This Week in Law 302 (Transcript)
Denise Howell: We’ve got a great episode of This Week
in Law coming up for you with Megan Carpenter, Xiyin Tang and Kerry O’Shae Gorgone.
We’re going to be hands free in our Tesla, live streaming sports, and lots
more, next.
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Denise Howell and Sarah Pearson. Episode 302, recorded May 8, 2015.
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Hi folks,
I’m Denise Howell and you’re joining us for This Week in Law. We’re so glad
that you’re here. We have an excellent panel of folks with us to discuss the
issues that have been on our minds on the intersection of technology and law
this week. One issue is a carryover from last week, where we talked a lot about
the Mayweather / Pacquiao fight, and what was going
to happen the day after we recorded the show. We now know what happened, and in
fact, we have joining us this week the author of our resource of the week from
last week, and that is Kerry O’Shae Gorgone, and Kerry, great to see you.
Kerry O’Shae Gorgone: Thanks for having me, Denise!
Denise: Wonderful to have you. Kerry is a
writer and a podcaster, she does the Marketing Smarts podcast for Marketing
Profs, and she writes What Marketers Need to Know, and that’s one of her pieces
there that we highlighted last week on live streaming. And you’ve been getting
a lot of attention this week over that analysis. We saw you on the NBC Nightly
News as well.
Kerry: I have, I attribute it all to SEO. I
can’t imagine how that could happen. I don’t know.
Denise: Yes, if you doubted whether Kerry knew
about marketing, now you know.
Kerry: Now you know. I hate to say “I told you
so,” but.
Denise: Also joining us from Texas A&M
School of Law, we have Megan Carpenter. Megan teaches IP law and various
technology related laws over in Texas, but is joining us today from DC. Hello,
Megan.
Megan Carpenter: Hi,
Denise, I’m happy to be here.
Denise: Wonderful to see you, thanks so much
for joining us. And also joining us is Xiyin Tang. She’s
a lawyer at Arent Fox, and has written and studied
and analyzed all kinds of interesting things, it’s a please to meet you, Xiyin.
Xiyin Tang: Really great to be here, Denise.
Denise: All right, so I think we will start off
the show talking about the fight now that we know what happened with Periscope
and Meerkat. So if you tuned in last week, I was very
interested, in fact many of our panelists last week hadn’t really even known that
the fight was going to happen, it just wasn’t on their radar. It was on my
radar because I was wondering quite anxiously what was going to go on on the piracy front for this fight because it was such a
big media event, it had so much hype, there was so much money on the line, not
just for the fighters, but for the promoters, for the people who attended the
fight who paid exorbitant amounts for tickets. So it really was quite a perfect
storm for people to share the fight with others who maybe couldn’t pay all that
money to attend or watch via pay-per-view. It was about a hundred bucks to
watch on pay-per-view. And so we thought that maybe live streaming would be a
big deal. And Kerry thought too, when she wrote up her piece before the fight. And
I don’t think anybody really realized, I certainly didn’t, how big a deal it
was going to be. It turned out to be a very big deal. We’ve got a lot of
stories in our discussion points that if folks want to read in detail you could
go to delicious.com/thisweekinlaw/302. Many, many
folks wrote up their experiences. One in particular at Mashable, watching the
show on line, on Periscope in particular, and what an interesting experience
that was, how easy it was to find live streams of the fight. How at one point
she was on a stream that had over 10,000 viewers. We learned after the fact as
well, and surprisingly Periscope received a number of take-down requests, a
pretty small number, I thought, only 66 while the fight was going on. And they
took down thirty streams with great alacrity. I’m not sure what their response
time was, but I think they took down the streams while the fight was still
airing. So, all of this definitely was a big deal. It seemed that the concern
that we talked about last week ok, you know, is this really going to be a thing
where people are pointing their phones at a TV? Is that going to be a good
viewing experience? Turns out it wasn’t half bad, and there’s sort of a social
aspect of it too, that enhances the viewing experience. And as my husband, the
big sports fan, pointed out, actually point a phone at the TV might give the
viewers a better experience than if someone held up their phone in the fight
and streamed it live, because if you’re streaming the TV coverage, you’re
getting all, you know, the professional camera angles and commentary and
everything else even if it is a little bit jerky and fuzzy and every now and
then the phone turns from the TV to show the attendees in someone’s living
room. So, Kerry, what do you, were you surprised by how big a deal this was?
Kerry: No, I mean there’s two things you can
count on with new technology, is that people are going to find a way to use it
illegally, and usually first that’s the porn people, but in this case it was
the copyright infringers I guess that went for it first. I guess if I was
surprised at all, it was just that people had that level of patience to hold
the phone in front of their HDTV for that long. I would get tired, my arms
would get tired. Maybe that’s a new use for the selfie stick, to help you hold
it up so you could like pirate live streams of stuff. But with an HDTV, it
ended up looking pretty darn good, you know. And I have a lot of sympathy, you
know, for Periscope in that situation, because it’s like Wack-A-Mole,
you know, as soon as they would get one feed shut down, another one would
spring up. The one that had 10,000 views actually was watching on an HDTV, so
that’s like a better view that people would get than from some of their own TVs
at home. So no, not surprising. Disappointing. And I think it’s got ramifications for the industry going forward. I wonder how
many of the people who watched it that way would ever had purchased it anyway, though. So as far as lost revenue, I’m not convinced that
that many of those people were going to pay money. I think it was that they
could, so they did.
Denise: Right. It seems like over time, that
will get worse though, right? Because if this becomes a thing where some people
who get the pay-per-view will then share it through a streaming service. Others
might consciously decide not to get the pay-per-view because they know they’re
going to have another alternative. It might not be the best alternative, but
it’s good enough for them, and they get to have the live participation in the
event that otherwise they wouldn’t. It’s convenient…
Kerry: It’s people,
oh I’m sorry.
Denise: Go ahead.
Kerry: I was just going to say, the people
that own the rights to broadcast those streams are in a difficult position,
though, because if you want to come down on the people who are sharing it,
obviously they did buy it, because they have it to share. So you’re coming down
on the people who are supporting your business model. It’s almost like, like
copyright when they talked about Napster and how everyone, how they went after
people for downloading music illegally, and they started arresting people. And
it got very ugly. I think they’re going to have to figure out a new way to
monetize those kinds of events that doesn’t involve, you know, prosecuting
people who live stream it, because they’re just going to. That’s what I think.
Denise: Right. It was Christina Warren at
Mashable who wrote up her experiences attempting to watch the fight via live
stream. Kerry, did you experiment with that at all having known that the streams
would be available?
Kerry: No. No, I’m a lawyer, are you kidding
me? I was like, I’m going to file somewhere if I
started watching some kind of content like that on Periscope, like I just know.
I first became aware of it actually when Game of Thrones premiered for this
season. And I knew at that point that we were looking at just straight
copyright infringement there. This is a little different because it’s a live
event, so you may be have some interest in showing your experience there, but
the people who just kept it on the TV the whole time, I didn’t want any part of
that.
Denise: Right. And if you read Christina
Warren’s coverage and some of the other coverage, they’re obviously live
streaming in an unauthorized way, a fight isn’t a new thing with just the
advent of Periscope and Meerkat , there have been
unauthorized streams of other fights around for some time. But apparently the
social aspect, Christina though, really added a dimension that had its own
value. And it’s very interesting from a business standpoint with Twitter trying
to position itself as a partner to big media companies, but then having Dick
Costello, and Chris Sacca come out and give some
pretty self-congratulatory tweets that they have been back pedaling from ever
since about who the actual winner of the fight was, it being Periscope in their
mind, which has been taken to mean, “Gee, you know, you did well because people
were streaming the fight and weren’t authorized to do that.” But, you know,
they have been since saying, they and others who have been involved in
Periscope have been saying, “Oh no, no, no, wait. It was a great experience. All
the legal ways that Periscope that was being used around the fight were just wonderful and we’re seeing the future of how
sports will be promoted and experienced in those legal uses as well.” So that’s
what was good for Periscope.
Kerry: Yea, right. “Honey, that’s not what you
thought it was. You’re not seeing what you think
you’re seeing.” Give me a break; we all know what they meant. And I think we’re
seeing a lot of what happened with Google and You Tube, the same thing where
you want to be the media darling, but yet you’re costing the traditional media
companies millions of dollars. You’re not going to be best friends anymore, so
we’re going to have that problem. You know Twitter is going to have that
problem, now that they embraced Periscope and even endorsed its use however
tacitly in that way. I think they’re not going to make any new friends for
sure, and they might lose some of the ones they had.
Denise: Well, we’re fortunate that we have an
IP law professor with us here today, to talk about the IP law that applies to
all of this. Live streaming changes things a bit from the traditional You Tube
type experience, doesn’t it, Megan?
Megan: It certainly does. And in fact, the
idea of a Periscope or Meerkat with something that I
used for years on a copyright exam, just sort of putting it out there in a live
streaming context and now that it exists, I have to think up some new
questions. But there are a couple of different IP issues that I see coming out
of this situation. With the copyright issues, it’s interesting because
copyright has such a, you know, a low bar for copyright-ability, and I think
this is going to impact some of the other things we’ll talk about today. But
one of those is fixation. Live performances are not necessarily subject to
copyright. Although something like this certainly would be because it is
simultaneously recorded under the authority of the copyright holder. So, when
we look at kind of fair use, and what’s fair about the streaming, and in the
discussion that we’ve just been having over the last few minutes, it seems like
we’re trying to make a distinction between someone kind of holding, you know,
their phone up to a high-definition television and then maybe showing more of a
social experience. And so it seems like even in our discussion, we’re trying to
kind of figure out, what might be fair about this and what might not be fair. And
one of the things that’s really important to remember, is that when we think
about the effect on the market, it’s not just the existing market of people
who, you know, would purchase the rights to view the fight, but also potential
licensing markets. So, you know, the potential market.
So, that’s, thinking about different revenue models, and perhaps different
tiers of revenue models that might come out of something like this, could
impact whether or not it’s fair use. You know, I think it’s interesting when
Kerry mentioned the phrase Wack-a-Mole. I think
that’s very much on point; it seems to be a phrase that gets bandied about a
lot in situations like this, and for me, that’s always a signal that we might
need to be looking at new business models. And then I always feel a little bit
sorry for whomever owns the trademark for the phrase Wack-a-Mole, because it seems to be used so much with new
technologies. But something that I think is interesting in regard to the
copyright issues, is that under the Digital Millennium
Copyright Act, the kinds of take down notices that were contemplated in the
DMCA. As modern as words as digital or millennium might seem, they have really
become very much outdated in the last few years. And the takedown isn’t as
instantaneous as these particular models seem to require. So, not all of those,
there just isn’t enough time in a fight like this to send a notice and make
sure that each of those streams is getting, is getting removed as quickly as
possible. And we don’t really have a sense, I think, in the law about what is
too long to wait to take something down. We know that, there’s a casing that
seven months is too long. But that kind of need for kind of instant reaction is
something that our copyright law really just isn’t equipped to handle right
now.
Denise: Right, and we actually have a case
pending right now, I wasn’t aware of this case until this morning getting ready
for the show, but our friend Professor Goldman wrote it up back in January. And
in January of this year there was a summary judgement motion. The case involves
You Stream, and they’re being sued by Square Ring, who put on or was the
promoter behind a fight in 2009. It was the Roy Jones Jr and Omar Sheika fight. And they sent some notices to, some DMCA take
down notices to You Stream, who responded, and took the offending streams down
within 48 hours. So what happened here is You Stream moved for summary
judgement saying, “Look, we did everything we were supposed to do under the
DMCA so there should not be a law suit against us.” And tried
to get the court to buy in on that. And the court didn’t grant the
summary judgement; instead it’s sending this case to trial, and it will happen
somewhere down the road here in Delaware. This is pending in a federal court in
Delaware. And the thing where the court got hung up was in the alacrity of the
response time. Whether, the court was not ready to say as a matter of law that 48 hours was fast enough. The court’s going to let a
trial happen on that and the other issues in the case. Which,
when Professor Goldman wrote this up, his take seems to be, “Well, 48 hours is
pretty darn fast.” He’s concerned about this being a jury trial
potentially for You Stream, and having a hard time convincing a jury that
internet companies can’t make copyright infringing activity magically disappear
at no cost with zero turnaround time, that it’s actually quite a process if
you’re going to try to respond to all the take down
requests. And again, I think 66 for this fight; this seems like a really low
number to me. That in future for big events, I think we could expect to see
many, many more requests happening in real time. So, this case is pending, we
don’t know what’s going to happen with it. We don’t know if there’s going to be
litigation over what happened last Saturday with the Mayweather / Pacauiao fight either. So far there does not seems to be. And Twitter and Periscope have been busy
saying, you know, “Copyright infringement is not our thing, you know, we’re
going to try to put tools in place that will make it easy for rights holders to
get unauthorized streams taken down as they’re happening.” So we’ll just have
to wait and see what they do about that. But this, this case about the ’09
fight will be interesting to see how it comes out. Xiyin,
have you been paying attention to this and do you have any thoughts about the
future of live events and live streaming?
Xiyin: Definitely. I was actually out of town
the night the fight was happening, but I remember everyone really wanted to
hurry out of this wedding we were attending to go to a bar to actually watch
the fight. And, of course, the bar was charging a giant cover to even to be
able to get inside and watch the fight. So I think what we’re seeing right now
is this sort of premium that’s being placed on of-the-moment events. And this
is not something, obviously, that is just relegated to
sports, but if you think about music concerts and fashion shows and
anything else that is contingent on either buying a ticket to be at the actual
event or else paying to view it on pay-per-view or something like that. So, I
agree with what has been said in terms of how the DMCA is just not a very good
tool, because by the time, you know, I mean, is 48 hours fast enough? Well,
then probably the only, you know, the people who really want to actually want
to watch it are going to be watching it as it happens in real time. So, and I
think part of what I thought of when this entire thing with Periscope came up
was just sort of the similarities to Aereo, and how Aereo was this new upstart technology that got shut down
pretty quickly by the broadcasters who had definitely an interest in getting a
lot of revenue from live sports which is, I think, one of the most cited
reasons, like the Super Bowl, obviously one of the most cited reasons for
paying for television, and you know, it’s something that could take a, take a
really big hit from live streaming by Periscope.
Denise: From a business model standpoint,
Megan, we were talking a bit before the show about how some livestreaming
companies save the streams and allow you to access them after the actual event
has taken place; Periscope does so for 24 hours, I think. Others have different polcies about that. Do you think that there’s a
better strategy to pursue if you’re one of those companies, maybe you’d not want
to have things lingering around that could be infringing after the fact?
Megan: I do think so, that the DMCA might
treat, treat it differently, depending on how long these things are cached. In
order to qualify for the exceptions under the DMCA, for being an on-line
service provider, you know, some of those are impacted by, you know, whether or
not these things are actually, these things are stored on the system of the
particular company. So, the thing that I find particularly interesting about
this is that they’re, they’re not stored for any length of time, and that it
happened so fast, that I don’t know that it’s possible, or feasible to use the
provisions of the DMCA and the take down notices. I just don’t think that the
DMCS is built to accommodate that, so I think that the more we get to kind of
instantaneous, live action, not stored events, that really calls into account
the flaws of the current copyright law.
Denise: Well, I think I’ll throw this question
at our marketer on the show today. What do you think, Kerry, from a marketing
and PR standpoint, we’ve been talking about liability for the live stream
services themselves, but I think it was either you or Megan who mentioned
earlier that there’s certainly precedent for going after users, too. Do you
think that we’ll see a resurrection of that kind of approach, or not?
Kerry: I really hope not. I do think copyright
law need to be revisited, modernized. But one of the things they need to
consider is the way people use technology now has changed the way they consume
content. And that’s not, we’re not going back. You know, just like they had to
adjust to the first paradigm shift with music and live performances, you know,
they’ve got to shift again now and figure out what they’re going to do with the
fact that people are going to live stream this stuff. I mean, the people who
paid the most money to watch that fight are the people who bought tickets and
sat there. So if they chose to stream, you could kick them out, right, you had
something you could immediately wanted to be hardcore, you could shut off, like
make it so phones didn’t work in the arena or something. People would freak
out, but let’s leave that aside. You have control to a degree over those
people. But once it’s out there, and people are doing this from their homes all
over the world, I think one stream was coming from a police department in
Africa, it’s, I’m not going to say hopeless, but it’s kind of a fool’s errand
to try to shut down all of those feeds while they’re happening. I really think
that from a business standpoint they’re going to have to find another way to
monetize. Whether that’s selling licensed, you know, DVDs of the fight later
on, does anybody use DVDs anymore? No. I just dated myself. Or
merchandise or something. I just think they’re going to have to think of
marketers and PR people a little more broadly before you just try to come down
on the people who are actually paying for the stuff.
Denise: Our chatroom always corrects me when I
say I don’t use DVDs, and says there are lots of people who still do. So don’t
feel bad. I tweeted at Christina Warren after she published her piece at
Mashable, and asked if any of the streams she was seeing as she was monitoring
it live during the fight were coming from the arena. And she said she heard
about one or two, but she didn’t find any of those. But I don’t know if any of
you saw the photographs of the audience of the fight that was on the sport’s
pages, you know, the next morning. Gosh, now that’s archaic, the sport’s page
the next morning. I’m sure a lot of those photos were online that night, and
what universally caught my eye was all of those folks in the seats at the fight
holding up their phones. You know, taking pictures, etc. I wonder, you know, if a lot of that could go on during the fight. I’m sure
the person behind you wouldn’t like it too much if your phone were in their
way, but there were just very, it’s certainly very accessible for folks sitting
in an arena like that to go ahead and live stream if that’s what they’re inclined
to do.
Kerry: I think that’s the difference with Meerkat and Periscope, what makes it different from
everything we’ve seen before is the immediacy of it; how easy it is to do it. And
I think that a lot of people aren’t even considering, never mind the people who
are holding it up to their TV, but I don’t know that they’re doing the analysis
in their head like this is wrong, I’m costing people money, I’m breaking the
law. It’s just like, hey, I can do this. Boom! And because we can, we do.
Denise: Right. Well, let’s go back to Megan for
a second because you touched on something, Megan, about fixation and the fact
that although people who put on live sporting events will put on their tickets
and you know, otherwise enforceable terms of service, that thou shalt not live
stream. That might not technically be against copyright law. Am I right about
that?
Megan: That might be true. I have some
experience in the world of professional wrestling, so there may be, not
personal experience, but with the legal issues involved in professional
wrestling. And so there might be some forms of sports or entertainment that,
that are choreographed and sketched out. But, in general, it’s not a particular
performance of something that has been fixed in advance. And so that, in a way,
prevents, I mean, presents challenges for copyright ability. However, if there
are particular recordings that are being made of the performance at the time
and that are being transmitted, there are special caveats in the copyright act
to accommodate those, the reproduction of those performances.
Denise: Right. Well, I think this is all still
unfolding and it’s going to be really interesting to see how it goes. You know,
we have folks that are going to, to continue to do things like live stream a
home run by Billy Butler at an Oakland A’s game, which is something that has
been done, you know, by folks involved in these companies, and thinking that
they’re perfectly fine in doing so, but maybe we’re going to find…
Kerry: It’s not even mainstream yet, Denise. It’s
not even mainstream. It’s like some tiny percentage of people even know what Periscope and Meerkat are. Just wait.
Denise: Yea. That’s very true. And, you know,
as things move off our phones and onto our persons as well, I Googled last,
maybe not the best example, but in one of these pieces that are in our
discussion points for today, and they’re all good, I encourage people to, you
know, they’re all pretty long, but if you have time go through and read them
because there’s some good, thoughtful coverage here, one of the reporters was
in a Target, I think, using Periscope to interview people. And
got booted out of Target. You know, again with that same sort of fear
about people getting filmed in public places and you right, Kerry, that I think
people are going to have to wrap their heads around it and that our societal
morays around this are going to get attacked and have to undergo maybe some
uncomfortable changes as technology keeps enabling things that maybe people
aren’t wild about happening to them.
Megan: I think that’s another issue having to
do with the, as we talked about, with regards to rights of publicity, which is
another, aside from the copyright issues, that Periscope or Meerkat present. Rights of publicity are another issue. And that’s essentially the
right of individuals to control the commercial use of their identities. Individuals
have, you know, as far as rights of privacy goes, those rights are pretty
limited in the context of a public sphere. But rights of publicity on the other
hand might still kind of come into play here. Some of the problems with rights
of publicity are that they’re state based rights. So, I think they are 38-ish
states that rights of publicity statues. And then also the scope of rights of
publicity is very different state to state, both in length and in substance. I
think, you know, there are several states that end the right of publicity at
death, and there’s one state whose statue is drafted that it looks like it only
begins at death. So, so rights of publicity might come into play with some of
this in a way that we haven’t really seen those rights applied before, because typically
you think of rights of publicity as applying to celebrities that have a
commercial value of their identity. But the more we take that commercial value
and apply it to the masses, there’s some really
interesting questions that come up here.
Denise: Megan, along those lines, what do you
think will happen with the law around implied consent? Because while the
privacy rights that you mentioned you know, pretty much go off the table if
you’re out and about in public, except in, you know, you’re being filmed in
ways you don’t expect to be filmed, but the right of publicity do not, and how
media companies deal with that, or anyone who wants to make a buck off their
video, is they have people sign a media release usually, if they’re being
careful. Do you think that implied consent will begin to develop as a result of
these technologies?
Megan: I do think so, and I think it will
start to coalesce around, you know, the extent to which a person is featured in
a video or what is, you know, what is sold, is it used in a commercial? I mean
there are some really easy, sort of bright lines I think we could draw with
regards to implied consent, but then there’s that murky area in the center that
I think can really be fleshed out here.
Denise: Right. Ok.
Kerry: And you’d have to know that they were
streaming you, Denise, too. I mean, and somebody holding up their phone, they
could be doing one of a hundred thousand things that don’t involve live
streaming, so, I think until we’re clear on that it’s impossible to consent
impliedly or overtly until you know what’s happening.
Denise: Yea, that’s right. What do you think, Xiyin, do you think at some point just being out in public,
will these, these technologies will be so ubiquitous that courts will begin to
think that people reasonably have to assume they might be being filmed?
Xiyin: I think so, I mean as you mentioned,
you know, with Google Glass and the ubiquitous use of cell phones out and about
at major events like this, I don’t think you would
have a right as a private individual to challenge most of these uses. Again,
unless its overtly commercial, but then again, more likely, you know, the NFL
will have to deal with this more head on when they actually want to use
snapshots of fans, of actual fans in their commercials, right, at one of their
games. So.
Denise. Right. Ok, well, this is definitely a story that’s going to
continue to develop and we’ll continue to keep an eye on it. But I’d like to
pivot a bit and continue talking about the DMCA, but in another context. And
that context is cars. So let’s shift gears away from entertainment and more
into copyright. We talked a couple of shows ago about John Deere, the tractor
company arguing to the copyright office that all of the under the hood aspects
of their machines are protected by copyright law, and the provisions of the
DMCA that don’t enable something that is locked up with a sufficiently encryption
level technology to be tampered with, except under very limited circumstances. And
that was on episode 300, and Sam Abuelsamid, who
joined us not too long ago on the show and who is a writer and specialist in
automotive technologies, wrote to me and thought that really what’s going on
here to paraphrase him is that there’s sort of an application of the DMCA,
maybe with John Deere it’s one thing, he says, perhaps they’re trying to
protect their service and parts business, businesses, but when it comes to auto
makers, there’s a concern that they have about their network security and
making sure that their cars don’t get hacked and become dangerous as a result,
and subject them to liability. And what they’re trying to do, because the DMCA
is there and provides a structure to lock people out of the technologies of the
car, they’re basically taking a copyright law and using it for security
purposes. And I thought that that was an interesting take on it, and wanted to
toss it out to you folks and see what you think about, specifically Megan, what
you think about taking the DMCA and using it for a purpose that is really
removed from protecting people’s copyrights.
Megan: Yea, well section 1201 of the DMCA
governs anti-circumvention of technological measures that protect copyrighted
works. And that seems simple enough when it comes to, say, digital rights
management, DRM of movies, or something like that. But here, in this issue, I
think we’re seeing a perfect technological storm. Because the
DMCA can now be applied with the internet of things, in the far corners of our
lives. Automobiles, tractors, appliances, because the
bar to copyright-ability is so low with originality and fixation, and that
there is no requirement to register a copyright, and because software is
protected as a copyrighted work, increasingly there are copyrighted works in
everything. And so one anticipated this. And what
we’re seeing now is a comment period; every three years the copyright office
looks at exemptions to the DMCA. I think one of the things that is coming out here is this idea of IP maximization. That in an information and content economy, IP owners often see it,
not just as their right, but their obligation to maximize their IP assets. For better or for worse. And sometimes the worse can come
through public relations disasters, and things like
that. Facebook has seen some of that over time. But these automakers want to
control the electronic control units in their cars, you know, they don’t want
users tinkering with them, or repairing them, or modifying their car. In some
of their comment they’ve said things like, “It’s too complex and dangerous to
do.” And that users by doing that could violate other laws like other copyright
laws, or even the emission standards, which I found was really odd. You know,
nothing in the DMCA regulates those things, and we’ve had ways of addressing
these kinds of issues through voiding of warranties and things like that
outside of the DMCA for a long time. I think ironically, as the Electronic
Frontier Foundation has pointed out, that you know, people have been working
with ECUs for a long time, with results that have actually resulted in improved
fuel efficiency and other sort of developments and innovations in automotive,
in the automotive industry. I think the other comment I would have is that
really, what you see in this IP maximization is that the automotive industry is
looking for a new revenue model. That they see this personalization of
vehicles, they see innovation happening, and they want a piece of it. They want
to have a part of the software upgrades and they want to control repairs. I
think Ford in particular has perhaps filed suit on one of these issues in the
last several months. And they argued that they know their car’s better and that
this is the safer option. And maybe that’s the case, but it certainly seems
like the automotive industry has failed in some significant cases lately to do
something with that specialized knowledge and perhaps opening up innovation
like you know, Elon Musk in Tesla has done, could be a good thing.
Denise: Right, and there’s a great piece by
Thomas Fox-Brewster at Forbes who has some sources that he says he’s 100%
confident in the validity of his sources’ comments, that even though Tesla is
sort of backing away from this, that Tesla is sort of taking the opposite
approach of trying to lock everything down, and they are going to go to DEFCON
with the car, and according to Thomas Fox-Brewster’s sources anyway, let the
whole DEFCON audience have at it and hack the car etcetera, and do their best,
or their worst. And that Tesla in general has been very proactive in recruiting
people from events like DEFCON and the hacker community in general to bang on
their cars and make sure that their security is as strong as it could be. So,
it’s a different sort of approach than trying to hide behind the DMCA. Sorry,
who was chiming in?
Megan: No, I was just going to follow up and I
say that I agree with you and I think that Elon Musk has had a history with
Tesla of doing things in an unconventional way. I think it was last year around
this time that they decided to open up all the patents that they have to, you
know, to the public for use, and said that they wouldn’t enforce any of their
patents against anyone who wants to use Tesla’s technology. And that might at
first blush seem really generous, but I think it’s also just a pretty good
business model. I mean the more people that you have innovating on the Tesla
platform, the more people you have interacting in that space, the greater
market for Teslas.
Denise: Yea, yea, and they might have an
opportunity, I don’t know, you know, if their safety and product liabilities
lawyers would let them to it, but as Reverb Mike pointed out on our IRC chat,
“But I’m hacking my car to make it better,” he says, and there might be a whole
bunch of people who want to overclock their cars, and try and do improvements,
etcetera, but again, I don’t know, Xiyin, what do you
think? I think the chances that something could go wrong with the car company
that let people hack their cars to make them better might be in for quite a few
lawsuits coming their way when things went awry.
Xiyin: Yea, I think that because it’s such a
new field, it’s just hard to tell at this point. I mean, especially because
people do expect automated vehicles to be on the road as a regular thing in the
next decade, you know, people, they’re going to be hacker-ed anyway, so I guess the question is going to be, you know, the number of test
cases that actually appear in courts and see, it’s completely possible that you
know, a court could find that if you actually in fact tamper with your car in
the same way that if you unlock your iPhone, then the manufacturer, you know,
ceases to have certain responsibilities for malfunctions or the way it works. But,
I actually think it’s interesting because by locking down the technology, as I
said, hackers are going to come, so if they do hack the system remotely and
something does go wrong, the question may be, well, you know, did you car company, who purposefully attempted to secure your
secure network, was it secure enough? And so I’m sure we’ll expect to see some
lawsuits like that coming up in the future.
Denise: Well, we’re going to talk more about
Tesla in just a minute here, but before we do, I’d like to thank our sponsor
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All right, Tesla is kind of all over our rundown
for today… And has been making some waves in the Texas legislature where there
are some laws pending or attempting to be gotten through, that involve how
Tesla does business in that state. So let’s talk about the policy concerns that
Tesla is facing. So Tesla like many other company's before it would like very much to be able to sell directly to consumers in
Texas. To cut out the middle man. To
dis intermediate the dealer. Like lots of companies
do. Apple comes to mind. Amazon comes to mind. Telsa doesn't come to mind if you are in Texas because it is against the law to sell
cars in Texas if they are not sold through a dealership. Megan, you have been
paying attention to this. Can you tell us what is going on?
Megan: I think this is a situation where has such lobbying power that Tesla
is having a really hard time entering markets in many states. I think West
Virginia has also just passed a law in the last month or two saying that Tesla
could not sell directly to consumers using its distribution model. The classic car dealership model. The classic car dealership
model is such a dinosaur in and of itself and kind of miserable user experience
for many people. Almost a metaphor itself. Tesla is
really trying to kind of counteract this resistance state by state with mixed
success. And I think that the powerful lobby’s in the
Texas legislature have created an inhospitable environment for Tesla. And
unfortunately that didn't sway the legislature.
Denise: So it looks as though the laws that Tesla was
hoping would go through are a bit stalled in the Texas legislature. You don't
see any light on the horizon for Tesla on this front?
Megan: I am cautiously optimistic. Mainly because the
legislature has so many controversial issues that its um that it's dealing with
right now that maybe this will seem like the less controversial dealing with
issues like if kids can have guns on campuses and things like that. So we will
have to just see as time goes on but um there is no predicting what happens in
the state legislature in Texas sometimes.
Denise: Yea, I was kind of surprised by this Kerry that
there are states where it is actually against the law to sell a car without a
dealer. Any thoughts on it?
Kerry: Oh, a lot of thoughts
on it! The first being
people are going to do what they want. The first is the Texas legislature needs
to be more like the cool moms the kids are going to be like “If you are going
to drink I want rather you to do it in the house.” Like fine if you have to
regulate that process for selling cars regulate it to protect the consumer but
don't ban it when it's clearly the direction in which a lot of people want to
go. You are just shooting yourself in the foot you are passing laws people are
going to try and work around. And that is not really the goal I think of our
representatives that are elected by the people. It's just counterproductive.
Denise: As things stand now, Tesla cars are rely widely respected and much sought after. Just sort of
anecdotally I seem to see them around more than I see BMW's around now. They
are sort of sliding into that niche as far as I can tell. Ah so people want
them. And it seems like that they're aside from the fact that they are great
for the environment I can throw that in as well as the drive and the status of
the thing.
Kerry: If
you make it too difficult they will just go to Oklahoma and get it and drive
and drive it back to Texas then you have lost any tax money you would have had
on it. So it's a bad idea all around.. 4 Xiyin Tand, do you agree with
that?
Xiyin Tand Oh yea I agree
with everything that has been said. Obviously if I can get a
Tesla and potentially save a couple of thousand dollars on it? I would
love that.
Denise: Yea. So let’s stick with talking about Tesla
and car technology for a moment for a moment. Cars are becoming more and more
autonomous. Of course here in California you might bump into one that is
driving on its own, but that is still a bit pie in the sky. But what automakers
are doing is starting to build more technologies in cars that incrementally
have cars driving themselves more and more and one thing that law makers just
don't quite know what to do with is making cars hands-free in certain situations.
So let’s talk about those automatic cars.
Denise: I want my car driven by that robot right there,
for sure. So several automakers Tesla among them Cadillac, Mercedes, others, are working on or have technologies for cars to drive
themselves in certain situations. For drivers to take their hands off the wheel
for certain stretches of the road. California and Nevada are both working on
laws that would regulated that technology. It seems to
be a completely wide open area as for as the legality of it. The National
Highway traffic safety Administration says it can't preempt automakers from
doing this. Until something goes wrong. Until something is demonstrated as unsafe. So it's going to
be left, in the United States, to the 50 states to decide what they think is
safe and try and walk that balance line between innovation and automation and
ways that improves everybody's lives, buy encouraging safety as well. Kerry are you ready to jump into your hands-free car?
Kerry: I am. I think there is every chance that
hands-free cars are going to drive more safely and abide by the law more
routinely than people do. I think that is pretty obvious. Like they see a
yellow light they slow down. I see a yellow light Ahh, I think I have a couple
seconds to make it before it turns red, you know. So I think if you are looking
at a larger societal goal of safer driving, then maybe some states would want
to regulate who can create these cars, whats required. That sort of oversight, inspection, maybe. But I don't know that it would want to outright ban them, knowing that there is
every chance they will actually make the roads safer.
Denise: Xiyin Tand do you have any thoughts on this?
Xiyin: So I know that it was reported that UBER has said that they are going
to replace their fleet of automated cars in the next 10 years which would save
them a lot of money because the drivers take home a large portion of the
revenue. But I guess I am curious about that because in the situation where you
as the driver of an automated vehicle, presumably you would still be expected
to make the right choice. If there was a girl crossing the road, and you can
either choose to veer to miss her and severely injure yourself or? That's the
kind of decision I am just not sure how the computer is going to make that
choice? The classic Tort example: of you know would you choose to save
yourself? You know, but if you had to run into an oncoming car with 3 school
children inside. These are . . . Human decision making isn't perfect but I just
wonder who is going to take the fall in situations where there is an automated
computer involved. With UBER automated cars I feel like. . . for example I, for one, can't drive, so I basically rely on UBER to get me
around the city everywhere. And I don't know if I would feel completely
comfortable in an automated car where there is not that element of human
interaction and decision-making involved.
Kerry: I have seen some sketchy UBER drivers I would
be okay with less human interaction.
Denise: Well that is what I wanted to ask you Kerry,
UBER has its own host of legal troubles both battling a similar kind of war as
Tesla trying to do business in a similar way might conflict with laws that date
back 50 years to protect a business that maybe does not need protecting any more.
Um, so aside from its regulatory concerns it has concerns about the
thoroughness of its background checks, and people tend to look a little bit
wearily at their UBER drive as they jump in. There have been stories about bad
things happening. So maybe this automatic cars for
UBER, maybe that solves at least some of their PR and legal woes.
Meagan or Kerry: Some of them, but at the same time they are taking away their biggest
proponents, the drivers. So now you are alienating the drivers who are part of
your vocal outcry against these antiquated laws. So I am not so sure that was a
good move. Cat's out of the bag. You can't really say: “It’s cool, don't worry
about it.” Forget that just get this law passed now we'll talk about that
later.
Denise: Xiyin Tand what were you going to say?
Xiyin: Oh no, I was just wondering on an insulary point where the liability is going to go in this situation. With an UBER car is
it your fault as the only passenger in the car when you saw something coming
and the computer somehow glitched or missed it? Is it
your fault now that you didn't step in and try to stop the oncoming collision?
Denise: Yea. It's going to be really interesting to see
how those laws are developed and where the responsibility is going to be
placed. I am sure the insurance carriers will have a lot to say about it.
Kerry: That has come up in a lot of context even
texting while driving, or distracted driving. In some states they want to hold
liable the people who know that you are driving and text you anyway. So they
are extending liability in some instances to those people. I think you will see
the same thing here where if there is negligence to go around they will divvy
it up. If you even have the mechanism as a passenger to have input into the
route or the actions of the car. That is something we don't know yet.
Denise: Right. We have a couple of great trade experts
on the show so we are going to talk about that as well. Right. We have a couple of great trademark experts on the show with us today. So we are
going to talk about a couple of those issues as well next. I am going to put
our first MCLE password phrase into the show for people who are listening to
the show and are applying for professional education credit. Um, our first
phrase is going to be “AUTOMATED UBER”. And we will put another one in before
the end of the show. If you need more information about that or are interested
in more information about continuing legal and other professional education
credit for the show head over to www.wiki.twit.tv and find our show page there and you will find
information at least in the United States to give you a hand. So let’s talk
about trademark. There here have been some really interesting stories and cases
in the news lately. Particularly the Redskins come to mind. There is a tendency
or legal requirements that trademarks that are offensive or scandalous are not
supposed to be registered. But that turns out to be a very difficult judgment
to make and you wind up with some strange results. Um, so why don't we start
with Megan? I know that you have done a series of scandalous trademarks. First
tell us what makes trademarks scandalous?5808
Megan: If I had the answer to that I wouldn't have had
to do the scholarship I am working on. It is incredibly difficult to figure out
what is scandalous or immoral. The Lanham trademark act which is the federal
trademark prevents registration of trademarks which are scandalous immoral or
disparaging. And um when it comes to scandalous and immoral marks, we go by a
definition of scandalous by dictionary. Which has not changed
that much over time. But it says things like “shocking to the conscience” , “immoral outrage”, “offensive to the core”. So when you
have this question you have trademark examiners at the trademark office who are
looking at trademark applications and deciding on their own whether or not a
trademark application is scandalous or immoral. And they have a really hard
time doing that. They are supposed to consider whether a mark is scandalous in
the context of the marketplace. And what ends up happening typically in 90% of
cases you see trademark examiners just looking in the dictionary. And if it
says offensive or vulgar next to the word, then that is used as primary evidence
to reject the mark. But that doesn't take into account the context of the
marketplace. So for example, when it comes to adult entertainment goods or
alcohol or different things like that. In a particular marketplace a mark might
not be scandalous with those consumers on those goods and services. And dictionary's don't really take that into account. What you
see is the trademark examiner saying if it’s in an adult marketplace they'll
say oh and adult marketplace therefore it must be scandalous. And then they
will say if it’s in a general marketplace, oh this is an offensive word used in
a general marketplace and therefore its scandalous.
Um, so You see a lot of rejections for words that just
don't really make sense there is a lot of inconsistency in these types of
decisions.
Denise: Right, and the Washington Redskins in
particular have been much in the news and are attempting to challenge the law
that have left them without their trademark. Correct?
Kerry: Um, that is partly correct. To have a trademark
really just need to use a word or symbol or anything as a brand. And you don't
have to register it. Registration is just an added benefit. You get certain
benefits by registering your mark that you wouldn't otherwise. So the Redskins
are able to still maintain their mark as an unregistered mark. But they aren't
able to have those added benefits of registration. And that's a result of the
disparagement of the Lanham act that says trademarks can’t be registered if they
are disparaging to a substantial composite of a particular group of people. 1047
Denise: Right. Have you paid attention? This was
written up in Parker Higgens Sarah johns wonderful newsletter which is called The Five Useful Articles. There was a case
that was just decided that was was called In ray Simon Shout Tam. Also known as the
slants case. Because this seems like something that The Redskins could
potentially argue “Hey we need to alter the law here” because there should be
opportunities for people to call themselves what they want. Dikes on bikes
would be another example. Or in this case it involved an Asian-American rock
band called The Slants who were unable to register their trademark because it
was disparaging. Under the law that we are talking about their lawyer Ron
Colman was attempting to argue that this is the re appropriation of a term
usually considered a slur. We want to allow people to do that it's actually a
speech issue. So I am wondering if you have paid attention to that case and if
it adds a different texture to the discussion?
Megan: It absolutely does. This case has the potential
to change everything with regard to this provision of the law. What happened
was: Simon filed a trademark application knowing that there was an
Asian-American band and it was rejected because of disparagement. And then he
refiled without any mention of his Asian-American heritage. And in that context
one of the primary issues that they were arguing in the Federal Circuit was how
much these trademark examiners can go outside the 4 corners of the application?
Which I think presents an interesting question. What the Federal Circuit said
the opinion that has now been vacated: They upheld the disparagement rejection
because under trademark law it doesn't matter whether or not someone is using
it for empowering part of the language. But it matters what the public thinks. If
a substantial composite of the public finds it disparaging they are going to
reject the application. And so I think there are several problems with that. It
doesn't take into account the fluidity of the language in issues of social
justice. But that is the legal standard. The Federal Circuit vacated it's opinion a week later and it now is going to hear the
case on Bank. And when it hears the case it is limiting it's hearing to the
constitutional issue. It has asked the parties to re-brief the case on whether
or not Lanham Act Section 2-A, preventing registration of disparaging marks
violates the constitution. And if that is the case, and Judge Moore and the
opinion kind of set up the argument against the constitutionality of the case,
then that changes everything.
Denise: Xiyin Tand, a couple of questions for you since your area or one
of your areas of expertise as well or one of your many areas of expertise. Number one, the standard that Megan was just outlining where you
would somehow have to know how the public perceived the use of the mark in
order to make a determination. Do you think that that's workable at all?
How do you see that working?
Xiyin: Yea, I thinks it’s really difficult. In the
Slants case it was a really sympathetic plaintiff if you will. It was a great
story of re-appropriation. But of course if you get rid of the disparagement of
2A, then it kind of opens up a whole Pandora’s box. There
could be people: Dikes on Bikes, for example that seek to take aim at a stereotype.
But then there could simply be other people who just want to create no racial
slur allowed. And you know it's like. The perception of the public would really
differ in whether or not you are re-appropriating a term or not. Um, maybe
Simon Tam thinks being in a band called The Slants gives him some power over
this racial slur, but the general public as a matter of course may not receive
that or may not agree. So, it is hard to sort of appropriately contextualize the
right audience and which consumer you are asking. I do understand that actually
a large portion of Judge Moore's opinion was subsequently vacated the 2nd half of her opinion where she advocated for alternate views and that was where
she put forth the constitutional argument; she argued that it was an
unconstitutional condition. That it violated constitutional rights to abridge
someone's freedom of speech in order to get in order to get the extra benefits
associated with the Federal restriction. I do believe that actually was in a
large part mimicking the briefing that was already filed in the Redskins care
that was already filed in the District of Virginia. It is momentous and
everyone is excited to find out what happens.
Denise: If you had to guess. How do you think the
constitutionality how it will come out?
Xiyin: It's hard the fact that this is commercial speech and it would be
entitled to less protection than purely political speech for example. Obviously
you are able to still use the mark in commerce just not have Federal
restriction and a couple of benefits that come with that. Um and of course
trademark examiners deny trademarks for a number of reasons that is not just
limited to 2A. Of course if they perceive that your mark is likely to cause confusion
in the marketplace and the appeals board agrees with them, then you don't get a
registration. You may have to go out and do some sort of corporate deal where
you buy the mark that you have been wanting to use. And
maybe someone is using that mark in a small shop in Brooklyn and you are a huge
company and you think you have the right to use it. Maybe in the end you don't
get a registration and you have to go out and buy the registration. I know that
Skype was actually denied European registration for their mark actually this
week. Which is of course citing confusion with British
Telecom Company Sky. And I have never heard of Sky and everyone knows
Skype. Trademark issues can be done for a number of reasons and the Redskins
issue definitely highlights the the emotional stakes
here some people obviously take great offense to the validation of this mark
so.
Megan: One of the differences between this provision
in section 2A and other basis for rejection impact a trademarks ability to
function as a trademark. So, when it comes to likelihood of confusion or
deception. If Burger King could put up the golden arches and attract consumers
that way. Or if Taco Bell could use Chipotle on their sign, then that would
create a likelihood of confusion in the marketplace and would deceive consumers
potentially. So a lot of the basis of rejections has to do with that function
of trademarks as a consumer protection device. And the interesting aspects of these particular provisions in 2A is that they
aren't related to the core function of trademarks. One very interesting thing
in Judge Moore's opinion was the idea that she was talking about this idea of
unregistered marks and mentioned (as I have historically understood trademark
laws to operate) section 43A in the Landum Act allows
people to enforce unregistered marks. Um, and so even though your mark may not
be registered you can still enforce it. And so a lot of the controversy after
the Redskins decision you know trademark scholars were saying it's not that big
of a deal because they are still going to be able to enforce their mark and
they are not going to have a registration it has some limited benefits. One of
the things that came out of this particular opinion was Judge Moore said: that
43A should only allow trademarks that are capable of being registered as
trademarks. Which might mean that marks rejected for whatever
reason but under 2A particularly including the Redskins wouldn't be able to be
enforced as marks at all. If that is the case then all of a sudden those
benefits you get from Federal Registration look a lot more substantive and
present a bigger problem I think for constitutionality.
Denise: Yea, definitely. Well we will have to see how
this comes out. It's so great to have your insights and explanations about all
this because it's a bit of a thicket. So we really appreciate that. I think we
are going to shift over and another thing that Kerry does on her blog has in
addition to write about live-streaming and issues about that. She has some
great resources about if you are running a contest or a giveaway and the laws
that apply to that as well. So since those tend to rise and fall on those terms
of service. Let's talk about them in that context.
Denise: So Kerry one of your headlines is: Online giveaways “Just because Raffle Copter lets you do it doesn't make it legal.” And I think you have hit on something that is a pet peeve of
mine that there is a disconnect between the tools that
people crank out, (because there is a need for them) and we want to automate this
we want to make it easy to run their promotions etc. But the lawyers working
with the toolmakers don't always thoroughly understand the law. Can you tell me
exactly what you were getting at there in that piece?
Kerry: Sure. What happened is I presented to a number of blogger groups who were using giveaways routinely to
promote their sites and not appreciating that there is a distinction between
contests and giveaways and giveaways versus illegal lotteries. They were just
doing things because they had the mechanism to do it with no consideration
whether it was legal. And so what would happen is I would give a presentation
and explain the differences and why they mattered and how they could keep
themselves safe. And they said: “But Raffle Copter lets me do this.” “Raffle.org
lets me do this” In other words it was this kind of paternalistic idea that
Raffle Copter cares about you. And I was like: “Raffle Copter doesn't care
about you”. They just don't. If you dig into the terms of service they make it
very clear: “you use this at your own risk of liability”. You are supposed to
know the law where you are and the law in each state is different. The law in
each country is different. So some of these blogs reach all
over the world. But if they don't specify who can enter these contests
or giveaways they are liable for violations of the law potentially in Canada or
other countries. Like in Canada you are not permitted to win anything based on
chance. There has to be an element of skill to it. And these guys, they had
never even considered that. And there was like a minor freak-out. But I think
they understood that just because you have the mechanism to do something,
doesn't mean it's legal where you are. They at least understood that maybe they
should be thinking about that. I think it was something that they completely
back burner-ed. Raffle Copter must have checked this out. It must be okay. Like somehow they could disable on the back end. Not only do
they not care, they expressly put the liability onto the users.
Denise: Yes. It is something people need to be aware
of. Just because tools are out there and available. We
are going to run that for you just use our service. You still need to.
Kerry: Just because a certain social network is a
great fit for your audience and it gives you great reach and exposure and your
contests are a success and it accomplishes whatever business goal you have. It
could still be in violation of the terms even of that social network. And you
could lose all the benefit that you have gained from spending all these months
building up your presence there. So it really is something they should consider
a potentially huge risk. So at least I am happy that some people have seen that
article and have come to me after and said: “Thank you you just saved me from what I now know would have been an illegal lottery.”116
Denise: Right. And Kerry has another great article
titled how to keep your social media contest from becoming a trial. Which has similar kinds of warnings and considerations. The
related thing that I have seen in my own practice is services that attempt to
again they are sort of contract oriented services and they attempt to have you
inform an enforceable contract with the entrants but they have not paid
sufficient attention to the law on that front either. So, you know, in some
cases the terms of service aren't apparent in some cases they would say if the
parties aren't right there that you haven't even formed a contract. In some
cases the terms of service aren't apart and their mechanisms and certain things
are checked by default that should be checked by the user and that kind of
thing. So people should keep an eye out for those kinds of pitfalls when they
are using services to try and run their promotions and contests and things online.
Kerry: There are things that aren't even contemplated,
not even remotely by any of these tools or sites. Like some states have bonding
requirements if you are going to have a giveaway or a contest and the prize is
over a certain amount in value. You have to register it. You have to insure it.
And they have no idea. If it's over a certain amount you have to notify the IRS
at the end of the year that he person has won this prize. So they are therefore
subject to income tax. All these things that go well beyond the scope of these
tools would propose to create. aren't even you have to
register you have to insure it all these things that go well belong you have a
lot of things that aren't covered that need to be covered.
Denise: I think that in honor of the fact that we
highlighted your live-streaming legality piece last week as a resource of the
week. We have to make those pieces that we just mentioned 2 of our resources of
the week. I am going to give you one more, and that is a book that I am reading
and really enjoying. And I kind of wanted to pick Xiyin's brain about it too. I was wondering if you have read it? It's by Dana Boyd it's called: “It’s complicated”. It's about teens and social
media. Poor Dana. She is writing this book in 2012
& 2013 and already the social media that already the social media landscape
has changed so much that it seems anachronistic. She goes to great lengths to
say: “Now some of the things I talk about in this book you are going to think
aren't even being used any more. But that's okay because the principles I am
talking about still apply. No matter what tools you are using
today. She explores identity, privacy, safety, and bullying. Ultimately
Boyd argues that society fails young people when paternalism and protectionism
hinder teenagers ability to become thoughtful and
engaged citizens through their online interactions. And Xiyin I wonder if you have paid attention to this cause I know you have there is a
great piece out there. We haven't really had time to touch on in it the show
today. It's called: “The future belongs to the uninhibited”. And Xiyin you were one of the featured future facing youngsters
in that New York magazine. And you have done some great writing on teens and
sexting. So I just wonder if this had popped up on your radar and if you had
any thoughts?
Xiyin: Yea I definitely did. It's on my to-read list. It is funny that you
bring up the article in connection with this because that article was written
and I was interviewed when I was 19 and dumb, a freshman in college. And
needless to say I have completely changed my views on this. The article was
meant to be a celebration of the uninhibited online. I was a very outspoken
advocate for that. In my teen sexting article I footnoted a part where I
disclaim all my views that were published in your magazine. There is an commented element to this. A lot of research has
uncovered the fact that your brain is just not fully mature until you are in
your late 20's. Teenagers are impulsive and lack the full set of skills for
adult decision-making. I don't think I would have opted to be in that article
today. I do think there is so much out there about the dangers of cyber
bullying and consequences on both ends of the victim and of the bully. So you
know, in my article which is much too long to go into now, it does talk about
sort of the two different models that the supreme court has used to adjudicate
these adolescent free speech cases/ Sort of the inculcation model where it is
our job as a society to put the right values in our children. Sort of the free thinker model wanting our children to think for
themselves. And ultimately I come down in the article to the opinion
that it's just a matter of what kind of speech it is. So if you are engaging in
political speech it's more likely protected. And if you are engaging in
anything that is image based closer to the end of pornography, hated speech,
fighting words anything like that would less likely be protected for minors.
Denise: Great. And again, if you want to read Xiyin's whole article and I think you should, great
thoughts there on a complicated issue. That and everything else we have
discussed today are in our delicious links for this episode. And you have given
me I think our 2nd MCLE pass phrase for and it's going to be ignore what I said before. For folks that need to verify
that they watched the show. We have a tip of the week for you. It has to do
with Freedom Of Information Act requests. I thought it wold be interesting for folks to know how long they
can expect to wait if they file a freedom of information act request for
publicly available public information. That wait has been increasing. In fact
from the year 2013 to 2014 there was a doubling at least of the backlog of
Freedom of Information Act requests. Probably I am guessing related to the
concerns that Edward Snowden brought to light. We might be able to correlate
those two things. Though I really don't know. But some
interesting stats on the Freedom of Information Act requests now that the
backlog is increasing. In the case of easy sort of simple requests, you might
wait as few as 21 days. But there are some pending, unresolved Freedom of
Information Act requests that go all the way back to
1993 or 1994 or 1995. So you might wait 20 or more years. Just bear in mind
that patience would be a good thing if you are going to file a request. You
might want to bear in mind to the article that I read on this also had the cost
to the government of the filing of all these requests is roughly 400 million
dollars a year. Make sure you really need that information is probably a good
idea cause it’s going to be slow and its costing quite
a bit these days too.
Megan: I love that were going to come down on u-stream
for taking 48 hours. When you want something from the government they are like
what? Be patient. We'll get to it. 1993 Excellent point
Denise: Well I think we have managed to get through
everything we are going to get through for this week in Law. I really really enjoyed our panel. Great thoughts
and insights from you all.
Megan: Thank you Denise. It was a blast.
Denise: Megan is there anything going on at your
university, on your speaking schedule, anything particular you want to
highlight before we go ahead and wrap the show?
Megan: Sure you know interestingly we have just hired
3 maybe 5 (we'll get the good word in the next few days) IP Professors in
addition to the faculty we already have. Which I think is more Intellectual
Property Professionals than any university has hired at once in the history of
the U.S. Education. We are building out our Intellectual Property program. We
have 3 clinics, we are planning conferences for next
year on a variety of cutting edge topics. And so we are just looking forward to
a great future through the IP Program at Texas A&M.
Denise: Thanks, that is great news. Good to hear. Kerry, thank you so much for joining us as well from Marketing
Smarts & What Marketers Need to Know. Anything that is coming up for
you that you want to highlight for folks?
Kerry: Yes, I will be speaking at You”all Connect in Birmingham Alabama which is an event for marketing professionals
more about Meerkat, Periscope, live-streaming and the legality of that and another
presentation on contents. O will be able to get into more depth there. I didn't
want to make everybody sit through the whole thing. You know it would have been
good for a dry run but very boring for your viewers to sit through
unexpectedly.
Denise: Our viewers can go seek you out if they need
more information on those fronts. I am on Twitter @KerryGorgone.
Denise: Oh and I meant to ask Megan, I couldn't find
you on Twitter. Are you on Twitter? We usually highlight people's twitter.
Megan: I am MeganCarpenter.
Denise: Megan Carpenter. There we go. Thank you for
letting us know. And Xiyin Tand lawyer at Arent Fox. Busy
practice Anything else going on you want to highlight
for folks?
Xiyin: I want to put in a plug also I am a visiting fellow at the Yale ISP
law which is Yale IP center we are doing great things right now working on the 9th circuit pre 1972's case right now working on the ninth cir and I know it's been a hot topic
Denise: Very good, yes Yale ISP has been doing good
work for so many years and it’s great to know that they are involving such
smart people in their ongoing work today. It’s been wonderful really wonderful
having you all on the show. And it's been wonderful having you all join us in
the audience. And if you have done so Friday at 11 o'clock pacific time 1800
UTC that means you joined us live. Yea! We love it when you join us live but
you don't have to. Of course our works unlike things that are live-streamed
through Meerkat, Periscope and other services ours
are going to be around for a really really long time.
And if you go to www.twit.tv/twil you will find our whole archive of shows going
all the way back to 2006. Ah, so you can check that out at your leisure. We are
also on Utube we have a page there at this week in
law. And you should get in touch with me and my co-host Sarah who couldn't be
here this week but will be back next week between the shows by either finding
us on social media. We have a facebook page and a
google plus page. I am Dhowell on Twitter. That is a
great way to get us suggestions, stories, topics that
have caught your eye that you think should catch ours. You can also email me I
am Denise@twit.tv, Sarah is Sarahp@twit.tv so we would love to hear from you however you
get in touch with us. We are really glad you joined us and we will see you next
week on This Week in Law!
