This Week in Law 300 (Transcript)

Denise Howell: Hi, folks. It's Denise Howell here. And this week I'm joined by Bernard Chao, Rebecca Tushnet, and Diane Peters. Barbie gets creepy; left shark bites back; freedom to tinker with the DMCA; Game of Thrones download frenzies; billions in patent damages; and more — 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 300, recorded April 24, 2015

Leonidas, His 300, and a Few Bars of Patent

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Hi, folks. It's Denise Howell, and you're joining us for This Week in Law. I'm so excited that you've joined us this week. It's a really big week for us; it's our 300th episode. Our acknowledgement of that is, of course, my friend here in the background. He would be Leonidas the Spartan joining us for the show today. So we're really excited to have been at this show for so long and constantly bringing you some of the very smartest people in the world at the intersection of technology and the law. And I'm happy to say our 300th episode is no exception, a shining example of doing just that. Let me introduce our crew to you right now. Sarah Pearson is out this week, but never fear: She has sent in her boss to pitch in. [Laughs] We've got Diane Peters, who is general counsel for Creative Commons. She's formerly with the Linux Foundation and Mozilla. And it's wonderful to have you, Diane. Thanks so much for joining us.

Diane Peters: My pleasure. Great to be here!

Denise: Also joining us — someone I've wanted to get on the show for a very long time — Rebecca Tushnet of the 43B blog and Georgetown Law, where she teaches con law, consumer protection, copyright, and intellectual property law and trademark. Thanks so much for joining us, Rebecca.

Rebecca Tushnet: Thanks for having me.

Denise: It's wonderful to have you. And rounding out our panel — from the Sturm College of Law at the University of Denver where he teaches patent law, intellectual property, and contracts — is Bernard Chao. Hello, Bernard.

Bernard Chao: Hi. How are you doing?

Denise: I'm doing great. Wonderful to have you all here. We've had lots of great stuff going on lately. It's been unfolding for the last couple of weeks and turned into sort of a pileup of all the ways that piracy happens today. So I thought we'd start out talking about Game of Thrones.

[The intro plays.]

Denise: Game of Thrones debuted its fifth season quite recently — not last Sunday, but the Sunday before — and is on its way to continuing to be a record breaker in the amount of illegal downloads of the show. It also is a great example of piracy in the wild today — how piracy is functioning, how people are enjoying the show in ways that are not making HBO terribly happy. It's kind of surprising to me because it seemed like, at the beginning of the show, we had some HBO executives sort of saying, "Yes, yes, you shouldn't pirate the show, in essence; but we understand. It's good for getting word out about the show." I remember some comments along those lines. It seems that those comments have gone by the wayside because HBO does not seem to be very pleased these days that the myriad ways that the show can be illegally consumed are going forth. So I thought we'd go through some of these means and get our panel's take on piracy today. Of course, torrenting has sort of become the way that P2P filesharing happens. The days of Napster and the classic P2P services are over, but bittorrent and torrent technologies seem to make it quite easy for people to find the works that they want to find and enjoy them in high-definition video. Also related to torrenting is the fact that, apparently, HBO had some trouble with some party to whom they sent screener DVDs because the first four — not just the first episode, but the first four episodes leaked online and were available on the torrents. So let's start there. What do you think, Rebecca, about the current season of Game of Thrones and its ability to be torrented?

Rebecca: Well, I think it really highlights the fact that there's no longer any barrier between one copy and zillions of copies; and it means that, really, the solution mostly has to be in the market because you can't play an infinite game of Whack-a-Mole. And I think HBO's been making moves towards that and had its strategy kind of upended by the actions of probably one person.

Denise: Right. Exactly. Diane, what do you think about this?

Diane: Yeah. So I'll confess that I only started watching Game of Thrones just last week with my teenage daughters, and I can understand why people want to watch it. It's a fascinating program. But with that in mind, I think that it highlights the need for reform, our copyright law reform. So as was just pointed out, the difference between one copy and zillions of copies is something that our copyright law just doesn't handle well. International copyright doesn't handle it well. we need to bring forward our copyright laws to be current with the state of digital sharing; and I think that this only highlights that. I would also agree that it's really important that HBO start to think about new business models. Their new HBO Live is a good example of them forward thinking, but I do think that the answer is in the marketplace, ultimately.

Denise: All right. Bernard, any thoughts?

Bernard: Yeah, I don't have very much to add to that. I think it's just another example of how, essentially, technology is always going to break down and allow you to gain access to anything that is distributed. And so this is just one other example; and it just, again, means — as what the prior speaker guest says — that you need to have a different business model to recover your investment perhaps on the front end and not on the back end.

Denise: All right. Well, one thing we've sort of touched on is HBO's need to pivot a bit in its business model if it wants people to be consuming its programming in a way that is sanctioned by HBO in its HBO — I always forget if it's HBO Now or HBO Go, but its mobile service that used to be tied to your cable subscription. They did go ahead and un-bundle that and allow people to stand-alone subscribe. HBO Now. Thank you very much, Victor. [Laughs] That — I think it used to be called HBO Go. Maybe not. But anyway, it can be purchased @ la carte, but that doesn't mean that you can purchase it @ la carte and then go off to another country and watch your back episodes of Game of Thrones because HBO's not crazy about that, either. And it is sending out letters to folks who are in other countries, or who travel to other countries, who subscribe to HBO Now and attempt to watch when they're not in the U.S. They've gone ahead and taken the opportunity to remind them, per their letter, that the service is only available to the residents of the United States and for use within the United States. Of course, it's available in other countries if you use a VPN, which is what these people seem to be doing. So HBO doesn't like that sort of conduct, either. It seems like that is something that maybe they should have thought about when they un-bundled HBO now from having to be attached to your cable service; don't you think, Rebecca?

Rebecca: Yeah. And it does make me wonder, since this is a project of the Internet age — so it's not, like, something like DieHard where, undoubtedly, the contracts with the actors present some barriers to going around the world. It's sort of surprising that they didn't decide to do it worldwide. There is this desire to have differential pricing in different areas of the world; but that tends to make things pretty expensive in other areas. And it might be saner to just say, "Okay. Let's let Australians subscribe at the same price. Let's not try and deal with this." Or even at a different price. Most Australians would probably pay the Australian price if they had to.

Denise: Right. And our IRC is straightening me out — my confusion about HBO Go and HBO Now. Now is the one that's un-bundled; Go is the one that's bundled, and it still exists. Diane, do you have any thoughts on this?

Diane: You know, I do. I think that there are — I rarely would take the side of HBO here, but I do appreciate that it can be hard to come up with a business plan, a global licensing revenue plan, all at once. This is a very new service of theirs. There are other services that are somewhat similar, or we might think of as analogies for how difficult it is to come up with a global plan. One of them is the Flickr Marketplace program. That's only available right now to people who are inside of the United States, and I understand that to be because of licensing complications and just trying to figure out what the marketplace looks like outside of the United States. So it's new; I expect it's on their radar screen in that they'll expand globally soon.

Denise: Okay. We'll have to keep an eye on that. Bernard, what do you think about folks using VPNs to end-run terms of service that say "only in my country"?

Bernard: So I think that that's just another example of technology defeating certain current business models' rights. So everyone wants to price discriminate in the way Rebecca suggested, which is that we want — in countries that can afford to pay less, right? So we want to charge, in third-world countries, a lot less. But if we have VPNs, we can't do that. I think that's not shocking that — any digital content you would expect to be incredibly hard to price discriminate in that way because, as we all know, digital content goes anywhere it wants very, very quickly.

Denise: Right. And another reason — not just based on the economics of the residents of those countries, but I have read recently about Netflix wanting to lower its prices based on the piracy ratio of the country so that they can better compete with the piracy that's already going on there. I actually hate that word, "piracy," and I've probably said it twenty times during this show; so I'm going to have to watch myself and say infringement more frequently instead. [Laughs]

All right. One kind of infringement that we haven't discussed but has come to light in connection with the debut of the new Game of Thrones season is live streaming and services like Meerkat and Periscope. And I actually haven't used either of those services. The Atlantic wrote them up as though they're the new cool thing in streaming. I still remember and Ustream, etc.; and I think it's all sort of the piece. But in any event, the idea with Meerkat and Periscope is to stream whatever you're doing now. And that might be watching TV, or you might decide, hey, streaming this — you know, maybe you have a political reason or want to make a statement about bad business models, and you decide you're going to stream this HBO show so other people can enjoy it who might not be subscribers. So Rebecca, what are the nuances when we're talking about cracking down on live streaming in an unauthorized way?

Rebecca: I mean, I think there's not much nuance in that there's a couple of key points. First is, until we get a world of perfect surveillance where HBO gives its content in advance to whoever is scanning the Internet for the live stream — and that person, by the way, is probably going to leak it —

Bernard: [Laughs]

Rebecca: — they're not going to be able to stop it. The second thing, though, is that it's a really terrible way to watch a show. I mean, as far as I can tell, it's sort of the crappy hidden-camera version of a film in a theater. The reason that you would do it is really to kind of hang out with your friends and share the experience, not to share the content, especially given the prevalence of high-quality download. So I tend to think that, although, yes, this is a hole, it's kind of a sideshow.

Denise: Yeah, I would tend to agree with you. Diane, can you see any way that this would be a really big concern for companies like HBO and others?

Diane: I mean, I can see where they might think it's a concern, and I think that they're really good at saying the sky is falling when, in fact, it's not. I think it's indicative that very few people are actually engaging in the conduct that they're most worried about, according to the news reports. I think the one nuance I would just emphasize here is, I think it's really important that these people are engaging in these activities for the experience, not as a means of sharing copyrighted content. And I, myself, am very concerned over issues about fair use and fair dealing and the ability to have incidental uses of copyrighted materials happening in the background — mothers recording their kids singing songs with music in the background, subject to an infringement claim — those kinds of things really worry me. And so I think it's indicative that people aren't using it as a primary means of ripping and copying copyrightable content. It's just not of high enough quality. And then I think we ought to be guarded on reformed efforts that would try to regulate that in a way that [inaudible] back on people's fair use and fair dealing and other exceptions.

Denise: Right. It would be nice if reform efforts were targeted at making sure that an incidental recording did not constitute an infringement. Do you see any light at the end of that tunnel, Bernard?

Bernard: I'm sorry. I was reading on the Atlantic article. Can you ask the question again?

Denise: Sure. I'm just wondering — Diane was talking about how it's not exactly what the copyright law is designed to prevent when somebody incidentally has copyrighted material that's playing in the background of a video that they've created for another reason, certainly not to be a source for someone to watch or enjoy the copyright material or even a portion of it. Do you think that, as Congress continues to wrestle with intellectual property reform, that that's something that we might see addressed?

Bernard: You know, to me, it's a big concern; but I feel like the concern is about the cost of enforcement. And usually, the enforcement is by someone who can afford any cost, and it really doesn't matter to them. I mean, I don't think those lawsuits in the end usually prevail because they're meritorious; I think they prevail because of the imbalance in cost. If I post a little video with something else in mind, I get a letter — I'm not going to defend, right? So I'm not sure if legislation is going to work in that kind of situation.

Denise: All right. Well, let's move on to discussing some legislation that plays a big role in the kinds of issues we're discussing, particularly in the copyright arena.

[The intro plays.]

Denise: Thought we could spend some time talking about the DMCA on the show today. There's great write-up at Ars Technica about YouTube turning ten this week and how — this is by David Kravetz over there — and how it ought to be sending a big thank-you to the DMCA and the legislators that enacted it because the DMCA is really the legal foundation on which YouTube runs these days. So encourage folks to read that piece. But the DMCA, as great as it is in its notice and takedown procedure and its ability to let services like YouTube become what it has over the last ten years. It does have its issues, and one of them is the ability to lock folks out of being able to tinker with things that are digitally locked up. And the latest example of that — and wonderful piece over at Wired on this — so the John Deere tractor, which — John Deere has advised the copyright office that, actually, the buyers of its tractors don't have an ownership right in their tractors because of the way in which computer code is so intricately involved in making the tractor work. [Laughs] So what John Deere argues instead the farmers have — that what their pink slip means — is they have an implied license for the life of the vehicle to operate the vehicle. [Laughs]

Diane: [Laughs]

Denise: [Laughs] So I think, if you told enough farmers that, you might see one of those classic movie crowds with pitchforks coming at John Deere. So Rebecca, can you unpack this for us a bit. Obviously, if this applies to tractors, it applies to all manner of automobiles that are heavily driven by computer code these days. And can this really be something that holds up?

Rebecca: Oh, and your refrigerator and the insulin pump that delivers your insulin — everything's got a computer program in it. And I don't know that I can unpack it as much as I can say it is appalling that the copyright office is being asked to decide whether somebody can fix their tractor. This is not the copyright office's job. And, in fairness to the copyright office, I think they probably know that; but we really do need to rethink this law so that you don't have to come every three years because that's what it is. You have to ask the copyright office, "Hey, can I fix my tractor?" every three years and get a new exemption; and if you don't ask, it expires. And this is nuts. I mean, it's nuts even as applied to real fair use; but it's even more bizarre as applied to machines that do things for us that happen to have software in them.

Denise: Right. And one of the best things to pull out of John Deere's filing with the copyright office — they're attempting to supply some justifications for why people should be deemed to have an implied license to operate their tractor. And one of the things that they pulled out is the high likelihood, apparently, that if you're able to mess around with your tractor's programming, you might just use it to pirate music.

Rebecca and Bernard: [Laugh]

Denise: That's where you're going to sit and do all your downloading. [Laughs] Right there in your tractor seat. It's really in the brief. You have to, if not read through the whole brief, at least read this piece by — I don't know how to pronounce his last name, exactly — Kyle Wiens, maybe, the co-founder and CEO of iFixit, who has an opinion piece in Wired on this that's quite good. Bernard, what are we going to do about this?

Bernard: I mean, I think we have to change it. I mean, I think there's a larger implication, right, for all after-market parts of any kind that have sort of a digital implication where if we somehow use code to interact between any new part — maybe we need code to put a tire on our car — maybe, then, we need to secure — maybe manufacturers will then secure that code so that only appropriate tires go on their cars. And then they therefore control that with some sort of technology; and to break that technology — the only way to then provide after-market parts is to break that technology. I think that clearly gives a type of market power we don't want to give to the folks that make these products, right? It sort of violates all our notions of tying and anti-trust issues that sort of are raised galore.

Denise: Diane, the other points, aside from the likelihood that you're going to sit there and use your tractor as an infringement vehicle — which, of course, I don't know if that's in the literature —

Diane: High likelihood. High likelihood.

Denise: — the sales literature, yes. [Laughs] "Also available for downloads." They do argue, too — something that passes the smell test a little bit better — that people could mod their vehicles in ways that might make them operate outside of specifications, maybe unsafely, or that they could modify them to not have to meet the EPA standards that auto manufacturers are required to build into the cars. The author of this opinion piece puts in great responses to that, that these things are already illegal and have nothing to do with copyright; that if you've done something unsafe to your car, there should be other ways in the law to penalize you for that; and if you've done something that violates environmental laws, same thing. Do you agree, or do you think that these arguments should carry more weight?

Diane: No, I completely agree with that. And as a child of the designer from John Deere — my father worked for John Deere in Cedar Rapids, Iowa — I know that he would be extremely disappointed if I explained this well to him. I think it is appalling, and I agree with the other panelists. And there are absolutely other ways in the law to handle these things. Warranties is a classic way to handle — when I buy a car, I'm allowed to do certain things to it, and I'm required to take certain care of it or the warranty expires. If I have a pick-up truck and I jack it up on tires that are outside of the bounds of what the specification calls for, I lose my warranty if something goes wrong with it. That's how the law has handled it, and very successfully, I might add. And so I do agree with that commentator that there are other means to handle it. It also reminds me of some of the very foundational reasons Richard Stallman got into free software. He was frustrated by a printer, if I remember correctly, at MIT that he wanted to be able to adjust the software. And so the beginning point for that entire movement was, if I can't lift the — look into my car under the hood, or if I can't open up my printer to try to fix it so that it runs compatibly with my computer or other software, that's a ridiculous position to be in. Again, I think that warranties and other laws can come into play to handily deal with these kinds of issues that they raise. It's a smoke screen.

Denise: Yeah. That's probably exactly what John Deere's going to argue to the copyright office in the wake of all the Game of Thrones piracy we've been discussing, that this is the way that the next generation of illegal downloaders is going to thwart HBO's efforts against VPNs and torrents, etc. They're going to turn their tractors into torrenting machines. So I think that we'll make "tractor torrents" our first MCLE pass phrase for this episode of This Week in Law. We put these phrases in the show in case you are in a jurisdiction where you would like to receive mandatory or non-mandatory continuing legal education for listening to or watching the show and you need to demonstrate that you actually did so. So look for another phrase a little later in the show.

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Let's move on to some issues in the patent arena.

[The intro plays.]

Denise: All right. So with that kind of explosion kicking us off, I guess we'd better talk, Bernard, about some explosive patent damages awards that people may or may not have been paying attention to. They're hard to ignore because a lot of them begin with a B for billion. Can you tell us what's going on with patent damages?

Bernard: Well, so the biggest case in the news these days is a case called Carnegie Mellon v. Marvell. And it is Carnegie Mellon University, and they've successfully sued Marvell and obtained about — I think it's a 1.6 billion-dollar verdict. And by itself, that's not particularly interesting other than the number; but it's precisely how they got to that number. They actually were able to argue that because of infringement in the United States by Marvell's sales folks, sales cycle, that it caused Marvell to have design wins, and that the worldwide sales should be the subject of the royalty base. So in effect, we've always had this sort of convention where royalties and damages have always been based on U.S. sales. And in this case, what happened was, Carnegie Mellon got foreign sales in the royalty base. And because those foreign sales — the estimate is more or less — they got 80 percent more in damages — the original domestic base would have got them about 300 million. And so there has just recently been a federal circuit appeal; it's been argued by a couple heavyweights, Kathleen Sullivan and — I can't recall who the other one was. But it's a big deal because it affects the valuation of damage cases in all patent lawsuits — or I should say many patent lawsuits. I mean, so much of technology is exported; and if you get damages on worldwide sales, you really can see how damage verdicts might increase dramatically if that happens, if this theory is adopted.

Denise: So how are juries getting to these enormous verdicts?

Bernard: So — do you mean about the foreign sales, or just, how do they calculate the verdict itself?

Denise: Let's go one at a time.

Bernard: Okay. So typically, most cases these days are what we call reasonable royalty cases. And simply, you have to assume this sort of counter-factual event; but essentially, the judge instructs the jury to say — assume the parties actually, at the time of first infringement, would have sat down and negotiated a royalty rate. What is that royalty rate? And let's assume that the patent is valid and infringed, right? And given that assumption, what would they come up with? And then they're given this crazy 15-factor Georgia Pacific test that essentially allows either side to argue almost any economically rational factor that would affect the negotiation. And so in the Carnegie Mellon case, that would give you, I guess — apparently, according to the jury — $300 million or so. But what's unusual, then, again, is that they're allowed to go for $1.5 billion because they apply whatever royalty rate that they came up with to worldwide sales.

Denise: Are you a bit concerned that the way that patent damages are permitted to be presented to juries at trial is misleading, that they might just be buying into a theory that they really don't understand and that might not accurately represent how the law wants damages to go?

Bernard: Yeah. I think there are a number of us that are very concerned with that, yes. I think there are many different reasons why we might think that there's a problem. Personally, my research has been focused on cognitive bias, so I think there are a couple things that suggest juries give too much. And so one of the easiest ones — I don't know if you [inaudible] anchoring — but if you asked for a lot more money, you're actually more likely to get it. So we recently did a non-patent experiment where we ran the exact same trial. We asked for $250,000, the plaintiff. And then we manipulated the closing, and we asked for $5 million. And not surprisingly, if you understand anchoring, juries that respond to the 5 million-dollar request gave verdicts about 800 percent higher than when asked for $200,000. And just as the background, the control was — when they were not asked any amount, average jurors awarded around $200,000. And that's how —

Denise: That is really interesting. Do you think we get parallels to that in other areas of IP law, Rebecca?

Rebecca: So I think there's definitely framing issues and issues where people sort of over-attribute to the infringing element. And a desire to punish someone who's seen as a bad guy — I think that definitely happens. And there are some empirical experiments trying to figure out exactly what's going on there and what people think is bad about copying; and I think they're seeing very similar results.

Denise: Diane, it seems like, listening to Bernard talk about the possibility of these really outsized damages awards, it makes me, at least, have a better understanding why people would build a business out of being a non-practicing entity. The payoff can be huge.

Diane: Yeah, it can. I mean, that is the really interesting facet of patent law, is that you don't have to actually practice your invention; you just have to have the certificate that you frame and put on your wall. I think that, for me, what all of this drives home is the need for — and maybe that's my mantra today, is patent reform. I know that Dave Kappos, while he was at the head of the patent office, did a lot of work in that regard; but I would suggest that there's legislation that would be interesting to think about that might help tailor and prevent some of these — at least provide more guidance on what are proper damages. I also think, for me, what it drives home is, businesses, when they start, they have this — they're counseled by their lawyers: "Get a trademark, protect your copyright, and file patents," as if that's the only way people can ever make money. And I think that that really is shy of what they really should be thinking about, which is, how can we innovate? How can we create a business model? And of course, those are always core assets that people ask about, but they are not the Holy Grail of what makes a successful business. And so I think this whole idea about, file patents, file trademarks, and do what Katy Perry's trying to do, for example — and we'll talk about that later in the show — I think that there's entirely too much emphasis. And it doesn't provide business owners with much of the security that they think they're getting when they do, in fact, file for these rights.

Denise: So Bernard, you looked at the Apple v. Samsung damages and had a little bit of concern that they seem to be hooked to the testimony of an expert who gave just a very brief presentation at trial. Can you tell us more about that?

Bernard: Yeah. It's actually a fascinating case. So in the initial Apple/Samsung case — and there's been a couple trials, but I studied the first one because it was another billion-dollar verdict, right? And so I drilled down into the testimony of the expert reports. It was really fascinating. So one of the hardest questions, I think, in these multi-component cases — Apple iPhone or a Samsung phone has thousands of features. And they're actually literally covered by thousands of patents. How do you evaluate that? And it's really been a hard nut to crack. And Apple came out of it in a very innovative way. I think they actually used the testimony and expert report by a fellow professor, John Hauser out of MIT. And he provided a very sophisticated kind of survey. The survey essentially did what I would call a matrix survey. So they asked, How much do you value each of these different — a phone with all these combination of features? And they kept on changing the features. And to be honest, there were only six or seven features they kept on changing, but they kept on changing the features. And they said, "How much did you value that phone? How much do you value that phone?" And the idea is that you're not focusing the survey participant on any particular feature, so you're not distracting them because they always pay much more attention. If you say, "Well, how much is this one?" they always overvalue it, right? And so the idea is to sort of eliminate that. And he then would back up, through some fancy multi-variant math or linear algebra math, the value that the people were implicitly attributing to it. But if you actually get to trial, the testimony is actually really funny. It is essentially, "Who are you?"

"I'm John Hauser, professor of MIT. I've published a thousand papers. I'm the world authority on this and that."

"Did you come to a conclusion about how much the [inaudible] features were?"


"Is it represented in this two-by-two chart?"


And they sat down.

Denise: [Laughs]

Bernard: And — yeah. No, it was crazy. In fact, I gave a presentation on it, and I actually calculated the number of minutes and seconds he testified. I should have pulled it up, but it's like two minutes and forty seconds of direct testimony, right? And so one of the questions you have is, What's the jury supposed to do with that, right? And what's the cross-examination supposed to do with that? Because I looked up how much time each side was given; and of course, both sides were running out of time by the time damage was coming up. So the defense couldn't really give a legitimate cross-examine and say, "Well, was the survey legitimate? Did they actually show the [inaudible] infringing [inaudible]? What about this?" They couldn't do any of that, right? And so you get this guy coming up with a mathematical formula; and the jury's saying, Well, what else do I got? And the answers were something like — in the chart — I can actually email it to you, but it's like — it was literally a two-by-two chart with patent numbers and values. And the values were, like, $50. $80 a phone.

Rebecca: [Laughs]

Denise: Right.

Bernard: And that was it. It was crazy.

Denise: Yeah. If it's available online somewhere, do send me the link, and I'll put it in our discussion points for today so people can check it out. You can find that, as soon as I get the link, and everything else that we're talking about today — the stories that we've read to get ready for the show — at It's all there.

Bernard, can you tell us a bit, too — we've had some folks on the show recently who have been signatories to letters to Congress in favor of patent reform. There have been a whole slew of law professors who've also written to Congress and saying, "No. Patent reform? We don't need patent reform. The patent laws are working just fine as they are." You've stayed on the fence about this. Can you tell us why?

Bernard: Yeah. So historically, I'm probably one that has been labeled as anti-patent. In fact, a lot of my practicing patent friends are mad at me for some positions I've taken. And so my feeling's always been that patent rights have been too strong, that companies have been bothered by trolls and threats, and they're not innovating. But I think the courts and Congress have done a lot since I've had that view. I think that the Americans Invents acts have allowed companies to challenge the validity of patents in a much less expensive way than they'd done in the past. The courts have actually taken action on damages. They've taken action on doctrines of willfulness and obviousness and permanent injunctions, all to help those being attacked by patentees. And then, most notably, they've taken radical action on restricting what subject matter is even eligible for patents. So I'm sort of — I don't know where I stand right now, in the sense that I feel we've done a lot and the dust hasn't settled yet. And I'm not one who thinks that we should have no patent law. I think I mentioned in my email to you that I think that we need a thin level of protection. And what I mean by thin is, we need to have protection that prevents literal copying, right? At least some literal copying, and literal copying plus a little trivial copy. So we could all probably agree that Apple's iPhones probably took a lot of R&D and cost a lot of money for them to figure out, and that it probably would be cheaper for someone to just rip apart that phone, disassemble everything, and copy it. And we don't want that to happen. That's going to prevent companies like Apple from being innovative and spending the money. But at the same time, we want vigorous competition; and so previously, I would say we had incredibly thick protection for patents, and so that actually let us — "I got a patent. I can stop anyone. I can ask for a ton of money." But I do want a level of patent protection that still prevents literal copying and a little extra, just the trivial variations.

Denise: That sounds like a reasonable line to draw. What do you think, Rebecca?

Rebecca: Well, I have to say, my standard line on patent is: I don't know much about patent. I can hum a few bars.

Denise: [Laughs]

Rebecca: So I guess the only thing I'm actually familiar with, to some extent, is design patent because it overlaps with copyright and trademark in some important ways.

Denise: Right.

Rebecca: And I'd be happy to talk about that, but I don't think I'd be helpful with this.

Denise: Okay. Diane, any thoughts on the patent front before we move on?

Diane: Yeah. So I'm not a patent lawyer, either, but I can also maybe hum a few bars along with Rebecca.

Denise and Bernard: [Laugh]

Diane: But I would say that I think that there — definitely, I think, the blocking patent issue is problematic; and so, to the extent there's literal copying plus a little more — I think that's what you're getting at — I think that that's an interesting place to look at, reform efforts. It's too easy to be able to modify a design or a patentable invention just a little bit and then secure a patent that then blocks other people from using some of the work. What I find most interesting in the patent space again has been, for example, the non-governmental projects that are designed to try to improve patent quality. I think that that's an important place for us to be looking in the future. Beth Noveck, who is a professor at New York University Law School — she was the founder of the — I think it's Peer-to-Patent Community patent review project, which encourages the community to weigh in with prior art to help make sure that patents that are issued really deserved to be issued, and that then narrows down that number that the public has to deal with. And new inventors have to deal with for that matter. So, that’s where I’m most familiar with patent law. I think that’s its incumbent on not just the government, but on the people filing patents to take an interest in making sure that only the best patent’s issued, solid patents not the frivolous one that make trivial improvements over existing technology.

Denise: Humming a few bars of patents is reminding me that I forgot to bring up when we were talking about Game of Thrones, one other aspect of infringement that HBO seems to be cracking down on, is bars. People congregating in bars to watch the show. You’re used to seeing the sports franchises not approving of that and policing it fairly closely, but not so used to seeing the producers of large scale TV productions. Do you want to weigh in on that at all, Rebecca?

Rebecca: Well, so, it’s interesting because the US has a very specific regime for things like that, and basically allows home style equipment, although that’s actually been held to be a violation of our international obligations, but we don’t care about that. So, who cares? But anyway, so the interesting questions now arise, now that home style equipment is these really huge television screens, and incredible sound systems so I think there is some anxiety among producers. That said I’m a little surprised to see a non-sports team interested in this.

Denise: Right, when you’ve got the wall sized 4K TV in your bar, that’s going to be something that probably not everyone can have in their home, or if it is, you know, you’d make the investment if you could draw in the crowds and play copyrighted material. But, you know, it’s not exactly like the beat cop is going to notice that Game of Thrones is on and say, “Hey, you’re really not supposed to put that on.” Diane, do you have any ideas about enforcement of this?

Diane: I think it’s going to be really hard. Again, there’s the slippery slope. I mean, you know what people have in their homes, theater quality projection equipment, and I agree with you that the quality of what you can have in a bar or in your home often, I mean what’s the line there? I don’t have any good recommendations unfortunately. I think that as technology continues to improve and people are able to have from the small TV to the theatre quality TV and projection setting in their homes, and in bars and in other places, it’s going to become more complicated. But I don’t have any brilliant ideas, I wish I did.

Denise: All right, well, Mattel thinks it has a brilliant idea, but privacy advocates might disagree. Let’s talk about Barbie. Hello, Barbie! Hello, Barbie reminds me much, it’s not available yet, it’s coming out this fall, it reminds me much of a fictional toy on the Conan O’Brien show called Wiki Bear. We can check in with Wiki Bear in a moment here, but just to tee up Hello, Barbie a bit. It’s going to be interactive. It’s going to, I think, be algorithmic, I haven’t read enough about it to know if they’re going to try to have teams of real people responding to the children playing with their Barbie toy. But in any event it asks for a bunch of information from the child to be able to give back contextual and customized responses. And whether it’s the computer doing it, or a person, sometimes that can go awry as I think they’ve tried to demonstrate on the Conan show with their skit, may be can play a bit of that.

Conan O’Brien: Let’s try another question, what’s the fastest animal on land?

Wiki Bear: The fastest land animal is the cheetah. It can reach speeds up to 75 miles per hour.

Conan: See, that was great information, really fast.

Andy Richter: Yea, yea.

Wiki Bear: It’s still not fast enough to outrun Jack the Ripper. The notorious 19th century British serial killer who murdered at least 5 prostitutes, lickety-split!

Denise: All right, thanks, Victor, for that (laughing). You can get an idea what the Conan show’s idea of an interactive toy is like. I think that Mattel’s idea is quite different, they’re not hoping to have an information disseminating toy, although certainly something like that could be in the works. I think they just want the child to have, you know, the experience of making friends with their Barbie. But friends know a lot about each other, and that’s what has people concerned. Rebecca, one of your colleagues at Georgetown, do you know Angela Campbell, from the Georgetown University Center on Privacy and Technology?

Rebecca: Hmm mmm. (yes)

Denise: She’s quoted as saying, “If I had a young child I would be very concerned that my child’s intimate conversations with her doll were being recorded and analyzed.” In Mattel’s demo, Barbie asks many questions that would elicit a great deal of information about a child, her interests and her family. This information could be of great value to advertisers and can be used to market unfairly to children. Also there’s obviously the recording aspect of this to be concerned about much in the way people got up in arms with Samsung about their TV terms of service and the fact that they, some lawyer had to put terms in there that enabled Samsung to record sort of ambient conversations. There was supposed consent in the terms of service for that. So, obviously it will be interesting to see what the terms of service for Hello, Barbie are and I’m interested to just take everyone’s temperature about this kind of toy. Clearly it gets made fun of on the Conan O’Brien show, because there’s sort of nervous laughter involved. We know that children’s play experiences are evolving to a more interactive plane, and what does that mean? What do you think, Rebecca?

Rebecca: I think there’s a really large story about what we’re afraid of our children learning or doing here. And I also think there’s a story about us being afraid of humans more than we are of technology. So, I actually don’t think that this is a good idea. I don’t think that there is any guarantee about how the information would be used, plus of course, there’s hacking risks, which we’ve seen large entertainment companies get hacked. And children’s information is incredibly valuable, because they have clean records. So, the kind of thing where I would be concerned is not just about the marketing, but about the safety and security. Not in the sense of someone coming to my house, but in the sense of someone getting my children’s records and then doing something unfortunate with them. I am not one for nostalgia, there’s a lot of terrible stuff, and the internet has fixed some of that terrible stuff, but at a certain point, we should probably be sending our kids to, you know, go play in the street instead of…

Denise: (laughing) yes, absolutely, get outside and go dodge some cars.

Rebecca: The street is not that dangerous. I think actually part of it is we have this really weird relationship to the outside. Especially through wealthy American parents that have this sort of terror and back into these other things that I don’t think are good for kids in the long run. But that is my personal opinion.

Diane: You have to tell that to the parents who were just cited with child negligence for letting their kids spend too much time outside walking home from school. Which was in the news just the other day.

Rebecca: Near me, in fact. And it’s something, right. We’ve got our priorities weirdly skewed. It’s like how the copyright office is deciding who should get to fix a tractor. That doesn’t make sense.

Denise: It does not. And you’re raising the hacking point brings up not just, you know, the child’s personal information that they’ve divulged to Hello, Barbie, could be compromised, but Hello, Barbie herself could be compromised in a Wiki Bear-like fashion where she might start saying some things that you might not want your children exposed to. Bernard, do you have a take on this?

Bernard Chao: I don’t think I have a different take, although, I just sent you an e-mail. This particular problem has actually been occurring in my household for three years now. There’s an app that I just sent you information about, called the Winston Show. And I’ll have to admit, I wasn’t really thinking about it, but the app essentially gets your child to start finishing stories that they start. And the app actually records the child through the camera, they make a video tape of your child, like actually finishing the story through the iPad. And then they send you e-mails, after they’ve done it, that’s sort of the highlights of the day. And so you can actually then look at those things, so yea, you have it online. And so I’m thinking, wow, this is actually been going on for a little bit longer than this Barbie, Mattel Show and all these issues that you folks have identified probably applies to this particular app which has won all sorts of awards, by the way.

Denise: Right. So how do you approach? You’ve said that this has been playing itself out in your household. How do you draw the line?

Bernard: I have to admit, I was blissfully unthinking about this at the time (laughing). It is one of those toys where you child plays with it, or at least my child, children play with it intensely for a day, and then don’t pick it up again for six months. And then they rediscover it all again. The only reason, I understand, that they rediscover it is that I get an e-mail with, you know, I think it’s mostly audio, listening to my child finish stories.

Denise: Right, it’s called the Winston Show. And I’m being told by the studio that if you go back into our archives of our Triangulation Show, Leo spoke with the creator on that show. So, maybe get some more information there. That’s going to be a good one to go back and watch. So as far as Barbie goes, you know I’m wondering if as we all sit here today, being of a certain parental age, that our take on this is much different than our children’s generation’s take on this would be. Ideally, under our law, it’s only the thirteen year olds and up who are recording everything they do, maybe using Meerkat and Periscope to do it, and sharing it with their friends already, divulging tons of information about themselves. And maybe the fact that it’s thirteen and up is ok, but you know, I know from my experience with younger then thirteen year olds that, and again, I’m not saying that they should get to make the final call on whether they are making good judgments about what to do with their data or not, but it does seem like there is less of a sensitivity generationally. What do you think, Diane?

Diane: I think that’s absolutely the case. So I have a 16 and an 18 year old, both girls, who came of age like when we started to have a lot of computers in our house, and they’ve got iPads and so many iThings in our house, I don’t even know where they all are and what they’re all connecting and doing. I do think that there is, I mean, teenagers and kids are super savvy. They can figure this stuff out faster than most. What I don’t think that they see is the implications down the road, the long term, you know, what’s happening to my data in the cloud, what’s happening when I Snapchat, what happens when I talk to a Barbie doll. I think, I don’t know what the going age is now for Barbies, my kids never played with them, but I think it is probably younger than 13. And so, for me, what I think is really interesting is thinking about what will those terms of service look like. I think consumer advocates are absolutely right. They need to make sure and push them hard on, you know, it’s a two way street. It’s what your kid is saying to the doll, that’s all unfiltered stuff. They don’t have internal filters like we have when we get older. And then, what they’re playing back, as well. You know, do parents have any control over that? So I think the terms of service will be really interesting to examine. I’m not delighted with that, but it’s just as general matter, kids are pretty savvy. They think they’re invincible. They really don’t understand how a lot of this stuff plays out. Where their data is being shared and for what purposes, and I think that it’s important for us. It’s not just a legislative thing, you know, it’s a parental thing, it’s a societal thing, it’s the consumer advocates. We all have a part to play in helping maintain checks and balances and making sure that kids have the information they need. They’re smarter than everyone thinks that they that are, to be candid.

Denise: Yea, I totally agree with that, but I do think too they’re also, it’s also that invincibility aspect you brought up. That they know they should be careful, and so they can be told with something like Shapchat, “Ok, this is going to take care of you.” And then they’ll go with that. They think they’re taking the right steps, and maybe they don’t have all the information that they might need, so that I think, there’s a big parental role there to make sure that kids look at things skeptically and from all angles. All fight, let’s move on to our second sponsor to thank for this episode of This Week in Law. New sponsor to the show, I’m really excited about this one, you guys have may have heard of it, it’s getting a lot of press. The way the internet has just intermediated shopping for most things in our lives, has not really reached the mattress industry. Until Casper. But it has now. 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So you can’t just lie on one in a showroom and expect to know if you’re going to sleep on it well. But you can try out actually sleeping on a Casper mattress. You’re going to get free delivery and absolutely painless returns, with a hundred day trial period. So you don’t have to lie down in a showroom. And did you know that statistically, lying on a bed in a showroom has no correlation whatsoever to whether it’s the right bed for you. So you really have to sleep on it, and know. Casper’s mattresses, too, this is really important, entirely designed and made in the USA. So if that’s something that’s near and dear to your heart, I encourage you to go over to the Casper site, they have a beautiful website, and really get into their FAQ and learn more about the company. It’s a very cool company doing disruptive things in the mattress industry. And you can get yourself a Casper Mattress for a very reasonable price, $500 for a twin or $950 for a king size mattress. So under $1,000 for a king size mattress, that just blows me away. Compared to industry averages that is just an outstanding price. And you can save an additional $50 as one of our audience members by going to and entering the promo code TWIL, T-W-I-L. That’s, promo code TWIL. If you try out the Casper mattress and have a great experience, or you’re into your 100 day trial period, let me know, I’d love to hear back from you. I just bought myself a mattress, so I’m not going to be buying a new one any time soon, but love to hear form our listeners if they go ahead and take advantage of this offer. And thank you, so much, Casper, for your support of This Week in Law. Let’s move on and talk about something near and dear to our hearts, the computer fraud and abuse act, and just sort of check in what’s going on there these days. All right, so Aaron’s Law has been wending its way both through Congress and the Senate. This aims at reforming the computer fraud and abuse act. It is named after Aarons Schwartz, someone who was being very zealously prosecuted under the CFAA for acts related to accessing JSTOR at MIT. Don’t want to go too far into Aaron’s story here, but Rebecca I’m guessing, you know, with your finger on the pulse of Washington D.C. happenings, you’re paying attention to Aaron’s Law, and its effort in the House and Senate, and maybe you could give us some insights on that?

Rebecca: So, I wouldn’t describe myself as well connected. But I think there’s some chance for movement on it. We have seen some interest by parts of Congress and I’m, I guess, guardedly hopeful that this might be one of the things that they’ll work on. Whether it will survive is another question, because of course there’s strong counter pressures, because companies often want the maximum number of legal tools, they worry about cutting off any future possibilities that someday someone will do something that isn’t exactly covered by trade secrets, and isn’t exactly covered by copyright infringement, but we still want to get them. And the problem is that it’s probably not a good idea, but they want to have that possibility.

Denise: So the reason I bring it up this week on the show is we’ve had an example, recently, of a fourteen year old in Florida, an eighth grader, who has been charged with a felony for hacking his teacher’s computer. The hacking though, was used a widely known password, and what he did is go in and changed the desktop background of his teacher’s computer. It wasn’t a nice thing to do, it was a prank, he certainly should have been punished for it. He changed it to an image of two men kissing, so you know you can see why this would be probably something the school would frown upon, but maybe we would think that the school and the parents would be the parties disciplining this child, as opposed to the Federal Government, which is charging him with a felony under the Computer Fraud and Abuse Act because they can. Because the act is that broad. So, Diane, do you have any take on this eighth grader, named Domanik Green?

Diane: Yea, so I think he’s being prosecuted under the state law. If he was under the CFAA I think it would have been a misdemeanor, but in Florida, because there’s a state law that’s in place there, the smallest charge that they can bring is a felony charge. It think that that’s a really interesting lack of harmonization between what the feds are doing and what the state are doing. I agree with your initial lob which is, you know, this certainly be considered a violation of a student code of conduct, handbook or what have you, but certainly I think felony is a disproportionate crime to be bringing against an eighth grader for something, particularly when it’s well known that the teacher was loose with the password, all the students were using it. It just feels extremely disproportionate. I do think that there’s some harmonization that should be attempted between the state and the feds on this issue, so that there’s more flexibility, but I don’t know how, whether that’s at all feasible.

Denise: Yep, you’re absolutely right, reading further in this EFF piece, he is being prosecuted under state law, and goodness, if the CFAA needs to be reformed, definitely this Florida law does, too, or as you said, harmonize it with the CFAA. Rebecca, any thoughts on this?

Rebecca: So, I think actually there’s a story of over criminalization here that’s probably well beyond technology. So, this fits into kids getting hauled off in handcuffs for lots of things. And I think we really need to address at the level of what role we want criminal law to play in our lives. Although I certainly, I’d be happy to see this state law cut back. But it seems like a manifestation of a larger problem.

Denise: Yea, absolutely. I don’t know, Bernard, maybe this is why our kids need to stay in with Wiki Bear and Hello, Barbie (laughing). Stay off their teacher’s computers, what do you think?

Bernard: Yea, I’m just going to echo what the other speakers have said, I think this is an issue of prosecutor discretion that obviously it shouldn’t be brought, and then the larger question that Rebecca mentioned, it’s simply, what role, do we want to provide really broad criminal laws so that it gives our prosecutors the discretion to find things that they might not otherwise prosecute, that we really think is bad. When we know sometimes they abuse that discretion and go after things that really aren’t that bad because they also fall within the, sort of, letter of the law, letter of the outlaw.

Denise: (laughing) I like that. Let’s move on now to something that Rebecca has been following for a while, we’ve been following it on the show. It’s sort of a great cat and mouse, or Katy Perry and shark, as the case may be. With Christopher Jon Sprigman from NYU representing a 3D printer person who was right on the popularity of the “left shark” right after the Super Bowl. And came out with the CAD file to make your own. Or actually, I think it was just the file, and not the shark itself that was being sold, but somebody correct me if my memory is dimming here, a couple of months down the road. But, another fin has dropped in this story. Why don’t you bring us up to speed, Rebecca?

Rebecca: Well, so, Katy Perry applied for a variety of trademarks related to “left shark,” and the PTO issued an initial action which isn’t the end of the line, but for “left shark” basically saying what exactly is it you are trying to claim, you know, please be more specific. And part of the larger problem I think is, in what way does it signify Katy Perry? It signifies a particular cultural moment, but trademarks are supposed to tell you, like, this has some relationship to, this was endorsed by, or produced by, somebody and I don’t see how “left shark” really does that.

Denise: Right, so you were talking about design trademarks earlier, how does that come into play here?

Rebecca: Well, ok, so actually it turns out that trademark registration which is not the same thing as having a trademark. You can have a trademark without a registration. If you want a registration you have to tell the trademark office what it is that you would like to register. And as it turns out, we do have a little problem with people saying, “Ok, I want to register this drawing.” And the trademark office accepts it as a design. And then they say, “Ok, now I have rights over sort of every physical manifestation of the thing in this drawing.” So I wrote about a case like that, with respect to a Mardi Gras bead dog, where what I thought what might have been a perfectly valid trademark registration for a particular image, of a bead dog, which is this little trinket, then they start suing people who make physical, like, bead dog trinkets. So, part of the question of the registration is, like, are you just going to try to have like “left shark” t-shirts where there’s a particular outline of the “left shark” like a Polo pony? Because that could be a trademark. But if it just the “left shark” in all its glory, what it is a trademark for?

Denise: Right, so there was a picture making its way during Coachella, of Katy Perry standing in front of a garbage can at the music festival that was shaped like a shark. And don’t know… shaped possibly like one of her sharks from the Super Bowl show. So, is that what you’re talking about, that conceivably, you know, if they stick to their trademark stance they could go after the person, doesn’t look like this came from the factory looking like a shark, it looks like it is some sort of artistic creation.

Rebecca: Well, you always have to ask, what rights are you granting? And this is something that I think like we were talking about earlier with patents, that the less well defined the right is, the more it’s possible to say, ok, everyone vaguely in my area is doing something infringing. And that’s actually often must easier than with trademarks than with anything else.

Denise: Alright, Diane, any “left shark” thoughts for us?

Diane: I was smiling when I read the commentator who wrote that they would have a better chance trademarking the name as opposed to copyrighting the design. And, I had to laugh because you know, a hallmark of trademark is, it can’t be descriptive. You can’t trademark a brand of apple, you know, an apple, but you can trademark a computer program or an operating system or the hardware an apple, and that’s fine because it is not describing the thing that it’s being attached to. It’s not descriptive. And that’s a requirement. And so I had to smile when I saw that someone thinking that “left shark” or all of these other derivations could actually be trademarked. Because in my judgement they would be extremely descriptive.

Denise: Yes, left and shark both seem to be quite descriptive. Bernard, what do you think?

Diane: Right.

Bernard: I think I don’t have anything else to add to what the other commentators said. They sort of covered what I would think.

Denise: All right, I’m just happy that we still get to talk about “left shark” this far after the Super Bowl, that just makes my week. We’re going to take a final break now and thank our third sponsor for this episode of This Week in Law, and that is ProFlowers. Perfect timing on this folks, Mother’s Day is just around the corner, and I don’t want you to be stressed out over Mother’s Day, and I also don’t want you to think, “Flowers, flowers, everyone gives flowers. I need something more unique and special and delightful.” When you go to the ProFlowers site, you’re going to find unique and special and delightful and your mom is going to love it. ProFlowers makes buying a beautiful gift for your mom simple and quick. They’ve got everything you need for Mother’s Day, for all the mom’s in your life. In our family we have several moms of, you know, my husband and myself, we have grandmoms that need to be taken care of too, so Mother’s Day gets to be quite a production and ProFlowers just makes it easy and wonderful and special and delightful. You get to choose the delivery date that you want and it’s guaranteed. And best of all, their flowers are guaranteed to be fresh and beautiful for at least seven days after you receive them. And it’s not all about flowers on their site either. They have wonderful, delightful, delectable things that you can add to your flower deliveries, like hand dipped strawberries, and truffles, so if, you know, mom with a sweet tooth, grandma with a sweet tooth, you can definitely accommodate that. And plants. You know, sometimes people don’t like to give flowers because they’re sort of impermanent, even though they are beautiful, they have a beautiful selection of plants to use too. The website is easy to use, they offer a wide range of beautiful flowers starting at just $19.99 plus shipping. Flowers for all occasions, not just Mother’s Day, including roses, daisies, tulips, orchids, lilies and more. And every order comes with that ProFlower’s guarantee. So I want to show you now what I actually picked out for all the moms and grandmoms in our life. This selection is going to one of the grandmother’s in our family. It’s beautiful irises and tulips and it comes with a box of chocolates. And I thought it was just gorgeous and bright and would look great in her home. Let’s see, what else made the cut for our family. We’ve got, I know, a few more things. Oh, of course, those beautiful hand dipped strawberries just look amazing. This was for a dozen that are getting delivered to another grandma. I know I’d love to receive these. And then, again, I mentioned plants. This is a gardenia plant, a growing, live, flowering gardenia plant. I don’t know if you have ever smelled a fresh gardenia, but they’re among the most fragment flowers there are out there. They’re so beautiful and lovely to have around. And then some truffles, actually, come on the second day, they do these staged deliveries, too. If you really want the recipient to feel pampered and surprised, you can set it up so that one thing arrives on one day, another thing arrives the next day, and it’s just sort of this avalanche of gift giving that comes their way. It’s a really cool idea. So, for Mother’s Day, ProFlowers has a special offer for fans of TWIT. You can get one dozen rainbow roses in a free glass vase for only $19.99. That’s so reasonable. Plus shipping. Or you can upgrade to two dozen roses in a free glass vase for just $9.99 more. Visit today, click the blue microphone in the top right hand corner, and be sure to enter the code TWIT. But you only have until Friday, May 8th, to take advantage of this special offer. And if you order by then, you can still get guaranteed delivery for Mother’s Day. So go to, and use the code TWIT, T-W-I-T. Thank you so much, ProFlowers, for your support, and on behalf of TWIT, to all mothers out there, happy Mother’s Day! All right, so, let’s move on. We’re going to get into that segment of the show where we leave you with some valuable takeaways: our tips and resources of the week. We have two of each this week. We are going to start with our tips and we are going to start with Diane. As you know, if you’ve been watching recently, we’ve been doing a series of Creative Commons related tips, helping you know more about the service and use the service. Last week we talked about why, I think, the whys of Creative Commons. Now we’re going to talk about the hows. You’ve decided that you have a work that you want to release under a Creative Commons license. What do you do now? I guess it depends a bit on what kind of work it is, right, Diane?

Diane: Well, it needs to be a work that’s protected by copyrights certainly. So while the creativity barrier is low, it’s not nonexistent. So you need to have a creative work of copyright, and you need to own some of those rights in the work. And so once you decided what kind of license you want, and there’s information on my website that you can choose between, the reality is that if you’ve decided to use a CC license, then you’ve decided that you wanted to go far and wide over the internet for the broadest possible digital distribution. So, what’s important here? Tip of the day: Mark your work really well. And the best way to do that is to use our chooser on our website, it’s There you select the kind of license that you want. You put in important information including the title, if you have it, if you have one for your work, who the author is, you put in any URI’s that will link people back to the place where you’re going to post it, and if you conclude that process successfully, you get what’s called a snippet of HTML code that you then copy and paste and put into your website. That, then, and the reason it’s so important is that, then, allows search engines like Google and Yahoo and others, when they’re searching for works that are available under a certain type of license, to locate your work. And that shows up in their search returns. So, marking your work well, so that it’s machine readable, that software can find it by license type, that’s very important. A sub-tip of the day is to please indicate if you’ve used other people’s works inside of your work. So rarely do any of us sit down and we create things purely that’s 100% ours. We often borrow images from the internet, we take other Creative Commons licensed works and we re-mix and mash them up, and then we create a new work from that. It’s important to indicate when you mark your work if other people have rights in your work. So, if you’ve created a derivative, please indicate, “I have borrowed Rebecca’s, a page from Rebecca’s last law review article, I’m incorporating that.” And in my commentary I want to make sure that I indicate that it’s Rebecca’s law article that I borrowed from inside of my commentary, my blog. So mark your works well, use our chooser to do so, and be sure to indicate when third party content has been used in your original work.

Denise: So I think people are familiar with the symbols that mean Creative Commons, that this work is Create Commons licensed. Is it best practices to put one of those symbols if you’re licensing, say, an entire webpage? To put one on every page that someone might click through to? Is there any sort of magic as to the placement of it?

Diane: Well, it really depends, there are really two ways to do it. You can either indicate in the footer on your website, that all work, unless otherwise indicated, is licensed under a Creative Commons license, or, if you have fewer things that are under CC licenses, to then mark the works individually. So, to put the buttons on there. The most important thing with the buttons is to make sure that once you’ve put them on your work that it’s linking back to the human, readable deed, which gives an outline of the basic permissions that the underlying license grants people. So it’s not just a button for the sake of a button. It’s a button that leads the users to the underlying middle code and the permissions that they’ve been granted. That’s very important. I would just take minute here to say, I don’t know if Sara has mentioned this on a prior show or not, but our logos, the main buttons, with the double C in a circle, the Attribution, the Noncommercial and NoDerivatives and the ShareAlike buttons where just acquired by MOMA for their permanent exhibit in New York. And so they are now displaying those as part of an exhibit around sort of next gen symbols that enable people to understand immediately concepts in the technology world. So it was acquired along with the “@” symbol, the “a” that we all use, and few others, which is fantastic.

Denise: Great! That’s really, really cool. You talked a bit about making your application of the license machine readable. Does that involve using some html if you’re doing a web page? Is that how that would work?

Diane: Yes. That’s exactly right. So once you go through our chooser, at the end of it, there’s a box on the bottom right hand corner, you copy and paste that, and you insert that into the html on the webpage. And so we have detailed instructions on our website for how to do this. It’s really simple. We also have instructions for how to insert code and text if you’re publishing offline. If you’re publishing with different kinds of works, there’s lots of information there, and I have included a link in the discussion doc among the speakers on the call.

Denise: Right. And then, yes, we will add that into our public discussion points, too. Marking your work properly, including third party content, resource there for you. My final question on how to apply a Creative Commons license is still on the machine readable front. If you’re doing music, or some other digital file that’s not visual, but is digital, there are ways of incorporating code that imbeds the license there, aren’t there?

Diane: There is. You can certainly do that as well. And also as best practice as well, if you’re broadcasting music for example, or over the radio, you’re streaming content that’s CC licensed, we do have best practices for that as well. You know, you should indicate either at the end of the playing or the end of the segment that a work is available under a CC license and to please look at our website. Hopefully the link or information on how to find our website is provided. So that people can easily find that work. But again, the key here is including the html, including that metadata in the html of your webpage, and including that information in any of the file formats that you’re distributing the works in. And again, if it sounds complicated, it isn’t. We do have a page on our website that walks you through the very easy steps for applying it to analog works, digital works, digital music files, digital photo files, all different kinds of formats are described there.

Denise: Wonderful. Thank you so much, Diane. Lots to learn there and I hope people will take advantage and make sure that they’re using the licenses properly. Our second tip for you comes from Rebecca’s blog just today. And it is based on a copyright suit that she has written up there involving a 3-point landing. Can you explain this for us, Rebecca?

Rebecca: So, the allegations are that the Iron Man suit was copied from another comic book character, and part of the allegations are that the image on the right, the Iron Man 3 poster, is an infringing copy of the image on the left, this other comic book character. And the problem with that, is that actually the 3-point landing, which both of these represent in actually somewhat different poses, is a really, really standard trope. So there’s a great super cut of 3-point landings and then there’s also, if you really want to get into the weeds, there’s a page on that goes into great detail about the number of 3-point landings across different media. But although my bonus tip here is don’t go to and look up 3-point landing unless you have a lot of times on your hands because you will be sucked in. (Ed.

Denise: (laughing) that’s a good tip. Thank you so much. All right, we have a couple of resources to point you toward, things to pay attention to in the world of intellectual property and technology law and doing business online. Coming up on Monday, June 8, 2015 at Stanford Law School is its 12th Annual Stanford E-Commerce Best Practices Conference. I’ve attended this conference a couple of times, it’s really, really, really good and useful. Tons of great people there telling you their experiences and war stories of best practices for doing things on-line if you’re a business. So, wanted to highlight that, if you’re in the area, you should try and go. And our other resource for you is more of a laid-back, watch it in your own home when you’re not dodging traffic outside kind of thing. And that is John Oliver and the fact that patent trolls have apparently become mainstream, if you think John Oliver is mainstream, because he did a lengthy twelve minute segment on Last Week Tonight, dealing with patents and patent trolls, he has a great introduction that involves Shark Tank, and the people getting criticized, as Diane was mentioning earlier, if they’re going to have a new business, if they’re going to have credibility and legitimacy, they better have their patents in place, as they emphasize over and over again on that show. So I really encourage you to check out this John Oliver piece on patent trolls. As with his net neutrality piece, it very nicely goes into and explains a very important issue of law and policy that we’re grappling with in the country currently. So, do check that out. And, oh, I’m seeing that I did not put in a 2nd MCLE pass phase yet. So, we should do that and I’m wondering what we should call it. Let’s call it descriptive left shark, how about. And that’s for folks who are listening to the show for continuing legal or other professional education credit. You can show that you watched or listened if you have to. We’re very thrilled that you’ve joined us to watch and/or listen today. It’s been a great 300th episode, it’s been a great 300 episodes. I’m so grateful and excited that we’ve hit this milestone. Leonidas over here’s giving me a high five, or a high feather, or whatever it is on the top of his helmet, a high plume. We’re just thrilled to have the opportunity to spend this time with you each week. We do a show at 11:00 am 1800 UTC each Friday morning, for me on the Pacific Coast. And just have the most stellar groups of people who joined us throughout the years. Today being just a shining example of that, and we hope that you enjoy as much as I do at getting to go deep on these issues that affect us all. So I can’t thank our panel enough, Diane Peters, thank you so much for joining us today.

Diane: My pleasure, it’s been a pleasure

Denise: And Rebecca Tushnet, thank you for all your great work and writing and analysis and teaching.

Rebecca: Thanks for having me and congratulations on 300.

Diane: Thank you so much. And Bernard, great meeting you too, thanks for all you do.

Bernard: Well, thank you, it was really nice being on your show.

Diane: We’ve mentioned to you that if you need to have cliff notes for today’s show, you want to get back into deeper something we’ve discussed, you can do that by going to All our discussion points are there and we love it when you can join us live on Fridays to do the show but don’t worry, if you can’t, the show is available for you after the fact on our website We’re on You-Tube as well, Roku, I don’t think any VPNs are required, you can go ahead an access the show wherever and whenever you would like. And we are a Creative Commons licensed medium here at the TWIT network. So bear that in mind, too. Thanks so much for joining us, we’ll see you next week, on This Week in Law!

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