I’m pleased to post Show # 246, November 6, my interview with Member of the European Parliament Marietje Schaake on democracy and technology in Europe. Recommended by former Hearsay Culture guest Lousewies van der Laan of the Alliance of Liberals and Democrats for Europe, Marietje is a leading EU public official focusing on technology policy and the impact of technology on democracy. Her work is a perfect fit for Hearsay Culture, as it spans issues including Internet freedom, dual use technology, copyright policy, international trade agreements like the Anti-Counterfeiting Trade Agreement (ACTA) and Transatlantic Trade and Investment Partnership (TTIP), and the EU’s Digital Single Market. In our wide-ranging interview, we covered all of these topics, and even got into a discussion about EU-US relations and the impact of Edward Snowden’s revelations on that relationship. Marietje was an outstanding guest, and we had a terrific discussion. I look forward to having her back on the show in the future.
This has been a crazy semester. Thus, I am delinquent in posting shows from this quarter. I am about to update the record.
Let’s start with Show # 244, October 2, my interview with Prof. Andrea Matwyshyn of Northeastern University Law School, on the Digital Millennium Copyright Act (DMCA) and the Volkwagen fraud scandal. Andrea has been doing outstanding work focusing on how copyright law can impede the ability of computer security researchers to conduct their research. On behalf of several academic security researchers, she submitted a request for an exemption under the DMCA for such research, and found success in late October. In our interview, we discussed the nature of computer security research, the law around it, and its implications for issues like research around the still-unfolding Volkswagen scandal. I am a big fan of Andrea’s work, and was delighted to have her on the show. I hope that you enjoy the interview.
For the final of the July shows, I’m thrilled to post Show # 243, July 31, my interview with Prof. Jacqueline Lipton of The University of Akron Law School, author of Rethinking Cyberlaw: A New Vision for Internet Law. Jacqui’s work is well known to Internet and intellectual property law scholars, and she makes a wonderful contribution with her take on the state of Internet Law as a field today. Focusing primarily on copyright, trademark and speech caselaw and doctrine, Jacqui suggests that Internet Law’s primary focus is now information and intermediaries (think Google or Facebook). As I’m going to be teaching Internet Law again starting in a few weeks, I’m integrating Jacqui’s insights into my materials. We discussed the state of the field and where its headed in our discussion, which was a lot of fun.
I’m pleased to post Show # 235, April 29, my interview with Profs. Irina Manta of Hofstra Law and David Olson of Boston College Law, authors of Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly. Irina and David have written a challenging and insightful article that posits a burgeoning economy where, as they put it, “manufacturers of software and of consumer goods … make use of consumer monitoring technologies and restrictive software licenses to more perfectly price discriminate.” Put differently, Irina and David argue that corporate monitoring and the ability to set restrictive license terms may not have the negative effects that one might assume; indeed, it may make software more affordable for more people. Drawing on the somewhat-creepy story of Mattel’s Hello Barbie, Irina and David have penned a fascinating article that positions the Internet of Things as a potential boon to software and technology access. We explored the structure and ramifications of their arguments in a fun discussion, which I hope you enjoy!
I’m thrilled to post Show # 230, February 18, my interview with Prof. Elizabeth Townsend Gard of Tulane University Law School and Ron Gard of Limited Times LLC, on The Durationator, an online tool to determine whether any work of authorship is covered by copyright, and social entrepreneurship. I have been a big fan of Elizabeth’s copyright duration work for a long time, and had her on the show in 2009 to discuss her amazing project entitled The Durationator. Now, after many years of work, The Durationator is a reality and publicly available through a partnership with Thomson Reuters. Having formed an entity, Limited Times LLC, with her husband Ron Gard to run The Durationator as well as focus on their social entrepreneurship efforts, we had a wide ranging and celebratory discussion about social entrepreneurship, as The Durationator launched on February 18, 2015, the day that the show aired on KZSU! I hope that you enjoy the discussion and learning about Elizabeth and Ron’s fascinating and useful work. Congrats Elizabeth and Ron!
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.
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.
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!
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!
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 firstname.lastname@example.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!