This Week in Law 303 (Transcript)

Denise Howell: Hi, folks. Denise Howell here, along with my co-host, Sarah Pearson, and our guests, Clark Asay and Kat Walsh. We're going to be right here for you on This Week in Law next. None of us is wearing enough makeup, really, to get in front of a Lily camera, but we're all wearing way too much to get into the Start-Up Castle; the NSA is under fire from Congress and the courts; and we're going to talk about the state of open-source — next on This Week in Law. 

Netcasts you love ... from people you trust. This is TWIT! Bandwidth for This Week in Law is provided by Cachefly at 

Denise: This is TWIL, This Week in Law with Denise Howell and Sarah Pearson, episode 303, recorded May 15, 2015:

Charmingly Earnest, Yet Insufferable

This episode of This Week in Law is brought to you by Blue Apron. Blue Apron will send you all of the ingredients to cook fresh, delicious meals, with simple step-by-step instructions, right to your door. See what's on the menu this week and get your first two meals free by going to That's

Hi, folks. It's Denise Howell, and you're joining us for This Week in Law. I'm so excited that you've joined us this week. We've got just a spectacular panel and some really meaty stories to get into at the intersection of technology and law, which is what we do here on the show. So without further ado, let me introduce you to our panel. My co-host, Sarah, is with us — Sarah Pearson, lawyer at Creative Commons. Hello, Sarah.

Sarah Pearson: Hello, Denise. Very excited for today's show!

Denise: I'm very excited, too. Great to see you again. Joining us is a former colleague of Sarah's at Creative Commons, was counsel there for a bit, went on to the Wiki Media Foundation where she worked for a while and also was chair of the organization for a year, I believe, and just this year has been appointed to the board of the Free Software Foundation. And this is Kat Walsh. Hello, Kat.

Kat Walsh: Hi, Denise. It's great to join you today.

Denise: Great to have you joining us. Thank you so much. And also joining us — another person with a strong interest in free software, so you can discern that we'll probably be talking about that on the show — is Clark Asay. Clark is currently a professor at BYU School of Law. He's also taught at Pen State and has worked at Amazon in the past and also the renowned Silicon Valley law firm Wilson, Sonsini, Goodrich, and Rosati. Hello, Clark.

Clark Asay: Hi. Great to be here!

Denise: Great to see you. Thank you so much, everyone, for joining us. Lots to discuss. As I said, a lot's been going on. Some things we've been tabling, to get into when we had the right panel and ample time — now's the time. So now is that time. Let's start out on the copyright front and talk a bit about open-source.

[The intro plays.]

Denise: So there have been a number of stories in the news lately sort of flying the banner of open-source, celebrating how well the open-source software movement has done over the years that it has been a major force in the technology industry. And I think there's just no arguing that open-source, which started out — in one of the pieces that we have highlighted in our topics this week, there was a reminder that Microsoft at one point called open-source software a cancer. [Laughs] And now it has very much pivoted and is embracing open-source to the point not only where it's open-sourcing many of its own products, but is thinking — actually flirting with the notion, saying, We haven't ruled out and anything could happen — the thought of open-sourcing Windows. So we definitely have seen a big move there. And with Clark and Kat's background in open-source, I'd just love to get you guys' sitting-back-all-these-years-later perspective on the development of open-source software and its acceptance — where it is today and where it's going. Those are all big questions, and we can drill down and get into more detail. But Kat, why don't — since you definitely — working at Wiki Media and the Free Software Foundation, why don't we start with you on this.

Kat: Sure. So I think it started out as this thing that was just a couple of weirdos off doing this thing. Maybe it would catch on; maybe it wouldn't. And you didn't have to pay attention to them. You could keep doing your proprietary strategy and kind of ignore what was going on in the free software and open-source world. Now it's become so mainstream that, whether you accept its philosophies or not, you have to figure out how to deal with it. You have to work with it. And I think we're seeing that a lot more as even the big software companies are spending a lot of energy and figuring out how to work with open-source and, through that, coming to see maybe at least some of its benefits for themselves, come to embrace it a little bit. I think that's only going to happen more and more in the future, particularly as everybody comes on to it. You can't be a hold-out anymore. You can't not embrace it yourself.

Denise: Right. And the interesting thing that has happened with open-source is, companies that have embraced it have shown other companies that they could still make money off the products that they've open-sourced, that it actually assists their business model. Right now on the screen — if you're watching the video — is a piece — ironically, that picture at the top — I was assuming that the picture might involve a Creative Commons image, but that one is a Shutterstock image. [Laughs]

Kat and Sarah: [Laugh]

Denise: But I think that that is Simon Phipps's piece, maybe? I can't really see.

Clark: Yeah, that's Simon.

Denise: Yeah. So Simon Phipps I've met before. He's a great guy, has been writing at InfoWorld for some time, and has done a special column on open-source for InfoWorld. And this piece, published just last week, is sort of his good-bye to that column because — he says, No, I'm still going to be writing about open-source, but it has become so mainstream that we're not giving it special coverage anymore here at InfoWorld. It permeates everything we do — which I thought was an interesting way for him to conclude his column in sort of a celebratory way, with all the balloons there. So I think that this is sort of across the board what we're seeing in the industry. As Kat says, people have to learn to deal with it if they're not embracing all of the philosophies. But there's far more to do than just deal with it, right, Clark? Those who do embrace it and use it are finding that its potential to help not just the world but the capitalist company is very great; correct?

Clark: Yeah, I think that's exactly right. It's one thing — sort of this old mode, I think, that Kat was describing, where companies were a little more fearful of it, right? And so you have these extensive review policies and procedures, and you're really trying to avoid it in a lot of cases. That's sort of a historical artifact, I think. The companies that do sort of keep with that stance with respect to open-source won't be around very long. They won't succeed because there's so much innovation and so much collaboration that accelerates that innovation in the open-source world — not only in software, but in a lot of other domains as well — that if you don't join in and figure out how to take advantage of these vast software and other resources and be a part of that broader community, I just think you put yourself at such a disadvantage that you're going to struggle to succeed. And as more and more different software projects and different layers of software build viable open-source or free software solutions, you see a lot of the still-proprietary pieces of software disappear; and their viability just sort of goes the way of the earth. So Microsoft, for instance — I don't recall exactly the percentages, but I think they were the second- or third-largest contributor per lines of code to the Linux Kernel in recent years. So even Microsoft, the long-maligned enemy of free software and open-source software, is ceding ground and saying, This is the way the world is.

Denise: Right. Let's get into the legal nuts and bolts of how free software works for just a bit. Obviously, the GNU public license — the GPL — is a very well-known one, very closely aligned with the Free Software Foundation. There are other free software licenses out there, and whatever flavor of license you pick, the way that free software works is, You decide. Okay. I'm going to write this code. It's sort of for those who are more familiar with Creative Common's because we talk about it a lot on the show, and I've done a number of great tips. If you're not as familiar with the software licenses, they work similarly. You pick which license you like based on what you want people doing with your software, and you put it out into the world; and then they don't have to come to you every time they want to use it. But that doesn't mean that you stop development of whatever it is that you're making, that you stop making improvements, etc. And so that's one way in which people continue to realize a financial benefit from something that they put out, if they're continuing to issue the official version of the software. But one of the things that was a cause of hand wringing early on with the free software movement — and people expected the other shoe to drop on this in dramatic ways and put an end to the growth and rise of it that we've seen, and it really hasn't played out that way  — is the fact that you get lots of people contributing to the code that can be the official code. And you get branches and forks and things, and that becomes problematic but seems manageable in one way or another. But one of the things that always caught me was  this notion that people are giving a representation and warranting, when they're contributing code, that all of the code that they're contributing is original, and they haven't lifted it from somewhere else. So it's this notion of making sure that — you are Big Company X, and you've decided you're going to use open-source software. You don't want to get sued by someone along the way. You have that little bit of uncertainty that all of the contributors have really done all of their due diligence and have really been forthcoming when they've contributed to the code. That really hasn't wound up being a big concern, has it, Kat?

Kat: Not that I've seen. And one thing I want to say is that people have this concern that — it comes most to the fore when you're thinking about free software, but it's not unique to that. We see this in proprietary software also — where you don't know that your developers didn't just lift something from stack overflow or that they found somewhere else. It just becomes a little bit more obvious, when you're auditing everything for the licensing status to begin with, that you don't assume it was all produced in-house. So that's not really something that we've seen too much.

Denise: All right. That's what I thought, too. Clark, do you feel differently? Have there been big cases out there that I've missed where someone has — obviously, there have been some cases about software genesis and some attempts to recover based on the fact that, Hey, my code is in your stuff, and you're not paying me for it.

Clark: Yeah.

Denise: But overall, do you see that as a problem that has developed at all or will be a problem going forward?

Clark: I think, historically, it definitely hasn't been a problem, at least where it has gained a lot of media attention or where companies have discovered code being stolen and then sort of put into some open-source project. I think part of the reason that hasn't become a huge concern is, a lot of the code that is contributed to these major projects is coming from corporations, right, that are very careful about these types of issues, and so they have extensive policies in place — and talk about all sorts of negatives that result from those policies. But they may be, I think, a factor in limiting these types of legal issues from arising. And, I mean, if someone, some independent developer contributes some code to some project, the likelihood is, if they have taken it from somewhere, it's from another open-source project, not from Microsoft's proprietary code that they've sort of reverse engineered and pulled apart and now dumped it into some open-source software project. So I think there are a lot of reasons why that issue hasn't arisen much and isn't much of a concern. And it's mostly a concern, I think, for lawyers. And one of the fears that, as you mentioned, has been sort of raised time and time again — well, we don't know about the code genesis. Well, before you ship a product from a company, you conduct those types of reviews, and you figure it all out.

Denise: Right.

Sarah: I think —

Denise: Go ahead, Kat.

Sarah: I was going to say — this is Sarah. I was going to say I think Clark's exactly right, that this is the type of thing that keeps lawyers up at night; but in many ways, these are kind of theoretical problems. Not that things don't happen, but they don't happen at a rate anywhere like you might imagine. Just the same as — what happens if some employee goes rogue and does something, or that sort of thing.

Denise: Right.


Clark: Yeah, the risks are really low, and the sort of — the thing I was trying to articulate with some of these people that contribute to open-source software projects, or free software projects, is that they really like to write code. That's what they do for a living. That's what they do for a hobby, right? Most of them probably aren't all that interested in going and ripping something off from some proprietary solution and then dumping it into an open-source software project. They like to write code. That's what they do. They contribute it, and I think that's another reason why we don't have many of these cases.

Kat: Yeah. One other thing —

Denise: Right. And I'm — go ahead, Kat.

Kat: One other thing, I think, is that people — particularly, they like to write code; and they don't want to sue. Particularly, they don't want to sue if they don't have to. They don't want to sue if something is being used not strictly in accordance with the license but generally according to what they hoped would happen.

Clark: Yeah.

Kat: You see people mixing free software and open-source licenses that aren't strictly compatible. In general, people are okay with that. They could technically sue for infringement, but they're not going to unless they feel that somebody has really treated them badly, taken advantage of the things that they tried to contribute.

Clark: Yeah, that's exactly right.

Denise: As a non-coder, I hesitate to throw this comment in; but it seems to me, too, like technology, of all things, is constantly evolving and that the code that was written three years ago is not what you want to be adopting for your new project, necessarily, that you need to constantly keep it moving forward. That's not to say you couldn't adopt something that someone had written more recently that might be useful, but it seems like the notion to constantly push ahead and progress would also factor into having code be as represented. Do you think that's the case, Clark?

Clark: Yeah, I think so. And I think it taps back into Kat's point that unless you're just eager to sue someone — [Laughs]

Denise: Yeah.

Clark: — and dump money into that. There's plenty of cases of copyright infringement or where, like Kat's saying, the way you've used the code is not exactly compatible with the license that governs it. But unless you're just eager to sue, like you're saying, you move on. They're more interested in innovation and accelerating the pace of innovation, and so — you might have some outliers where people just resort to suing, but it's — in the real world, it's a very low risk that companies spend a lot of time mitigating against. [Laughs]

Denise: Right. Another person who writes a lot about the open-source world is Clark's brother, Matt. We have a couple of pieces in our discussion points today. He's also a lawyer, and he's the VP of mobile at Adobe. Clark, is that right?

Clark: I think so. He changes jobs every year or two, so I sort of lose track.

Sarah: [Laughs]

Denise: [Laughs] Yeah. But I found —

Clark: He's sort of a lawyer. He went to law school, but he never practiced law. So I wouldn't hire him.

Denise, Sarah, and Kat: [Laugh]

Denise: But he writes a lot.

Clark: Yeah.

Sarah: We won't tell him that you said that.

Denise: Yes. Ringing endorsement of Matt Asay. Anyway, he had an interesting piece on the whole — what would happen if Microsoft open-sourced Windows notion. And the thing that he hits upon there that I thought was really interesting is the whole move toward cloud computing has just moved lock-in off the device itself and put it in the cloud so that you're not really losing your customers, or Microsoft doesn't really have to sell Windows anymore, necessarily, if folks are locked into the Microsoft cloud the way that folks in the business side of things might be locked into sales force, for example. I thought that was an interesting insight. Clark, do you have anything to add to your brother's thoughts?

Clark: [Laughs] Yeah. I think he does have a point because if you're sort of — the old model of peddling bits of software is sort of not the way you make money. To the extent that things move into the cloud, you're sort of the Amazon model of selling a service rather than selling pieces of technology. I mean, you're utilizing the technology to make a buck; but if you can get them locked into your cloud services, then who cares if you open-source the software? I mean, it might help competitors sort of start up and compete against you; but if you have people who really believe in your platform and are locked in, to a certain extent, then the fact that someone has a competing platform might not harm you. And, in fact, having someone else improve upon your platform, then you might be able to then take advantage of those same improvements, right? That's the whole sort of philosophy of free software, open-source. So it becomes a lot less crucial to maintain control over the actual software in that case. And so I think he has a good point here. Makes a lot of sense.

Denise: Yeah. As you were talking, I was thinking about how kids today who play Minecraft are getting to see sort of a good example for them, as they grow up, of what you were just talking about — a way you can adopt improvements that others have made for you because that's what Minecraft does. They allow people to make mods and things, and many of the mods get incorporated into the official release of the game. So they get to see this play out and see how that improves the world for everyone except, perhaps, the modders who — I'm not sure how that compensation all works.

Kat, I was prompted to think, as Clark was speaking there — and we're discussing his brother's point about the cloud and lock-in and the cloud — I'm wondering what the state is of open-source efforts in the cloud.

Kat: Well, it looks like more and more people are moving their services to the cloud. And I'm not necessarily sure that's a win, even if they are open-source. The Free Software Foundation in Europe has a slogan on a laptop sticker — which I can't show you — but, "There is no cloud. There's only other people's computers."

Denise and Sarah: [Laugh]

Kat: People talk about —

Denise: I love that.

Kat: People talk about the cloud as if it's this ethereal thing that exists, and everything around it encourages you to think about it that way. But what is it? You are just kind of outsourcing what you do to some machine other people control. And maybe that works for you, but is it meaningful to have open-source on a system that you don't have any access to? You only can poke it and prod it in the ways that they tell you. Maybe it's convenient for you, but is that — and maybe it's good that it's open-source. But it depends on why you're choosing it. Certainly, it doesn't give you a lot of the advantages of it, such as the ability to tweak it to your needs or the ability, even, to see what it's doing. You can interact with it; maybe you can take it and fork it if they've used a license that allows that. But how meaningful is it? Certainly, it might be a business strategy that makes sense; and maybe it's better than nothing at all. But I'm not sure that we could call it a win if that happened.

Denise: Yeah, that's a good point. Hey —

Clark: And there's this — can I just jump in?

Denise: Go ahead. Yes.

Clark: I mean, there's this looming fear, with stuff moving to the cloud as well, that the advantages of free and open-source software developments are disappearing. I think this is part of what Kat might be getting at, is just that, [inaudible] the cloud — that's technically maybe not a distribution under the licenses; and so if a company takes, but then doesn't give back because they say, Well, the software is not being distributed. We don't have to release the modifications under the GPL, for instance, I think this is the reason why Free Software Foundation, I think, is responsible for crafting the [inaudible] General Public License —

Kat: Mm-hmm.

Clark: — once upon a time that makes a hosting environment at distribution that would trigger the copy left provisions of the license. Now, I — so that's one approach. Another approach is just that companies realize that sort of taking and then just sticking in the cloud and saying, It's not distribution, so we don't have to release what we're doing — that they see that that's sort of a foolhardy effort and that the lessons of the free and open-source software movement of the past two decades or so should make clear that the better — even a better business strategy is to collaboratively innovate and sell other things that actually have value other than the software itself.

Denise: All right. Well, I think you've just given us our first MCLE pass phrase for this episode of This Week in Law. We put these pass phrases in for people who are listening to the show for continuing legal or other professional education credit. And our first phrase for this show is going to be "collaborative innovation." We'll put another one in at some point further on. If you'd like more information about asking for credit for listening to or watching the show, head on over to our Wiki at; find our show page there; and there's a nice guide to the various jurisdictions in the  United States for lawyers who need to get those MCLE credit hours in.

Clark, you have written a lot over the years about the interrelationship between copyright and technology. We've been talking about the free software licenses, the open-source licenses, that are available out there like Creative Commons. They're sort of a roundabout effort at end-running copyright law, making norms in society work a little differently than copyright law on the books would have them work. So someone might be tempted to say that copyright law and technology are at loggerheads because people have to do that kind of thing. But one of your articles talks about how copyright and technology are interdependent on each other. Could you explain that for us?

Clark: Yeah. So that article — I mean, the basic concept is just that technological innovation spurs creativity and therefore copyrightable content; and copyrightable content spurs technological innovation. And so there's definitely — there are loggerheads. And there's a lot of inefficiencies, and there's a lot of cases, I think, where copyright gets in the way of technological innovation. But it also spurs it. I mean, I'm just thinking of my former company Amazon, right? There's increasingly more types of content available; and so what do they do? They create technological innovations to take advantage of. So, one, make that content more available to a variety of people; and, two, try to make a business out of it. And Netflix is another example, right, where they've engaged in an extensive technological innovation to make copyrightable content available in a way that a lot of people like. And without copyright protecting that content, it's not as viable of a business model, just because Netflix could create these technological innovations in order to make the content available; but copyright gives them an economic incentive to do so. So that's sort of the basic relationship I describe in the paper you're referring to. That said, it's not a perfect relationship, by any means. Content owners as well as technological innovators such as Apple, Amazon, and Google — they have incentives to restrict your access to content in ways that perhaps — because of their economic incentives — that might contravene the purposes of copyright and some of the exceptions to copyright, such as fair use. Then you've got DMCA, which you've talked a lot about recently on the show, that sort of adds fuel to that fire. So again, the point of that paper was just to say these two, technological innovation and copyright — there's not a perfect relationship, but they do have a relationship that provides us a number of benefits. Those can be improved upon — they should be — but it's not all doom and gloom, I guess.

Denise: That's good to know. I hate it when it's all doom and gloom. [Laughs]

Clark: [Laughs]

Denise: Before we move on and start talking more about the DMCA, which we have been talking about lately, I wanted to just ask because it's not something that maybe is something everyone could answer, although everyone uses Wikipedia. And with Kat here, I thought I'd just have you explain for a moment, if you could, about the reusability — what sort of licensing applies to everything that people find on Wiki Media Foundation properties?

Kat: Everything on the Wiki Media sites —  the Wikipedia encyclopedia and the media repositories, the other projects — is under a Creative Commons license. Wikipedia is under the Creative Commons by ESA license, by ShareAlike. What's interesting about that is that Wiki Media Foundation has no more rights to it than any end user; it just uses it under the terms of the CC license the same as anyone else. And that was a deliberate choice when the licensing for the project was decided. Wiki Media didn't want to be in a privileged position, didn't want to be able to take anything it couldn't redistribute under the same terms.

Denise: So when you post to Wikipedia — as you're pushing Post somewhere, are you agreeing to a Creative Commons license to what you're uploading?

Kat: You are. When you submit your edit, there's a little notice that's under the box that says "You agree to this license." If you're submitting photos or videos or other things, you have a little bit of a wider choice of license; but it still has to be something that you can redistribute, you can remix, and that also can be used commercially, which is unusual. A lot of people don't realize that. But there are so many commercial projects that are not strictly nonprofit but that make really good use of the material that Wiki Media didn't want to restrict that. So that's explicitly permitted, and that surprises people. It's a big shift. It's also encouraged a lot of people to release content freely that they wouldn't have before, just because they want the exposure, or just the satisfaction of contributing to Wikipedia.

Denise: Yeah. That's good to know. I think that's something that not everyone listening might have been aware of.

All right. Let's move on to a — we have talked in recent episodes — I think maybe one or two back — about John Deere and its back-and-forth with the copyright office over whether there will be an exemption that would allow people to break copy protection in order to work on, specifically for John Deere, their John Deere devices — tractors and things. And obviously, there's been some backlash against John Deere by owners of tractors and people who follow copyright law. John Deere, on April 30, wrote a letter to its dealers to help the dealers deal with these kinds of questions and answer some of the questions. This letter — I first saw it just this week, so I don't know if it just now leaked out. But Mike Godwin posted a copy to Twitter, and that's where I saw it. And it basically tries to explain to them — it wraps — as we have discussed on the show, John Deere's justification for needing copy protection for its systems in a safety rhetoric. So it doesn't really say anything about, We need to lock up the code in your tractor because we're afraid that if the code got out there, it would be redistributed and used in other tractors; and we would not benefit from our copyright. But they really couch it in a rhetoric of, We need it to be safe and reliable for you and your customers. And so I guess there's nothing too surprising about that. What is surprising is how straightforward they're being, that really it's not so much a copyright holder interest that's being protected upon the DMCA here. Sarah, did you see this letter, and did you have any thoughts?

Sarah: Yeah, I did see it. I thought it was really interesting to read. And in a lot of ways, I think some of what the letter says is easy to make fun of, which I think BoingBoing was doing a little bit, which I appreciated. But on the other hand, I think a lot of what they're saying was true under copyright. They were trying to explain the difference between owning a copyright in something and owning a physical thing. And it just shows how kind of counterintuitive that notion is. But I also think they were being disingenuous about how that notion really applied to the situation at hand because what the farmers — or I don't know who actually brought the petition to the copyright office. But the idea was for them to actually diagnose and fix their own tractors. There wasn't any sort of — I don't think there was any proposal about being able to share that copyrighted code beyond the person that was trying to fix it. So it was in some ways disingenuous; but I thought it was interesting that, reading the letter, a lot of the copyright notions there were actually accurate. They just are — it just points out kind of how silly this notion is and how confusing it is and how, more and more, we aren't owning what we think we own. It hearkens back to what we talked about a few weeks ago, when Aaron Perzanowski was on, about how everything is under a license now and how it's kind of changing this whole notion of ownership in very negative ways for consumers, I think.

Denise: Yeah. What do you think, Clark? Is open-source the answer to this? Someone needs to make a tractor that they're not locking up under the DMCA?

Clark: Maybe. Or you just, like a lot of people have wanted for a long time, get rid of some of those increasingly-outdated provisions of the DMCA that — DMCA was 1998; we're in 2015 — different world, different technological environment. I don't think the farmers or whoever want to tinker with this stuff, with the software, are amateurs. And if they are, or they just do it wrong, you probably won't have any liability anyway if you waive warranties and so forth upon someone messing with it. So I think we have other laws and regulations in place, and contractual provisions that deal with the concerns that they outline in this letter. But they're sort of using copyright as a way to sort of protect other interests. And I'm not sure exactly what those interests are. I can guess at some of them, but I think this is a broader trend where copyright is being put to uses that aren't — copyright wasn't really intended for. You have all these unintended consequences, and I think this is just another example of that.

Denise: Right. On the safety front, there's certainly a lot to be said for, You don't necessarily, when you're — there's all kinds of good reasons why you want people to be able to tinker around with software that's not hurtling down the road or on a railroad track at high speeds. We had, just this last week, the example of the train in Pennsylvania that took a turn at twice the speed that it should have; and then we had the NTSB representative whose name is escaping me right now, who took to the talkshow circuit in the wake of it and was making comments along the lines of, "We do have technological measures that can limit the speed of trains, and it wasn't in effect on this stretch of track," with the implication being — another thing we talk about a lot here — is the desirability of automated transport, that automation may have been able to prevent this crash. So I guess, not to too much jump into playing the devil's advocate rule on behalf of John Deere here, but when you are talking about transportation devices, I think there are all kinds of good reasons why you want to be able to ensure the safety and reliability of the device. And there are probably all kinds of laws under which you can do it. I just don't know that the DMCA is where I want the copyright office and auto makers and tractor manufacturers hanging their legal justification because that has a lot of wide-ranging implications. Are you with me on that, Kat?

Kat: I am. I think that copyright is the wrong way to ensure safety. And this problem is not unique to tractors, as shocking as that is. [Laughs] We see it in — we've started seeing it even particularly with cars. People are fighting for the right to repair, just to be able to edit the software on their cars. And that's clearly really life critical. Even with machines that are not transportation, we see it — most cryptographic software, for example. People don't trust cryptographic software that isn't open-source where people can't audit it themselves. And that is partially why people trust it because everyone who can possibly try to break it can look at it, can audit it — not always perfect, but certainly better than something where nobody can see what it is. And when we have these things like tractors, like cars, where the manufacturers are basically just asking, "Trust us" — we've seen this, actually — I think there was a case with Toyota several years ago where there was, in fact, a software bug; and nobody could see what it was. And it took a team of NASA auditors to basically look at this with the same standards that they would use to audit the space shuttle software and say, "No, we would never have let this through." But certainly, some of their customers could have done that, but they just weren't permitted to. So —

Clark: Yeah. Can I —

Kat: Sure.

Clark: I just want to piggyback on that. I think what Kat is saying is exactly right. Like, John Deere — they point to safety; and I think that's sort of a relatively easy-to-understand thing to point to. But, like Kat points out, we don't know if the software that they've put in there is actually any good without someone getting in there and tinkering with it. And the people that are going to be tinkering with it are people who know what they're doing, right? These aren't amateurs. These aren't people who are just doing it for the fun of it. They're most likely people that are going to be able to identify the types of vulnerabilities that Kat is mentioning in the Toyota example. And we've seen plenty of examples, with Toyota in particular over the years, where you've got all these bugs and defects that are actually causing people to die. And I think, yeah, maybe an open-source model would help address a lot of those problems before they actually occur in real life.

Denise: All right. Well, I think we've just gotten our second MCLE pass phrase for the show, and that's going to be "freedom to tinker," something I think we'll come back to later on in the show and expand on even more.

But right now, let's turn to an interesting copyright case — an interesting fair use case — called Katz v. Chevaldina, where a district court has found fair use. That's now on appeal to the Eleventh Circuit. And once again, the reason it jives well with what we've been discussing is sort of a hidden agenda using copyright law not necessarily to protect one's copyright interests. And here, the interest in play is really the interest in non-distribution of the material. I think — Sarah, did you put this in our discussion points for the week? Maybe I'll let you tee this one up.

Sarah: Yeah, I think I did. I thought it was a fascinating piece. So it's about this case where some real estate developer had this horrible photo of himself that he didn't want people using, so he had the copyright on the image assigned to him and then sued for infringement. The really interesting thing about it was that the paper argued fair use, in part because of the market value factor in fair use. So there are four factors, and the fourth is the effect on the market for the original work. And the argument that the paper made, which is really brilliant — is that there is no market. He's actually trying to eliminate any usage of it, so it's impossible for there to be any effect on the value because he doesn't plan to monetize it. So I thought that was kind of an interesting argument and made sense. Also, just as a practical matter, this is the horrible — this is the Streisand Effect, right? Like, we would have never seen this image. Now we're seeing it.

Denise: [Laughs]

Sarah: I'm sure there are more — he's increased the demand for this photo.

Denise and Kat: [Laugh]

Clark: [Laughs] Yeah.

Sarah: But I'm also sympathetic, I mean there are hundreds of horrible photos of me out there and I could imagine wanting them taken down. It's just that this is an example of trying to use copyright for purposes for which it was not created, which I think is almost always a bad thing, even if you're sympathetic to this situation.

Denise: Right. I think it will be really interesting to see how this plays out. It's on appeal to the 11th Circuit now, the EFF and others have weighed in with amicus briefs. So we'll wait for the 11th to see if they agree that this was fair use. It seems like a lot of the district court's decision on this had to do with the fact that the market for the work wasn't in play here because as far as the rights holders are concerned, there shouldn't be a market for this work. They want to completely control the work and not give it a market whatsoever. But scarcity creates a market too, that doesn't necessarily rule out the notion of making a marketplace argument. If he wanted to sell this photo, maybe the fact that it's been locked up or not authorized would increase its market value. I don't know if that makes any sense for the court to pick up on or not. But we'll see how the briefing and then the opinion goes.

Kat, do you have any thoughts on this?

Kat: My first thought was the same as Sarah's. The Streisand effect, if you didn't want anybody to see this photo, similarly, it really depends on the fair use argument for it. And I think I agree with that point that scarcity could create a market and like maybe you're using scarcity strategically to create the market for it. But that doesn't appear to be what was happening in this case. It looks like he was a newsworthy person and a story where they wanted to show him as this ridiculous figure and they succeeded. And they couldn't have used other photos to do that.

Denise: Excellent rule of thumb. If you don't want something publicly available, don't file a lawsuit over it. Clark, any final thoughts on this?

Clark: No, I largely agree, I mean I think he went and had the copyright assigned to him after the fact, just so that he could protect, basically suppress the photo. He didn't want it out there. It's not that unflattering, when I look at it.


Kat: All of us have photos like that.

Denise: Oh yeah. There are photos like that of all of us being generated right now as we do the show. People are doing screencaps as we speak. Just know that.


Denise: Clark, let's talk about e-books for a bit, since you worked at Amazon. And Lab 126, tell us what Lab 126 was, or is.

Clark: Yeah, it's Amazon's research and development affiliate, or subsidiary, so they do all of the consumer electronic products that Amazon does, or sort of developed and brainstormed down there. I was there supporting hardware, software teams, emerging technologies teams, and so. I started there in, I don't remember the year, but I mean it just grew and grew and I assume it's still growing. A lot of interesting things going on there.

Denise: Right! So you worked on the Kindle and the Kindle Fire, and the Kindle Fire HD, and I'm assuming other products for the company as well. But all of those are the flagship e-book products for Amazon, and Amazon arguably has the biggest e-book business, maybe demonstrably has. I'm just not sure. So I'm just wondering, we've been talking about open source through the years. It's interesting to look at how e-books have developed over the years too. Their adoption, and popularity and now, apparently, their waning popularity. Paper book sales are actually up by 2.4% in the last year. What do you think is going on here?

Clark: You know, I don't know. I saw that and I was a little bit surprised just based on personal experiences where I haven't, I mean I used to buy; when I worked at Amazon I used to buy paperbacks. Now that I don't, I don't anymore. And so, I don't know if that's an actual trend or if it's just a little blip, right, along the way. But it could be occurring for some of the reasons we've talked about with respect to John Deere and other topics where people just don't like buying something and then not feeling like they can control it. Amazon, Barnes and Nobles, and some of these others have implemented limited lending features for the books, or transferability, but it's really limited. And so if I buy a book, and I want to share, I'm done with it, I don't want it anymore, and I want my Mom to read it, she's got to, in most cases, buy her own copy. And when I die, what happens to my digital assets, what happens to my account, right? Are they transferable or not? So there's just a lot of questions that people may be, maybe people are starting to think about these things. I don't think the average person thinks a great deal about some of the technical legal issues relating to these digital assets, but that might be playing a role in some of the press and cases that have made it into mainstream media about what content owners, the restrictions they impose on these different types of content and so people, one response is to just vote with your feet and say well, I'm just going to buy a book. I know I can give that away and sell it. Now one thing that's interesting, though. Back to our discussion about imposing terms and using software as a proxy for controlling a physical item, I've had people reach out to me and say 'I sold a book on eBay, a physical book on eBay, and within a day I got notification from different groups saying "You're not allowed to sell that, look inside the book, there are use restrictions." '. And so it's not always digital assets where this type of behavior is being manifested. Companies are starting to try to do similar things with physical books as well. So that's another interesting twist to this whole issue.

Denise: Yeah, I haven't found a book yet that had a "Don't sell this book' clause, but that would be an interesting one to test in court, a physical book, obviously. Alright, Titus and IRC want to know where all the Easter eggs are in the Kindle, Clark, if you can share them with us.


Clark: I'm still bound by confidentiality requirements, in perpetuity. But any Easter eggs in there, any problems with any of those devices are not my fault. When I was there everything was perfect.

Denise: Of course. How could it not be? I'm probably not the best person to try and decide why e-books aren't working very well, because they just never really took well for me. I mean I have several of them, and I've read them on both an iPad and a Kindle; but I'm more an audio book person these days. I really have gotten hooked on the great narrators that are available. But still the problem of having the work locked up and not shareable exists in the audio book world, at least the Audible world. You're not supposed to share those files around. If you can get freely licensed audio books, but they're not as easy to find. Do you have any thoughts, Sarah, on printed books versus e-books, and whether it's the restricted use that might be making e-books look less attractive?

Sarah: I don't know, I mean I think that that's fascinating. I know, for me, I'm kind of the same way as you, Denise, I don't do the audio book thing, but I try e-books, and I actually find them to be less convenient, because my battery would die, I'd run out of power on my iPad, or I'd forget to take it with me. I don't know. I've been buying books like once a week, lately, through Amazon, but physical books, and just find that so much more convenient. And in part it is because I don't have to worry about, when I'm done, I could do whatever I want with it. And I can take notes on it. And I can have that with me wherever I go. I don't know. To me it just seems more convenient. And it's in part related to this whole issue of control over what you buy.

Denise: Right. I'm glad you pointed it out. You buy your physical books from Amazon. IRC has been reminding me: You know, they still sell those things. And CDs, too! Yes, they do. Kat, any thoughts on this?

Kat: Sure. So I'm mostly a paper book for pleasure person also, but for reference books I really like to have something I can copy and paste from and take notes on. I'm really on the side of you should be able to actually own the things that you have and not have them taken away from you. Not have people also be able to keep tabs on what you're reading. One thing that happens with the books, especially if you can't see what software people are using to manage your e-books. So back in my history I worked in tech policy for the American Library Association. The libraries really want to use e-books for their patrons. Every segment of society uses the public libraries and the e-book solutions aren't working for all of them. Some don't have computers that can handle it, some people are blind or print disabled and need to be able to change the settings on their book or have it read in text-to-speech, and the e-book solutions are causing problems for all of them. The people can't use them, the librarians hate them, they're getting locked into these contracts with them that they get locked into for years and then they can't change them. So it's creating problems for more than just the individual user who wants to make sure that their books are not taken away from them. I really like the initiatives that some of the publishers have done where they're offering DRM-free books. I think those are great. Otherwise, I just won't buy the ones that have DRM, it just creates so many problems.

Denise: Right. And the whole - having others know what you read and when you're reading it and all about your habits is a nice segue into a privacy discussion which we're going to have in just a moment here, right after we thank our sponsor for this episode of This Week in Law, which is Blue Apron. One of my favorite things, and one of the things that has made life in recent months much nicer around the household, I'm sure all of us enjoying the Blue Apron meals understand that. Because they really do add a great dimension to the cuisine that you're offering up at home. It's much more like a restaurant experience at home, when you're making Blue Apron food. It's definitely a fun cooking experience. It takes all the inconvenience of shopping out of the equation for you because they send you what you need in exactly the proportions that you need it in. And all of the things that you want to have happen with the food that you're preparing at home happens with Blue Apron. You want it to be a good value. You want it to be quick to prepare. You want it to be fun to prepare. You want it to be healthy and delicious, not super-laden with things that you need to worry about your family eating, or really laden with problematic things at all. You know when you're making Blue Apron that the ingredients are fresh, you're cutting them up, you're seeing that yourself.  Blue Apron makes cooking delicious meals easy and fun by delivering those fresh ingredients right to you. The meals are ready to cook, then come to your home where you don't have to go out and forage for all the ingredients. You don't have to forage through your cookbook collection to decide what to make, because a whole team of very talented people at Blue Apron are putting together these meals. And they're putting them together is one of the things I love the most about it, with ingredients that you might not pick out yourself at the grocery store. Certainly my mother and I were discussing this because she also is a huge Blue Apron fan now. And she is the person I learned how to cook from along with my Dad and she's hugely on board. She was telling me in one of her recent meals rhubarb was involved. When was the last time you put rhubarb on your shopping list to pick up down at the store?! Just doesn't happen in my world. But to have Blue Apron send it to you and incorporate it really nicely into a recipe makes you try these new flavors and ingredients or maybe things you've tried before but don't usually make their way into your cooking. Meals are less than $10 apiece.  They send you all the things that you need perfectly proportioned, step by step recipe instructions, with beautifully printed pictures so you know what it's supposed to look like. If you're getting too far afield you can fix some adjustments. The actual prep is very easy and fun. Much as I love hanging out in the grocery store, it's really more of a luxury for me to be able to do that, it's not something that I can do, day in and day out. Time is just too short for that. So Blue Apron takes that piece out of the equation. It's perfect for date night, cooking with friends. They even offer family plans with kid-friendly ingredients so the whole family can eat well and have fun preparing the meals together. Each balanced meal, you're going to find, has about 500 to 700 calories per serving. They're so delicious you'd never know that. Cooking takes half an hour. Shipping is free. And the menus are always new, they won't send you the same meal twice. That doesn't mean you can't make the same thing twice. I have plenty of these recipe cards I'm hanging on to because they not only list all of the prep steps in a very easy repeatable form, they have all of the amounts and items that you need to recreate that meal for when you do have time to go to the grocery store. They work around your schedule and dietary preferences, and Blue Apron's experts source only the best seasonal ingredients for incredible meals like hearty chicken salad and white pizza. You'll cook these incredible meals and be blown away by the quality and freshness. Blue Apron: it's a better way to cook!  Check out this week's menu and get your first two meals free by going to That's right, two free meals just for going to Thank you so much Blue Apron for your support of This Week in Law.

Alright! So we've had some big developments on the privacy front recently, Let's talk about them.

(Music playing)

Denise: So we've talked about the ACLU versus Clapper case before on the show. The second circuit has gotten its hands on the case and decided that the NSA surveillance being challenged there was actually illegal, that it exceeded the scope that was permitted under the Patriot Act. Clark, I know you've been paying attention to this. You want to discuss the Clapper case a bit for us?

Clark: Sure. So there was some hope in some circles that the court would reach the constitutional dimensions of the NSA surveillance program. So, the fourth amendment, the first amendment implications. They talk about both of those bases in the case and suggest that there are concerns there, but they, like you say, they rule that section 215 of the USA Patriot Act did not authorize the surveillance program. The way that the Fisk court interpreted relevance to then allow the government to en masse collect bulk data about every phone call in the United States, they said it was impossible to square that program with section 215 in the actual language. I think that some people feel like this is like Orin Kerr over at the Washington Post suggested this is a symbolic victory because, yes, the Patriot Act is sun setting in a couple of weeks and the House and the Senate are debating bills to replace the program. I think it does have some relevance though, because the second circuit has provided some guidance on the confined nature or definition of the word 'relevance'. And so whatever does come out of Congress to replace section 215 would do well to take into consideration the court ruling in crafting the language. It may be too late, because the compromises have already been hammered out, and so we may just get whatever the House and Senate have come to at this point. But in future cases it still may have some relevance in terms of whether the new statute has problems of its own in terms of what it authorizes.

Denise: Yeah, I think that will be helpful for lawmakers to know going forward what is going to replace the Patriot Act and be able to hold up in court. Sarah, any thoughts on this second circuit decision?

Sarah: The other thing that I was going to mention that I think is important from the case is that they found that the ACLU had standing, which I think was an important piece of it. So that just the mere collection of data warranted both fourth amendment standing and first amendment standing because of the potential chilling effect on speech. So I think that's another reason that this is actually an important victory for privacy advocates.

Denise: Right, a large number of these cases challenging government surveillance have been tossed in the past because of a lack of standing. So this is a good development for folks who want to continue bringing these challenges. Kat, any thoughts?

Kat: I agree with what Clark and Sarah said. Another thing, I think it's good to have these victories just for shaping public opinion about it, for people to see that, yes, there have been these cases, and yes, they found that there's been overreach. It will shape the political debate, people will have to talk about this, people will have to talk about the value and the compromises of these programs. That's an important point.

Denise: Yeah. Absolutely. A lot of attention has been being paid to what the government is up to and how they're monitoring all of the various data. The phone company and phone conversations are just one aspect of all of this. It goes back to what Kat was talking about before, that there's so much data about us that we entrust to the companies that are helping us lead our lives, and all of that data is theoretically and sometimes in a very concrete non-theoretical manner available to government investigators when they are trying to fight crime. It's definitely something that is near and dear to the public's heart these days and we're going to talk in a moment about what Congress has been doing in response to that. Before we get there I wanted to talk briefly from one heavy privacy story to a somewhat lighter one. I think we've talked before about the Lily camera. It was at first touted before it was made available for sale. You can pre-order these things now. They're going to ship next February. The Lily camera, here we go, some video is going to be helpful to explain what it is. You carry a little sensor on you that is tagged to the camera, and the camera is on a little flying roto-coptor, quad-coptor drone that follows you, based on the sensor. Then it nicely puts itself down when you're done with it and it follows you around. It records these wonderful extreme, or not so extreme moments in your life. It's the ultimate selfie-cam. It doesn't even need a stick. I can definitely see people enjoying this in their leisure activities. But my immediate reaction when I saw this thing is, yeah, I want one, and I don't want anyone around me to have one. When we had initially talked about it on the show, we talked about its potential as a stalker cam. And the company in its FAQ has addressed that a bit and said, Come on, you know, the thing makes noise, it only takes good video when its within 100 feet of you, and optimally it wants to be about 10 or 20 or 30 feet away from you to really get the video. So you're going to know if someone planted the little tracker device on you. You're going to see this thing following you pretty easily. But I just wanted to toss it out to people to see what you guys think about the Lily cam to see if you, like me, hope that they don't become too widespread. The very first thing you saw in that video that Victor just played for us was someone either skiing or snowboarding and I know when I'm on a mountain if there are forty of those things flying around tracking people down the hill I'm going to smack right into one.


Denise: I just don't have the Lily avoidance capabilities that I think you really would need. So, yeah, the guy is snowboarding. So, what do you think of this, Sarah, the Lily cam, what does it mean for our future?

Sarah: Oh gosh, I don't know the answer to that. I do kind of want one, I have to say. You sold me. It's funny, I showed it to my husband and he immediately thought, oh, we should get one and put the tracking device on our dog. And then since he loves to chase the ball, that would be kind of fun. But he also mentioned the skiing thing. We're not skiers, but he said, what if everyone started having those at ski slopes, it would be just a nightmare, I imagine, with logistics.

Denise: It would, I'm sure that ski slopes will have to have some sort of restriction on cameras following you down the hill because,

Sarah: they will have to. But as far as what it's going to mean in the world, I don't know. I think we're going to have more and more of these things. There are going to be cameras everywhere. We have to figure out some privacy laws to deal with this sort of thing. Even, this one, their FAQ, at least, makes it seem like it's true that you couldn't very easily use this to track other people, but I don't know for sure if that's true when there's going to be, and there probably already are tons of drones that you could easily use to track other people. So it's not just Lily. I think that our privacy laws are not equipped to handle this challenge at this point.

Denise: Yeah. Let me read a couple of salient points from the FAQ here. The first one we've been talking about: Can I use Lily to spy on my neighbors? Lily is always pointing at you, they say, at less than 100 feet from you. Pro tip: best shots are at 10 to 30 feet. Also, Lily's motors make noise, so other people will most likely notice Lily and quickly figure out where you are. You are better off climbing a tree and using binoculars. And then as far as our ski slope question, let's see what I just saw here. Usage, I better search for it, there's a lot here. This just does not bode well. Does Lily have obstacle avoidance? Currently Lily does not have any obstacle avoidance capabilities. We have found that most outdoor activities do not need obstacle avoidance because Lily can follow the user's path. But again there are no guarantees that Lily will not hit anything while it is following you. So Lily is not going to try not to hit me and I know I'm not going to be able to avoid it. Clark, you're in Utah, you are an hour away from ski slopes where these things might be, maybe not next ski season, but the ski season after that, all over the place. What do you think about Lily?

Clark: I think something that Sarah sort of implied in one of her comments is that the FAQ addresses a lot of the concerns that people have, but this technology is only going to get better, right? And these concerns are just going to crop up again and again and again. I do think we need a new term for narcissism, because I think that it's not adequately capturing the direction of technology these days.  I think it taps into a broader concern of do we let, in terms of privacy, do we let the technology dictate what our reasonable expectations of privacy are, or do we push back against the technology and say no, even though technology can capture this type of information about any given person, we as a society decide, that's too much, because there's a lot of people, in terms of advocates of unfettered technological innovation, they think that privacy is going to get in the way of a lot of cool things, and it could, right?. That could be a result, but we as a society have to determine, and like Sarah says, determine what we think our privacy interests are, and where we want those boundaries to be. And the current legal regime definitely doesn't address what's coming, in terms of technology and its implications for privacy. It doesn't address it right now, but it certainly won't address what's coming.

Denise: Yep, I think we will continue to see the lawmakers and society struggle with technologies that make us all rethink what is privacy and what is narcissism. If we move right on to our legislation and policies section of the show I can tell you more about freedom to tinker and a good development there.

(music playing)

Denise: This is very exciting for folks who have followed the kind of law that we talk about here on the show and have been rattling around the web reading the writings of people who have been analyzing and really crucial in the development and education about these laws. And Ed Felton is one of them, freedom to tinker has been his blog, where he has written for many, many years. He's a professor at Princeton, and right now he's joining, he's been appointed by the White House to join the office of science and technology policy as the deputy US chief technology officer. So this is very exciting. Good to see good people go to influential and hopefully change in a good way, inducing kinds of positions. I didn't say that very well, but you know what I'm trying to say. Kat, what do you think about Ed Felton taking on this role?

Kat: I think it's really great to see it. It's really great to see, particularly, them appointing somebody who has actually worked hands-on what it is a technologist should, appointed into a policy role. That's something that a lot of people have felt has been missing in the technology discussions in the White House for a long time.

Denise: Yeah, he's not a law professor; he's a computer science professor, so he knows his tech. So, as a law professor, Clark, are you also happy about this?

Clark: Yeah, I think so. By all accounts he's a brilliant guy, and, like Kat says, is involved with the technology and with the implications of the technology in a way that will really equip him well to advise. We all know how politics go, his views probably won't just translate into official policy but they should have a significant effect. And I think it seems like it will be a good thing.

Denise: Right. He's also taught public affairs, so he's certainly no stranger to the policy arena, and in 2010 he was named the chief technologist for the FTC which he assumed in 2011. So, Sarah, any further thoughts?

Sarah: No, I don't know much about him. Everything sounds positive, and a lot of people whose opinions I really respect are excited about it. So I am too.

Denise: Yeah. He's a good guy. Alright, let's talk about Congress trying its hand at reining in NSA surveillance. The USA Freedom Act passed and not without a good deal of controversy. Its goal seems to be curbing NSA spying but folks aren't really pleased with all of the permutations of the act. Clark, what are some of the things that they are not pleased about?

Clark: Well I think the issue I mentioned earlier about some of the definitions of terms, relevance, and so forth, there's still a lot of ambiguity in the bill as it's been passed. People are hoping the Senate introduces tighter definitions on terms such as relevance and suppression of data that isn't relevant to what you are actually investigating. So there seem to be, as with any bill, there seem to be significant loopholes that still allow for monitoring and surveillance that has triggered a lot of the public backlash in the first place.

Denise: Right. Kat, better than nothing, or should they try again?

Kat: Do I have to pick one or the other?


Denise: You can pick a third. What's behind door number three? I'm not sure what to ask.

Kat: Better than nothing but also, I don't know, I think they should try again. One thing, I am also worried like everyone else is about the vagueness of the terms, particularly, where we've seen before where there's any room for interpretation they'll take the most expansive reading as possible.  So I would like to have seen more strict definitions.

Denise: Yes. Well, there has been a good deal of analysis and poking holes in the law. So, Sarah, do you think that will have an impact?

Sarah: I don't know. I thought it was interesting that EFF had supported the legislation until the Clapper case was decided, in which case they decided that they needed to revise the legislation to make the relevance requirement more strict, in line with the court's opinion. So I thought that was kind of interesting. I did notice, too, that CDT, though, is supporting the legislation, so it's always kind of interesting to see, with these people who are poring over the legislation, how they come out. Because, obviously I haven't read the full bill by any means.

Clark: No one has.


Sarah: Somebody has.

Denise: Well let's hope CDT and EFF have for sure. Because, we need those guys in there deciding if it's good or bad or indifferent. Alright, I think speaking of good, bad, and indifferent, it seems like we have a movement on certain sites that have not been known necessarily for reining in bad activity. A movement toward reining it in and in somewhat creative ways, and doing it through changes in their terms of service.

(music playing)

Denise: I think we are the only people who could make terms of service seem dramatic. So I'm referring to Twitter, which came out with some really interesting changes a while back, but we haven't talked about them on the show yet. To the way it's going to handle people acting badly on Twitter, and posting abusive tweets, and threatening tweets, and I want to ask you guys if you think that this looks good on paper but really isn't going to make a difference, because I can see how someone confronted with these penalties that Twitter is now going to impose, might be able to skirt them. But it certainly does look good on paper. And one of the things that Twitter is going to do is if someone has run afoul of its abuse policies, it's going to put the onus back on them. First of all, it's going to lock up their account and then, in order to unlock the account and be able to post to that account again, the person is going to have to go in and delete the abusive tweets themselves. So you're cleaning up your own mess, kind of thing. There's a lot more to this policy, but I did think that had sort of a justice kind of component to it, rough justice, non-court imposed justice component to it. Of course, it's not that hard to fire up a Twitter account. If you're not that invested in your account, you don't care if you lose all the customization that you've added, to all your followers, everyone you're following, you're willing to recreate that, you could just sort of thumb your nose at Twitter and its deletion requirements and start a new account. So that's why I wonder how effective you think this is. What do you think, Clark?

Clark: Yeah I think you're right. If people want to get around it they can. These types of changes make me think of the broader implications of where most public speech and debate and discourse occur, or increasingly more of it, which is on sites like Twitter, Reddit, Facebook, wherever. How we feel about a corporation controlling the marketplace of ideas in this way, while these changes will probably actually lead to some good in terms of shutting down people who are engaging in this type of behavior, you can imagine that sometimes it's not going to be a perfect process, they might start restricting types of speech that they deem abusive, but maybe, in terms of First Amendment values, we would prefer to have on there. Not personally prefer to have on there, but just in terms of supporting the First Amendment in general. But because Twitter is a public corporation, but a corporation, not the government, we have a different analysis of things that they are and aren't able to do. It raises that concern for me generally, even if in 99% of cases I think, yeah, that guy should be off Twitter.

Denise: They do have this mobile phone number verification requirement that is necessary to get your account back too. I'm wondering how much of that data they're keeping track of. It's not as easy to change your mobile phone number, I suppose, as it is to just attach another email address to a new Twitter account. Kat, this is all sort of related to what we've been talking about, keeping tabs on people's behavior and the data that Twitter has on them which would include whether they've had their account locked out like this. Do you think it's a good step?

Kat: So, yes and no. I think it's good that Twitter has to, when you're posting to Twitter, it's not a public space, you're using resources that are Twitter's, they're choosing how to run their company. And it's good of them to make it explicit: this is the service we're running, these are the rules that we're choosing for it. Rather than pretending to be hands-off, except sometimes when they intervene and not being explicit about it. I think being explicit about it, like: this is the community we're running, these are the rules we're imposing, you violate these rules, for the benefit of the community as we see it, it makes it a little better, kind of a establishing that, yes we do have standards for behavior, and these are what they are. The mobile phone verification I think is actually kind of problematic, particularly because Twitter has been used so much as an outlet for activist movements, for people who don't want to compromise their identities. We've seen it a lot in places where people think it's really the only way they have to speak, they may not have a number that they can give out, or that they feel safe giving out, or that isn't going to be tracked. It would be good if there were some better way for people to verify or to get around that. Not just for people identified as those groups, but really for anybody who has something that they want to keep private. For them to say: we are not hands-off, we have rules, and these are what we're enforcing, I think that's a good thing. I share Clark's concerns about the fact that we're all speaking through intermediaries now. Really unless you're running your own server somewhere and you're running your own network, that maybe even your friends don't know how to connect to you, there are certain things you can't save. That is really troublesome.  How can we enable freedom of speech without making it just a terrible place for everyone else where they are subjected to threats and to violence and to other things. That's a much harder problem, and I'm not going to propose a solution.

Denise: Right. So Reddit, too, has announced, just on Thursday, it's updating its site-wide policies to now finally explicitly prohibit harassment, and it's hoping that that will promote free expression and that it will reduce the trolling and harassment that was otherwise not specifically frowned upon by Reddit. Reddit is still not going to do anything to actively police the site, however, it's going to rely on users to do that and turn people in if they're violating the guidelines. Sarah, any thoughts on Twitter or Reddit?

Sarah: I agree with Clark and Kat, I think generally these things are good to have. It's community management policies. I actually think that online harassment is a serious problem and a scary thing, and that needs to be dealt with. I think the danger, though, is when we don't know what those rules are, and so the more transparent that platforms can be about what their policies are, and what the definitions are, what falls under what category, the better, because then we actually know what it is we're dealing with. I think there are certainly going to be edge cases that are going to run into speech concerns, but there are also going to be plenty of very black and white cases where it's a good thing that, for example, I think Twitter has a new filter that's going to reduce visibility of abusive tweets. You can imagine that will be a good thing in maybe 99% of the cases, and there will be some edge cases where maybe things aren't working like we want them to. But as long as we know what those rules are I think that really goes a long way towards helping ensure trust and ensure the speech concerns aren't problematic. I guess, Kat, one thing I wanted to ask you is, how does Wikimedia handle these? They must have community policies about harassment and bullying and that sort of thing. How do they manage that? Do you know?

Kat: So actually really similarly to the way that Reddit is proposing to handle it. It's all community based. There are terms of service that state that basically no illegal actions, no abusing other users, but what that means is often left up to the community. And there is this whole by now, in fact, multi-layered and complex structured community dispute resolution that can be escalated in various ways. In the most extreme circumstances, the foundation will go as far as banning people via court order from the site. But most of it is mostly community regulation. The community is empowered to block or ban users from editing the site. I think that's good in that the community is maintaining its own standards. The foundation isn't anywhere near large enough to do it itself. There's just too much interaction. And in part it's a way to avoid external regulation by letting the community handle it itself, by figuring out what its own rules are before somebody has to step in.

Sarah: Right.

Denise: Do you think it's a different situation on Wikimedia properties, Kat, than it would be on something like Twitter, just because of the huge involvement, I guess this would hold true for Reddit, too, of the community and the fact that the community is very vocal, and if someone is misbehaving they're going to face a lot of pressure from the community to knock it off. I don't know that Twitter has that same community aspect to it, or maybe I'm wrong.

Kat: I think the biggest difference is that with both Wikimedia and Reddit, most so with Wikimedia, is that the community is actually empowered to act themselves. There are various users who are entrusted with it. They can ban. They don't need to ask anybody who is staff to ban a user. The community can come together and themselves decide it and do it and there's no involvement by staff. Whereas Twitter really is, you report somebody at Twitter. There are no Twitter users who are empowered to do that. Wikimedia, in particular, it has an explicit goal, right? You're there to build the encyclopedia, or, on the other sites, to build a photo repository, to build a news site. And it makes it a lot easier to determine what the behavior should be. Anything that doesn't act in furtherance of that goal should be banned. Whereas Reddit is much more free form, it's a place to discuss ideas, so they actually have a harder time of it, just because it is a place for discussion of ideas that people may find those ideas themselves threatening or hateful or harassing. When should you just let them discuss those ideas and when does it rise to the point where it's really threatening members of the community?

Denise: Yeah, very good points. I think we're ready to talk about one final story before we go ahead and get out of here. And maybe we're all ready to pack up and move to Palo Alto or Woodside. But I don't know if we're going to be able to. This last story definitely falls into our other category.

(music playing)

Denise: Clark I was so glad you brought this to my attention yesterday. It has led to many a chuckle in the aftermath. This is the startup castle that we are discussing. If you haven't heard of it yet I hadn't heard of it until Clark put it in front of me. This is something that's sort of blown up by a housing listing on a classified ad service for Stanford students alumni and staff. It is this lovely large castle, very large home, in the environs of Stanford, that has been operating for about a year now, I guess you'd have to say in stealth mode. The notion of it is to get a bunch of people who are smart and likeminded, and it's very clear that they want them to be somewhat likeminded, together to be creative with one another. Basically it's just a living environment, it doesn't say that you have to go there and work on a startup with anybody, but I think that is the implication. And the really funny aspect of the story, and problematic aspect of the story, is this classified ads listing of what the requirements are for a potential new resident of the home. And what the suggested things you might want to think about if you're going to apply to live here. They include things like, they don't draw any lines as to what sort of gender you must be, but they do say that if you are someone who enjoys wearing makeup, it would be good if you limited your applications to only twice a week at most. And various other components of lifestyle that are thrown in here. Very high emphasis on exercise, 15 hours a week. If you're a commuter to anything outside of the castle, and why would you ever leave the castle, but it's much desired that you not be commuting in a car. Bikes would be the desired mode of transportation. Dogs, they're very into dogs, you should really enjoy dogs. And all kinds of other things, it's fun to just sort of sit back and laugh at it, and muse about the fact that this even exists. James Grimmelmann has been posting some pointed tweets about what this says about the current state of elitism in our society, and how it hides behind these other factors. I think he's got some strong points there. I also think that if we're in a bubble right now, this just might be its sock puppet of the apocalypse. Clark, since you brought this up, what do you have to add?

Clark: Not much, other than I don't qualify, so I'm sort of disheartened by that. Maybe this is the algorithm for success, at least that they think they've figured out. Maybe it will lead to something. Maybe a bunch of likeminded people will get together and come up with another Lily camera or something like that. I think it's a foolish endeavor, a silly thing.

Denise: I'm actually kind of stunned the Lilycam did not emanate from the startup castle. As far as I know it did not. Kat, are you going to be submitting your application?

Kat: I will not, although I will say I live in Mountain View. I am within bicycle commuting distance to their place. I think it's funny because it is like one part charmingly earnest and one part insufferable which describes some people that I (crosstalk)


Kat: I see a bunch of people who just moved out of the dorms at Stanford and have had terrible experiences with housemates and are trying to find people they can live with that they won't want to kill after a month, and I'm really sympathetic to that. And that's what they've decided their criteria, that's great. I keep feeling that they're eventually going to grow out of this. I don't know who lives in the house, but I feel like maybe none of them are over 25. And they're just trying to find people that they won't want to kill. And this is how they're doing it.

Denise: Yes, exactly. I do think a lot of the commentary has been about how well women seem to be right out of the equation. Anyone without a top flight degree is out of the equation. People above a certain age are probably out of the equation. Sarah, I don't know, is this enticing you out of Iowa?

Sarah: God, no. This makes me glad that I left the Bay area, actually. No, I think it's interesting because it kind of shows the way that when you say you're defining a culture of a workplace, to me, it shows how that can be, in some ways, insidious, because you're just trying to get conformity and not get diversity. I don't even think it's conscious, I think it's usually subconscious. And like Kat is saying, they are looking for people they don't want to kill, it's probably all in earnest and in good faith. But I think the implications for conformity are really bad when you do this sort of thing. No, I will not be moving back, and I wouldn't qualify anyway. I definitely don't work out 15 hours a week, so.

Denise: Maybe it would be, you know, it's a great diet plan. You're not supposed to have a complicated diet, and you're supposed to work out 15 hours a week. So, you know, it could be the next biggest loser. The other thing that occurred to me, (the biggest loser in a couple of different ways!), when I first saw this was: oh my gosh I don't know that much about the founders, I basically skimmed this piece at CNN Money about the people behind this. Its headline is rather incendiary: the ex-stripper and scientist behind Startup Castle, referring to the founder, John Lakness, he was on the short-lived reality show, Pirate Master, for a while. And that's what occurred to me, too, oh my gosh, how much would a reality TV show pay to put cameras in this place and film the real Silicon Valley. I wonder if that's in their business plan. Anyway, thank you, Clark, for bringing that to my attention. It was quite funny and sad all at the same time. 

I have a resource and a tip of the week to leave you with before we go on out of here. The resource of the week is sort of an obvious one but it's not one I had spent any time looking at in any detail until this last week, so I wanted to pass it on to you because I was impressed with it. And that is Facebook's safety center, which has different segments for different portions of society who might be concerned with Facebook safety. There is a section for parents, a section specifically aimed at teens, a section for teachers, which I thought was a very, very nice thing for Facebook to do, because I think Facebook, as a teacher, is particularly fraught with peril. There are ways in which you want to interact and share classroom things on Facebook, but if you're interacting with students on Facebook, you've got quite a minefield ahead of you there on the legal front. And it's especially nice that there are good reminders in there about maintaining the distinction between personal and professional, especially important for teachers who've had all kinds of trouble when their school boards or school employers have not liked the things that they found out about them in publicly available or not, on Facebook. Actually Payne is someone who went through this several years ago in Georgia when pictures of her surfaced, there we go if you're watching the video, travelling to the Guinness factory in Ireland and holding up a couple of steins of beer. That, among other things, led to her termination and subsequent lawsuit over her termination. So I don't think that teachers want to use Facebook and get involved in lawsuits or be terminated, so there's a nice section for teachers there that has suggestions on, not specifically how you can avoid those things, but how you can use Facebook in a way that, hopefully, will not put you in that kind of a situation. And my tip of the week is for folks who go to Starbucks, a lot of us do, apparently Starbucks has been, it hasn't been hacked, that's not an accurate way to put it. What has been hacked are various people's Starbucks accounts where one way or another someone is brute forcing or otherwise finding out what their passwords are, and then once they're into their Starbucks account, if you're using the app to pay at checkout, what they've done is they've hooked up yet another gift card to these hacked accounts, then if you've got it set up to automatically reload as you're going around ordering your lattes, then this is going to draw funds and funnel it into this other gift card, and I guess people have been making off with lots of money this way. So the tip is to pay attention to what your Starbucks password is. Make it as strong as possible, because this is a thing where people are attempting to get into your account, and as you're having your lattes, they're getting your money. So keep an eye on that.

Folks, it's been really, really fun chatting with you on this episode of This Week in Law. Kat and Clark, so great to meet you both! Clark Asay at BYU, do you want to get out of here by telling us what's going on with you, things people should keep an eye out for coming up on summer, so I'm sure you're thinking about exams at this point. Are there things going on at BYU that people might be interested in coming by for?

Clark: There's actually, not at BYU, but there is American University June 12th, there's a public symposium on patent pledges I'm taking part in. It should be a great group of people talking about Tesla, Toyota, Google, all these other different parties that are pledging their patents to the public, why they're doing it, how they're doing it, and so forth. So that's June 12th at American University. Google it and you'll find more details about it.

Denise: Wonderful. Thank you so much, Clark, and say hi to your brother! We've enjoyed reading his stuff too.

Clark: Okay.


Kat: We will not hire him.

Clark: Yeah, don't hire him.

Denise: Yeah, don't hire him though. Kat Walsh, great meeting you. Really fun chatting with you today. Congratulations on your new appointment to the board of the Free Software Foundation. Anything you want to leave on people's minds as we sign off today?

Kat: Nothing going on particularly on my end except that the Free Software Foundation is actually having its 30th birthday this year. There's going to be an event in Boston in early October and possibly other events elsewhere, so. But it was great to be here today. Thanks for having me on.

Denise: Wow, that makes me feel old. But that's a good thing, congratulations Free Software Foundation. And thank you so much, Kat, it's been so great chatting with you and picking your mind on all of these various topics. Sarah, thank you so much for suggesting that we reach out to Kat, and thank you for joining us today.

Sarah: Yeah! No, I was so excited to have my dear friend Kat on the show, so.

Denise: Very, very cool. Sarah, what's going on with you these days?

Sarah: We are gearing up to launch a Kickstarter campaign for a book, I say book kind of loosely, an e-book that's going to involve maybe podcasts and medium blogposts and different things about business models that revolve around CC licensing. So we're still figuring out what that looks like. But that's going to launch sometime this summer. Spending some time on that, so, that's kind of exciting.

Denise: Neat! So folks should reach out to Sarah if they have incorporated Creative Commons into their business and are having good experiences with that. Presumably you want to highlight the good experiences.

Sarah: Yes.

Denise: God, that Creative Commons! Why did we agree to go that way!!


Denise: I don't think you'd probably find too many of those examples, so, I look forward to seeing that and keep us posted on how it's going, or if you need more information from the TWIT audience. I'm sure they'd be happy to oblige.

Sarah: Awesome, that would be great.

Denise. Alright. So if you want to reach out to Sarah about that or anything else, anything about the show, she is I am You can find us each on Twitter. Sarah is shinchpearson, I'm dhowell over there. Also you should look us up on Facebook or on Google+, those are great ways to get in touch too, if you have comments or suggestions about the show, things we should be paying attention to, guests we should be thinking about reaching out to. We'd love to hear from you. We really appreciate all of your feedback on the show. We love to hear your responses to the things that we've discussed. Your requests for easter eggs, you know, I'm happy to ask. I'm not saying we're going to get them for you, but it never hurts to ask. Keep them coming, keep in touch with us between the shows, and watch the shows live with us when you can. We record at eleven o'clock Fridays, 1800 UTC, that's 11 Pacific time. And that's when we do the show live for a couple of hours, but if you can't make that time slot work, don't worry, head on over to Our archive of shows is there. Or you can find us on Youtube, or on Roku, or in iTunes, or any number of ways again over on our show page you'll find lots of ways you can enjoy the show. We're just happy that you do, and thanks so much for joining us this week on This Week in Law.

All Transcripts posts