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.
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Denise: This is TWIL, This Week in Law with Denise
Howell and Sarah Pearson, episode 298, recorded April 3, 2015
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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.
Denise: 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: And that first session was attended by 75
people. Now, Stanford Law School is not a big law school at all. And this has
been running for four years now; it's gone through different iterations,
basically working on the curriculum that allows people to drop in and step out
if they have other course-related obligations. But yeah, what they learn is not
rocket science; it's like basic HTML, basic JavaScript, basic CSS. And then we
go into Reales, which is a web application framework that allows you to build
something really tangible. And we do that over the course of three quarters. And
basically, I'm taking students who have never done this; and at the end of it,
they can be at home; they can have an idea, and they can make it tangible. And
it's called Code is Law because, as lawyers, we are already creatives. We write
words. Code is not much different. The difference is, though, that it crashes
immediately if you get it wrong, but contracts — it's going to take a long
while.
Denise: (Laughs)
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.
Denise: (Laughs)
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.
Denise: Right.
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)
Sarah: Right.
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
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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)
Sarah: (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
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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,
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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
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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
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came out stunningly great. And, this is just one of the many hundreds of meals
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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?
Tony: Certainly, I think one of the first things that we
were very aware of was the fact that we were handling, potentially, very
sensitive information. And, so the frameworks around any potential sharing of
that information, both with the lawyers, and if in the future, we were to have
handoffs to other services that lawyers are using, I think we’ve been very
careful to frame that around a design principle that is all about consents, you
know, and, understandable consents, as well. I think, at the end of the day,
sharing information with the full knowledge and consent of the persons…the
person whose information is being shared, I think, that can have a lot of
beneficial uses, where it is clearly of value to that individual to have the
right people looking at this information and providing them with services on
that basis. But, I think where it dangerous and scary, as Pieter is saying, is
where that is done, pretty much, without your knowledge or the legalities under
which that is done is, in some way, buried within a ‘terms of use’ which
everybody is just clicking through. I think, some of the things we’ve been
trying to…careful to include, within the LawGives framework, is an offer for anonymity
when you submit an increase, so the legal providers, who are initially responding
to your increase, don’t know who you are, and, it is very much in your control
as and when you choose to reach out to a provider and actually share your
identity information. I mean, that is a design principle that is imbedded
within our technology. Likewise, with our terms of use, we’ve made and effort
to, you know, provide a simple overview with regards to each of the clauses,
especially around the privacy policy. And, I think, going forwards, as we look
to the future, where we ourselves have thought of opening up our APIs for
interactions with other technology tools and services, we are going to be doing
so with a very careful intention around getting the right kinds of consents,
fine-grained consents, you know, what – not just who you are going to share it
with, but, what is the purpose with which you are going to share this, around
which the (?) is going to be used, going forwards. I think those are the best
practices that are starting to come into play around certain standards that
are, sort of, coming into broader use. There’s identity frameworks and data
sharing frameworks such as Open ID Connect, which are becoming more
standardized across different technology providers. It is around this notion of
both authenticating as who you say you are, but, also what kinds of data can be
shared with your consent. And, I think, because of issues like this, cases like
this, Sarah, like you said, this seems so counter to what we would assume to be
the case, where the line, in particular, from that article, ‘the users identity
and that of the video material were transmitted, separately’, albeit,
simultaneously. I mean, this notion that, the fact that they were transmitted
‘at the same time’, but, they are ‘separate’, you know, so you can’t put them
together, is…and the analogy was, it is akin to giving a receipt to somebody,
and then giving a separate receipt to them and those wouldn’t be put together.
I think that is…I mean, it stretches the boundaries of what is actually
happening in these corporations. And, I think, because of that danger, I think,
having these much more secure frameworks in place around obtaining consent and
making sure the user, the identity and their data is protected, I think that is
going to be crucial, going forwards.
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.
Denise: Right!
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 – sarahpe@twit.tv.
And I’m denise@twit.tv. 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!
