Show # 220 — Profs. James Grimmelmann and David Post on Aereo’s copyright impact and Facebook’s emotional manipulation study — posted

I’m pleased to post Show # 220, August 6, my interview with James Grimmelmann of the University of Maryland School of Law and David Post of Temple University School of Law, on the recent US Supreme Court decision in ABC, Inc. v. Aereo and Facebook’s emotional manipulation study. David and James are both repeat guests on Hearsay Culture, but have never been on together. We focused on two issues: (a) the Aereo amicus brief authored by David and James on behalf of law professors, and the impact of the Aereo decision on copyright law and how new content delivery systems may or may not run afoul of copyright law, and (b) the impact of Facebook’s secretive 2014 behavioral study in which it manipulated the content delivered to users’ newsfeeds, particularly James’ extensive analysis of the problems associated with the study. Both issues raise important questions of the role of law in information and content distribution and how private entities and the public might navigate the current technological terrain. I always enjoy David and James as insightful guests capable of wide-ranging discussion, and this show was no exception.


Harold Ramis’ Copyright Trilogy

by Julie Cromer Young

When Harold Ramis died in late February, I reflected upon his long career in comedic acting and film. As a much less successful alumna of the comedy classes offered by Second City, I appreciate the subtle but hilarious humor that Ramis and his SCTV counterparts added to film and television. And after I had considered his impact, like any good copyright attorney, I asked the next logical question: How often had he been sued?

The answer, from what I could tell from reported law decisions, was three times, with the caveat that legal database searches don’t uncover most cases that settle early or cases that are threatened but not filed. The reported lawsuits followed the same fact pattern: an unknown author alleging that the plot of a successful movie co-written, directed, or produced by Ramis had infringed upon the plaintiff’s earlier treatment of the same idea, and that Ramis owed his success to the plaintiff’s contribution. The lawsuits appear loosely one per decade.

So here’s a brief rundown of those cases:

The first case, Meta-Film Associates v. MCA, concerned Animal House, which Ramis co-wrote. According to the plaintiff, author James Hart had written the screenplay Frat Rats and submitted it to a director for Universal in mid-1975. The director, dismissing the screenplay outright as “terrible,” never brought it to the attention of Universal executives.

Ramis, under the auspices of the National Lampoon Company, announced his intention to create a film based on high school or college life, and very soon after, another contact from Universal Studios contact National Lampoon expressing interest to produce. National Lampoon delivered the treatment for Animal House in early 1976. And predictably, the plaintiff sued, alleging that National Lampoon had copied Frat Rats. The judge ruled that the plaintiff had to prove National Lampoon had access to Frat Rats, and similarity, in inverse proportions to each other. The judge denied a motion for summary judgment, which would have allowed Ramis to win the suit outright before a jury trial. However, the judge also found as a matter of law that the plaintiff could not prove that National Lampoon had any access to Frat Rats, a ruling that had the effect of ending the lawsuit.

Lawsuit number two challenged the originality of Groundhog Day. In Arden v. Columbia Pictures, author Leon Arden alleged that Groundhog Day copied the idea of his novel, One Fine Day, in which the main character repeated the same day dozens of times. Again on a motion for summary judgment, the judge took painstaking detail to explore the plots of One Fine Day and Groundhog Day, co-written by Ramis.

This time, the defendants conceded (for purposes of the motion) that they had access to the novel. However, the judge concluded as a matter of law that the novel and the film were so dissimilar that there was no illegal copying. The court explained, “the idea of a repeating day, even if first conceived by the plaintiff, is not protectable.” The judge ponderously walked through the elements of plot, mood, characters and character development, pace, setting, sequence of events, and specific similarities to determine that no reasonable jury could find in favor of the plaintiff. (Good thing for Kate Atkinson and her current bestseller Life After Life, which expands upon the same idea.)

The third and most recent lawsuit involved a lesser-known Ramis work, The Ice Harvest. Here, in Coffman v. Ramis, the infringement was allegedly of a movie script registered with the Writers Guild of America, West. The registration included a description of how the town of Wichita Falls, Texas got its name. The Ramis-directed film The Ice Harvest, set in Wichita, Kansas, uses the sentence, “As Wichita falls, so falls Wichita falls,” which the plaintiff claimed was infringing.

This time, the court did not even need to get to summary judgment, but instead was able to dismiss the lawsuit because the complaint failed to state a claim. First, that sentence had been copyrighted before, in a song in 1981; second, whatever plaintiff claimed was infringing was far from original. As such, the magistrate judge concluded that the complaint was not viable.

Are there any themes here? Perhaps the Harold Ramis trilogy could demonstrate a shifting inclination of the court to dispose of copyright infringement cases earlier in their timelines. It’s not uncommon for successful movies to draw lawsuits based on tangential similarity between plotlines and characters, but that doesn’t mean they can be easily disregarded. And worse, they can also draw out opportunists. As one court noted in a copyright infringement lawsuit against Sex and the City writer Candace Bushnell, “this form and forum of combat does open the potential for opportunism and other kinds of abuse of process, and hence the undercurrent that runs with some frequency through the protestations of renowned defendants like Bushnell who are brought into the public arena to answer charges of wrongful conduct.”

Additionally, new standards for plaintiffs to state all legal complaints change the copyright litigation terrain. Copyright infringement cases are perfect candidates for jury trials; even if they have elements that can be decided “as a matter of law,” authors’ legal claims tend to be filled with factual determinations. For example , although the Animal House court found that National Lampoon couldn’t possibly have had access to Frat Rats before submitting its treatment to Universal based on witnesses’ testimony, the credibility of those witnesses is ultimately still in the purview of the jury. Additionally, although the Groundhog Day court found it not substantially similar to One Fine Day, perhaps the jurors would have come to a different conclusion. But in The Ice Harvest , decided under the new standards, it was much easier for the court never to get to factual determinations at all.

Of course, it’s important not to deduce too much from the case conclusions; each case has a unique set of circumstances, any of which could have contributed to the early disposition of the case. But the differing pretrial resolutions of Ramis’s cases – from refusing to grant summary judgment, but de facto resolution based on a single factor; to granting summary judgment, based on resolution of facts as a matter of law; to dismissing the plaintiff’s complaint outright – might suggest the increasing unwillingness of the courts to tolerate legal fiction-writing. Outside of Hollywood, that is.


Show #202 — Prof. Ed Lee on the SOPA battle — posted

I’m pleased to post Show #202, January 29, my interview with Prof. Edward Lee of Chicago-Kent Law School, author of The Fight for the Future: How People Defeated Hollywood and Saved the Internet — For Now. [Disclaimer: I was heavily involved in the opposition to SOPA and PIPA.] Ed has written a terrific account of the events and people that contributed to the extended policy battle around SOPA and PIPA. Having done much primary research about the people and machinations that lead to SOPA and PIPA’s eventual defeat, Ed has written an extremely valuable historic accounting that should guide scholars for years to come. In our discussion, we delved into some of these stories and the implications of the process that lead to SOPA and PIPA’s defeat. I greatly enjoyed the interview!


Shows 193-194 — Profs. Anupam Chander, Ian Brown and Chris Marsden — posted

I am pleased to post two more shows for this quarter. The first, Show #193, October 2 is my interview with Prof. Anupam Chander of UC Davis Law, author of the just-released book The Electronic Silk Road. Anupam has written a wonderful study of the impact of the Internet and technology more broadly on trade and the transference of culture. From the role of the Internet in allowing complex transactions to occur to the impact of the shift from goods to services, we had a wide-ranging and fun discussion. Anupam raises and questions many challenging issues and assumptions involving trade and technology, and I learned much from the book and the discussion!

My second interview, Show #194, October 16, is my interview with Chris Marsden of the University of Sussex and Ian Brown of Oxford University, authors of Regulating Code: Good Governance and Better Regulation in the Information Age. Ian and Chris have written a terrific analysis of the impact of “code” (read: technology broadly) on regulations themselves. By examining several “hard cases,” Ian and Chris offer insights into how regulatory and legislative practice might react to and change as a result of technology. We discussed copyright, regulatory processes and other high-profile issues. I greatly enjoyed our discussion!

Look for more new shows throughout November! And stay tuned for show #200!

Shows 182-186 — Prof. Dan Trottier, Oliver Day, Derek Khanna, Virginia Crisp and Prof. Vance Ricks — posted

The summer brings five (5) new shows (and a welcome effort to catch up on two months of backlogged emails and other work). So, here they are.

The first show, Show #182, April 17, is my interview with Daniel Trottier of the University of Westminster, author of Social Media as Surveillance. Dan’s book, which is now particularly timely given the PRISM and other NSA/governmental surveillance revelations over the past several weeks, looks at social media as a surveillance technology. Using a variety of angles and insights, Dan examines the impacts and implications of social media as users volunteer to interact (knowingly and unknowingly) with other users and the technology itself.

The second show, Show #183, May 8, is my interview with Derek Khanna of the Yale Information Society Project on copyright reform, jailbreaking cell phones and CISPA. Derek’s name became known after he wrote a controversial memorandum for the Republican Study Committee (RSC) urging reform of existing US copyright law. Since he left the RSC, he’s written on a variety of topics including cell phone jailbreaking. We discussed his current work, as well as his perspective on his experience at the RSC and insights derived from the political response to the memorandum.

Third is Show #184, May 15, my interview with Oliver Day of the new non-profit Securing Change. Oliver is a repeat guest on Hearsay Culture as well as the wonderful volunteer who has helped me combat the endless attempts at hacking of Hearsay Culture by spammers. Oliver has founded an organization designed to offer the same services that Hearsay Culture has received to a wider audience of non-profits [disclaimer: I’m a huge and grateful fan of Oliver’s efforts and am on the Board of Securing Change]. We discussed his efforts and Securing Change’s goals, as well as the nature of hacking and website security threats today. [Note: the email address to use to request help from Securing Change is request@help.securingchange.org, not the email address mentioned in the show].

The fourth show, Show #185, May 23, is my interview with Dr. Virginia Crisp, Lecturer at Middlesex University, on Kim Dotcom and copyright infringement. I met Virginia at a conference at MIT in May and found her presentation on the implications of Kim Dotcom’s activities and behavior insightful. On the show, Virginia discusses her research and perspectives on Kim Dotcom, as well as the larger issues involving the social and regulatory aspects of copyright infringement en masse and in New Zealand, where Kim Dotcom has rebranded himself.

Finally, and at long last, the last show for the spring quarter is Show #186, June 13, my interview with Prof. Vance Ricks of Guilford College. Vance has written an insightful article about the nature of gossip online, drawing on sociological and philosophical views of gossip and rumor-mongering applied to social media. We discussed the nature of gossip and reputation in the social and online spheres, as well as the role that technology plays in both amplifying and diminishing these age-old practices. As a bonus, this show was recorded in KZSU’s East Coast Studios, my euphemism for a live recording in my basement studio!

I am in the process of setting the schedule for the summer quarter, which commences in the first week of July. Stay tuned, and look for the schedule to be posted by the end of June. Thanks as always for listening!

Shows #175-177 — Amardeep Singh, Stefan Larsson, Marcin de Kaminski and Prof. Tom Streeter — posted

A semester of much administrative and other work left little time for posting new shows, even though they were “in the can” and even aired on KZSU-FM, Hearsay Culture’s home station. So, as a holiday gift, I’m now posting the last three shows of the fall quarter.

The first show, Show #175, October 17, is my interview with Amardeep Singh, Director of National Programs at the Sikh Coalition. Amar is one of the co-founders of the main organizations representing the Sikh community in the United States. A classmate of mine from Case Western Reserve University School of Law (Amar was class of 1997; I was class of 1998), Amar has focused on increasing awareness and understanding of the Sikh community. In our discussion, we discussed hate speech on the Internet, cyberbullying and other challenges facing the Sikh community post 9/11.

Show #176, November 6, is my interview with Stefan Larsson and Marcin de Kaminski of Lund University. We discussed their work on copyright infringement/piracy and Pirate Bay in Sweden. Marcin and Stefan are two of Sweden’s highly-active scholars examining Sweden’s copyright and technology culture, and their work is unique in its empirical scope and depth. We had a wide ranging discussion and I look forward to more interaction with these dynamic thinkers.

Finally, Show #177, November 20, is my interview with Prof. Tom Streeter of the University of Vermont, author of the book The Net Effect: Romanticism, Capitalism and the Internet. Tom’s book is a phenomenal social history of the development of the Internet, from its well-known inception at DARPA to its lesser-known incarnations in World War II policymaking. Tom’s does a terrific job melding this social history into a highly-readable and thoroughly-researched assessment of what the Internet is, and what it isn’t. I highly enjoyed both Tom’s book and the interview, and I hope that you find Tom and our interview as illuminating as I have.

The schedule for the winter quarter 2013 will be posted soon; look for new shows beginning the week of January 14. Happy new year!

shows 170-174 — Profs. Woodrow Hartzog, Fred Stutzman, Dr. Deborah Peel, Profs. Madhavi Sunder, Chris Sprigman and Shubha Ghosh — posted

At long last, I am posting several new shows from the end of last quarter and the beginning of this quarter.

The first show, Show 170, August 7, is my interview with Prof. Woodrow Hartzog of Cumberland School of Law, Samford University and Fred Stutzman of UNC on their article, The Case for Online Obscurity. In their article, Woody and Fred conceptualize “obscurity” as an area on the information flow spectrum from publicity to privacy. Although people often interact with technology from the perspective of something other than complete privacy or publicity, Woody and Fred note that the parameters of that activity — obscurity — has not been theorized. In our discussion, we explore the theory and practice underlying obscurity. They were great guests.

Next, Show 171, August 21, is my interview with Dr. Deborah Peel. Deb is one of the nation’s leading advocates on patient privacy rights and the rights associated with the distribution of health information. In our interview, we discussed her work and views on the challenges facing both patients and the healthcare industry as we confront the explosion of information stored in electronic format. I greatly enjoyed the discussion.

Show 172, August 28, is my interview with Prof. Madhavi Sunder of UC Davis School of Law, author of From Goods to a Good Life: Intellectual Property and Global Justice. Madhavi has written a fascinating book arguing that the process of production, and not just the outputs, should be a value that intellectual property law encompasses. In her book, she explores the implications of such a shift on communities in developing economies and other groups who are not generally considered in intellectual property’s utilitarian scheme. I learned much and we had a fun interview.

The fourth show, Show 173, October 3 is my interview with Prof. Chris Sprigman of Virginia Law, co-author of The Knockoff Economy. Chris and his co-author Kal (who did not join us on the interview) have written a fascinating account of industries and communities, like fashion and comedy, where intellectual property law is non-existent and/or unenforced. They found, somewhat surprisingly to those who view intellectual property law as a necessary requirement to spur innovation and economic activity, that these industries thrived despite the absence of intellectual property rights. We had a broad and high-energy discussion.

Finally, Show 174, October 10, is my interview with Prof. Shubha Ghosh of the University of Wisconsin School of Law, author of Identity, Invention, and the Culture of Personalized Medicine Patenting. Shubha is a prolific scholar who has written a study of the law surrounding and implications of personalized medicine from a patent law perspective. Given the advances in technology that allow for a vast array of data to be used in the treatment of patients, patent law is at the center of the questions as to the parameters of this activity. Shubha was able to discuss a challenging area in a clear and concise way, and I greatly enjoyed the interview.

A final note: since the show began in May 2006, Joe Neto, Stanford Law School’s wonderful creative services specialist and Funkranomicon lead vocalist, was responsible for posting the shows onto CIS’ server. After six years and 170 shows, he has handed that job over to CIS’ Elaine Adolfo. Thanks much to Joe for his work, and to Elaine for taking over the reigns!

shows #163-165 — prof. lea shaver, chris soghoian, stephanie pell and marvin ammori — posted

I’m pleased to post the last three shows of the spring quarter.

The first, Show #163, May 22 is my interview with Prof. Lea Shaver of Hofstra Law regarding her article Illuminating Innovation. Lea focuses on the story of Edison’s invention of the lightbulb, but draws some surprising conclusions about its import to intellectual property law and, through discussion of less well-known aspects of the story, reaches some surprising results. Drawing on Lea’s deep knowledge of the issues surrounding one of the seminal inventions of the modern era, I very much enjoyed the discussion.

The second show, Show #164, May 29, is my interview with Christopher Soghoian and Stephanie K. Pell, co-authors of Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact. Chris and Stephanie discuss the largely unknown (and not understood) issues surrounding the use of technological location data (think, GPS on your cell phone) by law enforcement. Their combined knowledge, drawn from the worlds of technology/security and law enforcement, respectively, makes for an unusually thorough examination of this challenging issue. We discussed the technology, how its used, and what to do about it. I learned from and enjoyed the interview.

Finally, the last show of the spring quarter, Show #165, June 5, is my interview with Marvin Ammori, author of First Amendment Architecture. Marvin has written an exhaustive analysis of how architecture, be it technological or physical, or as Marvin calls them, “spaces,” play into the law surrounding the First Amendment. This important but under-theorized issue is critical to the ability to maintain and protect the ability to speak in a technologically unstable time. The issue of spaces is thoroughly analyzed in Marvin’s article, and we discussed his theories and their ramifications going forward in this fun and enlightening discussion.

I am in the process of finalizing the schedule for the summer quarter, so look for that on Monday!

Shows 159-162 — Profs. Julie Cohen, Jennifer Holt, Hamilton Bean and Daniel Margocsy — posted

May brings the combined professor’s pincer of grading and writing deadlines. So it is that I submitted my 3L grades yesterday and now I’m posting (finally!) four new shows.

The first, Show #159, March 16, is my interview with Prof. Julie Cohen of Georgetown Law, author of the book Configuring the Networked Self. Julie has written a fascinating and forward-thinking critique of our relationship to technology and the primary challenges facing consumers of technology as they navigate the increasing intrusions of technology into our everyday lives. We covered a variety of topics in this discussion, from social constructs to secrecy, and part two (to be scheduled) will focus on a major portion of the book that was not covered here: privacy. I greatly enjoyed the interview.

Show #160, April 17 is my interview with Prof. Jennifer Holt of the University of California Santa Barbara, author of the book Empires of Entertainment. Jennifer looks at the period just prior to the explosion of the commercial Internet, 1980-1996, and focuses on the changes and consolidations that occurred during that tumultuous time in the history of the entertainment industry. Jennifer examines not just the business environment during this era, but also the legal and social contours that lead to where we were at the dawn of the Internet, and in that way has made a unique contribution to the literature on this era. We covered not just that recent history, but also some current events like the battle over SOPA and PIPA. The interview was fun and I hope that you enjoy it as well.

The third interview, Show #161, April 24 is my interview with Prof. Hamilton Bean of the University of Colorado Denver, author of the book No More Secrets: Open Source Information and the Reshaping of U.S. Intelligence. Hamilton has written a first-of-a-kind analysis of the use of public information (i.e., open source) in the collection and analysis functions of the US intelligence community. Drawing on many first-hand interviews, he focuses on the mystique and myths around secrecy in the intelligence community and the challenges of institutionalizing the use of open source information. Given the increasing study of “secrecy” as a field, I was excited to have Hamilton on the show and enjoyed the interview.

Finally, Show #162, May 1 is my interview with Prof. Daniel Margocsy of Hunter College, co-editor of States of Secrecy, a new volume of the British Journal for the History of Science. Daniel has brought together many great contributors, including several former guests on Hearsay Culture like Mario Biagioli and Peter Galison to analyze secrecy as a political, legal and social construct in the scientific community. Drawing on the history of the theory of secrecy, we (in some measure) continued the discussion from the previous week to focus on what secrecy means to the continued flow of knowledge and information to and from the scientific community. This was yet another interview that I found personally illuminating and fun.

Thanks for your patience and look for more new shows on the way soon!

Shows #156-158 — Profs. A. Michael Froomkin, Jorge Contreras and Derek Bambauer — posted

In this incredibly busy semester (i.e., I’ve posted my most recent draft on SSRN, The Social Layer of Freedom of Information Law, which focuses on information formatting issues in the Freedom of Information Act, and I’m still facing multiple writing deadlines), I am pleased to (finally) post the first three shows of the quarter. The first, Show #156, January 27 is my interview with Prof. A. Michael Froomkin of the University of Miami Law School on Internet kill switch legislation. Amidst the furor surrounding SOPA and PIPA, this legislation has flown under the radar. Its focus is to allow the government, under certain circumstances, to shut off Internet access — a scary proposition without significant oversight, due process and accountability. This legislation has ramifications from speech to criminal law, and Mike and I had a wide ranging discussion that I hope you enjoy as much as I did.

The second show, Show #157, February 17, is my interview with Prof. Jorge Contreras of American University Washington College of Law regarding his draft article Wait for It … Latency, Copyright and the Private Ordering of Scientific Publishing. We have focused on issues of open access to knowledge on several occasions on Hearsay Culture, but never in the context of scientific publishing. Jorge and I discussed the impact of copyright law on traditional sharing of research among scientists and what can be done to address its impact. Given its import in forstering scientific advancement, I was thrilled to have Jorge on the show and I greatly enjoyed the discussion.

The last show, Show #158, February 24, is my interview with Prof. Derek Bambauer of Brooklyn Law School, author of Orwell’s Armchair. Derek has written another very insightful and forward-thinking article where he makes a counter-intuitive suggestion regarding government censorship of speech: we should establish rules and procedures for government censorship. At the core of Derek’s argument is a realist view that the US government is censoring, so rather than do it through a variety of indirect and obscure methods, we should have a policy so that censorship can be done in the open. We discussed his views on censorship, his solution and potential criticisms and concerns. Derek is always a great guest and this interview was no exception.

Enjoy (and now I’m back to writing).