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: This is TWIL, This Week in Law with Denise Howell and Sarah Pearson. Episode 302, recorded May 8, 2015.

The First Rule of Live Stream Club

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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 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 for this episode of This Week in Law. And that is FreshBooks. It’s amazing how many lawyers I know who spend too much time practicing paperwork rather than practicing law. On top of their piles of affidavits and case files, there’s billable hours that need tracking, expenses to manage and client invoices to prepare and send. FreshBooks can make your life a little easier. I use FreshBooks in my practice, and it definitely makes my life easier, and in fact, it enables me to have a solo practice where I don’t have to have employees or the overhead involved, and yet I can accurately track my time and expenses and generate the reports that I need for my own business purposes and get myself paid from my clients. It’s very easy, very professional, that’s what I like about it is it is definitely top-of-the-line as far as presentation and professionalism. And you can choose whether, if you have clients that are very old school and like to get things in the mail and like to file things away you can go that way, but you can also go the e-mail route which I find that more and more of my clients prefer and it does seem to expedite things as well; when you’re sending out an invoice by e-mail it can’t just sit in a pile on somebody’s desk and not get paid attention to. It’s going to save you time billing, it’s going to get you paid faster, its invoices are, really they just come together in minutes. You can also track your time if you’re a professional that needs to do that. And you can do that with your phone; there’s a mobile app to track your billable hours from anywhere. And the FreshBooks mobile apps help you organize receipts while you’re running around between the office, client meetings, the courthouse as you’re incurring expenses that need to be captured and billed out, that’s very easy to do with the mobile app as well. And if you do have questions about using the product, about anything that’s just confusing to you at all, I’ve never had any part of this service be confusing, but if something comes up, there is the award winning FreshBooks support team waiting to help you out. There’s a real live person on the other end of the phone when you give them a call which is always welcome. Getting started is simple and it’s totally free for 30 days with no obligation. Go to and don’t forget to enter TWIL when they ask you how you heard about them. That helps us out quite a bit and we appreciate you doing that. You can start your 30 day free trial today. Thank you so much, FreshBooks for supporting this episode of This Week In Law.

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 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.” “ 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 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, Sarah is 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!

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