statutory text in California and looked at a few of the cases that were there and said there does seem to be this public performance right for sound recordings in California even though it definitely gets there through a bunch of implications and some inferences and some candidates for statutory interpretation. I don’t think there’s a clear answer to this question. For post-1972 works, there’s no general uh… for post-1972 sound recordings, you know, federal law does provide this public performance right in the context of only digital transmissions, not for over-the-air AM/FM broadcasts. But for state laws, as I’m clear, so we’re dealing here with the question about whether The Turtles and other ‘60’s artists, ‘50’s and 60’s recording artists can get under state law what they can’t get under federal law. So this anti-SLAP motion is something that is only available when you’re dealing with California state law. So this case was filed in, I think, December. Pandora filed this anti-SLAP motion a couple months later and we have a ruling on this basically First Amendment question within three months. You would never get that in federal court because you have to deal with motions dismissed or summary judgment. There isn’t this procedural device to allow defendants to dismiss copyright lawsuits early. So it’s interesting to me that you get an anti-SLAP motion in a copyright case because they’re dealing with state law. So, that being said, you know, so if you are Pandora, you’re probably not happy about this case because the statutory interpretation says, okay, there does seem to be in California a state law right for sound recordings to publicly perform their works but the interesting part of the case, of the decision, that does say, you know, the speech, the activities that are being challenged here are  in furtherance of Pandora’s free speech rights. So, although they aren’t producing any of the music they are streaming themselves, the court says there is this protected right to broadcast entertainment to the public. And, interesting to me, the court rejected the argument that copyright infringement is not protected speech. It says that (inaudible) two questions. It (inaudible) the questions about whether there is a protected activity in the broadcast with the question about whether that protected activity can be the basis for liability. So there is a lot going on in this case. I don’t really know. I’m not sure what (inaudible) will do with it on the question of what the state law requires but, honestly, I’m not really sure there’s a good solution to this dispute that does involve either there being no state rights to sound recordings or that, legislatively, we would have to apply the federal regime back to 1972. So I’m not really sure that working on this through the courts is ultimately going to resolve the concern on any side. This is a federal question. It should be but there’s some interesting geeky things happening here in the meantime.

Denise: Yeah, definitely. I also think it’s interesting and somewhat ironic that from a former trial court litigator standpoint, I have to admire what Pandora tried here and it’s funny that what they tried was the SLAP law which is strategic lawsuits against public participation because everything Pandora’s doing here is very strategic. Um, this was sort of a swing for the fence to see if they could get a judge to bite on throwing the case out under the SLAP law and, uh, by no real skin off their nose. If they win that, that’s fabulous. If they don’t, then they get to appeal it and possibly wind up in court with a different judge which I would think they would like to have happen in this case so it’s, uh, good tactics in any event to give it a try. Sarah, any thoughts about this?

Sarah: Well, I don’t know, I think I must be missing something because I was really confused by the anti-SLAP. So is the argument just that, you know, that this copyright lawsuit is an attempt to restrict their speech in the name of copyright? I just don’t understand how that’s different from any other copyright lawsuit. I guess I was lost on where the SLAP part came in. Where’s the free speech argument that’s different from other copyright law cases?

Andrew: So what’s unusual here is that most copyright cases are almost always now brought in federal court.

Sarah: Sure.

Andrew: In federal court, under federal law, the anti-SLAP provisions only apply to state law claims and it’s rare that we’ll have a state copyright law claim so you actually will see in a lot of the write-up publicity cases will be dealt with on an anti-SLAP motion because there you’re dealing with a state IP law that is challenging a movie or a video game and, therefore, this avenue of dealing with, of getting a potentially quick resolution of a case that is immediately appealable is available for other forms of state IP, it’s just very rare on copyright because we’re dealing with federal law and there’s no federal anti-SLAP protections; although, there have been a number of people who have suggested that maybe we should have something like this federal law.

Denise: Right.

Sarah: So people are bringing them for just any...I mean, I guess I thought of anti-SLAP as being about a lawsuit that prevents something that’s like, you know, what you think of as like First Amendment speech, like something critical, for example, or commentary, not just not having to pay royalties on a song. To me, that’s the part I guess I’m missing.

Andrew: Yeah.

Denise: Well I guess...Andrew, I don’t want to put words in your mouth but what I’m gleaning from your earlier comments are that, although they may have lost on this motion to get it tossed out early, they still have freedom of speech things to talk about. Probably not with the Court of Appeal because that’s just going to deal with the SLAP questions, um, although they’re going to have to articulate the Court of Appeal their speech interests there but also assuming it comes back down and trial resumes that they’re going to have some speech arguments to make that have to do with their act of selecting music and broadcasting it. Correct?

Andrew: Yeah. I mean I don’t ultimately think that’s going to be what the case is going to be resolved on. I don’t think there’s a great.. You know, I’m not really sure what the fair use argument is here. I think what they were saying in this motion is that we have enough of a free speech interest to be able to use this procedural device. And when the court says that, yes you do have enough free speech interest to use this motion but you don’t actually have a strong enough case on the merits to win it.

Denise: Hmm. Okay. Let’s take a break because Andrew was telling me before the show that he, too, is a Blue Apron customer so we have to thank our second sponsor for the show:  Blue Apron. And, Andrew, before I get in and start glowingly talking about my experiences with Blue Apron, why don’t you tell us about yours?

Andrew: So my plan for tonight is to have a short rib dinner on a pretzel bun with sweet potato fries on the side, all delivered by Blue Apron. I’m very excited. 

Denise: All of the food from Blue Apron is just so amazing. I’ve had a few good adventure with Blue Apron lately. Last night, I made their Spicy Thai Chicken Noodle Soup which, if I could just speak to the parents out there for a moment who struggle with getting their youngsters to expand their palates at all, Thank You so much Blue Apron for helping out with that because I’m able to just sort of present this to my child. There’s my version of the Thai Chicken Noodle Soup that we made last night. My son asked what’s for dinner and I say, “Oh, we’re having Thai Pasta,” ‘cause he’ll eat pasta and, ha ha, sure enough, he just absolutely wolfed down two bowls of this stuff.I t was so delicious and I went heavy on the curry paste too. That’s the wonderful thing about Blue Apron is that if you’re not into spicy food, you can go lighter or heavier and they tell you exactly when in their recipes that you should think about going easy if you don’t like things quite as spicy but I went all in on the red curry paste last night ‘cause I like things spicy and so does my kid, generally, but his comment was “This is so good but it’s a bit strong.” So I might’ve overdone it just a tad, given the fact that  it was very heavy on garlic and ginger too but so, so delicious. We really loved this dish and then the other thing I’ve made recently was Lamb and Beef Shawarma with a Creamy Radish Salad and this was basically like two separate meals. There’s the Shawarma on the left and the salad on the right and then I think I have another picture of just the salad which really could’ve been a great meal in its own right but of course you’d need to add some protein, etc. but I guess my point is that the food is so good and the portions are so generous that we actually, despite the fact that my son and I wolfed through our Thai Chicken Noodle Soup last night and each had second helpings, there’s still enough left over for at least one person to have lunch today so it’s really a wonderful combination of flavors they always provide, the ability to just sort of expand your kids’ horizons. My son also wolfed through the Shawarma and Creamy Radish Salad because, of course, I’m able to present this as “think of it like a Greek taco.” It went over great and tacos I can sell any day of the week. So it’s wonderful for that and I recently had the chance to give some Blue Apron meals to a friend of mine who had never heard of doing this kind of thing before and they just absolutely adored it. She has a family of four. Actually, she got the flu right after I presented her with her Blue Apron box. And that worked out perfectly because her husband whipped up the Short Rib Burgers on a Pretzel Bun with Hoppy Cheddar Sauce and he was so blown away that he was able to put together this meal so easily and deliciously and it made it wonderful for my friend who did not feel like dragging herself out of bed to cook and now, tonight, she’s going to make the Thai Chicken Noodle Soup which hopefully will help her cold. So, thank you so much Blue Apron. We hope that you guys are trying it out. You really, really should. There’s no reason not to because if you go to Blue, you’re going to get two of these great meals for free to try it out on your own. Now, you will want to go and see if you are in their delivery area. Both coasts of the US are covered pretty well. You just have to go to their map and check it out to see if your ZIP code qualifies. I know we’ve had some Texas listeners that are going “Noooo; when are we going to get Blue Apron too?” So, hang in there, Texas. I think you’re coming in and other parts of the middle of the United States may have to wait a bit but definitely check it out. See if you are eligible and then Blue will get you two free meals, it will get us recognition for having turned you on to this wonderful service. Thank you so much Blue Apron for the delicious meals for my son’s enhanced culinary palette and for your support of This Week in Law.

Alright, let’s move on and talk about some things on the legislation and policy front.

Right before the show, I was chatting with folks in IRC as I want to do and there is a case that they definitely wanted us to get into that I hadn’t planned on talking about today but it is a fairly interesting continuation of our discussion of contract law and we were just talking about the interplay between state and federal law and Shubha has written a great piece on that that’s in our discussion points if you want to check it out. Talking about the Federal Circuit which is the court that makes all of our patent law in the United States and it’s deference to state contract law and one of the instances, not just in the copyright front we were talking about with Pandora, this comes up across the board...this state versus federal law which controls question and it comes up in the contract context too. One thing that happened this week is that the VERGE got its hands on some Amazon employee contracts that had to do specifically with temporary warehouse workers and the VERGE rightly noticed and paid attention to the fact that there is an 18-month non-compete clause included in those contracts which is obviously bumming these employees out because, say you have a 3-month, temporary stint working in an Amazon warehouse at $12/hour or what have you and then you leave and you have to go work somewhere else like Sam’s Club or, you know, wherever your skills are portable to, if you have an 18-month non-compete after your employment with Amazon concludes, you’re going to be in a world of hurt. And, the reason I bring up this contract federalism question is...I scarcely pay attention to non-compete provisions anymore because in California where I am, they are not enforceable and have not been enforceable in a long time, except in very limited circumstances that would not apply here. I think it’s a pretty interesting question of the way that the law gets applied in different states doing different things and then if you have this, as Andrew was discussing earlier, if you have a dispute like this, a contract issue like this coming up in a federal court, how that might play into things too so I’m going to toss this out to you Andrew and see if you have any thoughts on the non-compete issue.

Andrew: Yeah, I mean I’m just looking at the terms right now. Who is not a competitor of something that Amazon sells? It’s extremely broadly worded. I mean, I’d be shocked even if the state would enforce non-competes more generally, this is so broad that it strikes me as creating some real restraints on employment, particularly for folks I’m presuming aren’t coming to the job with some sort of particular knowledge that will make the company...that will sort of advance the company’s interest. This is just some kind of naked restraint on people’s ability to get other jobs. It seems really, really problematic and yet in California, this would certainly be an unlawful business practice but not everywhere is California, fortunately.

Denise: Yeah, exactly. And we were also talking before the show when I was trying to see if there had been a resolution to another non-compete that Amazon is testing out in the Washington courts that involved someone who was not a warehouse worker but some more white-collar job where the worker left and went to Google and they were attempting to enforce their non-compete and, of course they are attempting to enforce it in the State of Washington because here in California, they would not be able to do that. The person who wrote this up at the VERGE is Spencer Woodman who did a very good job of pulling out the language in question and really getting into the implications of all of this, including the fact that there’s generally a reasonableness standard that would be applied to contracts like this so, as Andrew was saying, if this just really goes off the deep end in limiting people from being able to find subsequent employment whether in its length or the fact that everyone is a competitor to Amazon. There is actually language in this agreement that attempts to address that reasonableness standard by the contract also having the employers agree that each and every covenant and restraint in the agreement is reasonable. So trying to jump through that hurdle but, again, I don’t know that a court would necessarily look kindly on this kind of thing, even though these are not the kinds of contracts that we are usually taking to task on this show. Those kinds of contracts are the ones that no one ever reads. The ones that you automatically click on-line and this is a slightly different situation. You would think, and I think courts often think, that people in an employment context might actually read their contract and might actually take to heart the admonitions that they’re given when they’re told you should really have a lawyer take a look at this. But still, when you’re talking about a warehouse employee on the one hand and Amazon on the other, you could see that they are not in equal bargaining positions and there might be room for a court to question that. Sarah, what do you think?

Sarah: Yeah, I would think that that is definitely true. I mean, even though I think California is the only state that has gone so far as to have a blanket prohibition. I don’t know but I assume that lots of states would want there to be some tie to actual probable harm to the employer and it’s really hard to see how that would be the case for like warehouse workers, for example. Like you said, it seems more like a naked restraint. It definitely seems problematic from a public policy standpoint to me.

Denise: Mm Mm. Absolutely. So if that’s the… We really don’t know what’s going to happen with this. As far as I know, there’s not a lawsuit pending about it. The only lawsuit that’s pending, if it is still pending, is the one that was filed last year by Amazon in Washington. This is just sort of a scoop that the VERGE got and shed some light on the fact that these clauses are in the contract and basically threw out a big WTF about it. So it’s something to look at. Certainly, it seems likely that someone will test it in a state other than California and see if they’re going to be able to make this clause go away or found by a court to be unenforceable. Would you expect that to happen, Andrew? That perhaps some workers’ rights group might come along and help someone pursue a lawsuit because that’s the thing this article points out and that its fairly obvious that if you are the person on the receiving end of the non-compete clause, you might have a difficult time testing it in court?

Andrew: Yeah, I mean… I hate to say it but it doesn’t sound like the worst idea for a class-action lawsuit.

Denise:  Heh heh.

Andrew: I assume there’s a large number of workers who have a difficult time bringing in their own case and, if it’s all the same terms in every contract, I could see that happening as a result of this but I don’t want to encourage too much.

Denise: Right, right, right. We call them “taco suits.” And I’ve kind of forgotten why we call them “taco suits” but I think it was a Taco Bell class-action lawsuit that gave that moniker to the non-well founded class-action that often finds its way into our discussion. I agree with you. I don’t know if this would necessarily be that and it does seem like this kind of provision, a non-compete, a binding arbitration clause...these are all things that are lurking in contracts everywhere that people should just be paying attention to if they are not lawyers. It’s not just like clicking “I Agree.” You should definitely pay attention to these terms because they can impact your life if you’re not careful. Any final thoughts on this, Sarah?

Sarah: No, I mean, although on the other hand, just to push back a little bit on what you’re saying and, you touched on this earlier, but will these employees really have any… and if they read it, what could they really do? I mean, if they don’t have a lot of negotiating power in the situation, it’s more of a public policy issue than an individual, to me it is, than it is more like an individual responsibility issue.

Denise: Right.

Sarah: Maybe that’s the bleeding heart liberal in me. I don’t know. Heh heh.

Denise: No, no. I agree and I tend to be a bleeding heart myself if people are not capable of discerning that from the things I say on this show. But I agree  there’s very little an employee can do although I do, from time to time, represent employees who are changing jobs and who need to look through all the fine print. And again, it’s generally not the warehouse worker who is able to hire a lawyer to do that and then push back but that’s how the system is supposed to work. In theory, people are supposed to be able to accomplish that task and come back and say “Hey, I really don’t like this clause. Could we negotiate it? Could we change it a bit? Could we throw it out all together?” And, in this situation, that just might not even be practical.

Sarah: Right.

Denise: Alright. Also on the policy and legislation front, just to note...I really don’t have much to add to the fact. We knew the other shoe would drop on net neutrality and the challenges would be imminent and, yes, indeed, just so you know that that’s happening. The first lawsuit has been filed and there will likely be more so we’ll continue to follow those and see if anything interesting comes from a court at some point talking about the new net neutrality rules. No one is surprised that lawsuits were forthcoming. In fact, I think the huge surprise would’ve been none were forthcoming. Any thoughts on this, Andrew?

Andrew: Nope. No surprises.

Denise: Alright. Sarah?

Sarah: No; it sounded like the only surprise, at least according to the article, was that they were filed so fast because usually it doesn’t happen until they’re published in the Federal Register and I don’t know enough about administrative law to know but, apparently, there’s some work that they think at least allows them to start suing now but I don’t know enough. I’m not an expert in that area but it sounds like that’s the only surprise here.

Denise: Right. A couple of shows ago, we highlighted an article that had all the deadlines for filing and they certainly were not now so we’ll have to see. Maybe that’s the reason for tossing out some of the early suits. Eventually, courts will be looking at net neutrality rules for sure. Let’s see, where should we go next? I think we should talk about Walker (not Texas Ranger) and some more First Amendment stuff with Andrew. I think we have a new bumper:  First Amendment stuff.

Andrew: Sure

Denise: There we go!

Andrew: Nice bumper. Nice bumper.

Denise: Yeah, some viewer dramatic bumpers, thanks to our intern, San Do(sp?). And now we have bumpers for everything so I kind of feel like Conan O’Brien when he’s doing his video blog on his show and he just pushes the button and the computer plays the button. I feel like I should have a big red button for my bumpers but they do that in the studio. It’s Victor who gets to push the big red button. Alright. Let’s talk about license plates and sports teams and let’s tie this in, if we can, with technology law since that’s ostensibly, what this show is about. I think we can tie it in because what really we are on the verge of discussing here is trademarks and free speech and they apply across the board, whether you’re talking about license plates or sports teams or if you’re doing something on-line. So, the interesting thing that’s happening in Texas—they can’t get Blue Apron—and we’re wondering if they’re going to be able to get a Confederate flag on their license plate. There is a group there and, I’m not sure what the process is for getting your little symbol on a state’s license plate. I know here in California, like museums get Snoopy if you’re giving a portion of your license registration fee to support museums, you can get a Snoopy on your license plate. You can get a lovely whale’s fluke going into the water if you’re supporting a “save the ocean” kinds of causes. I’m not exactly sure which one, obviously. So, here in Texas, there is a group that would like a Sons of Confederate Veterans flag and symbol on the license plate. Texas does not want that on there. Rightly guessing, a lot of people would be upset by that and so the dispute ensues. Andrew, how do you think this is going to come out?

Andrew: I am not totally sure. I mean, the Supreme Court seems…(inaudible).  The question is first whether these license plates are government speech or whether they are the speech of the private organization, the Sons of Confederate Veterans.

Denise: Or, couldn’t they also be the speech of the driver? Because you can pick whether you want the whale or the Snoopy or the Confederate flag.

Andrew: So it comes down to basically whether if it’s government speech, the government can say whatever it wants and the question is whether, okay, maybe its not government speech, it’s actually some sort of forum for private speech and if it’s a form for private speech, then the government can’t sort of make distinctions between viewpoints that it favors and viewpoints that it does not. Now here, it does seem like… I don’t think there’s really much of a question that there is a viewpoint discrimination going on here. The question is whether there is a forum here for people to kind of express their desires and views. I tend to come out on the side of, I hate to say it, but on the side of the Sons of Confederate Veterans in terms of their argument. You know, as objectionable as the symbol might be, Texas has, my understanding is that any non-profit group can submit an application so long as it meets some technical requirements and you’re willing to pay for it, they’ll produce a license plate, with this narrow exception for whether the license is offensive in some sort of foreseeable way. And, now I think we want to be careful about the government making some sort of distinction about who gets to express their messages and who doesn’t. And I suspect that there will be multiple justices on the court who are going to be sympathetic to that view.

Denise: Right. So, in IRC, people are wondering if the Confederate flag is okay, would a Swastika be okay too? Is there some kind of limit you think that the state should put on this form of speech, whoever’s form of speech it is?

Andrew: The government could close the forum. Ultimately, if they don’t want to have to make these… if they ultimately need to make these distinctions, they don’t have to have this program. My understanding is it’s revenue generating and people will pay $1000 or something like that to get this license plate made and if you’re going to open it up for that sort of purpose, and this argument about this Swastika and I think Jihad came up in the debate, unfortunately, it may just come with the territory. As much as I like those jumping whales and dolphins and stuff, it’s ultimately an opportunity for people to express their message and the government, whether it’s billboards or bus stops or license plates, if you’re going to have a revenue-generating scheme to allow people to express their message, the First Amendment puts limits on how much you can limit that forum.

Denise: Right. I did kind of bury the lead on this. This is a case called Walker vs. Sons of Confederate Veterans that was argued this week before the Supreme Court, as Andrew pointed out. Sarah, what do you think about all this?

Sarah: I mean I think Andrew makes a very compelling argument. My initial reaction was it feels like a license plate conveys some sort of stamp of government approval. So, to me, the argument that it’s some sort of government speech or at least a connection to the government seems like that intuitively made sense to me but hearing Andrew argue about how it being a public forum and people can put whatever they want on there, that also makes sense. I don’t know. To me, I guess my initial reaction was, “yeah, of course the state has some say in it because if I saw a license plate with a Confederate flag in Texas on a Texas plate, I would associate that with the state, not just the driver because they have some hand in creating it.” So maybe that just means they need to shut down the vanity plate option; I don’t know. That was my kind of gut reaction to it.

Denise: Right.

Andrew: (talkover) ...refers to this as “hybrid speech” that the selection of what goes on it comes from private actors but there still is a literal stamping from the government. They’re actually involved in the manufacturing process. So this case is pretty interesting in that it requires the court to have to figure out how to draw lines when you are really dealing with hybrid speech and whether you can lean in favor of the traditional public forum analysis or whether we’re dealing with something different in whether the government has some wiggle room in terms of viewpoint discrimination. I do think it’s a close call.

Denise: Can I ask you hypothetically, here the state seems to be trying to distance itself from this private group that wants the symbol on the license plate but, picking up on a thread you mentioned a moment ago, if it’s the government’s speech, there’s not a First Amendment problem. What if the state had gone the other way? Here, Governor Rick Perry, as this article says, perhaps is still smarting from the revelation of a family hunting cap whose name included a racial slur, said the plates should be rejected. Suppose the Governor felt otherwise and the state felt otherwise and loved the Confederate past of the South and thought t has the nostalgic attachment to it and thinks its perfectly fine but other people in the state felt otherwise and wanted to challenge it? Would they have a First Amendment basis for doing so?

Andrew: Probably not so long as the contrary message  could also be approved. So the idea is that if you object to a pro-Confederate message being allowed through the forum, then you’re perfectly free to have an anti-Confederate message on there. If Texas were to reject the latter message, then we’d have, sort of this, in some ways, a very similar argument but from a very different kind of political perspective.

Denise: Mm mm.

Andrew: Yeah, so it really depends on whether there’s distinctions being made between the two different viewpoints and whether that can be proven.

Denise: Okay. So we’re talking about government speech issues here. How does this come up in the Washington Redskins kerfuffle?

Andrew: Interestingly, a similar argument, actually also by the ACLU, is being made that the federal government, in setting up a trademark registry, can’t make a distinction between marks that it finds offensive, immoral and disparaging versus those that it does. The ACLU has argued that you open up a forum for speech, you can apply for a trademark and, therefore, the government can’t make these distinctions between whether  your football mascot is offensive or not.

Denise: Mm mm.

Andrew: The argument against that is, again, well, trademark registry is, to some extent, government speech. It’s the government saying you have all these additional protections for your mark so long as you meet these requirements. I suspect that, given that the ACLU is making very similar arguments, that what happens in the Walker case will have some bearing upon how we think about the First Amendment issues in the Washington football dispute.

Denise: Alright. We will definitely await the Supreme Court’s finding, determination and opinion on this. Sarah, any final thoughts before we move on?

Sarah: No, I don’t think so. Just interesting stuff. I hadn’t really thought about the parallel to the Redskins case and I guess I didn’t realize that part of the argument on the government’s side there was that the granting of a trademark constitutes government speech but I can see that same kind of argument of it gives the impression, at least, of a government stamp of approval so maybe that does make sense. I don’t know. That’s interesting.

Denise: It is. And, trust me, I think there is a tech and/or on-line communication tie-in here in that trademarks can be granted for anything and for everything you want to do on-line. Alright. Let’s move on to a terms of service issue and learn how what happens in bankruptcy doesn’t necessarily stay in bankruptcy.

Denise: Don’t you just love the new bumpers? Alright. Here, the Terms of Service in question was Radio Shack’s. The poor Shack. It’s having to close locations. It’s going through bankruptcy proceedings but it’s also selling customer information as an asset and that’s what you do in bankruptcy. Does anyone have a problem with that?

Sarah: I haven’t read their privacy policy but it seems problematic. If the Terms really said “in the privacy policy, we will not sell your data,” and there was no carve-out for what happens if the business goes under, it seems like it’s an obvious violation. I think there’s probably more nuance to it than that though but that’s from a superficial standpoint. It definitely seems problematic.

Denise: What happens more often than not is that, buried in the fine print that no one reads, is the ability to sell your data if the company goes under or even if it doesn’t go under, if it gets sold, if that asset gets transferred one way or another, it’s not too surprising to me that that’s what’s going on here. Again, I have not delved into the legalese here and seeing exactly what Radio Shack is… if it’s going back on representations that it made to customers. Do you know the answer to that, Andrew, or is this just sort of a course of business thing that’s happening?

Andrew: Yeah. I don’t know the specific terms that are being used. My understanding is that  the Federal Trade Commission will allow...has allowed...some wiggle room here so long as the data is being purchased along with other assets that will generally be used along the same line of business and that the privacy protections are generally upheld. The FCC will allow that to go forward. So it sounds like there is generally some relatively robust oversight of these issues and that this is definitely going to be on the radar and that the FCC has blocked the sale of data in the past. I don’t know whether this is going to be one of those cases or not.

Denise: Yeah, so back to Texas. Texas is one of the State Attorney Generals challenging this. Also Tennessee. Where, in Texas, it’s a violation of its law to sell identifying information when a company’s privacy statement says that it will refrain from doing so. So, presumably, Radio Shack had a statement that did that at some point but you think the FCC will look past that, Andrew?

Andrew: My understanding is that they’ve settled with other bankrupt companies in the past to give some ability for them to sell off their assets but still protect consumers. I think some may require consent or per other conditions on the sale. I don’t know enough about the (inaudible) or the terms to sort of weigh in definitively about what Texas will… I am always wary to say what Texas will or will not do.

Denise: Right. Exactly. It’s a really good reminder too that there’s probably very little reason for places like Radio Shack to have a whole lot of personal information about you. I know that every time—you know, it’s kind of like carrying around a roll of duct tape to put over computer cameras that you’re sitting in front of and maybe it sounds a little paranoid but every time a store is asking me for my name, address and birthdate, you know, I just decline and I hope that people are out there doing that because otherwise, why do you need to go in a buy that charger at Radio Shack and have them have all your personal information to sell in bankruptcy someday? It just seems like a bad idea to go around giving your information to stores when that can happen. Sarah, any other thoughts on this?

Sarah: Although, if you’re buying online, there’s kind of no option unless you have it sent… I actually have a friend who had stuff sent to a different store actually so he doesn’t have to give his address in those situations but if you buy online, which I do almost for everything, all these stores have all my information just by default.

Denise: That’s an excellent point. I was sort of, you know… Amazon, of course, knows every single thing about every single thing I do…

Sarah: Right.

Denise: ...but Radio Shack might not.

Sarah: Good point, good point.

Denise: Alright. So, let us move on to our tip and resources of the week. Our tip, I mentioned on our last show,  that we have this wonderful resource, Sarah, with us on a weekly basis so I thought we’d start giving out some tips related to creative commons. Creative commons, if you weren’t able to glean from our earlier discussion or just never heard of it and are still kind of struggling with what we were talking about earlier, is this wonderful licensing strategy that was put in place—is it 10 years ago now?

Sarah: Yeah, it’s more than that, I think. Twelve, or something like that or about.

Denise: Time flies. But it is a great way if you are a creator to make sure that your works reach a wide audience and it is a great way if you are a creator who wants to use something culturally resonant or just doesn’t want to use, for example, stock photography, you might be able to find something you could use that has a creative commons license associated with it. So, I think for our first series of creative commons tips, Sarah, I’d like to ask you “Hey, I think a work that I want to use is creative commons licensed. What do I do next?”

Sarah: Sure. So, ideally, the item will say which of the six types of the license is applied to it. That is not always the case. Sometimes, you’ll see something that just says “Creative Commons Licensed” and that’s unfortunate because there’s actually six different versions and then there’s also the CC zero tool which we kind of talked about a little bit with the Space Axe, which is basically a public domain dedication. But in terms of the licenses, I think six can seem overwhelming and sounds complicated but it’s actually pretty simple. So, all of the licenses require attribution so if you’re re-using the work, you have to name the author or link to the work, include a copyright notice if there is one and all the attribution requirements are subject to kind of a reasonableness standard. So, depending on the context in which you’re using the work, that kind of dictates how you give attribution so you have some flexibility there. In terms of the other license elements and what the different licenses mean, it comes down to three things. One:  Does the license allow commercial use? So we have these NC licenses, we call them, which are non-commercial purposes only, means that you can only use the work for non-commercial purposes. We also have licenses that don’t allow derivatives to be made and those are called the ND, or No Derivatives licenses, and there are couple of those which just mean that you can use the work “As Is.” You can do anything but you can’t create an adaptation of it. And then for those licenses that do allow derivatives to be made, there are some that are called our ShareAlike licenses, which require that if you make a derivative, you have to offer that derivative under the same license so that’s our version of a copyleft, like free software for content. So, basically, it runs the gamut from those most restrictive which is our license which is called… the terminology we use is BY-NC-ND  which means attribution non-commercial no derives which allows you to only use the work for verbatim use for non-commercial purposes all the way to the least restrictive which is the attribution license which allows you to do anything with the work for any purpose, as long as you attribute the author.

Denise: Something that Andrew said earlier in the show resonates here and that is that copyright law doesn’t require attribution necessarily.

Sarah: Right.

Denise: Fair use, for example, doesn’t require attribution if you’re making all the fair use factors. So one great way to make sure you’re getting attribution is to use this CC license because they add that in on all of them.

Sarah: That’s right. Although, if somebody is making a fair use of a CC licensed work, they don’t actually have to attribute because the CC license doesn’t apply if copyright doesn’t apply. But a lot of people still do attribute because it’s a nice thing to do and it helps to know where it comes from.

Denise: Well, and I think there’s some overlap too, isn’t there, between, say you are doing something that would otherwise be a fair use and it’s a creative commons licensed work, you might give the attribution or do what  other attributes of the license are, just to make sure. Just not to have any uncertainty about your fair use, correct?

Sarah: Yeah. Absolutely. When I worked at Sanford on the documentary film project, we advised documentary filmmakers about fair use questions and when there was any doubt, like it was kind of an edgy case, we would suggest using CC licensed video or photos or whatever it was because then, you know, you’re safe. It is a nice kind of cushion to fair use in that respect.

Denise: Right. Well, thank you so much for our first creative commons tip. We’ll have more coming your way in future shows. We have a couple of resources for you this week but before we get into them, I want to thank our final sponsor for this episode of This Week in Law and that is FreshBooks. FreshBooks is the cloud accounting software designed from the ground up for entrepreneurs, small businesses and it is perfect for attorneys. In fact, I use it myself. It is exactly what I use to keep track of my time and bill clients and it makes that process just beautifully streamlined and easy, automated in situations where it can be. I don’t need a watch to keep track of my time anymore. All I have to do is open up the FreshBooks app on my phone, start the timer while I’m working and it automatically captures that time and has it ready to go into an invoice when it’s time to do that. It’s built for growing businesses. On average, FreshBooks customers double their revenue in the first 24 months and get paid an average of five days faster. That’s because the invoices look beautiful, they’re very professional, they go out very cleanly via email. You have the option to do regular mail invoices if that is something a particular client needs but I find that email invoicing, you know, it arrives in the inbox and it goes straight to accounting and you get paid. It’s a great way to go. If you’re still using Word or Excel or Google Docs to create invoices, you really need to try FreshBooks because it looks so much more professional. You’ve got your own letterhead logo, what have you, branding in there and it just works like a charm. You can avoid those awkward emails and phone calls to your late-paying clients because there’s an automatic late-payment reminder you can activate if you have somebody that needs a little nudge to make sure that your payment’s in the mail. You can set up recurring profiles and so things that you do every single month, you know that just something you need to bill for, you put than on autopilot and it’s ready to go when you need it. You’re going to spend less time on paperwork, you’re going to free up two days per month, perhaps, to focus on either the work that you want to do or the playing that you want to do when you’re not working. It’s great just to have the extra time. Don’t keep your receipts in a shoebox anymore. We’re coming up on tax time real quick here. Instead, snap photos of your receipts right from your phone. That’s going to capture your expenses. They’re going to immediately go out and be included in the invoices to your clients. Your financial reports are there and available for you too, all ready for April 15, which is right around the corner. FreshBooks integrates with your apps if you’re a Google App person, PayPal, Stripe, Mailchimp, FunBox, ZenPayroll and more. And if you ever need help, you’re going to talk to a real person every time and support is free forever so try FreshBooks right now for free with no obligation. Start your 30-day trial 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 great deal and FreshBooks helps us out a great deal by supporting This Week in Law. Thank you, FreshBooks.

So, we’ve got a couple of cool resources for you. One I put in in getting ready to do the show with Shubha Ghosh. He, I believe, is involved in teaching at least some of the courses at the MOOCs at Madison. The Massively Open Online Courses is what MOOCs stands for and these are wonderful courses on all different topics with great professors like Shubha that you might be interested in pursuing so if you look up the MOOCs at Madison, you will find everything that is available at Wisconsin to help you become better educated about an array of topics. So definitely check that out. And something else to check out is something called It’s made for journalists but for folks who listen to this show, I’m sure you could find a use for something that provides and simple and free search engine interface that lets you simultaneously search the patent office—that’s grants and applications, no trademarks yet—the SCC and soon federal court records and then you can set alerts so that when a company that you follow files or receives a patent grant or makes an application, you’re going to get notified immediately. That’s something called So, check that out. They have a beta at It is in beta so be aware of that. Otherwise, you can sign up at their main site: for more information about when the non-beta product is available. So, with that, we’re going to go ahead and wrap up this episode of This Week in Law. It’s been a very fun one. I’ve learned a lot, had some great discussions and had my mind opened as is frequently the case when we talk about things like the intersection of copyright law and the First Amendment. Thank you so much, Andrew, for joining us to help us better understand those issues.

Andrew: Thanks for having me. It was fun.

Denise: It’s been a pleasure. Tell us if there’s anything going on at Stanford or if there’s anything you want to let people know that’s up and coming on your calendar that they should be aware of.

Andrew: Nothing that I can think of. There’s always lots of stuff going on at Law Tech here so go to that website and it’s easy to find the Law Technology offerings here.

Denise: Wonderful. Thank you so much, Andrew, for joining us. Thank you, Sarah, for coming back on the show.

Sarah: Yeah. Thanks so much. It was a fun show. And, Andrew, I really, really enjoyed your article so I’ll be anxious to see where that… where is it published? I didn’t notice what journal or uh

Andrew: It’s coming out sometime later this year at Georgetown Law Journal.

Sarah: Awesome.

Andrew: And I would love to hear your thoughts. It’s still in draft form so I have plenty of time to add and alter and let it be the raw material for you.

Sarah: Cool. I may take you up on that. I really thought it was really thought-provoking.

Andrew: Thank you.

Denise: There you go. And you can check out Andrew’s draft article yourself and everything else we’ve discussed today by going to our delicious page is this episode of the show. If you’ve joined us today live, thank you so much. We record the show at 11:00 Pacific time, 1800 UTC and always in front of a live audience which is always a joy to have you jump in IRC with us and play along with us during the show. Send us your comments and questions, etc. as we’re doing the show. If you can’t do that, then you should still keep the comments/questions/suggestions, etc. coming. You can reach Sarah—she’s I’m Email’s always a great way to go. If not, you can reach us on Twitter. Let’s see, I am DHowell on Twitter—had to think about that. Sarah is SHinchPearson on Twitter and we have a FaceBook page for the show and a GooglePlus page. Those are great places to talk with us a bit more at length. If you want to kick off a discussion, those are good places to do it. There is a Google community as well for the show. I’m always flirting with whether we need a subreddit for the show so if you have any thoughts about that or maybe want to help out with it that we do have, I think, whatever we would need from Reddit to have a subreddit for the show, I’ve just never fired one up so send me your thoughts about that if you’d like to talk about that further, that might be a great way for people to send us story suggestions and guest suggestions and everything else but there are all kinds of ways to communicate with us already so please use them. Also, if you want to find where are the shows are and you’re not able to listen live, go to and you’ll find our whole archive there. We’re also in the iTunes store, on YouTube, on Roku and various other places that you can also find from the show page.

Thanks so much everyone for joining us. We’ll see you next week on This Week in Law!

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