This Week in Law 298 (Transcript)
Denise Howell: Next up on This Week in Law, Sarah Pearson, my co-host, joins me along with Pieter Gunst and Tony Lai, who are the co-founders of LawGives. We'll talk about the changing legal profession. LawGives helps you connect lawyers with clients. We'll talk about their infrastructure and technology, a legal standard of care, taking information to knowledge to wisdom, and a very unwelcome cup of tea, all next on This Week in Law.
Netcasts you love ... from people you trust. This is TWIT! Bandwidth for This Week in Law is provided by Cachefly at Cachefly.com.
It's time for TWIT's annual audience survey, and we want to hear from you. Please visit twit.tv/survey and let us know what you think. It only takes a few minutes, and your anonymous feedback will help us make TWIT even better. We thank you so much for your continued support. Twit.tv/survey.
Denise: This is TWIL, This Week in Law with Denise Howell and Sarah Pearson, episode 298, recorded April 3, 2015
Lawyers on Rails
This episode of This Week in Law is brought to you by Harry's. For folks who want a great shave experience for a fraction of what you're paying now, go to Harrys.com. Get $5 off your first purchase by entering the code "TWIL" when you check out. And by FreshBooks, the easy-to-use invoicing software perfect for your law firm and designed to help small business owners save time billing and get paid faster. Join over 5 million users running their business with ease; try it free at FreshBooks.com/twil. And by Blue Apron. Blue Apron will send you all of the ingredients to cook fresh, delicious meals with simple step-by-step instructions right to your door. See what's on the menu this week and get your first two meals free by going to BlueApron.com/twit. That's BlueApron.com/twit.
Hi, folks. Thanks so much for joining us for This Week in Law. I'm Denise Howell, and I'm here with an excellent panel of folks — a very entrepreneurial panel of folks with us this week. Also joining me is my co-host, Sarah Pearson. Hello, Sarah.
Sarah Pearson: Hey, Denise. Happy to be here.
Denise: Great to see you again. How's everything going?
Sarah: Good. Busy, but good.
Sarah: I've been really busy.
Denise: Yes. It's always good to be busy. And our guests are very, very busy, too, as they have a start-up; and you know that that keeps you on your toes. Their company is called LawGives, and we have the two founders of LawGives with us, Pieter Gunst and Tony Lai. Hi, Pieter and Tony.
Pieter Gunst: Hi.
Denise: Good to see you. Hi, Tony.
Tony Lai: Hi there, Denise, Sarah. Really good to be on here.
Denise: Really great to have you. So of course it's always great to have business people on the show who are right at ground zero of what it's like to operate a technology business. Your business is right at ground zero of the intersection of technology and law because you make a tool for lawyers and clients to connect with each other. Tell us a bit about LawGives and the history of the company, how you guys got together.
Tony: Thanks, Denise. Well, Pieter and I, we met after having been lawyers for several years ourselves, so we come from a background of having sort of been in the belly of the beast, so to speak. But we met at Stanford, where we were encouraged by, actually, the approach of technology and its value to so many industries. And I think one of the sort of adages around finding legal help is that sometimes it can be very costly and some days very confusing. And we were driven by a mission of the way in which technology really opens up access — is democratizing opportunity in a whole range of areas — and being passionate about helping people find access to legal services. We wanted to deploy some of this technology that we were finding being used in all these other different industries and apply it, really, to an area we really cared about, which was getting access to legal help and access to justice for more people.
Denise: Yep. Great causes, of course, both of those. And I probably know more than most how people struggle to find good legal counsel. I don't know if this happens to you too, Sarah — just the fact that I have a bit of a footprint online and people can find me means that they get in touch and ask whether I'd be the appropriate lawyer for them, or "who on earth can I contact" is usually the case because I don't know if people really realize that lawyers generally practice in a pretty narrow band of expertise. And so if you have a legal problem, it may be that a lawyer that you're familiar with and trust may not be able to handle that matter for you; so you need to get connected with just the right person. Pieter, do you think that a lot of people have legal problems out there that just never get addressed because of the difficulty of finding a lawyer and the expense of the legal process?
Pieter: Oh, absolutely. I mean, we see this so often in our activities as a start-up. And I think, first of all, it's a very rewarding journey to come from the practice of law, and then to be able to basically cross over into the technology side of things and basically, on a structural level, try to make it easier for clients to navigate this maze. And we sometimes think about the people who use our service in two big groups. On the one hand, we have clients that come to us, and they're used to working with a lawyer; and they may actually know exactly what they need, and we're able to facilitate those connections to lawyers very effectively. But I would say that a large majority of clients comes to us and actually is unsure how to qualify their issue, and we support that through the software we built. And they certainly don't know how much they're going to pay. I mean, we're dealing with an industry that provides, yes, complex services; but at the same time, there's a complete lack of transparency when it comes to pricing. We're still in the age of the six-minute billing increment and the hourly rate, although that's slowly shifting. And actually, market data shows us that — and sometimes it's hard to find this, but there's estimates that say that there is a 45 billion-dollar ... [audio fades] ... on the consumer side, not business, where, if price points would go down or if workflows became increasingly transparent, actually those clients would take the step of engaging counsel, whereas today they do not. And the team, I think, there is — I mean, lawyers are often afraid of technology, but they see that things are changing and you have to move if you want to stay relevant. But at the same time, we don't really believe that this is necessarily going to lead to the pie shrinking because I think, if we make the system more transparent, more easy to engage with, actually what is more likely to happen is that more clients are going to take the step more proactively by engaging with a lawyer. But yes, market data does show today that definitely a lot of clients are not taking the step of engaging counsel because the process isn't exactly transparent. And we also anecdotally see this every day; and we think that true initiatives such as ours — we can make a meaningful difference in that.
Denise: Okay. Well, let's get a little bit more in detail and talk about the technology underlying your business and other technologies and technological issues relating to the legal profession which relates to automating things and the Internet of things.
(The intro plays.)
Denise: It's a new graphic! Yay! Hope you guys like our new robot graphic. (Laughs) Thank you again, [inaudible], our intern, for adding those fun little additions to the show. All right. So I saw a tweet from the CodeX folks at Stanford. I'm sure you guys have been involved with them. You've probably not just attended but probably spoken at CodeX before; correct?
Tony: That's right. Both Peter and myself are indebted to CodeX, actually, for a lot of support. We're currently entrepreneurial fellows there, which is essentially a part of helping set up a community of entrepreneurs around this center at Stanford, which brings together some of the brightest minds from the law school along with professors and graduate students at the computer science department at Stanford. And it's a really important part of, actually, what that sort of interdisciplinary environment can provide, which is to give the opportunity for people to come together and share knowledge. And I think there's no better area, sort of more pressing area, than to have knowledge shared between people who are at the forefront of technology — engineers, people who are developing these sort of predictive analytic frameworks, connection platforms — with lawyers who are out there on the front lines as well. So that's really what CodeX is about for us, and we're proud to be a part of it.
Denise: Yeah, it's a really neat organization. And Pieter, I was reading in your bio that you actually have taught legal informatics courses at Stanford where you're teaching lawyers to code?
Pieter: Well, actually, so Tony and myself, together with Ron Dolin, taught the — well, Ron taught it, and we basically helped prepare, and were the TAs for, the first legal informatics class given at Stanford. This was now a couple of years ago. But also — and we're going to talk a bit about technology undercutting what we are building. One of the things that we really realized very early — that it's all nice to have big ideas coming from a legal background; but to execute them, you'll have to build an interdisciplinary team of engineers and designers. And what we did very early — this was four years ago when the seeds for this project were planted — we saw that we were discussing technical requirements; we were discussing ways to tackle the problems that our customers are encountering. And it was very hard to communicate with an engineering team around, Okay. What does it take to get to here? (Laughs) So at some point, I sent an email to Stanford Law School saying, Hey, everyone. So I have a need to learn how to program or to at least understand the technical sides of legal informatics much more deeply; so I'm going to start doing this thing every Wednesday night, and if you're interested in joining you should come. And by the way, if you choose not to join, you may not have a job in ten years, so you'd better do.
Denise and Sarah: (Laugh)
Pieter: So I find that the skill translates really well. Plus, it's just super rewarding, in this world where the industry is now being touched by technology in a really meaningful way, to be armed with the jargon, if you're going to talk with engineers in your law practice or in your other activities. And the ability to build an NVP, to build a prototype, if you have an idea, to communicate to others — so yeah, I mean, it's been a great success. It's one of a couple of activities that Tony and I do to support this field rather than just our core LawGives activities, and it's been great. We hope to be able to be doing this for the decade to come.
Denise: Well, I'm so impressed with the tools that you're actually working with in teaching yourself and the folks at Stanford that you're working with. I kind of assumed that, with a legal audience, you're probably starting out with scratch.
Pieter: It's — it is starting from scratch to a large extent.
Pieter: Although, I mean, some of the pupils who have attended the course have gone way beyond my abilities, going into lower level languages like C. And I think — I mean, it changed their career, and yeah, it's just incredibly rewarding.
Pieter: And, I think, important for lawyers to be aware of this. Like, at the very least, you step out knowing some jargon, which I think is crucial.
Denise: Mm-hmm. Yes, definitely important to know the lingo; and also, I agree with you that it's important to actually understand how some of these things work. And I'm not the only person who thinks that. The CodeX people threw out a tweet not too long ago, wondering about the legal standard of care, basically, when it comes to technology. How competent do you need to be in technological tools to be able to competently represent your clients? Their tweet related to predictive analytics and whether lawyers who don't leverage predictive analytics would be guilty of malpractice. First of all, Tony, why don't you tell us what you think they mean by predictive analytics and what your answer to that question is.
Tony: So by predictive analytics, we're talking about projects such as Lex Machina, which is one of the earlier CodeX projects which came out, again, first as a law school headed up by Mark Lemley, the IP professor at Stanford, but was spun out as a business basically gathering data about different lawsuits, settlements, related to the IP field. And this was, essentially, intelligence that would enable a lawyer to do their job much more effectively as well as more efficiently. And I think it's perhaps the first about being more effective, which is the main driver around why I would say, in the future, yes, this could be an issue around malpractice. If you are not using the tools that you need to be as effective as possible to serve your clients' best interests, then that is a key part of it. But the second part is also interesting because I think this notion of efficiency and actually saving on costs is also incredibly important as well; and whilst there is some argument for saying you should do everything it takes and spend as much money in a time as it needs to actually win for your client, in many situations I think your clients' best interests are probably not served by you running up a huge bill for them, even if it does end up with them winning. And I think part of the debate going forwards over the next few years, and in particular, as technology tools come to help lawyers potentially lower their costs, is, what duty does a lawyer have to not just win for the client but also maintain reasonable and affordable cost, not ... [audio fades] ... in a sense?
Denise: I think we'll put our first MCLE password into the show — pass phrase — because we do this a couple of times during the show for people who are listening and want to go to their oversight board, if they're a lawyer or another business professional who needs to do continuing education, and get credit for watching the show. So our first pass phrase is "techy lawyers." And if you need more information about claiming credit for this show, head on over to our wiki at wiki.twit.tv; find the This Week in Law page there; and we've got a whole page about the various U.S. jurisdictions for lawyers which: might be interested in claiming credit for listening to the show.
Let's stick with this topic. I'm interested, Sarah, in what you think about the whole notion of a professional minimum level of technical competence.
Sarah: I think it's an interesting question. I mean, I think we certainly have a long, long ways to go before anything as specific as predictive analytics would be a part of that, partly just because people don't have access to those analytics. That's one big issue. But yeah, just the question of what level of technological proficiency people need to have, I think, is a really interesting question. I was really surprised to see that article in the Delicious — in the rundown, saying that 14 states — well, once Massachusetts goes into effect this summer — have this obligation for lawyers to keep abreast of technology. That was news to me. I thought that was really interesting, so it's interesting to hear that it's already a part of it. Yeah.
Denise: Right. That flows from a change the American Bar Association made to its model rules of professional conduct. And these are rules that are put out as sort of advisory rules that the states can adopt, and going on 14 states will have adopted some version of that particular change that means that lawyers, in addition to doing their ongoing training in substantive legal matters, are going to need to maintain some level of technical proficiency. I have the feeling the bar is going to be set pretty low on that. (Laughs)
Denise: Being able to access email, being able to do a competent search or two, is probably all that people are going to be held to. But certainly the whole panoply of tools that relate to the legal profession go well beyond that. So it'll be interesting to see how that evolves. Pieter, what do you think that the minimum standard would be?
Pieter: I mean, it's such a great conversation. I'm looking at TWIT IRC stream, and people are jokingly saying, "Well, you know, document management, huh?" Here's a technological standard that many lawyers are still aspiring to. I mean, another interesting interaction — I'm on this email list of Canadian lawyers. And for the past three months, I've been getting about two emails a day in this long-running discussion about whether digital signatures should be valid for certain transactions. We are really at the beginning of the implementation of more complex technologies in the legal workflow. If we look at email, email is inherently insecure. We're starting to see new initiatives that encrypt the content of that email end to end and that go much, much more towards really protecting attorney-client privilege in these interactions. No lawyer does that today. It's incredibly problematic from a user experience perspective today to communicate with your clients like that. But if we think about it, and if we do see the services that a lawyer provides as something different — as something that needs an increased standard of care — then I think we, as the legal profession, need to think about, how do we move faster in this? Because right now, to be seeing discussions about electronic signatures where — I mean, six, seven years ago, when I was practicing at DLA Piper, that was a fully-fledged legal framework, right? So certainly in Europe, the rules tend to run ahead on the practice; but I think, in these kinds of technologies — but then also, I think, more importantly and more realistically in terms of adoption in technologies that improve efficiency for lawyers — like document automation — I do think that clients should expect that the standards to which lawyers hold themselves are fairly high. That being said, I think that, for a large number of these services — like, even if regulators don't step in, the market will dictate their usage because if you, as a lawyer, are able to provide your services more efficiently because you're a patent lawyer and you use Lex Machina, or do you research and use RavelLaw to do research, or you are able to automate large parts of your transactions Like law firms like Cooley and DLA Piper are making great headway in — I think the market might actually take care of the standards of care for a large extent. I don't think that's going to be true for encryption, necessarily. There, the bar may want to step in. But I'm pretty hopeful about the evolution we'll see in the next couple of years regardless of regulatory obligation.
Denise: What do you think about the whole access to justice issue you touched on earlier regarding your service and putting people together with the right lawyer? Technology is, on the one hand, sort of playing field leveling but, on the other hand, can be really expensive if you're getting into things that are very sophisticated and powerful.
Pieter: Oh, yeah.
Denise: If we're going to talk about lawyers having a minimum standard of technological proficiency, is that going to have an impact on, say, legal pricing as they attempt to ramp up to be able to compete in that arena?
Pieter: I mean, this is an interesting question because this is where Tony and myself come from. I mean, as attorneys, we did get to see clients; we just couldn't afford the services of the big firm we worked for, even though they could have used them. And it's where we started; it's reflected in the name LawGives. What we've seen is an increasing willingness for attorneys to provide services on a sliding scale basis. That happens in our platform. What we've also seen is that the price transparency that we aim to bring for a wide series of services is really helpful because it sets expectations. It sets a baseline. But I think, yeah, one of the great challenges that we get to play with every day — and it's one of the things we're passionate about — is that this does require stakeholder coordination. This is a field where legal aid organizations are already doing great work, and we see ourselves as a tool, as infrastructure to help facilitate their work. I mean, we are very, very keen on building a product that makes things accessible; and I'll give one example because it hooks into something we were talking about earlier: predictive analysis. Go to many online websites that help you find a lawyer and put in your issue; and they will ask you, Well, tell me, what practice area is this in? Because this is something that they need for matching. What we did is, we built a piece of technology basically based on historical data that will do an analysis of the words that a client types when describing their legal issue. And we use a machine learning algorithm that will classify this into practice areas automatically; and that's important for two reasons.
Now, the first one is that it takes away the burden on the client's side, who is often not sophisticated, to have to know what this is about, right? And that's lowering the barrier, and that is especially important with all the instances that are on the lower end of the market, frankly, and often need that help the most.
The second reason why it's important is because it allows us to scale. If you're doing things online in this field, then yes, it's important to do it first at a microscale and to understand all the interactions of this very, very complex industry and interaction. On the other hand, you want to make that available to a huge audience; and because we can determine automatically what a certain issue is about, we can also very scalably — and importantly, immediately — notify lawyers who might be a good fit for an issue. And all these things, we're barrier lowering, in particular for the kind of audiences that you refer to. But I think, in terms of access and prices, yeah, I mean, there we see a trend in the market where lawyers are more willing to provide services on the sliding scale basis. I think, frankly, it's also a matter of the motivations and reasons why any of us went to law school in the first place. It's because they want to help people; it's just that once you get out of law school with your huge student debts at your big firm, it gets pushed to the background. And we do hope that technology such as ours will not only democratize access for clients but also the ability for lawyers to work on things they're passionate about.
Sarah: How do you handle geographic issues? That's one thing I've wondered about in situations like this. Like, where the client is, where the lawyer is, and whether or not they can practice law in that jurisdiction — do you match geographically as well?
Pieter: It's taken into account and into the matching process, as well as other factors like responsiveness of a lawyer, load balancing, things like that. We verify the license of every attorney on the platform, and we also have a continuous monitoring process where attorneys basically get feedback from clients that they interact with. And all that together forms something that's scalable and that also has a sort of internal enforcement mechanism for quality control. I mean, frankly, a lot of this is also being done in other industries. Like, if we look at organizations like Uber and Lyft, or Airbnb, many of these trust mechanics are basically what it takes today to build the marketplace that not only has liquidity but also has the necessary trust embedded into it to function well. And in the legal services area, I would say it's more important than in most other industries. It really does require an increased level of trust. And yeah, the algorithm is there and matches and will take into account location. There's so many other little details that go into making that experience one that works.
Sarah: Sure. Yeah, I just wondered because — and this may be a misunderstanding, but I thought that at least some states consider that you are practicing law in the state where the client is. And so if you were matching lawyers on the other side of the country, I just wondered how those issues kind of played out.
Pieter: Well, we see in practice that lawyers and clients still have a preference to work with an attorney that is geographically close to them, even though they are less concerned about meeting that attorney in person. So basically, if you think about it as a going down a tree and starting with, Okay. Who might be the best match? And then going down further, as long as there are attorneys in the network in that area, they will be able to see that request. And actually, one of the parameters of the platform — very important — is that attorneys who are in our network can see any requests. I mean, all of this is structured in very deliberate ways because of the ethical framework in which we operate. And we're very keen on finding solutions for — I mean, I guess what are difficult problems and making them work on a scalable basis which is, I think, a huge challenge because you can structure something for California alone, and you may be able to do it in different ways that are from a financial and user experience perspective that may be more interesting to the client. But that doesn't help you a lot if that means that you can't do it in Florida from New York. So these are things that we need to take into account in what is, in the end, a fractured landscape of regulation.
Denise: All right. I think we're going to take a little break and thank our first sponsor for this episode of This Week in Law, and that is Harry's. Harry's, of course, is fixing a problem that most of us have. Sometimes you pay too much for lawyers, but you're probably almost all the time paying too much for razors and razor blades. Let's admit: Shaving's not that fun. It's sort of one of those mundane things that people need to take care of in just a daily routine way. You can cut and scrape yourself with a dull blade, which is definitely not that pleasant. Razors are just expensive. They can run to $4 a blade. A guy who shaves every day spends hundreds of dollars a year just on razors. Those Gillette Fusion ones, for example, are quite pricy. And when we go to the store to buy them, sometimes we have to deal with those pesky locked up Plexiglas cabinets. If you look on the web for humor about those things, it's quite high. (Laughs) People having to bash them open and get at their razor blades. It's such a pain that it's actually the butt of a great many jokes. There's a company that's fixing all that for us, though. It's called Harry's, and it gives you high-quality razors at about half the price of those big brand blades. And I've got to say, I think they're better quality. They make their razors in their own factory in Germany. They engineer them for sharpness and high performance. They ship them for free to your doorstep. And because they make and ship their own blades, Harry's is a more efficient company, which means they can give you factory direct pricing. Harry's guarantees your satisfaction. In each kit, you're going to get a razor with a handle that looks and feels great; three razor blades; and foaming shave gel. The starter Truman set is an amazing deal. You get all of this for just $15. I've been using Harry's for a while. My husband uses it as well. We both shave in different ways, and we both love the product. It gives a clean, close, and comfortable shave. The look and feel is really nice, very clean and crisp, and really holds up over time. It's not a cheap disposable kind of thing. Your handle's going to last for quite some time. The price? Harry's costs half as much as the razors at the store, and they also have a new aftershave moisturizer that protects and hydrates the skin. So you have to check it out. Go to Harrys.com. You'll get $5 off your first purchase with the code "TWIL." That's Harrys.com, and enter the code "TWIL" at checkout. Thank you so much, Harry's, for your support of This Week in Law.
All right. Well, before we leave this topic of legal technology and legal informatics, I wanted to just chime in and say that I think our conversation has been indicating that we're seeing a geekification of the legal profession that plays out, I think, at all levels. Last year people, I think, were sort of stunned to see the degree of savviness that the Supreme Court justices in the United States evinced when they decided the Riley case and recognized that things on people's cell phones were entitled to high privacy protection. The Supreme Court has been becoming more geeky over time, I think. I've been reading a great book called How Not to Be Wrong. Great read if you're interested in statistics and data and the believability of statistics and data. It's by Jordan Ellenberg. Definitely check it out. But he has an anecdote in that book that went right by me in 2010 when it happened; but it was an exchange with justices of the Supreme Court in the case Briscoe v. Virginia where a lawyer, making an argument in front of the Court, tossed out the
word "orthogonal." And it brought the whole court to a standstill when Justice Roberts, who didn't understand the word, had to stop him and have it defined. And then Justice Scalia jumped in and just really loved it so much that he said, "Ooh, orthogonal." (Laughs)
Denise: So mathematical principles working their way into daily discourse, and even discourse in front of the Supreme Court. So I'm not too surprised that lawyers are slowly but surely coming around to the century in which we dwell.
Let's move on to another topic that hit the news right after we finished our show last week, and that was the Ellen Pao verdict. And since we've got a couple of Silicon Valley start-up guys on the show, I thought it might be fun to hash through that and see where we think things stand. So this is one of those other categories of things that we don't often, or always, talk about on the show but I think is definitely worth the discussion.
(The intro plays.)
Denise and Sarah: (Laugh)
Denise: That's where I really feel like I'm Conan O'Brien hitting the big button when we play the other bumper.
All right. So Ellen Pao had her jury come back — as we concluded the show, basically, last week — not in her favor in her discrimination case against Kleiner Perkins. And the jury heard a bunch of evidence about a very gender-charged environment at Kleiner Perkins, a lot of things that Miss Pao went through that were unpleasant in many aspects and definitely seem to be targeted at the fact that she was a woman, various advantages or ways that she was treated at work. But where the jury really struggled was tying that to her lack of advancement at the firm, and that's a problem in a lot of these cases, that it may be possible to show that there's a less-than-great work environment going on; but unless you can also show that that's why you did not get that promotion or get put ahead at the firm, you're not going to win your employment discrimination case. So this seems to be what happened to Miss Pao. And we have talked on the show before about the environment, the sort of situation in Silicon Valley, where there could be a gender-related bias or disadvantage going on. And I'm curious to get your guys' take on that as two folks who came out of — you guys were involved in Incubator at Stanford for your business and have been through the venture process; correct?
Tony: Sorry, just unmuted myself. That's correct.
Denise: That's all right.
Tony: We went through an accelerator called StartX, which is a non-profit and has a focus less around sort of market potential, per se, being a non-profit and not having a sort of profit-driven motive with investors behind. But it's more about education around entrepreneurship, supporting fans in doing that. And I think one of the recognitions around supporting entrepreneurs more generally was the fact that mentorship and role models plays a huge part in supporting that entrepreneurial progress. There's a very, very structured mentorship program that has been set up at StartX which involves both having sort of a lead mentor who's almost a personal coach, as it were, as well as a board of advisors who acts more as a sort of [inaudible] board of directors. And I say that in the context of this discussion because I think one of the biggest issues around diversity — in all fields but women, minorities — getting that access is having good mentors and role models to be able to look up to and able to guide you through what can otherwise be a very intimidating environment if you're not one of the sort of majority. And so there was certainly a sort of intentionality that was embedded within StartX that some of the women entrepreneurs coming through would be paired up with people who have been successful. And there's a specific program now being put in place by one of our new staff members that's specifically focusing around supporting women and minorities and getting that sort of acceleration as part of their entrepreneurial development. So I guess — I mean, looking at one of the articles that's listed on the list that you shared — the Vox article in particular — I think it speaks to this point around the difference between a legal standard, which is very hard to prove along those lines, but also the fact that there is an inherent value to actually getting ahead of the legal standard. And that comes in both ways — both on the negative side, when you have a lot of bad press around what's coming out for Kleiner Perkins; but also on the positive side, around how you can actually get ahead of that and recognize that you want to create a culture of diversity because that's actually going to be really good for your start-up in your business going forwards.
Denise: Right. And I think it's probably less of a problem for folks like yourself who are younger and probably have a different set of values. One of the articles that we have in our rundown for today — and folks can access all of these at Delicious.com/thisweekinlaw/298 — is talking about sort of venture firms in particular having a culture of needing a really small group of tightly-knit — often fellows — who are used to working together, know each other very well, can get things done. And I think, for folks of a younger generation — I trust and hope for folks of a younger generation — that having women and minorities included in that tightly-knit group of folks who know each other very well won't be such a struggle. Pieter, do you see that playing out? Do you have hope about the situation and tech businesses in general?
Pieter: Well, I absolutely — and I think — I mean, the awareness of this issue and the fact that it is being talked about more over the last couple years has been pretty apparent to me; so I think that goes a long way into changing hearts and minds and creating that consciousness. But I think, as Tony said — I mean, the way we think about this is — when you're a start-up, what you are is you're a temporary organization that's looking to become a company that finds product market fit and can scale up. Now, the question is, How do you optimize your success in doing that? And what we've seen — and this is true about Daniel, who is our CTO and who thinks very differently than we do. It's true about Hannah, who's sitting next to me here, who brings the perspective of someone who's, like, finishing up law school and really is part of that generation that grew up with the Internet just a bit more than we did. And what we see is, when we're tackling problems, Tony and I have a particular way of thinking about things. It's complimentary, but it's still different than the rest of your team members, to the extent that you are successful in bringing in diversity. And that is women. That is minorities. You will be able to iterate on that process of getting out of start-up mode and becoming a scalable company faster. So just thinking about the positive side of this, what I hope is that companies that think like us are going to win in the marketplace, and then this problem solves itself. But I think, yes, it is a generational shift. Like, looking at my mother, who worked in a large corporation and the experience she went through, I think — and various studies show — that women are at a disadvantage, and it's time for that to change.
Denise: Yeah. I think, when I was a child — it was in the '70s, basically. And I think we all thought then, Yeah, things are pretty bad now; but by the time you children are grown up, it's going to have all worked itself out. And by the time I was in the workforce, I don't think that it had worked itself out as well as we had hoped that it would. I don't think Ellen Pao thinks that today, and she's far younger than I am. Sarah, what's your take on this?
Sarah: I mean, to me, I think I've been really lucky in my career to avoid situations like the one it sounds like Ellen Pao is in, where there was just this really blatant sexism. Even though she couldn't prove that that was the cause of why she didn't get promoted, it sounded like there was a lot of evidence that there was sexism, pretty obvious sexism. And I have to say I've been really lucky. I don't think I've ever really experienced that in my career. What I have seen, especially when — I started at the big Wall Street law firm when I started my legal career. And there just weren't female role models. Not that there weren't — there were a few. But there were just a handful. And so that mentorship, that ability for mentorship, was really something — there were maybe three mentor partners that you could get. And then we had at least 50 associates, half of which were women, all vying for those same mentors; and that's tough. That makes it, you know, a tough situation. It’s not sexism, it is just the reality, but, it affects the, you know, whether or not women stay, I think.
Denise: So, Craig Newmark got taken in, he says, by his team, who tried to play a joke on him, and they told him that a study had reported that 0% of women-led start-ups were funded, and that number was not quite right, but, the situation is dire enough, though, that he bit it on 0% and went, “really?” “Is that really true?” It wasn’t really true, but, the real stats weren’t much better. Only 7% of investment money was going to women-led start-ups per this study – uh – which is still a pretty low number – as a group that’s starting out and getting funding, yourselves, guys, what do you think is the reason for that really low number?
Tony: I go back to that point that Sarah raises, which is the lack of role models and the lack of people who are really looking out to actually make that change in an intentional manner, uh, I mean, happily, there are groups that are out there that are looking to really push on that and are addressing that as their core issue. There is a group that I was put in touch with called Golden Seeds. A friend of ours, Rick (Hess), knows one of the founders really well and they are specifically set up to focus on women leaders. And, I think this is a great thing, because, we’re looking at having a very concentrated focus around establishing those role models within the venture and investment community as well as supporting founders coming through. I mean, we’ve actually, also, uh, been very intentional about wanting to balance out the fact that, uh, myself, Peter and Daniel, we’re all men, so we’re bringing in a very (sceney) leader in the legal world. Van Dang is her name; she was a deputy general counselor for Cisco, to join our leadership team, as well. And, partly, that is because she is an amazing person who understands legal technology, down to the ground, especially from an in-house perspective. But, partly because she is a very strong and vocal supporter of diversity, and being a strong, female executive, will hopefully, bring that level of intentional culture and diversity to our business as we go, as well.
Denise: It does seem like in the aftermath of the Pao case, this issue is getting a lot of positive attention and a lot of productive attention, and, Craig Newmark, for example, is partnering with Women who Tech to launch the first ever women’s startup challenge. A bunch more, really wonderful, resources and programs are mentioned in his post at Craigconnects, if you guys want to check that out, during or after our discussion, here. My personal take, when I read his post and saw the results of this study on 7% of investor money going to women-led start-ups, is that maybe women are so smart that they don’t want to give away controlling interest or trade away controlling interest in their startups for the venture money. But, I fear that is somewhat optimistic and tongue-in-cheek assessment of what is going on. Sarah, any final thoughts?
Sarah: Um, no, I don’t think so. I don’t, um, this is a huge issue – one that there are definitely no easy answers to. I haven’t followed Pao’s case very closely, but, yea, I don’t really have…got nothin’ else. (laughing)
Denise: Alright, so let’s entertain ourselves by moving over
to the sector of entertainment law – music, etc. (Entertainment Law) Speaking
of April Fool’s jokes, I have to share with you the one that I bit on and was
halfway through Bob Lefsetz’s article on April Fool’s morning before I realized
Sarah: Yeah – I guess I have the same take, kind of a ‘wait and see’…I mean, so it is an interesting model. Just to talk a little bit about the specifics…the regular tier is $10/month, just $9.99. And, then, they have the hi-fi tier – which is $20/month and it is for these really high-fidelity audio track. And, me, I am not a music person that would ever be in the market for this, so maybe I’m just, you know, biased, but, I’m kind of skeptical that there is a huge market, there, but, I guess that is what they are banking on, because it is at that tier that they will pay the highest royalty rates to artists. So, they are banking on getting enough subscriptions at that hi-fi tier that it translates into more money for the artists that get streamed. So, it is an interesting model – very different from what Spotify does, which is to use their free product to lure eyeballs for advertisers and then they get enough people to pay for the premium service that between the advertisers and the premium payers, those things subsidize the ‘free’. But, Tidal, nothing is free. I think you can get one month free, but, after that, everything comes from subscription money. And, I don’t actually know if they are going to have an advertising element or not. I would guess so, but, I don’t know the answer to that. But, it is obviously, a very different model…so, yeah, I’m a bit skeptical, but, you know, we’ll just ‘wait and see’. Maybe it will be a huge success. Jay Z is, obviously, a brilliant entrepreneur, so…
Denise: Right, and the marketing around the launch reflects all that, etc. I do think if they are going to incorporate ads – it is going to be a tough sell. If you are paying $10 a month and getting ads, because you are at the lower tier, that’s…
Sarah: True – that’s a good point.
Denise: Yeah, but, who knows…you may be right – maybe that is how they will subsidize the lower tier and still get the artists the money they want. Again, I’m willing to leave the jury out on this one and see how it goes and whether it offers enough of a catalog and a great enough experience that it is going to be able to compete with Spotify, which I would say is its…you know, that is the big elephant it would want to bring down. Tony, what do you think, how do you listen to music?
Tony: Generally, ad hoc basis with streaming services like Spotify, like Pandora…and I use one by a friend of ours called Songza, as well. The ways I consume music have been constantly changing as the new services come out. I like to stay on the edge of what is ‘new’. But, at the same time, I think, um, this is a really interesting area, obviously, another example of an industry completely changed by technology and the internet. And, new business models have been a key part of the constant evolution…going from selling records to selling CD’s and then MP3’s and now streaming. We actually looked at this in one of the local classes that Pieter and I were both a part of at…taught by one of the …well, taught from a couple of perspectives. One, from the perspective of the law, but, also from some of the engineers and business people coming in, from the graduate school departments…again, thinking about this from not just a legal perspective and what is the state of the art of the law, copyright law, which is pretty complicated. One of the more complicated areas when dealing with the different rights involved when dealing with both the producers and the distributors and the artists, as well. It is a big hodge-podge of law, but, then, from a business perspective, as well – how are music artists going to be making money when you, sort of, have the celestial jukeboxes, as our Professor (Wellstein?) sort of referred to it? I think the jury is still out. I think there are a lot of different business models out there for artists to potentially capitalize upon…not just around streaming, but, around how their music is used in movies, how their music can be remixed into other new creations, and whether there is, uh, in a sense, a market for how artists can both have their rights, but, also, license those rights out for all the different ways people want to consume music, going forward. Frankly, I don’t think it is always going to be a listening experience, anymore…as with everything, it is going to be remixed, it is going to be more interactive, music is going to start filtering into to different fabrics, different areas of our life as well, so, I think, as when everything changes, it is scary, but, it is going to lead to new and better things, hopefully.
Denise: So, I have a hard time looking at a new service, like Tidal, and not seeing it as a direct descendant of what went on, legally, with Napster, you know. Napster begot the iTunes store, which is now struggling to keep up with the streaming sites like Spotify, and Spotify, now struggling with artists – Taylor Swift, Pandora, as well, struggling with artists, so this would be the answer to that. Do you think, Pieter, that it has a chance?
Pieter: I mean, it is fantastic that you ask this question,
because, I’m thinking about a story…we had a number of super-fun interactions
with a man, also called Peter, who was an early
Denise: Yeah, there is an interesting comment from Reverb Mike, in our IRC, about another competitor to Tidal that we haven’t talked about here, today, and that is YouTube. People don’t usually thing of YouTube as their music service, or, maybe, people of my generation, don’t, but, people my kids generation do, for sure. And, that is a whole different way of experiencing this thing. The music there is absolutely free, they have their own copyright regime in place and partnerships with labels, and other things that make it work, but, it is orthogonal to the streaming services perhaps, but, it is definitely there.
Pieter: (starts to say something)
Denise: Yeah, go ahead; I want to get your reactions to that.
Pieter: I’m not sure whether it is orthogonal…so, Tony describes the different ways in which he consumes music and I share some of those, but, my primary way of consuming music is YouTube, because, of ease of access, right. I can Google the title of a song and the video will come up first and I’ll have free access. I primarily listen to radio in the car, so when I’m listening to music at the computer, that is where I’ll go. So, I think, yeah, definitely, if that wasn’t an alternative, I’d be paying the premium fee for Spotify, which, I’m not!
Denise: Right, and YouTube, recognizing that, has definitely, recently, in recent months, to beef up its music aspect of its service.
Tony: One thing to bear in mind…
Denise: Go ahead…
Tony: Sorry, just very quickly on YouTube…I don’t know the detail around this, but, I’ve certainly had some feedback from my artist friends – and I think they would classify themselves more as … ? artists rather than successful artists, at the moment, but, YouTube recently came out with some very interesting licensing requirements, specifically targeted at up and coming artists who are using YouTube to, sort of, help to get an audience and these were really restrictive licensing requirements, where basically, they were saying to these up and coming artists, you have to make all of your catalog available through YouTube and nowhere else…essentially saying, if you want to continue benefiting from YouTube as a distribution channel, then you have to give us an exclusive. Which, again, some to the point around the artist’s rights versus the corporation’s rights and where those, sometimes, come into conflict. And, I think, potentially, Tidal, certainly with their approach and signaling are trying to be something very different. One of the articles you shared – I think it may have been the Vox article, also points out the slight difference between the messaging and the actual carrying out of it, in the sense that the artists who are the founders and will get the vast majority of ownership, are, some might say, artists who are past their prime. And, so, new up and coming artists who are going to try and, you know, build out the rest of the platform, are not going to get the same level of ownership, but, I think, still, it is very different from where I think a corporation is, essentially, imposing its will you and, sort of, take it or leave it. And, so, just wanted to throw that in as a rider to the fact that, yes, YouTube is free, it is a great streaming service, but, they’ve also got their own business interests, as well, which may play into how this all plays out.
Denise: Yes, definitely. Um, let’s make Apply buy Spotify our second MCLE pass phrase for the show. And, let’s talk about Robin Williams and his right of publicity after death. Sarah, can you bring us up to speed on that?
Sarah: Yeah, this is a really interesting story…apparently, Robin Williams bequeathed rights to his name and his photograph and signature to a charitable foundation that was set up by his lawyers before he died. And, they are not allowed to exploit any of those publicity rights for 25 years after his death. And, I think there is also a big tax piece there – the idea of giving it to a charitable organization is to avoid some state tax liability, but, I don’t know enough about taxation law to know exactly how that works. And, I also don’t, one missing piece for me, and I don’t know if you know this, Denise, is what the charitable purpose of the foundation is, I assume it can’t just be to hold his publicity rights, but, I don’t know enough about what else they are doing. Maybe, they are donating a lot of his money to charitable causes. I guess that would be an obvious one, but, I just don’t know for sure, but, apparently this is a real novel approach to…
Denise: No, I don’t know that, either, and haven’t looked at this too closely. The part of it that interested me is the whole notion that you could take rights of publicity, and …number one the notion that they survive a public figure’s demise and number two, the fact that you could lock them up through estate planning, or if you could do it through estate planning, you could conceivably do it through contract, as well. So, um, you guys both have IP law background as well and I’m wondering if you have any further thoughts about this, Pieter?
Pieter: Um, so many…the field of IP, whether we’re talking copyrights, patents, trademarks…there are some very ‘old school’ restrictions being placed on what we can do with information, that in my personal opinion, are going to be really hard to scale in the internet age. I mean, it is beautiful if people can take…if they can stand on the shoulders of giants, if they can take what people before us have done and can create new things out of it. And, frankly, I understand the need to, and strongly believe in the need to reward artists, I’m just sometimes wondering if these very elaborate rules, the certainly, when we try to think about this in international context – where a Spotify has to go to Europe and needs to figure out in each country, whether they harmonize the erules correctly and then figure out the minefields. I just don’t know if that is how we want to do this… I think that there is an argument to be made, that, like, services make it super easy to access information, like Spotify. That is just how markets should work, and this yields royalties and that is something that can be done by contract. We are ready for a boom of innovation and we’re seeing the courts take a very critical look at this and moving towards decisions that say, no, this isn’t great. Um, so, this may vary for IP lawyers, for myself, when I started practicing law, I saw myself as a lawyer that was going to specialize in this whole mess, created by the internet, which just aggravates these problems to the Nth degree. It is going to be work for lawyers for decades to come, that’s for sure.
Denise: That can’t be a bad thing! (laughing) It looks like, Sarah, that they’ve taken into account, the notion of the charitable trust, if it gets set aside as not having a sufficient charitable purpose, then publicity rights are going to be distributed to other charitable organizations that are unassailable, Doctors without Borders, AIDS, Make-A-Wish, that kind of thing, so that they actually could get divvied up. I assume the 25 year use restriction would still apply, even if those organizations wind up with the rights. Tony, do you have any thoughts about this?
Tony: Just building on what Pieter said, I think this really signals, how lawyers, being sort of, being on top of technology, not just for their practice purposes, but, to stay up to date in their own practice areas – how important that is. Um, an area like estate planning – not necessarily considered a top candidate for innovation, yet, the boys that (crossed) this were, clearly, very creative, and they were creative because they were on top of this notion of publicity rights in an age where your presence, your identity are all over the internet and there can be media to 3 technology-like holograms, you know, when you have performances of dead artists up on stage, what does that mean, then, for a well-loved and respected actor, like Robin Williams who wants to have a modicum of control over how his image is used to promote things her really believes in? And, I think, one of those interesting things is, the notion that law is a creative field, especially where you have these cross practice area considerations. The lawyers who put this together had to consider privacy law, estate planning, trademarks, publicity rights, IP rights, contract law, and I think that is one of the exciting areas for lawyers coming through, today, is that you can have this creative role in bringing the law up to date with the actual real-life situations that technology is bringing in.
Denise: Alright, now I think would be a good time to thank our second sponsor for this episode of the show, which is FreshBooks. FreshBooks is the cloud accounting software, designed from the ground up for entrepreneurs, law businesses and is perfect for attorneys. It is one of those technological tools you’ll want to be proficient in, folks, if you want to be doing a good job for your clients. And, FreshBooks does a really good job for you, too. It takes those, sort of, old fashioned ways Pieter was talking about – how we’re still wedded to billing by .6 of an hour, etc, and FreshBooks handles that real well, or it can handle however your billing practices work. We tend to bill by the hour in this profession and we need to track that time, somehow. Just, you know, gazing at your watch and trying to ballpark things is not very effective. But, if you can track time by setting a timer on your FreshBooks app on your phone and then stopping it when you are actually done with that work and moving on to something else, that captures that work for you, right then and there, and puts it in an invoice, which solves another problem that I think people with small businesses have an issue with. And, that is, who wants to do the accounting? That’s really not what you are in business to do. You might not have employed a person who does that for you, so it is on you to make sure that it is done. Well, FreshBooks makes it just so quick and easy. You’re not sitting around at the end of the month going, ‘Gee, you know, I really need to get the bills out, but it’s such a huge, onerous task.’ With FreshBooks, it is almost on autopilot. It’s wonderful. There are things that you actually can put on autopilot, if you’re billing routine things every month that you know are going to come back over and over, again. That is going to automatically go on the invoice for you. You can set that up. You’re not going to have to use something like Word, or Excel or Google Docs to create those invoices. When you use FreshBooks, it is a much more professional layout and format, and it just takes minutes to generate. You can avoid those awkward emails and phone calls to any late paying clients, because you can just send an automated late payment reminder to help you get paid faster and stay worry free. You can set up recurring profiles. You can spend much less time on paper work, you can free up to 2 days per month to focus on the work or other things you need to be paying attention to, rather than your accounting and billing. You can also use FreshBooks to help you with your expenses. What you do when you have a billable expense, or tax worthy expense, you just take a picture of it with your phone. It gets captured and will go right on your statements that will go right into your reports that FreshBooks keeps for you. You can instantly access those reports so you can keep track of expenses, you are ready for tax time. It is going to integrate with the apps you use for your business – Google apps, PayPal, Stripe, Mail Chimp, Fun Box, Zen Payroll and more. And, if you ever need help, you’ll talk to a real person, every time, and support is free, forever. So, try FreshBooks, right now for free, with no obligation. You can start your 30 day free trial by going to FreshBooks.com/twil and don’t forget to mention This Week in Law when they ask how you heard about us. That really helps us out – lets them know that our loyal listeners are loyal to our sponsors, as well. Thank you so much FreshBooks, for supporting this episode of This Week in Law.
Denise: Alright, I think we are ready to move on to a topic that touches on both law and copyright. (Copyright Law) We’ve been talking a bit on the show about lawyers becoming more technologically savvy. One of the things that still prevails and governs us all, especially in the litigation arena of practicing law is something called the Bluebook. And, the Bluebook is a uniform system of citation. It tells you how to refer to precidential cases when you are writing briefs, and statutes and websites, and everything else you might be citing as authority for your legal argument, and the Bluebook is this…it is literally a blue book, a blue spiral bound book, um, that is about as old school as you can get. But, things with the Bluebook are actually moving forward, as I learned from the LawGives blog. Pieter, do you want to tell us what is going on, there?
Pieter: Oh, yeah, absolutely! This is a hugely interesting topic that is about way more than the Bluebook. What has been happening is that you have the Bluebook, which Harvard Law Review, basically, publishes. And, it contains these standards around how we are supposed to cite legal sources. Now, the problem is, this body of knowledge, this body of rules, is not open. It is being commercially distributed, and there has been an effort that has, basically, been spearheaded by people like Carl (Mullenwood?) who are asserting that these kinds of standards, because that is really what they are, and certainly have become, should not be restricted by copyright, going back to our previous topic, in this way. And, Tony and myself, we tend to agree. We think a lot about how do you structure data, how do you build frameworks for things like citation or other legal operations? And, it is just a better way of working to make that more open and collaborative. I think the underlying trend, which we are very excited about, is that the cost of information, the cost of this kind of stuff is going to zero. The internet allows us to collaborate, to build upon these standards, and it going to crucially change, amongst others, the legal industry. Because, we have these huge corporations that, for a very long time, often to exclusive agreements, have had exclusive access to knowledge that we as the public are all supposed to know. Like there is a saying that, ‘Everyone is supposed to know the law.’ That is incredibly hard if you need to pay for a Westlaw account, if you need to buy a Bluebook to get access to these frameworks. We, frankly, think that is not necessarily, right. What we believe is that this kind of information should be distributed to benefit to the public than to be billed upon. Right? And, if you think about the trends in the legal market and what has happened in the past, like 10 years, with things like document automation, I mean, what we’re seeing is that this kind of technology, whilst is extremely useful, is becoming cheaper and cheaper to create. If I can teach a bunch of law students, over the course of a year, to build basic document automation systems, what does that mean for these companies? Is it so, that the real value is in the delivery of services provided on top of this. Right? A law student, writing a well-researched memo, a lawyer taking a standard document and customizing it to your specific needs. This is where we think the value of in the future … is. And, if we think about the layer of information that is going to underpin this, yeah, it is basically in our interest and the interest of the public to have that be as open and freely available as possible. One interesting angle to think about, too, is what this means for the future of law firms. Right? You are dealing with, basically, a legal network that has a brand, that has all this infrastructure, that lawyers share and it is incredibly useful, but, one of those crucial pieces of infrastructure, and I know I spent a lot of my time in it, was the legal library. Right? That is an asset that a law firm has, but, this is going digital and, it is like, initiatives like Ravel are making this kind of information more available, so, what does that mean for the need of the shared infrastructure, and, how does it affect how lawyers can work together and collaborate? That is the bigger question that underpins the present specific discussion like this one around the Bluebook, here. And, we just think that is incredibly exciting.
Denise: Another exciting aspect of this is, if portions of the Bluebook go into the public domain or a scaled down version of it does, as it seems may be happening, there’s a nice basis for some startups to jump in and do something with that data. And, automate some kind of tool, you know, I’m…for all I know, there are already things that will electronically Bluebook your brief for you, now. I have never used such a thing, but, if there is not such a thing, there would be a nice market for that, because picking up the spiral bound Bluebook, and checking each of your citations with it, which is something I’ve been used to doing for years, is not the most efficient way to actually make sure you’ve caught every citation and that they are accurate. As your Creative Commons representative, here, Sarah, I’m wondering what you think of all of this?
Sarah: I’m just thinking of how glad I am that I don’t have to deal with the Bluebook, anymore. (laughing) Having bad nightmares of my litigation days, um, also, I was just thinking, anecdotally, hadn’t really thought about it, but, since I went to Creative Commons, I don’t have access to Westlaw, not only do I not use a Bluebook, but, I don’t have access to Westlaw or Lexus, and I do still do some case research, but, it is so much easier to find stuff online, now, without using those paid services that I don’t really end up missing it. I mean, there have been times where I thought, ‘Oh, I have some ideas or ways I would tailor a Lexus search or something.’ But, it is just kind of interesting to think you can practice law, probably not as a…if I were a litigator it would be different, but, you can practice law and have to do some research and be able to do it all, completely, using free services, online, which I think is great.
Denise: So, Tony, maybe none of this matters at all, because, according to Vint Cerf, we aren’t doing a good enough job with any of the things we are saving, digitally, these days, aren’t going to be readable by future generations, so it really doesn’t matter what our briefs look like or how we check the cites in them, because no one is going to be able to read them in the future, anyway. Right? What do you think about that, the digital dark age?
Tony: I think he, to some extent, has an interest in saying that, being at the company that organizes the world’s information and, so, (laughing)… to some extent, maybe a little self-serving, putting out that prophesy of doom. Personally, I think, one of the biggest challenges we’re going to face is not necessarily saving everything, but, being able to filter, everything. I think that is the bigger challenge, in an age where we do have orders of magnitude and more capacity to save information, it is going to be – what we decide to, firstly, save, but, also to filter into our awareness. I think the biggest challenge is going to be information overload. And, so, the most useful tools are going to be around, not just organizing the information, but, how that gets translated into usable information, into knowledge, and ultimately, into wisdom. And, I think, that is one of the reasons why, lawyers who perform that role as part of their profession, it is something that isn’t going to be, you know, at the high level, transferring that information to helping to filter that information into knowledge and wisdom. How that isn’t going to something that is going to be ultimated all too soon. And, ultimately, the usefulness of information is ultimately, how it really applies to you, in your day to day life. And, so, I think, having open access to information is important, but, then, open access to those tools that can really help you, sort of, filter that down and get what is important are going to be more important than just saving everything.
Denise: Yep, excellent point! Alright, we’re going to thank our final sponsor for this episode of This Week in Law, which is Blue Apron. Goodness knows, we all love to eat. But, it is hard to find a meal that doesn’t compromise somewhere, whether it is on taste or quality of ingredients, complexity of flavors. You need it to be a good value. You want it to be quick to prepare. You want it to be healthy and delicious. And, Blue Apron hits the ball out of the park on all those fronts. It is absolutely easy and delicious, fun. You are going to get fresh, ready to cook meals, delivered right to your door. And, for folks who have been watching the show for a while, as Blue Apron has been a sponsor, you know that often, I will show pictures of the Blue Apron meals that I’ve made. I have to apologize that this week I don’t have one to show. And, the reason, though, is that Blue Apron is just so darn good. I made a particular dish that were…I think Victor is going to put it up for me so I can give you the exact title…there we go… That’s what I made, they were these delicious, delicious burgers with a cheesy sauce and sweet potato fries on the side, and everything was so scrumptious that we could not wait to take a picture of it before we dove into them, so I’m having to show you the Blue Apron – very nice, glossy photo of what we rapidly consumed. And, I swear that these burgers were exactly the kind of thing you would get in a burger specialty bistro, and, yet, we were able to make them at home. And, they just came out stunningly great. And, this is just one of the many hundreds of meals that you are going to get when you subscribe to Blue Apron and, they do a great job of going from, you know, your basic burger with sweet potato fries on the side…but, really nothing about Blue Apron is basic, because the fries are going to come drizzled with olive oil and thyme and the flavors are just phenomenal…so, a burger kind of meal, or you are going to get something really exotic, and, from all over the world, they bring in flavors and items that you might not be able to find at your local grocery store. But, yet, they come fresh and delicious, right to your home, and they do so for less than $10 a meal. You are going to get fresh ingredients – perfectly proportioned with step-by-step recipe instructions, beautifully printed pictures, as we are showing you, here. So, you know what you are trying to make and you can do your best to make it look like those beautiful pictures. And, the meals are healthy and easy and fun. They are great if you are not the primary cook in your household or not an academy trained chef, because, what you produce, is going to make it feel, both to you and the people that are eating, like you are. It is a really great sensation. Perfect for date night, cooking with friends, perfect for, you know, if your primary chef is under the weather and you want to do something really nice for your family. Nevertheless, your whole family is going to eat well. It is fun to involve the kids, too, because, again, the proportions are all there for you. It is a great opportunity to show someone how to zest a lemon and give you a hand in the kitchen. Each meal is calorie balanced at 500-700 calories, so yummy that you’d never know that is all you were eating. Cooking takes about a half an hour, sometimes a little bit more if there is more chopping or prepping involved, but, usually not much more than that, at all. Shipping is free, the menus are always new, and they won’t send the same meal twice. They will work around your schedule and your dietary preferences. Blue Apron’s experts source only the best seasonal ingredients for incredible meals – like pan seared chicken verjus with roasted Japanese sweet potatoes. You’ll cook incredible meals and be blown away by the quality and the freshness. And, guess what? You are going to get 2 of these meals to try on your own for free. That’s right – go to BlueApron.com/twit – 2 meals for free just by going to BlueApron.com/twit. Thank you so much, Blue Apron, for your support of This Week in Law.
Alright, let’s move on to a privacy story. This lawsuit has been pending for a while against Hulu about disclosures over subscribers’ video viewing practices, and Hulu has beat this lawsuit. Sarah, can you tell us a bit more about what happened, here?
Sarah: Sure! So, Hulu was sued for violating the Video Privacy Protection Act of 1988, which is a statute that prevents videotape service providers from knowingly disclosing personally identifiable information. The claim was, that by adding the Facebook ‘like’ button to Hulu, and then passing that information about who liked what videos on to Facebook, that that gave Facebook enough information to piece together some personally identifiable information. Um, and the judge said that, basically, that, uh, this wasn’t actually, knowingly done, because, they were giving two different pieces of information that Facebook, then, had to make the connection in order to identify who it was. So, there was the cookie info, then the video list were separate, I guess, and then, that the idea…this is really…if you can tell by my tone…that I think this is a really weird outcome. I didn’t read the full opinion, but, just this idea that, um, that Hulu wouldn’t have known that Facebook was probably going to put those two things together seems like a really weird outcome to me. But, that was the decision, so it was dismissed on belief summary judgment motion, just this week. If I get the dates, right.
Denise: Alright, so that’s one that would have been a big deal for Hulu to lose, but, they did not. Pieter, what do you think about the outcome, here?
Pieter: I….by way of background, um, when I started my legal
career and subsequently, at Stanford, took a keen interest in liability of
intermediaries. So, there is a European directive…a directive is something that
needs to be implemented by each European member state, called ecommerce
directive, that, basically, regulated the liability of intermediaries. Initially,
Denise: Let me spin this more toward something that you two do have knowledge and facts about, and that is, LawGives, which is a digital means of connecting lawyers and clients. Traditionally, how that might have been done, is, you know, someone shows up at or calls a law firm, does a little searching, gets a referral and starts talking to a lawyer. But, now, you guys find yourselves in that intermediary of gathering a bit of information from a would-be client, so you can match them with the right lawyer, and I’m sure you guys have had some interesting discussions about how to manage that data. Can you share your approach toward that with us, Tony?
Denise: And that is great that you guys are so out in front of those privacy issues and thinking about them in such fine-grained and sophisticated terms, so, kudos to you! We are going to move on to our Tip and Resource of the week. And, our tips of the week are on a bit of a theme, since if you haven’t gotten the memo, yet, we do have the wonderful resource of Sarah Pearson with us who is senior counsel at Creative Commons, so we’ve been taking the Tip segment to help you understand a little bit more about Creative Commons. The Tip we’d like to offer this week is, so, you know that Creative Commons exists, say, and you’d like to use some Creative Commons licensed materials in something that you are creating, Sarah, how would you go about finding such materials? (1:38:32)
Sarah: Good, so there are a lot of different ways to go about it. Um, one is to use Creative Commons – its own search function on our site, which, basically, uses other people’s search engines to search for CC licensed material. You can also go to…nearly, not all, but, nearly all of the platforms that actually integrate with Creative Commons licensing have CC search filters. For example, on Vimeo you can search for CC licensed videos, on Flickr you can run searches for CC licensed images. And, you can even filter down by what particular license you are looking for. I think on Flickr, they separate it by commercial use, or not…that sort of thing. So, um, and that is the case with most platforms that integrate CC licensing. As far as public domain content, there are lots of resources for public domain content. One of the best, of course, is the internet archive. There is, also, Europeana, Google Books, and, now – just to tie a bow on what we were talking about last week, about SpaceX and the public domain issues with CC0, that, actually, was great impetus for Creative Commons to finally push Flickr to adopt CC0 on its platform. And, so now, they offer – I think as of Monday – they offer the option to use CC0 or the public domain mark. And, so, the SpaceX images are now listed as public domain, even on Flickr. And, I think I saw a tweet, yesterday, that said that there are already 86,000 public domain images on Flickr, just from the past 3 days that it has been an option, so it is pretty cool. So, that is another great resource for finding public domain images, right on Flickr.
Denise: Oh, that is fantastic! Great news… Alright, we have a couple of resources of the week for you. One of them is…we referenced CodeX in the show. This is a conference coming up at Stanford. It is going to be on April 30th, so, if you are…find yourself in the northern California area, it is a great way to explore legal informatics and the technological side of the law. Anything you guys want to add to the upcoming CodeX event that we’re plugging, will you be there?
Pieter: We are absolutely going to be there. It has been a deep pleasure for Tony and myself to have been here, now, for a couple of years and to see this community grow. CodeX has really been an accelerator in that respect. There is a lot of exciting projects that are lawyer and student driven that are coming out of the center. And, it is also becoming a meeting point for other legal technology founders. So, absolutely, if you are able to attend in person, stop by. Tony and I, also, typically, live tweet these events, so you can follow us @LawGives, @DigitalLawyer, and @StanfordLaw for the latest while it is in progress. We think it is going to be very exciting.
Denise: The name of the conference is Future Law. CodeX is the over-arching organization – putting it on. So, that sounds like it will be really great and we look forward to your live tweets from there for those of us who won’t be able to make it.
We have one more resource for you, that someone sent my way, and I thought, what was really interesting is, it is called, We-Consent – and you can find it at we-consentlive.com, and it has two aspects to it. There are two apps that We-Consent is putting out. The problem that We-Consent is trying to solve is to make communications about consent, clear, and, so, they have a ‘no’ app and a ‘yes’ app. They function in two very different ways. The ‘no’ app is for the situation where you are receiving a text that is suggestive, and unwelcome and maybe offensive, and, you want to definitively tell this person ‘no’! Well, the ‘no’ app will help you do that and it records a video of the person watching the ‘no’ message, so that you know that they got it. And, it encrypts that message, first to the cloud and then to servers, and it survives for 7 years, so, if there is any question about whether there was consent, you are going to have a definitive ‘no’, there. And, now, the ‘yes’ app, which is even, in some ways, more useful and interesting in its…you know, maybe, you’ll look into the future about how we’re going to form contracts about things, this is, again, in sort of the relationship context, and, the ‘yes’ app is supposed to be…it takes, they say, 20 seconds to use and creates a 7 year encrypted record, available only to law enforcement, upon judicial order of people consenting to be with one another. So, if there were ever a misunderstanding on that front, law enforcement could access and see, ‘Oh, yes, there was consent, and here is the person on video, confirming that. So, I thought this was really fascinating, not just because it’s good to have definitive yes’s and no’s, in that context, but, extrapolating out to – wow, what an interesting way for people to express their consent or lack of consent in other contexts. What do you think about this, Tony?
Tony: I’m just picking up on something from ISC – my ‘yes’ doesn’t mean ‘yes’ for 7 years…I mean, that is really important point. Even though you sign – even though you say ‘yes’, I mean, they kind of imply that you can’t change your mind, and I think that the important thing to note is that ‘yes’ doesn’t mean ‘yes’ forever, and, like, everybody always has the right to change their mind. What I think is great about these apps, there, is raising awareness that this is something, you know, living, today, within the communities in a more connected world, we do need to be aware, have empathy, around somebody else’s reaction to what you are doing at any particular moment. There was a great analogy, that I think was making the rounds of the internet, around, you know, comparing it to having tea, you know, the fact that you wanted tea at 7 o’clock doesn’t mean you wanted tea at 10 o’clock and you shouldn’t be forcing a cup of tea down someone’s throat. (laughing) And, I think just having that, sort of, cultural framework being developed is the most important thing, and I think these apps will, hopefully, serve a purpose to bring that top of mind when people are thinking about their interactions. And, certainly, it is a very important issue that is getting a very…a lot of deserved attention this year, and right now.
Pieter: Tony says it so well, I, confidentially, heard that 3 days ago, Tindr is going to actually acquire the Yes/No app for $10 Billion. (laughing)
Denise: Bing, Bing, Bing! Yes, a logical marriage, indeed…of those two things. Sarah, any thoughts on this?
Sarah: I mean, I’m very skeptical of this. Not only would your consent not last for 7 years, it might not even last for 5 minutes. It just depends on, you know, you have your…your consent should be, you know, could change at any time. Except, after the fact, probably, and that is what this will be designed to try to prevent, but, I’m skeptical, but it is really…it’s interesting. And, I’m surprised it isn’t an April Fool’s joke, actually. I would have kind of thought it was, but…
Denise: No, no it’s not. I go this well before April Fool’s and, I do think it is an interesting notion that people might, you know, as their copy reads in this confused and confusing environment, what is needed is a way for confirmative consent to be safely recorded and stored as potential exculpatory evidence. I can see, people, deciding in a civil, contractual kind of way… Hey, we don’t need lawyers, we don’t need a lot of legaleze, we’ll just record ourselves… You know, it is sort of like that napkin that somebody jotted down the deal terms on and comes out and gets tossed in front of the jury as evidence. Instead of the napkin…this is the new ‘napkin’. You’ve got your app and people recording each other, saying the terms of whatever it is that they are agreeing to, and, I’m just wondering…it is kind of a logical step from the fact that we all carry around devices that are capable of recording ourselves, I wonder if this is something we’ll start to see more in court.
Pieter: There are some issues around the user experience with this app, but, I think it is very promising if we think about initiatives like, uh, Google Glass and Microsoft’s more recent announcement, Hollow Lens. What happens when I actually have…when I can overlay information in my vision, will I…instead of launching the Yes/No app, will I, maybe, swipe the person to the left to indicate my ‘No’? Right…I think with new kinds of interface, it becomes a bit more realistic to have – I mean, setting the funny aspects of this app aside, to have legally binding interactions that are (.?.) writing on a napkin.
Denise: Right, and now I have an image of two people, each wearing their respective Google Glass, starting to become intimate with one another and needing to push a particular button or run a particular app before things can proceed further. Ok…so on that note (laughing)…I think we will go ahead and wrap up this show. Thank you, so much, Tony and Pieter, from LawGives. Tony Lai and Pieter Gunst, the founders of LawGives. Seems like an amazing company, you guys are brilliant and wonderful and innovative and smart. And, we’re so glad that you could take the time to join us, today. We wish you all the luck in the world!
Pieter: Thank you! Follow us on Twitter…we have a very big announcement that is coming toward the end of this month. Yeah, we do this with passion and we’ll do it for many more years. Thank you for having us!
Denise: Great! Wonderful to get the chance to chat with you, I hope we will do so, again. Obviously, there is lots more we could discuss, but, at some point, we have to bring the show in for a landing. So, we’ll go ahead and let folks know that you should get in touch with us, between the shows, you can email Sarah, she is – firstname.lastname@example.org. And I’m email@example.com. You can find us on Twitter or Facebook or Google +. Just let us know what you’ve thought of the shows, the issues we’ve discussed, what you think we should be talking about, guests that we should invite on the show. We love to hear from you, we love your feedback, and, honestly, could not do the show without all of your suggestions and help and support. So, please keep them coming. Uh, what else? If you’ve been watching with us, here, on Friday morning, we start the show at Friday, 11 o’clock Pacific Time, 1800 UTC each and every Friday, except next week, we’re going to be dark, so, to give you a heads up. We’ll be taking a break next week; we’ll be back at it after that, however. And, if you aren’t able to join us ‘live’, that is quite alright, because, you can find our archive of shows at twit.tv.twil, and on YouTube and on Roco and iTunes and, if you go to that twit.tv/twil page, you’ll find all the various ways you can take in the show in the way that makes the most sense for you from a convenience and time standpoint. We have just so much enjoyed the conversation, really learned some interesting stuff, today and great things to think about. We’ve been so glad that you could join us and we’ll see you the next time on This Week in Law. Take care!