This Week in Law 304 (Transcript)
Denise Howell: Next up on This Week in Law, Brandon Butler, Gus Hurwitz, Sarah Pearson, and I will talk about the Ninth Circuit's Garcia case and performers owning the rights to their performance; Roamio, Roamio, what are you doing with Roamio, TiVo? We'll try and figure that out. We'll talk about the Mad Men finale; we'll talk about vinyl; and stuff on a plane, all next on This Week in Law.
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Denise: This is TWIL, This Week in Law with Sarah Pearson and Denise Howell, episode 304, recorded May 22, 2015:
Just Don't Touch Music, Man
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Hello there. I'm Denise Howell, and you're joining us for This Week in Law where we talk about everything that is interesting and complicated and sometimes mind-numbingly confusing, yet very important, at the intersection of technology and law. We're going to do our best to keep it from going into mind-numbing this week for sure. We've got a great panel of folks. They're good at explaining things and understanding things, and that's what we'd like for you to be able to do once you've concluded your time with us. Introducing you to our panel, we've got Brandon Butler returning to the show. He is the practitioner in residence at the Glushco-Samuelson IP Law Clinic at the American university, Washington College of Law. He also teaches copyright law there. Hello, Brandon. Great to have you back.
Brandon Butler: Hello. It's a delight to be here.
Denise: It's a delight to see you. I'm so glad you've decided to join us al fresco. It's quite lovely in D.C. right now, as we can see.
Brandon: Yes, it's wonderful. I couldn't resist. I almost had a beer, but I thought — I don't know. I thought I'd stick with water for now.
Sarah Pearson: [Laughs]
Denise: Yes. Feel free. It's Friday. [Laughs] There you go. Also joining us from more of the mid-section of the country where he teaches telecommunications and cyber law at the Nebraska College of Law at the University of Nebraska, is Gus Hurwitz. Hello, Gus.
Gus Hurwitz: It's great to be here! First time participant, unlike Brandon, but I'm really looking forward to it.
Denise: It's great to have you. We should also let folks know you don't only teach cyber law and telecommunications; you have a very strong economics background. You teach law and economics as well, and also the principles of regulation, which sounds like a fascinating course.
Gus: Yep, regulation. So I have econ, and I also have a bit of a tech background before law school.
Denise: Wonderful. And also from her lair in the mid-section of the country is my co-host, Sarah Pearson. Hello, Sarah.
Sarah Pearson: Hey, Denise. I'm having some connectivity problems, so no video right now; but I am here.
Denise: Oh, dear. Well, we're glad you're here. Hopefully we can get your video back because it's always great to see you, Sarah. So glad you're here with us.
And let's get into it. There's a lot to talk about this week, and a lot of it comes from my neck of the woods in Southern California, a lot related to the entertainment industry up the road in Hollywood.
[The intro plays.]
Denise: In fact, there was kind of a funny line in the Kozinski Dissent to the Garcia case, which came out from the Ninth Circuit today that had to do with — he was invoking the Music Man, I think. "We've got trouble right here in River City." And he's talking about the Circuit being right here in Hollywood City. Judge Kozinski seems to; the lone dissenting voice on the ten-judge panel that decided that Cindy Lee Garcia, after her long back-and-forth in the courts, is not going to be entitled to have Google take down the Innocence of the Muslims video that she acted in. We've talked about her case on the show a number of times. It's a fascinating case because it looked like, if the Ninth Circuit's original decision had stood, it was going to stand for the proposition that actors and actresses own a separate copyright in their performance that could enable them to — as Ms. Garcia attempted to do here — have some control over the final piece in which they acted. Poor Cindy Lee Garcia was duped into appearing in the film where she appeared and was made to say some offensive anti-Muslim things that was never part of what she signed up for. So while she may have some legal claims against the people who are involved here against the film, a copyright-based takedown against Google, according to the en banc ponel [mispronunciation of "panel"] — panel. Ponel? [Laughs] — of the Ninth Circle ... [Laughs] I'm doing really good.
Denise: Circuit! [Laughs]
Gus: Ninth Circle.
Denise: — a copyright-based takedown is not one of them. Save me here, someone. Brandon, jump in.
Brandon: I'm happy to jump in. This is such a fascinating case. It raises these sort of existential questions about copyright. What does it mean? What are the fundamental subjects of its protection? But actually, the first thing I want to say about this case is to flag something that I think will end up being maybe the most important and durable aspect of the holding, which is that the Court's discussion of what is the relevant harm for purposes of an injunction, of getting a preliminary injunction under the Copyright Act? So Ms. Garcia, of course, had some substantial harm that she was worried about; and there was a Fatois against her. She feared for her life. That's as harmful as it gets, and that's what Judge Kozinski sort of ends his dissent, saying exactly that. "It is her life, after all." And that may be part of what makes this such a compelling holding. The Court says, Well, protecting your life is not what copyright is for. Copyright is for protecting your work of authorship and your right to commercially exploit that work of authorship, right? And so we can get back to that more fun question about whether there's a work here and who's the author of it and so on, and that's all very interesting. But what may end up being the most interesting thing is the Court's narrow conception — and, I think, rightly narrow conception — of what the harm is that copyright cares about. And the harm is copyright harm, author harm. And Cindy Garcia, for whatever else she's concerned about, she's not protecting a copyright interest here. And so the Court says, Sorry, you don't get an injunction.
Denise: And —
Gus: Yeah, if I can jump in?
Denise: Please do.
Gus: Yeah. I just want to really emphasize what Brandon said. This is about the injunction question. And the underlying harm fear wasn't related to — so there are two parts here that are important to emphasize: first, the underlying harm wasn't related to the copyright; and also, you need to demonstrate the harm in order to get the injunction or a likelihood of success. And the unclear nature of the copyright claims makes it really hard for the Court to sustain an injunction at this point in time. We shouldn't overread this as saying anything substantive about the nature of the copyright claim. I have not, in a long time, seen as much discussion amongst copyright professors as I've seen over the last week as a result of this case. There are really fascinating, really existential questions about the nature of copyright in multi-party works that this case is raising. But the Court's opinion shouldn't be read as really getting to those.
Denise: Well, it is a good invitation to have existential discussions about copyrights in multi-part works. But it seems to me the music industry has been having those discussions for years and has a very Byzantine approach to how its rights are managed as the result. And I'm wondering if the two of you think that we're headed for something like that, if this case is an indicator. Judge Kozinski certainly feels strongly that actors and actresses have a copyright interest in their performance — again, hearkening back to the music industry, where performance rights are a whole separate and valid and enforceable, monetizable thing. Do you think that we'll see a shift toward rethinking copyright law because of the existential issues this case raises? What do you think, Brandon?
Brandon: I don't think so. I think this case — and Gus is right. This is a case that is at the injunction stage, and so we shouldn't think that the substance of what the Court says about copyright is as compelling as it would be if this were squarely about that issue. Still, I think what the Court did was, essentially, side with tradition. So — I mean, the majority opinion essentially said, Well, look. We know what work is at issue here: The work is the movie. And we know who's the author of the movie: It's the director. Actors aren't authors of movies. End of case, right? I mean, there's a lot more nuance to it, of course; but that, in some sense, is the bottom line. And so for recording artists, I think the situation will be the same. It would be, Look, there's a business here; and that business is run using — as you said, Denise — Byzantine contracts and expectations. And we all know who the author of a sound recording is, and I don't expect that to be upset by this. Now, if Kozinski had won, then we'd be in chaos. I mean, it's sort of ironic for Kozinski to be the one giving a parade of horribles kind of a rationale for why you should side with him because the horribles are much clearer if you do side with him. I mean, it would just upset lots of expectations about how copyright works. The thing that's interesting here, too, is the court really — and Ms. Garcia and Kozinski and everyone involved in the case — has focused on whether or not there is a work here. And I think Gus is probably on the same copyright professor listservs that I'm on, and I've been watching this unfold. And I think one thing that's emerged as a consensus among the scholars is that the Court probably could have solved this more easily if it had picked this up by another handle and if it had said, It doesn't really matter what the work is. We know that no one can be a joint author of a work unless they intend to be a joint author and other joint authors also intend for them to be a joint author. This case would start to look a lot like some of the other joint authorship cases — like Al Muhammad v. Lee, the Malcolm X case — where Ms. Garcia would say, Hey. I'm a co-author of the Innocence of Muslims; and the director would say, No, you're not. And the Court would side with the director, probably, for the same reasons that the Court sided with Spike Lee in the Al Muhammad case. That might have been a cleaner way to do this, and I think that's the way it would happen in the future.
Gus: Yeah, that seems right to me. The thing that I would add — there are a couple of fascinating questions about how this case was brought and what other possible claims could be brought. So there's a broader nexus of rights to personal [inaudible] and rights to control your reputation. What happened here? Could Ms. Garcia have foreseen that her line would have been dubbed [inaudible]? Probably not. That's not a copyright issue, in all likelihood; but she probably may have other claims against the producer. It's interesting to note that there's a relationship between Section 230 and 512 here. Why was this framed as a copyright issue to get it taken down from YouTube? Well, because you can do that. YouTube would have no liability under Section 230 if this weren't an IP claim, in all likelihood; so you have that issue lurking there in the background. So there are a lot of interesting issues about how this case was brought, why it was brought the way that it was. In terms of whether or not the rules, the law, the legislation might change here, I agree that not in the near term. I think that there could be some unsettled, really interesting questions that ultimately get addressed, either through the courts or legislation. I'm thinking back to a couple months, maybe — sometime in the last year — there was the video — it was an anti-science video — that Kate Mulgrew, depending on your perspective, either Red or Captain Janeway, was used. She read a bunch of script for it. She didn't know what this video was going to be used, and the producer cut and pasted her lines into a video that was extremely problematic from her perspective and the perspective of many others. Is that a copyright issue? I don't think so. But that could be something that, in this modern era where it's easy to cut and paste and construct someone saying something that they don't believe, could be addressed by the courts.
Sarah: This is Sarah. I wanted to jump in and kind of confess to being continually, I guess, a little bit confused by this notion of who owns the copyright in a performance. And I feel like I'm almost more confused after reading the Court's opinion about fixation. So the Court said that fixation — they cited that the fixation has to be by or under authority of the author. And to me, that makes it pretty clear that someone who unsuspectingly has a performance and they don't know that they're being recorded, they don't have a copyright interest in that recording. But what it doesn't answer is the question of, like, here, or, say, Martin Luther King, for example. I don't actually know if his speech was written down beforehand, but I've always wondered, if it wasn't, does he have a copyright because of the fact that his performance of the speech was captured — if that was the fixation, if the fixation happened at the recording which he — it was under his authority, presumably, but it wasn't — I don't know. I don't know, Brandon or Gus, if you actually know the answer to that question, but I continually kind of grapple with that one; and I feel like the Court didn't really answer it very well. Or the Court's answer — as Kozinski pointed out, that can't be right, can it? I mean, that just because the person wasn't holding the camera, that can't be the question of whether or not you own a copyright in a performance, can it?
Denise: Wow, Sarah. Before they answer — and I'm sure they have good answers — I really wish you hadn't just planted in my brain the image of Dr. King holding a selfie stick out in front of him to record his speech.
Denise: [Laughs] Please go forth now.
Brandon: Right, right. And if Kozinski were right, that would be your legal advice to Dr. King, right? Before you go up there on the stage, you should record your speech yourself with your own fingers on the Record button. There certainly is an answer that is, Of course you don't have to literally record yourself, and that's what "by or under the authority of" does. "Under the authority of" means, if I'm Tom Petty, I can say to the recording engineer, "All right, buddy. Hit Record. Here we go," and I still own "I Won't Back Down" or whatever, right? And I can later on take some of Sam Smith's money, too, while I'm at it. (And I apologize for the barking dogs next door.) So the thing that's interesting, though, is that a performance, per se, of course, before it's fixed, is not protected by copyright. It's not a fixed thing. And we actually have law on this for musicians. Section 1101, the anti-bootlegging provision, creates a non-copyright — it's a right that's created under the commerce clause — a right for performers to enforce their interest in their performance against a bootlegger who makes a fixation without their authority. And so in some sense, Cindy Lee Garcia is the victim of bootlegging, right, because her consent was fraudulently obtained; and so she never really consented. And so the fixation — even assuming she's an author of her performance, the work itself wasn't fixed under her authorization. And so she's a victim of bootlegging. But of course, the bootlegging provision is limited to musical performances. And so she's out of luck. That's another reason I think she's out of luck. Now, there is, in fact, an international treaty — the Beijing Treaty that the U.S. is a party to but we have not ratified — that would create a kind of right in performers. It's very ambiguous what that right would be or how it would work. And would it have helped Cindy Lee Garcia, is an open question. But I think that's what's going on here is, there's no such thing as an unfixed performance that would be vested in a copyright. So we have these weird semi-copyright rights like 1101, and Cindy Lee doesn't get one; so she's out of luck.
Denise: I wonder if any of you know the answer to this. Coming at it from my perspective as an Internet lawyer — and websites are constantly creating joint works through their user submissions and getting a license to do so in writing — I'm wondering why Cindy Lee Garcia was not shut out simply by the terms of her agreement to sign on to this film. Now, we can argue about whether she was induced into agreeing to something that should be tossed out because of the misrepresentations that were made to her about what her performance would consist of. But leaving that aside for a second and just thinking about the entertainment industry in general, don't filmmakers contract with talent in such a way that, in addition to simply signing them on, they're getting a license to whatever intellectual property interests a court might constru them to have? Gus, do you know the answer to that?
Gus: Off the top of my head, I don't know a definite answer; but I would say that any contract is only as good as the lawyers who are involved in its drafting. So I would expect, moving forward, Kate Mulgrew's lawyers are probably going to make sure that she's dealing with better-drafted contracts. I would expect that sophisticated producers are going to address these issues in their contracts. But what about the Ms. Garcias of the world? I don't know how sophisticated the producer of The Innocence of the Muslims was. I expect that this entire issue could have been avoided, and would have been avoided, had there been a better contract in place.
Denise: Brandon, any thoughts about dealing with this in the fine print?
Brandon: Yeah. I think that's one of the reasons this is such a strange case and why I think it'll be rare, is the fraud element is what sort of upsets everything. I think you're right: Contracts — and if not contracts, then you can, of course, without a writing, give a non-exclusive license. That's what the other big case that was precedent for Garcia, the Effects Associates v. Cohen case — that's what that case said. If I give you a reel full of material, and it's understood that you're going to put it in your movie, that I've given you an implied license to put it in your movie, even if we didn't sign anything. So if I show up on a film set and I stand in front of a camera and somebody says action, I'm in a movie. And I knew that. And I'm an actor, and I know the rules of the game; and there will be an implied license that will probably cover it. It only gets tricky when there's fraud, when there's something that would undermine that expectation.
Sarah: Hey, Brandon —
Gus: And perhaps the word "fraud" might not be the right word. Clearly, there could be fraud, in which case it becomes a much easier case. The really tricky part which, arguably, we have here, is where the actor is manipulated, in post-production, into doing something that the actor or actress did not expect that they were doing. Because with technology, we can now do that. That doesn't seem to me like it should be addressed by copyright, but it seems to me like that is a serious issue that we should expect to see more of moving forward. And what are the rights of individuals in those cases?
Denise: Right. That seems like a hard point to negotiate. If you're an actor or an actress, you're going to want in your agreement to appear in a film of any kind — web-distributed or otherwise — some sort of assurance or final approval of the finished work to make sure that you're not being portrayed in a way that upsets your expectations. But what director, film producer, is going to give actors and actresses sort of final cut right? I don't see that happening. Sarah, any thoughts on that?
Sarah: No. I agree with you. I can't imagine that any director's going to consent to that sort of control on the part of the actors. I guess I had one question for both of you about Kozinski's dissent, and, I guess, maybe particularly Brandon, since you were tweeting about it. So presumably, you spent more time with it than I have. But I wondered what you thought of his point about how the Court talked about whether or not the contributor had joint authorship in the full work, the movie, and how that is a very different question than the question of whether or not the contribution itself would be copyrightable on its own. And he was making the point that maybe the Court conflated those two things, and I wondered if that had any merit in your eyes.
Brandon: Yeah. I was — I'm a little embarrassed by that tweet now.
Brandon: This is the danger of live-tweeting as you're reading something, right?
Denise and Sarah: [Laugh]
Brandon: So the more I let the dissent sink in, the less I thought it was so silly. And you can multiply scary examples, as he did, of sort of a draft chapter or deleted scenes. But I don't know. I guess I'm just not worried about those situations. I think he might have been misreading the majority opinion. I don't think the majority was literally saying, There's no work and no protection until the final cut comes together, which I think is what — that was the thesis he was attacking, that until you've got the final edit, nothing is a work; and so no one is an author, and nothing is protected. And that all does seem sort of on its face silly, which makes me think it's not what the majority opinion means. But I'm not sure I could say much more than that.
Sarah: Yeah. That's fair.
Denise: All right. Well, I just thought —
Brandon: I would say —
Denise: Go ahead.
Brandon: One more thing, though — it is worth saying, if you look back at Al Muhammad — and also [inaudible] but more Al Muhammad, the Malcolm X film case about the script consultant — I think there may be answers in there to the question of, is an actor going to get final cut rights on a movie. For good or ill, I think, if read between the lines or maybe even on the face of that case — it's been a little while since I read it — my takeaway was that a lot of the question of who is an author will be decided in part by power and convention. Who is the author is a question about who is deferred to as an author, who is considered an author. And as you both observed, no director is ever going to let an actor get final cut on his or her movie; and that, I think, is going to be part of what a court is going to look at and say, Well, then you're not an author. You're a participant, but you're not an author.
Gus: Now, Brandon, the question might then become, Well, the courts say, With great power comes great responsibility. You can't manipulate the author. You can't manipulate your actors if you have that power. I don't know if they'll do that, but that could be the approach that either the courts or Congress takes in response to situations like this.
Denise: All right. Since we keep talking about the final cut, we'll put our first MCLE pass phrase into the show; and that's going to be "final cut con." [Laughs] A little play on words there. We put these phrases in the show in case you are listening for continuing legal education or other professional education credit and you need to verify that you actually watched or listened to the show. These are little Easter eggs to be able to show, Yes, I did. There. I know the phrases. So if you need more information about that, head on over to the wiki for TWIT. That's at Wiki.twit.tv. Find our show there, and we've got a whole rundown of information on MCLE credit in the United States and how you might use this show to help you meet those requirements with great folks like Professors Hurwitz and Butler. You can see I think this is educational. Certainly, I learn a lot every single time we do this show.
Let's move off of Cindy Lee Garcia and on to Aereo, or perhaps a reboot of Aereo, this time coming from TiVo. TiVo apparently picked up some of Aereo's assets, its trademarks and customer lists. And now it has announced that by mid-summer — so not too long from now — we should see some resurrection of an Aereo-type service where subscribers can get live television broadcasts on a subscription basis, this time coming from TiVo, who says they're going to do it legally this time. So we don't really know how that's going to work. We do know that it's going to be called Roamio, and so that is coming. I guess the question, then, that this raises to our wonderful panel is how we think that might be coming. How will TiVo avoid Aereo's disaster? What do you think, Gus?
Gus: I've got no idea. [Laughs]
Denise and Sarah: [Laugh]
Gus: So there are two ways I can think of maybe this working. The first is contractually. If TiVo actually manages to get contracts for this content, yeah, they can do that. But that's not going to happen. The other possibility — and I'm getting this from what is actually on the box — I don't know if you can flip back to the webpage that you just had up there — it says, "HD antenna DVR." The only thing that I can think of is that they're going to sell a device that is a DVR with a bunch of HD antennas in it that is constantly reporting every channel that you might want to watch. So it's kind of taking the Aereo model, where you have a warehouse full of antennas, and moving that warehouse into your own home. That's pure speculation on my part. I cannot, for the life of me, see how they would actually do this legally. For a reminder for everyone, there are two hurdles that they would need to overcome in order to be able to do this legally. Without getting contracts first, they would need to get the copyright office to say that this is a cable service — which maybe could happen, with an asterisk I'm going to return to in a moment — in which case they could avail themselves of the copyright statutory license. But the only way that the copyright office is likely to do that would be if the Federal Communications Commission also regulates this as a multi-channel video programming distribution service, in which case they would need to get retransmission consent from the broadcasters. So they would still need to get contractual permission in order to avail themselves of the compulsory license for the underlying content. So unless they've managed to negotiate a lot of deals or come up with yet another technological epicycle, I can't imagine them doing this.
Denise: Gus, what if they tried to drive through the delay loophole that the Aereo decision left open, where it's the contemporaneous retransmission that was problematic. What if they built in a slight but sufficient delay?
Gus: That would be fascinating. I'm really excited that you brought that up because you're right — the Aereo decision did leave open that aspect of the cable vision decision if there is a delay, if it's not contemporaneous. And that begs the question, what is enough of a delay? What does contemporaneous mean? And we don't know. There's no definite answer to that. I would expect — and thinking like an academic, oh, I should write an article that says this — I would argue that the way we should think of what is contemporaneous is a sufficient period of time for any given program that would not dilute the commercial value of that program. So for nightly news, perhaps the next day. That would be fine. For a live sporting event, perhaps 15 minutes. That would be fine. For network programming, if it's a weekly show, it might be the next week that you would need to have a delay. So it's an interesting question that, if they do go that route, lots of articles will be written; and this will definitely get litigated, and I will confidently predict that there will be an unsatisfactory outcome.
Denise: [Laughs] There generally is. Brandon, what do you think about all of this? Can you think of other ways that TiVo might try and crack this nut?
Brandon: Absolutely, yeah. No, I think I love it when economists talk. I love the thinking about what's important in terms of what would hurt the market. I think it's clarifying. The thing that's interesting to me — I see a few things. One is that, as you said, there could be a delay loophole. And for TiVo — I mean, TiVo knows better than anyone that at least it was a cliché — it's been a cliché for years that nobody even watches live TV half the time anymore, although there is increasingly sort of event television that you've got to watch live so you can tweet about it live and talk to your friends about it immediately on Facebook. But outside of event TV, nobody watches TV live anyway. And so TiVo may say, Look. We know better than anybody that that's where the real money is. And so yeah, we're going to take advantage of that loophole. And the delay doesn't even have to be — we don't have to phutz with, Is it a few seconds? five seconds? ten seconds? ten minutes? We'll just — as soon as the show is over, that's time shifting; and we'll litigate that version of the case. So that's one thing they could do.
The other thing is that the FCC has opened up an inquiry into whether they should change the definition of MVPD, multi-channel video program distributor — which is the category that Gus described earlier that's essentially cable companies — to allow for "cable company" type of entities that would come over the top via Internet transmission. And they would transmit streams of essentially live TV. And what's important about MVPD, as I understand it — we in the clinic were involved in this proceeding a little bit. And what our clients cared about was that part of what happens once you are classified as an MVPD is that the content folks have to negotiate with you on good faith and reasonable terms or something like that. There's some very vague language in the FCC regulations about MVPDs. But basically it means they have to give you sort of a fair shot. And their hope is that part of this MVPD rulemaking at the FCC will be ensuring that content providers like the networks really do sit down and deal in good faith with people rather than shut them out. And if you want to know why that's important, look at Hulu and how crummy it is, right? When the networks get to decide what you get outside of the broadcasting cable context, they give you nothing that's that great. And so you really do want some kind of regulatory interference, or some kind of disruption, in order to create a possibility for a useful business model in this space.
Gus: Yeah. That good faith negotiation requirement — an interesting idea or thought that I had back in the fall when a number of the content providers started putting their network content online. I was hypothesizing back then — and it would be interesting to see how this plays out — that part of the reason that they were doing that was to define the terms of other contracts on friendly grounds. Because the FCC will probably look to other deals that the content owners have negotiated in trying to think about what constitutes good faith. So that could have been why we saw, back in the fall, a number of the networks suddenly putting content online. And in a bit of defense of Hulu, I have to say they have the best selection of classic Dr. Who and old [inaudible] episodes.
Brandon: Oh, yeah.
Denise: Doesn't Netflix have every single Dr. Who ever made going back to the '60s?
Gus: I think they only have the classic collection. It's about a hundred episodes.
Denise: Ah, I see.
Gus: Hulu has them all.
Denise: Wow. All right. That's on my to-do list, of course — to watch them all someday, when I have — I don't know. I suppose I'll have to have some debilitating injury, so I'm not wishing that on myself.
Where did I want to go with this? Oh. DLR in IRC is making me think that we need to sort of describe a bit better — even though TiVo hasn't given particulars as to how this will work, he or she asked, "If TiVo is only using the home device record off the air, I don't see the problem. No delay needed." But that's not what we think we're talking about here. What we think we're talking about is a service where you're not already subscribing to the cable or satellite TV programming in another way, that you're using the TiVo device as your subscription to a certain number of channels. So it's not going to be recording anything for you. It's going to be the delivery device for your home. Does everyone agree that that's what we're talking about here?
Brandon: Well, I —
Gus: I'm actually not sure. Oh, go ahead, Brandon.
Denise: [Laughs] Go ahead.
Brandon: Yeah. Of course, we don't have any idea what they're going to do.
Brandon: But I will tell you, we wrote — the clinic intervened in the Aereo and related cases all over the country for the last couple of years. And one of our arguments was that the alternative to Aereo is buying a box and putting it in your house. And there's nothing about the Aereo holdings that have any effect on the possibility of buying a box like the one pictured, the TiVo Roamio box, and putting it in your house and operating it yourself. There's no question that that's a private activity, that's a private performance. Yeah, that box. You can buy it and put it in your house and just use it. And the content would be delivered over the air. As Gus was saying, you could use a standard antenna and tune in all the channels.
Brandon: You could just put multiple tuners in there and have them all running simultaneously, just like you do with a cable box. But our argument was, that's expensive; it's inefficient; it's environmentally stupid because those boxes are some of the biggest power hogs of any electronic device in your house. And so why should folks who get their TV over the air be stuck with a box in their house, while people who buy cable get the cable vision remote storage DVR as a solution? But the answer is, because we lost. [Laughs]
Brandon: And so since we lost in the Supreme Court, I think that might be the safest option, is to sell us a box that we put in our house.
Denise: Right. But that box is not —
Brandon: And then all you really bought —
Denise: That's not in addition to a cable or satellite subscription. It is your antenna. It is in lieu of the rabbit ears on the TV or on —
Brandon: That's exactly right. You may need an antenna, but then you just plug the antenna into the box; and the box has the tuners in it that will isolate the signals and record them for you.
Brandon: And antennas are cheap.
Denise: Got it.
Brandon: But all that TiVo bought, by the way, was the brand name, the trademarks, and the customer lists. So it's not necessarily the case that they care at all about the technology. It's just that they want to brand themselves as Aereo and reach out to former Aereo customers and see if they can get them to switch.
Gus: Yeah. And back in the fall, when this transaction was all happening, it's all our fault for saying Aereo's most valuable asset was its brand name. So that could just be what TiVo has really acquired here.
Denise: Sarah, were you going to chime in?
Sarah: I was just going to ask a question. So I feel like we've talked a bit about the question of what's public and what the Aereo case said about the public part. But I wondered if one of you can remind me, at least — and hopefully other people out there don't remember as well. What's — we were talking about how a delay might be — there was a loophole for delay. And I can't recall what the copyright — what's the copyright piece associated with the delay. Like, what is that specifically hinging on? Do either of you want to remind me?
Brandon: I have a cynical answer.
Denise, Sarah, and Gus: [Laugh]
Brandon: The cynical answer is, the real reason the Supreme Court decided the way it decided — and this isn't cynical; it's in the opinion — is that Aereo just looked too darn much like a cable company.
Brandon: And they didn't want to get slapped down again the way they had been after Fortnightly and Teleprompter. And so a delay is weird enough that it doesn't quite look like a cable company anymore. I honestly don't know of a principal reason why the performance is no longer public just because it's a delayed performance, but it's less cable-ish, and so maybe that's —
Sarah: What did they pretend the legal argument was? Does anyone remember? Because I know I read it at the time, but I just don't remember off the top of my head.
Gus: So they didn't get into the issue.
Gus: They decided that this looks too much like a cable system. It's a cable system; therefore, that ends the matter. There was some language there discussing the delay, but they didn't decide anything. So when we say "loophole," we shouldn't read this as, The Court said a delay makes it all okay. We should read this as, A delay was previously understood to be okay, both with time shifting and the CSC, cable vision opinion. But the Court didn't say, And if there is a delay, that means that this is okay.
Sarah: Okay. Gotcha. That's helpful. Thanks, guys.
Denise: Right. Well, one thing that I have delayed doing is catching up on Mad Men such that I would be able to watch the finale that just happened. So this is going to be interesting for me to discuss because I don't want to spoil the whole series for myself. But we're going to talk about this anyway. We're going to talk about the Mad Men finale and the fact that I don't think — unless you've been under a rock and if you, like me, don't want to spoil the show for yourself — you might want to stop listening right now because I'm going to tell you that, even though I haven't seen it, I understand that the Mad Men finale involves Don Draper being involved with an iconic Coca-Cola commercial dating back to my childhood. So again, haven't seen it, interested to see it once I finally catch up on a couple of seasons. I think I'm a little bit behind here. But the interesting copyright and legal aspect of the finale involving a tie between Don Draper and this iconic Coca-Cola commercial is, apparently, nobody went to Coke and got permission for any of what was included in the finale. So now I will turn to others on the panel who hopefully have seen the finale.
Denise: Brandon, you highlighted this, and I think it's fascinating. Did they actually air the commercial as part of the finale?
Brandon: They sure did.
Brandon: They really did. They showed the commercial. I don't know that they showed the whole thing, but they showed a lot of it. [Laughs]
Brandon: It ran for a pretty good while, and yeah, they didn't pay a dime for it. That's pretty cool.
Denise Howell: Yea, well, how does that all work? I mean obviously the trademarks come into play too as something that you know, often times, big brands like Coke will clamor to have their brand appear and actually pay to have their brand appear in a show like Mad Men and, you know, I don’t know if any of that went on behind the scenes, but apparently the party line from Coke is, “We had no idea the involvement of the brand in the finale.” There’s a really interesting article in the Daily Mail about how some of this was prefigured as the show has gone on and unfolded, and there have been Coke references that have come in at different times that might tip you off that Coke was going to play a bigger role later on. I don’t know, you know, maybe those were product placements. I have no idea what went on behind the scenes here, but is this fair use, Brandon? You know, how do they get to do this?
Brandon: Yes. It is fair use. And what’s interesting though, is I think it wasn’t going to be clearly fair use before the Cariou v. Prince case came out recently. Or at least, it all depends on how you read the episode under pre Cariou case law. Post Cariou, I think, and of course Cariou is only second circuit case law, but the second circuit is a leading, sort of copy right circuit that lots of people watch and defer to. Post Cariou I think we’re pretty clearly in fair use territory. What’s going on here is that the commercial was being used in a completely different way than from its original way, right? It’s being incorporated into a piece of narrative television, it’s playing a key part in the plot, which I won’t spoil for anyone, but it’s clearly doing something very different from selling Coke, right? And under Cariou, that’s enough. Under Cariou, we tested this question of whether the artist Richard Prince who had appropriated photos of Rastafarians in order to make these noisy, kind of, large, garish, post-modern paintings that were, you know, the Rastafarians with lots of paint slopped around on them and so on, and the question in that case has been, “Well if Richard Prince has no intention to criticize this Patrick Cariou or to criticize these photos, or you know, what must be the content of Richard Prince’s message in order for this to be fair use?” And the district courts said, “Well, he had better be commenting on the original photographs that he took. If he’s doing anything else with it, that’s not fair use. Fair use requires, you know, commentary on the thing that you took.” And the 2nd circuit said, “Oh, no, if you’re using it in a different way for a different reason, then that reason doesn’t have to be in reference to the work that you took.” And so, before Cariou, we might have said, “Gosh, if Mad Men isn’t making fun of Coke, or making a commentary on Coke, then we’re not sure if this is fair use.” But I think after Cariou, it’s clear that it’s fair use, because it’s just different from the Coke commercial. And it doesn’t have to be about the Coke commercial; although, of course, I think you could read it that way. We could get into that. But after Cariou, there clearly states, in a way that before Cariou they might not have been.
Sarah Pearson: What I think is interesting is, I completely agree with you that it’s, you know, they’re using it as part of the, you know, narrative hook. It’s part of the story. But because everyone, at least I, completely assumed that Coke had paid for it, and that it was product placement, in some ways it’s almost like they’re using it, you feel like they’re using it for a similar purpose to the ad, because it feels like an ad, the way it was used. Again, I don’t want to spoil the ending, but, they’re clearly putting it in, they’re putting Coke in a positive light, like it feels kind of like an advertisement. So in some way, some weird way, it’s like, like they’re not using it for a completely different purpose. I know that they are, but I just think that it’s kind of interesting, that, you know, it feels like a product placement.
Gus Hurwitz: Yea, if I could put my economist hat on for a moment, and I’ll start by saying I’ve spent all my time in watching old episodes of Dr. Who and other eighties era BBC shows, so I have not seen any of the recent seasons of Mad Men. So, no spoilers coming from me. I think that the discussion of trademark and fair use is very interesting. But, from an economic perspective, there’s also something very interesting going on that Sarah hints at, and the party line that I’ve actually seen from Coke is that they knew about this; they knew that something was going to happen with their brand. They didn’t know what, but they knew that something was going to happen, and no money had exchanged hands either way. And I think that whether or not that’s true, we don’t know. It could be a post-rationalization, but they want to try to address the concern that Sarah just raised. That they don’t want this to be paid advertising, they don’t want this to be paid placement, and I wouldn’t be surprised, given how visible it was, they had some really savvy lawyers say, “Hey, you know what? Let’s not pay for this. If they want to do this, it’s great. And let’s not taint the positive effect of this by paying for it.”
Brandon: I agree a thousand percent. It’s earned media, right? It’s Matthew Weiner thinks, “Cool, what’s better than that?” Now the thing that undermines all of that is I think they’re making fun of Coca-Cola. I don’t want to spoil anything for anybody, but I don’t think I’m spoiling anything by saying that advertising is, you know, a dubious enterprise, and a big theme of the show has always been that Don Draper is this really thoughtful, you know, troubled existential dude, who nevertheless makes his living by selling people stuff they don’t need. And how does he live with himself, and what does that mean to him, and so on and so forth. And I think at least one reading of the ad, and to me the best reading of the ad in the show is that it echo’s that theme again. It’s just more proof that Don Draper can only be authentically human in scare quotes, in the context of a cheesy add selling sugar water. So, to me, it’s a total dis on Coke. But they don’t know it, and maybe they don’t care, because of whatever. And if Don Draper looks sideways in your direction, you get lots of money in pop culture, so, who cares what he’s saying about you.
Sarah: And now you’re contradicting what you said before, that it’s not commentary. But I think you’re right though. That either there’s definitely a reading there, so it’s either that there’s some element of commentary on Coke, which I think that’s correct, but or, you know, the opposite, the more superficial, I guess, take on it is that it’s a product placement and it’s great publicity for Coke. And either one, they’re, you know, they’re kind of in the clear.
Denise: Well, I think it has to be commentary on some level. Because the commercial, and I remember it vividly, it was just such, you know, for anyone who grew up in the early 70’s you, in the United States, you knew this commercial. And its message was of hope and coming together and youth and the future, and you know, all that is good and right with the world, right? And to have that coming from Don Draper, I think there’s no question that that is commentary. So, even though I haven’t seen the show. So, I think that the fair use, the fair use argument probably has a couple of different ways to get itself made should it have to be. But it doesn’t sound like it’s going to have to be, which, as Brandon was saying at the beginning, is just beautiful. Let’s move onto one last copyright related story before we switch gears to some other topics, and this, I think, is fascinating too, and again, just gets into the thickets of law that are, laws that are specific to certain medium. And the medium in question here is the phonograph record, the kind that you put on the turn table and put a needle on and play. There was a Kickstarter company called VNYL, V-N-Y-L, that raised a bunch of money, three times as much as its stated goal, and then decided, and got written up in the press, I don’t know if it touted itself with this moniker, or if this is just something that it was just called, and it wound up being helpful in its marketing, but it was thought of as the Netflix for vinyl. So, you know, like Netflix in the old days, when you used to actually have DVDs delivered to your house. And yes, I know people still get DVDs delivered to their houses. This was going to do the same thing for vinyl records, and as it was touted on Kickstarter. But it turns out, that the company after closing its campaign and getting down to the hard work of actually delivering services to customers, learned of a little thing called the Vinyl Record Rental Amendment of 1984 that prevents you from creating a Netflix for vinyl. So they pivoted their business model and just started sending records out to people. And the people who received them, thinking that if they didn’t like them, they could send them back, took to Twitter and social media, and the Kickstarter page and said, “Ok, so great. This one I don’t like, I’d like to send it back.” And there was no way to do that. So, they’ve failed on a couple of fronts. First on doing their legal homework on the front end, secondly on not having clear communication with their customers. What else, Brandon?
Brandon: Sending them crummy records.
Brandon: That’s a big problem. I, you know, like reading in between the lines, I said this on my blog post, you know, if I had to guess what happened, it looked to me like the founders of VNYL happened upon a fire sale of cheap, crummy records, and bought a lot of them. And then they spun that into, you know, “We’ve got all these records you never heard of, but you might like. Tell us what your musical tastes are, and we’ll send you something that matches up with your tastes.” And all the stories in that Stereogum article at least, are people saying, you know, “Well, I like, you know,” list five cool indie rock bands, and then they get, you know, some forgotten seventies folk artist. And it’s like, “Well, yea, this guy plays an acoustic guitar, too, but this stinks.” And so, and then, so that really compounded the problem. You know, not only could they not return it, but they wanted to return it really badly because it was bad.
Gus: This is the sort of case that I love to talk with, about with my students. Because what it seems like happened here, on the legal side, is someone remembered this first sale doctrine, and said, “Oh, let’s run with this. We can rent out these records.” But they didn’t go back and actually look at the statute, they didn’t remember section B, which says, “You can’t do this with phono-records and computer software.” So they knew enough of the law to think this is ok, but they didn’t do the due diligence of actually going back and making sure the law said what they remembered, and you always got to do that. Really good lesson for lawyers.
Denise: Well, and it seem like it’s a good topic, not just for knowing the permutations of the law, but the fact that a 1984 law still can come back and bite a Kickstarter company on its hiney today, that this might be something that your Principles of Regulation class would deal with as well, Gus, because it really seems like, to make the policies behind this distinction, whatever they may have been, have probably gone by the wayside with the way the marketplace, the marketplace has treated vinyl. The fact that it’s sort of waned and now is coming back again. What do you think about that?
Gus: Right, so one of the interesting background points here is, there’s a lot of discussion about technology neutrality and copy right law and also general aid. And this is clearly a non-technology neutral law. And it is, it is not just about vinyl. It’s about phono-records which are sound recordings, and it’s about computer software. Now, 19184 was a very interesting time. So 1984, first we didn’t have CDs, so that’s part of why they use that terminology. 1984, that’s when Sony was being decided, when the VCR was new. Blockbuster video opened in 1985. So, certainly a lot of these issues might have been on the mind of Congress. The lack of technology neutrality here is notable. And I’ve not researched the legislative history here, but I expect there’s some fascinating stories to be told about the emerging video industry, and why the different technologies were being treated differently. I do believe that this act was enacted out of concern of music piracy in specific. And also the emerging software trade. But it’s a fascinating story, a fascinating period in history, and it raises great questions about technology neutrality and how and whether the statute made sense over time, and whether or not it makes sense to have statues like this that get fixed in a tangible, let’s call this, fixed in a tangible medium of enforcement that perhaps should only be there for a shorter period of time.
Denise: Yea, it seems a little nutty. Brandon, you sound like someone who signed up to get some Morrissey delivered to you and got the New Seekers instead.
Brandon: Yea, that’s exactly right. You know, it’s funny, there’s a lot going on here. Another thing that’s funny about it is it tells you, it just reiterates, I think, a rule that lots of VCs follow, which is, just don’t, just don’t touch music, man. Like, the copyright, the copyright act and the litigiousness of the players, you know, if you, if you find some really nice business model that works in some area, and you think you can just do that with music, you should think again. Because it’s, there’s going to be some landmine in the law that very successful lobbyists were able to create, or there’s going to be some very rich and angry rights holder, and so this is why innovation in the music space is really hard to do. Another thing that’s interesting about all this is that the, it reminded me of that whole home taping is killing the record industry campaign that happened in the eighties. I wonder if this was part of that great icon of that cassette tape with the cross bones underneath, and you know, home taping is killing the record industry, and the Dead Kennedys had an album they put out in the eighties where side A had music on it, and side B was left blank. And it said, “Home taping is killing the record industry and we left this side blank so you can help.”
Sarah: I was thinking the same thing, I wonder if they almost, you know, in 1984 they were attacking the VCR, and they happened, you know, they were successful with this legislation. I wonder if now it’s actually biting them. Because you can imagine there might be a market for this sort of business of renting vinyl records but you can’t. People can’t make businesses around it. So, I don’t know, it is kind of funny to think about whether this came back to bite the rights holders.
Denise: Right, Reverb Mike in IRC has been asking, “Well, how is this different from borrowing a record from your library?” And I answered him back, “Well, it’s the rental, the money changing hands that’s the issue here.” He’s then asking, “So how is it different from a local video or music rental store?” And the answer is, “It’s not. You can’t have a rental store that rents vinyls, because of this provision. You can sell them, all you like. You can give them away. But you can’t rent them.” It’s a strange little quirk. I just saw them for sale in Barnes and Noble the other day, after the Tower Records down the street from me, the old building that used to be a huge Tower Records, is now becoming a Walgreens Pharmacy and Barnes and Noble is now selling vinyl. So, I don’t know, the world is turned upside down.
Gus: I just had a crazy idea pop into my mind, and this is dangerous, really dangerous off the top of my head thinking. But, what does it mean to rent? So, a lot of the online music stores, they don’t sell you the music. They only license it to you. Is that a lease of some sort, is that a rental? Now I expect that the answer is that it is contractually allowed, so we’re not in the for sale sort of regime. But it’s an interesting, perhaps, set of ideas to juxtapose, because we do, in a sense, have music rental, with some of the online music stores today.
Denise: Yea, that opens up a whole other can of worms, doesn’t it? We could just stay on copyright all day.
Brandon: We could, and I want us to be able to move on, but the last thing I wanted to say was the alternative that I mentioned in my blog post is trading, and facilitating trading. So, I mentioned that old service, LaLa, which I was a part of in the early naughts, when I was in law school, and you could basically, rather then LaLa being the central holder of all the CDs and sending them to you ala Netflix, all LaLa did was create a database, and you would tell them what you have, and someone else would tell LaLa what they had, and if there’s a match between what you have and what someone wants, LaLa would facilitate the trade. And so, it could feel in some sense just like Netflix for vinyl if the facilitated trades between people who own records. I want someone to make that business. Gus can jump in here because he’s the economist, I’ve just recently started buying records as opposed to MP3s, I’ve had this kind of like first sale come to Jesus moment, and I really want to own stuff and so I’m buying vinyl, but it’s so expensive. I buy much less music now than I used to. If I could rent vinyl, or somehow get my hands on it for less, man, that’s a business somebody should get into.
Sarah: You’ve been spending too much time with Aaron Perzanowski, clearly.
Sarah: He’s a record buyer, I know.
Gus: So, first we need to recognize that this is limited to phono-records, to sound recordings and computer software. It probably, and we should also say, yes, this sort of question for sale in the on-line domain has been litigated, and successfully, the Autodesk case when we’re talking about licenses vs. products being sold. The licenses, if they are properly constructed, they govern. And it is not a sale that you have, it’s a transfer governed by license. In terms of, could this take down the Amazons of the world? I think, and I always get muddled up, I’m trying to remember the details of the terms of service, I think iTunes now is no longer giving you a revocable license, but could this ultimately throw a wrench in the cogs of some of these services? Perhaps, if the lawyers weren’t thinking about this provision, it would depend on how the reseller was getting access to the media. Are they acting as a reseller, meaning they have purchased a copy that they are reselling, or are they acting as a distributor on behalf of the copyright owner, then there isn’t the first sale question that gets implicated.
Denise: Right. Alright, to be continued on that one, I think that’s an interesting can of worms you just opened. Let’s move on and talk about Google’s can of worms in the EU, the right to be forgotten which is now a year old. So, other than it being a year old, I don’t have that much to talk about, the right to be forgotten, I just wanted to see what people’s impressions are. I have some stats I’ll toss out there, that Google has gotten more than 250,000 requests covering 920,000 links in the year since the court in the EU directed Google to start honoring requests for people to have links taken down. There is an interesting Wall Street Journal article that talks about the sort of star chamber that Google has put together, lawyers and policy people in the UK who get to make these decisions. And how some of the decisions are very easy and the example that they cited was somebody’s shop lifting offense that happened years ago, and some of the decisions are difficult, including more heinous crimes, but committed by a younger person, and so Google continues to grapple with this, and it’s, of course, very different than the situation we have here in the US. Sarah, any thoughts or pontifications on the right to be forgotten a year into this process in the EU?
Sarah: Well, I think, I’m a little bit of an outlier in that, I am actually pretty, I’m sympathetic to the idea behind the right to be forgotten, maybe I’m not an outlier, I don’t know. You read a lot of criticism about it, and I think the criticism is justified in the sense that, we don’t want companies, we don’t want to leave these decisions to corporations. Especially without, you know, with such little guidance. It seems like we’ve given, you know, very little parameters. Or, not we, the EU gave very little parameters about what the right to be forgotten means, and those lines. And so there’s lots of easy cases, but then there are, I imagine, a huge chunk of really challenging questions that balance those really important issues of privacy and speech, and it’s just dangerous to leave these ideas, or to leave these decisions to companies, I think. We don’t have transparency about how the decisions are made, and you know, just a whole host of policy problems about leaving that kind of control to Google. As much as, you know, they may be well intentioned about what they’re doing, it’s just kind of a dangerous situation.
Denise: So, Gus, this, is the response to that that we need specific regulation, or the EU does, to give companies like Google guidance?
Gus: I’m really not sure. I have a lot of trouble with the right to be forgotten, not because I think it is the wrong approach. I actually think that something like the right to be forgotten is very likely the future of the internet. And this takes us in a sense back to the Garcia case, where you have things that are able to be done in the on-line domain, which are harmful to individuals’ reputations, and it ultimately takes us to a European view of privacy I think in the long run. The European view of privacy is frankly much more developed than the American view of privacy. That said, when I put my economist hat on, and when I think of my general philosophy, I don’t want regulation over privacy substantially. I, sometimes in my crazier moments like to embrace the Posnarian view of the 1970s and 1980s where we should have markets in all information, and we should just embrace the market approach. So, I’m really conflicted over the right to be forgotten, though I do expect this is the general direction we are moving. And I’ve got no idea how we’re going to get there, I have no idea how we’re going to actually make this workable. It is the, there was a recent article about how Google is dealing with this, the group of executives getting together weekly to try and make the right to be forgotten provisions. The most amazing thing about that to me is that it does seem to be working at some level. And I think a lot of the expectations are this would not scale. Well, we’re seeing that it might not be efficient, it might not be great, but there might be workable ways for companies to actually meet these obligations and as they, this process solidifies and grows more mature, then we might see greater clarity, greater consistency in the actual regulations that can evolve.
Denise: There’s one more stat from that article I want to pull out and provide to people, but while I’m looking for it, Brandon, do you thing regulation is the answer as far as providing a framework of how these decisions should be made?
Brandon: Well, you know what’s surprising to me in a way is, I don’t have strong feelings about this yet. I think it’s just a really nebulous concept, and since we don’t know exactly what the right to be forgotten entails, one interesting question then is who decides what it entails, and from the point of view from someone who works a lot on IP policy and I know that letting Google decide things is not generally a popular concept in Europe. And when so it’s a little bit ironic to me that what the results from this case is a bunch of people from Google are sitting around all day deciding what privacy is and which people’s privacy gets protected and which doesn’t. I would think that Europe can’t stand that for long, and that some regulation would have to be formulated to take that power away from Google and put it into the hands of somebody that they trust. But maybe I’m wrong, I don’t know.
Denise: Here’s the other stat. Google has agreed to move 35% of the links submitted and decline to remove 50%, with 15% still under review. So, and this is an ongoing process. Alright, we will have to see how that develops, and I tend to agree with you, Gus, that this may be the future of the internet, so it’s worth paying attention to. Something else that caught my eye over the last week or so, also on the privacy front, is this woman in California who has been fired from her job because she refused to use an app, and she uninstalled it. Her employer required her to run it constantly on her company issued iPhone. And what this app did is track her around all the time, during work hours, off work hours. Her name is Myrna Arias, and she worked for a company called Intermex, a money transfer service in central California. And when she de-installed this tracking app, she was fired. So she is suing, claiming that the company invaded her privacy, that this was in retaliation, I’m not sure for what, I’m not sure there are many retaliation cases on the books that would relate to uninstalling an app, unfair business practices and various other allegations. So to finish teeing up this story, I think it’s an interesting claim. There’s a lot of sympathy I think that the plaintiff will have in this case, but that sympathy will run up against the whole at will employee doctrine. That, you know, if you don’t like your working conditions, you don’t like what your employer is requiring you do in the way of compliance, then you can take a hike. Employers have a lot of latitude to run their businesses as they want, and to fire people for all kinds of reasons, as long as they are not reasons that involve civil rights violations. The privacy thing is interesting, and it will be fun to see where this case goes, and if she gets any traction with it. What do you think of this, Gus?
Gus: There’s a definite creepiness factor in this case, and I worry that when you have creepiness factor cases, it can easily lead to bad law or bad policy as a result. There could maybe be some unconscionability or some we don’t want to enforce this specific contract aspect. It’s important to recognize though, there are probably occupations where this sort of tracking and monitoring could make sense. So we want to make sure that we don’t say on a reactionary basis, “No, this is never going to be allowed.” And I think you’re exactly right, this is an at will employment sort of circumstance, unless this tracking or monitoring was being used for some illegal purpose, or it was in some way coercive, or it wasn’t disclosed to her at the time she was employed. I think that we should accept that, yea, this is the technology that’s out there, it’s creepy, we should be aware of it, and we probably should frown on employers using it gratuitously, but so long as employees are made aware of it and aren’t coerced into it, it’s a potentially reasonable and useful technology.
Denise: The other thing that strikes me about this case is that the employer stupidly went and used a third party app, when it was issuing iPhones to its employees, and it could have just used the Find My iPhone feature and the geo-location features that are built into those devices, without having to flag for the employees that they were tracking them everywhere. Of course, you know, that could be problematic in its own right, the other super problematic part of the case is that with the third party app there were no safeguards in place that would allow it to operate only during business hours, and I would love to see the law develop in such a way that if you are going to track your employees around there would be some sort of reasonable restrictions on your ability to do that. Brandon, anything further to add?
Brandon: I’m with you, Denise. I think there needs to be regulation to protect worker privacy here. But it also strikes me as like a parable or something for, aren’t we all always being followed around by our work and our phone because of our frickin’ e-mail, right? I feel like I am answering student e-mails, all weekend long I am responding to stuff, so, you know, it’s like let’s just make that explicit and completely unambiguous. We will literally track you instead of just figuratively track you.
Denise: Great. Sarah, anything to add?
Sarah: No, I’m definitely on the side of this seems really crazy. It seems like it has to violate some employment laws, especially in California, I forget, is that where the case was? I don’t remember.
Denise: Yes, it is in California.
Sarah: Ok. California has some of the best employment, well employee-friendly, I guess, labor laws. But, I mean, yes it’s an at will employee situation, but it seems like a public policy issue in some ways, because, you know, do potential candidates for these jobs really have the negotiating power and is there really a reasonable connection to the business practice, you know, that they need this level of 24/7 tracking? This seem hard to imagine, so I guess I’m also, I’m inclined to think that this is the type of thing we need regulation for in some regard.
Denise: Right. But then I mean, how do you deal with, suppose there is regulation over how you can track your employees. Then consider the situation where an employer wants to give the employees iPhones, and wants to use the tracking feature that’s already built in some of the time, it seems like it just might not be possible to tailor it, because, you know, the device is designed that way.
Sarah: That’s true. But does the employer necessarily have to be the one getting the data? Like for the Find My iPhone, doesn’t it just go to Apple, the data? Then you can get it if the person that has the iPhone gets it if they need it? Or, I mean, I don’t know, it seems like you can imagine ways to tailor it, but, on the other hand, legislation often gets, it gets screwy when they try to regulate these sorts of things, so I can also imagine doomsdays scenarios, but.
Denise: Yes, that’s what we do here.
Brandon: That’s why lawyers are so happy.
Denise: That’s right.
Brandon: Because we can imagine those scenarios so easily.
Gus: In this case it demonstrates one of the challenging issues of new technologies. Technology is generally black and white. It does not have the ability to exercise human judgement. And probably any regulation, any law written to govern this sort of technology would have some judgement aspect, it would have some safety valves, it would have some permissibility for maunderings, security individuals or people in positions of public trust or whatnot, it would possibly have some provision for employees being able to disable the technology under reasonable circumstances. Well, who decides what reasonable is? Who decides what jobs get put into any of these categories? The technology can’t do that. So, fundamentally this needs to be pushed to some decision maker, which guarantees, actually with a punch line, that lawyers are going to be employed in this area for a long time to come.
Denise: Alright. Yay. We’re going to talk about stuff, different stuff on a plane in a moment here, but first we’re going to thank our sponsor for this episode of This Week in Law, and this episode of This Week in Law is brought to you by FreshBooks. It’s amazing how many lawyers I know who spend way too much time practicing paperwork, rather than practicing their actual legal profession. On top of their piles of affidavits and case files, there are billable hours that need tracking, expenses to manage, and client invoices to prepare and send. FreshBooks makes all that so much easier. I use FreshBooks in my own law practice, and literally could not have the practice that I have without FreshBooks, because it enables me to be completely independent. I don’t need the overhead of a staff, I don’t need the overhead of an assistant, I can very readily, in just a few clicks, capture all the time and expenses that I need to, get bills out to clients, get paid. That’s all you want as a lawyer, right? Just to turn things around, or as any business person of course, in a very convenient, very fast, very accurate and very professional way. FreshBooks is a super simple cloud accounting software that’s giving thousands of lawyers like me and you, if you’re a lawyer listening, the tools to save time billing and get paid faster. It lets you create and send super slick invoices on-line in minutes. You’re going to track your time effortlessly, because, for one thing, there’s a mobile app that you can use to track your billable hours from anywhere, and those mobile apps help you organize things like receipts when you’re running around between the office, the client meeting, the courthouse, etc. And if you ever have questions about using the app, there’s an award winning FreshBooks support team of rock stars who are waiting for you. There’s a real live person on the other end of the phone every time you call to give you a hand. Getting started is simple and it’s totally free for 30 days with no obligation. Go to FreshBooks.com/twil, and don’t forget to enter TWIL, T-W-I-L, when they ask how you heard about us, helps us out. Let’s FreshBooks know that it’s worthwhile to advertise on this show. We hope that they think so, and you will give their product a try, because it’s a wonderful piece of work. We thank FreshBooks for supporting this week’s episode of This Week in Law. Alright, let’s move on and talk about stuff on a plane. Hacking planes, always something that gets people up in arms and a crime that is worth considering. So, I guess Ethernet’s on the plane is how Gus puts this in teeing up the story, suggesting that we talk about it today. There is a security researcher named Chris Roberts who is thought to have, perhaps, maybe, plugged into the entertainment system, the in-flight entertainment system on a number of airplanes. The FBI issued a public warrant that included some comments that indicate that Mr. Roberts at least said he was going to exploit or gain access to the in-flight entertainment system by plugging in an Ethernet cable through the seat electronic box under his passenger seat. Sounds a bit cloogey and strange, but security researcher Chris Roberts at least initially said that he was controlling one of the engines on the plane this way, he seems to have backed of these comments now, and said, “Oh, no, no, no, everything I said, everything in that warrant was taken out of context.” So, obviously it’s problematic if people are plugging their Ethernet cable into their laptop and then into the in-flight entertainment system and starting to fly the plane. Gus, do you want to add anything further to this?
Gus: So, I shouldn’t say things quite this directly, but this guy was just stupid. He tweeted things to the effect that he had taken control, or interfaced with, the in-flight control systems by interfacing with the in-flight entertainment system, and used that to change a throttle control in one of the engines, causing the place to turn. Who knows whether or not this is actually true? Part of the fascinating thing here is the FBI understandably is taking this very seriously. How this relates to the general rhetoric of the cyber-security sphere is fascinating. A few weeks ago, I guess at this point maybe a month and a half ago, the FAA had issued a notice, saying that it was possible that in-flight entertainment systems weren’t sufficiently firewalled from the flight control systems, such as just this sort of thing could happen. And then a couple weeks later, we have this guy saying, “Hey, I actually did this.” And he knows the lingo, he knows the relevant terminology, so he has some credibility in saying that he did this. And when the FAA bulletin was released, my colleagues and I, folks in the security community I was speaking with, they all said, “That’s stupid. The FAA is just being an alarmist. There’s no way this could actually happen. These guys don’t understand cyber-security, they’re just trying to scare us.” Well, maybe there was actually something to this. Which is pretty scary.
Denise: Yea, it definitely is. Sarah or Brandon, any thoughts other than hacking planes bad?
Sarah: No, that what is really, actually my only thought is that this is potentially a really scary story, but it sounds like there’s a little more to it, but, yea, nothing else. Scary, sounds a little bit scary, yes.
Brandon: Yea, hacking planes, hacking planes is bad. It sort of seems like, like security around airplanes in general is one place where I’m ok overreacting, you know? If someone says the word “bomb” in an airport, get them out of the airport, you know, I’m ok with that. So, I think that this guy appears to be just sort of a wanna-be, but, whew, man, just the thought of it. I don’t like to fly anyway, but this is worse.
Denise. Yea. Alright, something a little less disturbing but still could be problematic for you involves things that you might think would be involved in your customer agreement with an airplane or its official stated policies, but it’s actually not. It perhaps should be in the terms of service, but it could come back to bite you even though it’s not there. We’re going to look at this and one other story related to what’s in the fine print. Sticking with our airplane theme, I think that was a supersonic jet just zooming away from our bumper there. There’s a great article that discusses, and you can get to this and all the other pieces that we’ve been discussing on the show today in our Delicious Links for our show at delicious.com/thisweekinlaw/304. This particular piece talks about taking pictures in and around airplanes, and in airports, on planes, etc. And what you might think is that there would be some kind of published prohibition against that. And it turns out that there’s not? But with a number of people having been asked to refrain from taking pictures, or being told by airline employees that they needed to stop videoing or photographing some particular thing on the airline, with a little bit of digging it turns out that although the airlines don’t publish prohibitions against where you can take pictures and such, they do authorize their employees to stop passengers from taking pictures in their internal policies. JetBlue says, “Our crew members use their professional judgement in evaluating the appropriate use of photography or videography on-board, especially when it involves the privacy of other customers and the safe and secure operations of the airline.” So, some people who have said, you know, “I thought I could take pictures anywhere.” It turns out that airlines don’t really see it that way, and who want to tangle, it’s sort of like what Brandon was saying earlier about just don’t touch music, man, you just don’t want to mess with those flight crews, because, you know, if they want to throw you off the plane, well, presumably not in-flight, but out of, out of your travel arrangements, out of the airport, etc., they can readily do so. So something to just be aware of and it’s something that, of course, we’ll continue to magnify in scope as more and more people have more and more electronics on planes, and you know, between body cameras and everything else, we may get to a point where things are being filmed or photographed just sort of as a matter of routine. So, it seems like the goals of the airlines and the abilities of the technologies available to people are at odds on this. Sarah, do you have any thoughts?
Sarah: Yea, I think I’m kind of ok with, in general, with the way that they’re dealing with this by having humans use their professional judgement, although of course there’s going to be situations where flight crews have, you know, there’ll be some crazy enforcement out there. But planes are a situation where it’s private property, but it feels public. It’s almost like having a rule at the mall where you can’t use your cameras or take pictures. That would feel crazy, and I think that the same situations go for airplanes and airports. At the same time, you don’t want the person sitting next to you on the airplane, you’re already sitting close enough so it feels like there’s an invasion of personal privacy, but, you know, if they started taping you, you can imagine that you would want to be able to go to the flight crew and say, “Hey, this person has their phone pointed at my face.” So, in general, it seems like kind of the right policy. Maybe it would be nice to have more rules that people actually know about and understand what the parameters are, but, I’m not surprised that they have rules against it.
Denise: Yea, Brandon, when do you expect to see more written policies for passengers along these lines?
Brandon: You know, I would think so, and it’s interesting that, you know, it makes me think of Eric Garner and some of the body cam discussions we have about police officers and the right to video tape police officers, which I’m proud our Washington D.C. Chief of Police has said very strongly that all of her officers should respect the rights of the public to tape them while they are doing their duty. And of course, right, I mean, the flight crew are not police officers, but in some sense the concern may be the same, that is, the story and the link and the rundown from Linked In, explains that, you know, they were kicking people off the flight sometimes for taping what the consumer thought was bad behavior by the flight crew. And so, you could imagine some bullying behavior going on there under the pretense of security. This might be something that you could put, for example, on the airline passengers’ bill of rights type of regulation, you know, that a passenger should have a right to reasonably video record out the window or things happening in the cabin. And then that would at least give you sort of a venue or a rule that you could cite to in disputing the airline, rather than the airline being in total control.
Denise: Yea, I can’t, all of this made me think of all the times too, that someone has burst into song on an airplane, you know, there are all kinds of viral videos that have originated within the cabin of an airplane, and it would certainly chill those kinds of things if the flight crew were constantly telling you to turn off your phone. Gus, is this a situation of, you know, my airplane, my rules, go fly someone else if you don’t like what our flight crews do?
Gus: So, I want to echo what Brandon said. There is a real concern here that this could be used to protect employees who are acting badly. Another, more serious, I think, concern that I have is this can be used for pretextual profiling and making racist decisions. And when you put this much discretion into the hands of the employees it can be problematic. That said, there definitely is a place for it, and I’m not sure where to draw the line. And I’m going to do something that could be ill advised. I’m going to show you, I don’t know if you can see this, this is my Facebook page. I fly a lot. I enjoy flying, and this is a picture of an airplane at a gate at Chicago O’Hare while I was waiting to take off. And it’s scary to think that I could have been kicked off the plane or possible be arrested for taking that photo. But that what the rule is. So, the question is, where do we locate the discretion, how do we monitor that it’s not being abused, and perhaps in the long term with all the new monitoring technology and pervasive ability to record, will I be able to have my stealth drone following me around the airport taking pictures of me? Probably not.
Denise: (laughing) yea, could you imagine the Lily cameras following all of us through the airport, onto the plane, hovering over our heads.
Brandon: And I totally sympathize with Gus too, I fly a fair amount, and my son loves airplanes. And so, part of the ritual of my flying is that I take a picture out the window when I can of my airplane and send it, text it to my wife to show my son, you know, it’s dad’s airplane. I had no idea that this might get me kicked off my flight, it’s kind of terrifying, I might stop doing that.
Denise: Yes. Well, at least do it with a little more caution. We’ll make over-Lily-ing our second MCLE passphrase for this episode of This Week in Law. I’m referring to that camera we discussed last week, the Lily Camera that will follow you around and take pictures of you. Not available yet, thank goodness. Can’t wait to see what sort of societal upheaval that little device wroughts once they start floating around after people. I think that we’re going to have to move on to your resource and tip of the week as we are running low on time here at the end of the show. We had much more to discuss, we’re just going to have to have Brandon and Gus come back with us soon and get to some of our other topics that we’re going to leave on the shelf for today. You guys promise to do that?
Gus: It sounds like a great way to either make kids want to go to law school or want to avoid law school like the plague. I think anything, more seriously, that gets people generally aware that there are these terms and conditions, that there are contracts out there, that there are legal rules out there governing a lot of their conduct, even things that seem completely reasonable, is good. Whether or not those rules are themselves reasonable, or that’s how we want the world that we live in to look, that’s a different question, but we’re only going to be really able to seriously answer that question if we have people who are informed and understand that this is the world that we live in. So, in that sense, this might not be the best way to instill that sort of knowledge and understanding, but it is a way, so I applaud it for that.
Denise: Brandon, are you going to make your kids start reading privacy policies?
Denise: Right. Sarah, from a Creative Commons perspective, maybe there needs to be a business out there that translates privacy policies and EULAs into kid readable form.
Brandon: Maybe the rules should be if a kid can’t understand the rules, then he can’t be bound by them, how about that?
Denise: Oh, God, you know someone’s going to do that, Gus. We’ve seen them in game form before, so, and I think that might be the only thing that might get traction in our household is if it were housed in Halo armor. Then it might be taken in. Ok, our resource of the week has to do, again, with reading EULAs and privacy policies, and while you might not want to make your kids read them, I think as responsible adults you definitely have to be careful, especially with photography. We have a couple of links along these lines. Number one is the saga of a woman, she is a photographer, Nikki MayDay Guardascione. But she is a wedding photographer, and she posted a watermarked picture that she had taken at someone’s wedding of the bride looking feisty and the groomsman all drinking some sort of light beer, Miller Lite. The Miller Lite people reached out her and, on Facebook, so this is all, the conversation is all happening in the Facebook comments sections, or maybe in the message section. In any event, on Facebook they are communicating with her and asking her permission to share her photo. Which she very logically decides means, “Oh, well they’re asking to share it on their page.” And they’re very specific, we’re not going to pay you, this is for the pride of having us share the photo. But we’re not going to pay you. And she says, “Well, ok, well sure, I’d love to have you share it. Would you mind, you know, giving a shout out to my photography site on Facebook, or my website, or my Twitter or Instagram, you know, thanks for reaching out to me, that would be great.” But it turns out that what they were actually asking here for was to be able to use the picture in a television commercial, I sense Don Draper coming in on the sides here, and she just jumped all over them and said, “Well, no. You’re being misleading here, sharing with fans is completely different than using a photo without a credit or compensation in a multi-million dollar television ad campaign, so go away.” And they did. So, beware of brands making strange requests on Facebook. There, good resource for you there. And also, a fast company article that discusses, do you remember a few weeks ago the age guessing tool that was making the rounds. Howold.net, with people uploading their pictures and seeing if they looked they were 78 years old or not. The fine print there included language much like you would see in just about any kind of internet site where you are offering information, granting Microsoft license, a non-exclusive license to use whatever you submit to them. This got a lot of people riled up. Microsoft came in and said, “Oh, no, no, no, no, we’re not going to use your stuff that way.” But you should be aware those are the terms of service, they are accurate, however the developers of this particular tool have decided not to store or share any of the photos that are being used for that app. So, this cautionary tale is, you know, although people were right to be concerned that Microsoft could definitely use the photos in accordance with its terms of service, in this particular instance it said, but were not going to. So, always good to be aware of what those terms say, and what you’re giving up when you’re uploading photos. Folks, this has been a really, really fun show. I’ve enjoyed every aspect of it, really enjoyed our conversations today, and learned a lot. Gus Hurwitz, thanks so much for joining us.
Gus: Thank you, and I hope to do it again.
Denise: I know, you guys have promised, so we’ll be hitting you up again soon, because we left a lot on the table here. I cannot believe we got through a show with you, Gus, without discussing that neutrality, but that issue is not going away, and we will have you back.
Gus: It’s definitely not going anywhere, so we’ll have plenty of time to talk about it.
Denise: Great, wonderful. Brandon Butler, thanks so much for joining us again.
Brandon: Absolutely, it was my pleasure.
Denise: And Sarah…
Sarah: Did you bring out the beer yet, Brandon?
Brandon: It’s coming. It’s in the fridge. I’m headed that way.
Denise: Make it a Miller Lite maybe, in honor of one of our resources. Or don’t, in honor of that particular resource. Hey, Sarah, it’s been great to chat with you.
Sarah: Yea, thanks so much, its lots of fun, as always.
Denise: So, folks, you should if you’ve enjoyed this show, you should join us every week. We do it every Friday at 11:00 Pacific Time, 1800 UTC, that’s when we record live. And if you can’t catch us live, don’t worry about it, because it’s available on demand for your viewing and listening pleasure for whenever you would like at twit.tv/twil. We have a You Tube page, we are on Roku. If you go to that twit.tv/twil page there’s all kinds of information about how you can enjoy the show at your leisure and subscribe in whatever way that you would like. We love hearing from you between the shows, it’s really helpful for us to learn of guests that you think we should invite on, learn of topics that you think we should be covering. You can e-mail Sarah, she’s firstname.lastname@example.org, I’m email@example.com. You can find us on Twitter, you can find us on Google+, or on Facebook, all great places to get in touch, let us know your feedback and suggestions for the show. And we hope you’ll join us again next week, on This Week in Law! Take care.