 And with for this weekend law is provided by cash fly at C A C H E F L Y dot com. This is twill this weekend law with Denise Howell Episode 97 recorded February 4, 2011 God Creates We Patent. This episode of this weekend law is brought to you by hover dot com. Hover is domain name registration and management that's simple. For 10% off your new domain, go to twill dot hover dot com. And by mail route. Businesses of every size use mail route. One user, 50,000 users, it doesn't matter. Mail route will protect you from spam and viruses, simplify your life, and make your email usable again. Visit mail route dot info. Hello and welcome to this weekend law. Thank you so much for taking time out of watching the wonderful pre Super Bowl Volkswagen Passat Darth Vader ad and joining us today. I know everyone's busily showing their friends that but it's worth taking a little time out to think about the legal issues that touch on technology. And that's what we do each week here on this weekend law. And we've got a great panel for you this week to do it with. Joining us is Stefan Kinsella. He's an IP lawyer, author, long time blogger. An IP abolitionist, an anti monopolist and a libertarian and someone I've followed on the web forever and never had the chance to actually speak with. So it's great to have you on the show, Stefan. Great to be here, Denise. Also joining us is Ben Snitkoff, a lawyer and molecular genetic genetics enthusiast, tech law podcaster over at technically legal.org. Welcome back to the show. Thank you. Welcome. Thank you for welcoming me. My welcome welcomes your welcome. Yeah, great. Great to see you again, Ben. Also with us too is Evan Brown, a lawyer at Hinshaw and Culbertson in Snowy Snowy, Chicago, a semi irregular CNN and Fox affiliate go to legal guy and blogger at internet cases.com. Hi, Evan. How's it going, Denise? It's great to see you again. Good to be here. Good to see you too. So Evan and I were IRC-ing or whatever it is when you do it on Skype chatting in Skype before the show about the ad I alluded to that was all over Twitter yesterday and just wondering and I'd love to see what you folks think. First of all, it's a great ad. If you haven't seen it, of course, I think it's impossible if you've been paying attention at all in the last couple of days not to have seen it. I think it was one of the number one trending things on Twitter yesterday. But if you haven't seen it, please do, you know, feel free to pause the show or run away from the show. It's very brief and very cute. Appeals to both geeks and parents alike and even kids. My son got a huge kick out of it. And I think the geeks are actually finally inheriting the earth because hard on the heels of that sweeping the web are presuperable. I just caught the most current episode of community last night and it was all about Dungeons and Dragons. They played Dungeons and Dragons on the show. So, yeah, welcome to your new geek overlords the rest of the world. Do you guys think Evan thought that probably it'll get this this Passat ad will get more online views than it does actually during the Super Bowl Super Bowl dear to the mirror due to the mirror. What was it? Let's see. Let's see. Let's start it out with viral. Uptuousness of it. Because it's positively got viralicity. Stefan, what do you think more views online for this thing or or on TV? Well, I've got to say I'm one of these who has actually missed that ad. I'm, I'm, I'm big into a lot of the social media, but Twitter is not one of the ones I use a lot. So I've actually missed this one. I have to catch it after the show. Yes, definitely. Pre the Super Bowl. It's cute. You have a little boy, right? Yes, I do. You won't relate. It's a little guy attempting to use his, he's dressed as Darth Vader. And you got to give the actor a lot of credit because he's, you know, he can't emote with his face. He's got a helmet on. So he's able to sort of convey a ton of emotion just through tilting his head and his hand gestures, trying to use the force and he's trying to use the force on everything and doesn't quite manage to do it until his dad steps in with the facade and its remote ignition abilities. Yeah, I mean, it's great. I mean, we're going to be, I think we'll probably be talking about genetics at some point today. So might as well just talk about how this is such a well replicating kind of meme, you know, because it, you know, the stuff that's in this ad really appeals to everyone. It appeals to, you know, car enthusiasts. It appeals to parents. It appears to, you know, anybody who has known a little kid, anybody who obviously, of course, you know, to super or to Star Wars fans, you know, with the theme playing in the background and the Darth Vader motif and all of that stuff. And so, you know, whether or not it gets more, you know, actual views and more eyeballs looking at it on the Super Bowl, I think the effect of it will be much greater because of the way that it, you know, people are sharing it on Facebook and, you know, sending around the YouTube link and all that stuff. So it just seems to really replicate well and be, you know, a good meme in terms of those properties that it has. Hey, Stefan, Burke in the studio has you covered and has the ad queued up. So let's go ahead and play it, Burke, for anyone who hasn't seen it yet. Get ready to use the force. We have Adia. Imagine a great John Williams score behind this. Yes, exactly. It's got the full, the Darth Vader music. John Williams did do Star Wars, didn't he? I know he just passed away this past week. Oh, did he really? Wow. Yeah. 77. I missed that. I caught this, but missed that. No audio for some reason. Sorry. That's okay. Well, my son is watching in the other room on another computer. So I'm sure he's enjoying this, actually. And John Williams is not dead for the record. Oh, thank goodness. Really? Was that? I'm on the Wikipedia page right now. If anyone's going to falsely report a death at Wikipedia. There was a bogus. No, I'm sorry. It was John Barry. I'm sorry. I'm all confused. Okay, good. We've got some, where's the IRC when you need them? Somebody needs to sort this mess out that I've made here. John Barry, the composer, died this past week. Was it he who did Star Wars? No, it was John Williams. Well, I guess I just kind of halfway, a lot of things then. Sorry about that. There's probably already a rumor on Twitter about this. Anyway, I'll just watch for a little while. Anyway, that has been gauging me the last couple of days. So I'm glad we were at least able to show you the images. It's much better even with the audio. So go catch it when you can. Another thing that's been on my mind the last couple of days is this interesting announcement from Google that they laid a trap for Microsoft because they posited a theory that Microsoft was sort of fine-tuning its search results based on information it was gleaning about what its users were doing on Google search. So of course it could gather information with IE and with the Bing toolbar. And what it would do was watch with what Google users were searching for on Google and then see what they clicked on and see what their post-search activity was. This was all reported at Search Engine Land. And Stefan actually sent me the link earlier this week. And Google, it's not clear what they're going to do with this information. They have not filed a lawsuit. They made public that they believe this is happening and they think it's dirty pool. And I toss it out to you guys. Whether from a legal standpoint you think this is dirty pool, a lot of the headlines have talked about it not so much as an intellectual property infringement or any other sort of actual actionable thing but just sort of cheating, bad form. And I'm wondering whether our panel of lawyers think that it is actionable or bad form. Stefan, let's start with you. Well, if you read Google's kind of commentary on this, it looks like they're struggling to find a way to criticize this without making a legal allegation. So they say, I think in the article, they liken it to leaning over during an exam and copying off Google's test. I mean, this is what's called in the real-world competition. People are competing with each other. And when you see someone else exceeding, you emulate what they do and you maybe improve on it. And sometimes the person being competed with doesn't like it. And I don't see any possible legal, you know, coherent legal claim here. They're not claiming intellectual property infringement. So they keep making these analogies, but they don't really make sense. I mean, when you cheat off of someone during an exam, you're lying to your professor. I don't see that being as lying or breaching any kind of implicit contract. So that's a bad analogy. I think basically Google doesn't like the competition. Yeah, I think that that's probably a good assertion or a good assumption. The thing if, you know, as I rack my brain to try and figure out if there's anything wrong with doing this is that the information is not necessarily publicly available. It's not something that any other competitor would be able to come up with and use because Microsoft is using its own tools to be able to do this. And it's using the fact that its users opt into terms of service that they may or may not have paid any attention to or certainly may not have paid attention to the consequences of in allowing Microsoft to gather their data and track their actions and use that data to improve its search. Now, a lot of people would say better search, okay, go for it. But, you know, I just question whether users really, you know, think these things through when they click on terms of service. And, you know, as I say it, of course they don't. And secondly, you know, going all the way back to the antitrust litigation against Microsoft, the fact that Microsoft is able to, you know, have so many people using IE, of course their share has been dwindling rapidly. And the toolbar, which, you know, you can talk about techniques for how toolbars get installed and whether or not those respect users very well. But they're coming up with a whole lot of information that I wonder if people really, you know, think about how that's going to be used. Ben, what do you think? Well, I was up last night late talking with some friends about the various causes of action that we could think of. The best tool that we came up with was that the Google terms of service prohibit use of the Google services through a means other than the Google interface and prohibit the use of Google services through any automated means. So, if Microsoft Bing was running these searches first through Bing and then through Google in some sort of automated fashion, you'd have some sort of computer fraud and abuse act or trespass to Chattel's argument. The other thing we came up with was unjust enrichment that essentially Bing was taking this and since they were taking it in violation of the terms of service, that was an unjust way of taking it and that Bing was unjustly enriched as a result of that at the expense of Google. So, there's stretches and there's novel, but there's something there. There's something that you could file a lawsuit based on. I don't know how far it would get, but if Google really wanted to do that, they've got at least some legal bullets that they can wield against Bing. Yeah, all of this strikes me as a great law school exam question. I'm just not sure what course you would pose it in towards intellectual property. Business torts or if there was an unfair competition class, something like that. Something like that. Evan, what do you think? Yeah, I like it. I like thinking of it in terms of unfair competition or something like that because, you know, this whole idea of unfair competition is a real mushy kind of equitable notion that kind of forms the larger umbrella under which trademark law resides. It's, you know, it includes a lot of other things more than just like consumer confusion, but it's just, you know, doing stuff to and with your competition that, you know, is more than what a court of equity or a general sense of fairness will allow. So I just don't know enough, and I don't know if any of us know enough technologically what actually happened, what actually happened to help us have a meaningful discussion about whether there would be some kind of computer fraud and abuse act claim or, I don't know, electronic communications, privacy act kind of claim. I don't know, you know, thinking about, if you could consider the search query a communication or if there could be a copyright claim here. And, you know, if we're going to be sticking with kind of the initial unjust enrichment or unfair competition kind of thing, we would hope actually that there's not a copyright claim because I think plaintiffs should be worried then that that would be preempted by the Copyright Act. It's pretty common for claims of unjust enrichment like that to be, you know, preempted because of all the claims would actually be the same as what would be covered under a copyright claim here. So with me kind of just sputtering around, talking about this, I think that that should be evidence enough that I can't see a really good cause of action that Google could have here other than just saying it just looks bad. I think, did you say dirty pool? Is that what you said to describe it? It just kind of just doesn't seem right. It doesn't seem like Microsoft should have done this if indeed that they have, which it appears that they have here. And, you know, even if it is something that they shouldn't have done, maybe we should just wonder, you know, should step back and think at a fundamental level. And this might be something that Stefan, you know, would definitely have some things to say about, I would imagine, you know, should we even care? And, you know, maybe we could draw a line from, you know, this discussion to, you know, the typical kind of Cory Doctorow line of talking about things. And there was actually an article in our show notes for today where Cory Doctorow posted something from an interview with Francis Ford Coppola who actually took a very much of a hands-off approach to copyright, you know, looking at the virtue in copying others' works and doing all these things. It's like, well, you know, is it really going to matter if somebody's copying you and all of that stuff? There seem to be certain related principles between this and the whole idea of an anti-intellectual property perspective on things. What's to say that everybody shouldn't just be available to copy, everybody should be available to copy off of everyone else as stuff to copy becomes available. So maybe there's no harm, no foul in the end. I just don't know. Maybe you can add something. Sure, go ahead. You first and then I'll jump in. I was going to say, I think that Google has to be a little bit careful here. First of all, there's a distinction between what's legal and what's wrong, and we're talking about both. That's blurred a little bit by federal government regulations like antitrust law, for example. So antitrust law is telling Microsoft they can't do certain things. Federal law is giving Microsoft and Google copyright, which is like a legal monopoly. So there's a tension between the rights of the governments giving these companies which sort of blurs the distinction we try to make between what's wrong and what's legal because it just confuses the whole thing. And on the other hand, we've had other search engines like that one that's like Google but it's black in the background so that it saves energy. Take Google search results. I forgot the name of the site. And then in the old days, remember, Altavista used to sort of aggregate search results from other search engines. This is a common practice to use the results of your competitors in one way or the other. So there's nothing really that strongly immoral about it. It gets blurred because people get confused about whether it's wrong to compete or right to compete or whether you're abusing your monopoly and yet the government's giving you a copyright monopoly in the first place. So the whole issue is just confusing. I'd say unless there's something clearly wrong, we have to let them compete. I think Google themselves has to be careful because they've been accused of similar wrongdoings on the other side, right? Like when they have their Google print project, which they've scanned a lot of books in and they're not going to reveal the entire text of a book that's subject to copyright without permission because the consequences would be too dire, but they do make a profit from their search business and from revealing these snippets, right? And there's trademark suits in the same regard. So Google has been accused of something similar to what they're accusing being of here, of basically profiting off of others' work. So I think that might be one reason they're just kind of making metaphorical criticisms without being too legal about it here. Blackle.com I'm told in Overskype is our, or from Vince actually in IRC, is the dark version of Google. And maybe it's not so much a legal ploy on Google's part, but a PR ploy, Jack in IRC, points out that Bing has this whole ad campaign based around how search results are so confusing to people and wind up coming through as just a bunch of babble and that Bing helps you cut through all that and get right what you want. And so here's Google pointing out, well, maybe that's the case, but you're building your house on our foundation. So I don't know, it doesn't seem to me like beyond the world of people who read Search Engine Land and listen to folks who discuss those things that there's not a whole lot of widespread appreciation that this has actually happened. But we can only wonder, we've got Andrew Thompson at our Facebook site, which is facebook.com slash this weekend law, saying he's not surprised when monitoring your major competitor, you're of course going to copy their actions or tailor what you do to match. This happens in every business, for example, retail price matching, wireless price matching, including text messaging, et cetera. Jason Watkins thinks Microsoft is playing the hand they have. They, let's see, they need to do what they need to technically admire it in so much detail and data that it will take years for the lawyers and courts to sort it all out all the while, you know, they're building up their search base and the quality of their results. And Alan Otseno wonders what the damages for this sort of thing would be. Well, that would depend on what sort of claim you could cobble together as we were discussing. We're not sure that there really is anything actionable there to talk about other than just to discuss that perhaps this doesn't look so great for Microsoft. Final comments on this? Yeah, I have one. Denise, I think on a recent show, you guys were talking and you had some kind of tangential comments about the enforceability of these sort of click wrap type agreements that people click on. And I think it was on your show where there was a discussion about people just clicking yes to sort of crazy terms like giving my child or something like that because they just don't pay attention to these things, right? And even for these sort of... Oath wants to murder your children, I believe was the discussion we were having. Right. And there was sort of an implicit assumption by you and others, which I think makes sense that maybe some of these click wrap agreements are not completely enforceable under various legal doctrines. And I think even in the sort of free market pro-property rights libertarian stance, there is an argument there that there's really no meaning of the mind, right? I mean, if you just click on something as a matter of course, there's a lot of fine print in there, there's sort of an assumption of good faith, right? That there's not any term in there that's not beyond the customary terms or what the user would expect. So if some crazy term is snuck in there, can you really say that it was agreed to or that there was a meeting of the minds, right? And this goes to this case because I think probably the strongest argument would be one of these contractual arguments that, you know, being has basically agreed to some kind of terms of service by Google by using their site or their service. So then the... Well, of course these are two big parties, too. So you really can't say that they don't have the legal capacity to read their terms of service and understand it. But there is an issue about how binding these click-wrappable or whatever you want to call them, online terms of service are. Ben brought up Trespass to Chattels. We like to talk about Trespass to Chattels whenever we can because it's such a strange sounding doctrine. And it's so cumbersomely applied in the technology world, but it comes up from time to time. And in this particular case, I think it would... It's kind of very funny to try and apply it because you're talking about making a case that you've overburdened Google. I don't know that that's possible. Yeah. Yeah, that was a stretch for a lot of reasons, not the list of which is that, I mean, for one, you can't overburden Google like that. Second, it doesn't seem like there are a lot more than 100 queries that being made to Google or maybe it was a few hundred, but even then, I mean, the idea is you have to do so much traffic to Google that you physically cause damage to their systems, which there's no way that actually happened. And you could make an argument that Trespass to Chattels, I think one of the first cases of the copy-serve and cubby case back in the, I guess, 90s. 91. 91, okay. So the idea is that it's a way that the law says that you cannot use someone else's property without their permission, even with electronic means or over the internet, right? So in general, you can browse someone's website because that's what the website owner wants, but they put certain limits on that. So it's like a license. But it's hard to argue or to analogize what Bing did, I think, to basically spam, which is what I think the traditional Trespass to Chattels in the internet context involves. It's hard to imagine that it's analogous to spam or to some kind of hacking into the system. The eBay case had to do with scraping, gathering data about auctions and republishing. Wasn't there a whiz case that dealt with getting personal information and demographic information address and phone numbers from whiz queries? I don't remember that one, but it sounds like a good Trespass to Chattels claim. Was that the Virio case? I believe if you say it's true. The one that I always think about is the, I think it was Intel versus Hamidi. Or Hamidi versus Intel. Yeah, it was a California case where I think that there was no Trespass to Chattel in that, right? I mean, because of this assumption. And that would seem to underlie the analysis under the Computer Fraud and Abuse Act in the same way most courts, well, at least the seventh circuit here where I practice, require that the damage allegation element under the Computer Fraud and Abuse Act would be damaged actually to the integrity of the system and not just the resulting damage or loss that would be to the business from the, you know, the taking of information. The archetypal example is the former employee hacks into or even just uses his unexpired username and password to get onto his old work email account even after he's left and download the customer list and download his email, log into the system, download the customer list and all that stuff. If there's no actual diminution to the functioning of the system, there's no problem under the Computer Fraud and Abuse Act there because of, well, because of the absence of that. It seems like that would be the same problem with a Computer Fraud and Abuse Act claim for this. We're not gonna say that Google was overwhelmed because of all of this. Yeah, on that note, I haven't looked at the case law in a little while, but last time I looked at it, I looked at the case law for what you could use to prove damages under the Computer Fraud and Abuse Act was all over the place. There were some circuits that said, you know, if you hired a security expert to come in, that would be sufficient to say, you know, that was damages. It sounds like what you were saying, Evan, in the 7th Circuit, it has to be actual damage to the system. I'm kind of surprised that no one's... What you're talking about with hiring the consultant stuff goes to the element of loss. It's just wacky. I don't know of any other statute that's more Byzantine than Title 18, Section 1030. Wow, that's a big claim. Well, that's because I don't read a whole lot of statutes. We'll say that. Where the real split among the circuits is is whether or not the Computer Fraud and Abuse Act requires both loss and damage or whether it's one or the other. And it really is reasonable to read it both ways. And so the real problem comes for those jurisdictions in which it is read that it requires both of those. And I guess I should clarify what I said earlier about what the law of the 7th Circuit is. It's actually not... I don't know that there is a case in the 7th Circuit that addresses this point of whether the Computer Fraud and Abuse Act requires both loss and damage. There's actually a split among the various district court judges within the 7th Circuit. Some judges will say you have to plead both loss and damage. We're getting way too detailed. It's sort of a semantic splitting of hairs. Loss and damage are too similar to really separate. Anyway, I'll back up here. Well, I think that the folks in Egypt would agree that it was both a loss and a damage when their internet was cut off. And there's been so much discussion about that this week and also reminiscing to the fact that an internet kill switch has been proposed in the U.S. It's not currently on the table, but who knows if that will come back around. And so I wanted to toss out there to all of you, just... And someone in IRC actually put up this issue and the link that we have in our show notes at delicious.com slash this weekend law at the end of last week's show. So I wanted to get to this. And that is the question of whether internet access is a fundamental human right entitled to the various legal protections that fundamental human rights get to varying degrees in varying countries and under various regimes. I think more and more people are starting to feel that it is. We have talked on this show before about in the net neutrality context and specifically not in the net neutrality context so much actually, but in the context of what ISPs can or might do in enforcing infringement and coming down on infringers and the whole three strikes regime where if you're caught doing something nefarious with your account three times, then you're off the service. So I want to toss that out. And Evan, let's start with you. Whether you think internet access has become a fundamental human right because of all of the beneficial things that people are able to do with the internet and necessary things to daily life. And if so, what sort of limitations should be put on governments or private entities such as ISPs from taking away that right? I suppose that for all intents and purposes, internet access has become a fundamental human right. But I don't think that we can say that without exploring a little bit as to what underlies that and how we've gotten there. What unequivocally, what indisputably is a fundamental human right is the right of expression, the ability to express these ideas. And so that, you know, the scope of that right is essentially lays down and overlaps completely the right to access the internet because the internet has become such a pervasive of way of communicating. So it really is nothing more than just shorthand from point A to point C to say that access to the internet is a fundamental human right because it is based on the technology we have now the best way to reach the largest numbers of people with the content that is being expressed. So, Stefan, I'm curious to toss this to you given your political views of the libertarian nature. Over on our Facebook page, Jason Watkins says that no internet access is not a right, it's a privilege like driving. What do you think of all this and can or should governments or entities be compelled to act in a certain way based on things that people want to do? So I agree with what Evan said, actually, although I would cast it a little bit differently if I were starting from scratch. And let me just outline, in my view, any even fictional or prophylactic doctrine that limits state power to invade individual rights is useful and I'm happy with. The problem with the term human rights is it sort of has a leftist or socialist tinge. It's very commonly used in United Nations declarations that go beyond merely negative rights is what libertarians would talk about, the right to be free from government invasion or unfair prosecution or infringement of free speech rights, things like this. But they also sort of include a lot of positive rights like welfare rights, the right to an education, the right to a job, things like this, that are more controversial and different in character from negative rights. So the danger of characterizing internet access as a human right, I mean, it's useful to characterize it that way because then it can serve as a limit on state power to invade that right to cut off access to the internet. And I agree with Evan in that respect. But to characterize it as a human right, then the next step would be, well, then everyone is entitled to the government subsidies or some kind of state provided public utility and access to the internet. In other words, like a positive welfare right, like from bringing a fiber line to my home, which is problematic in a couple of ways. Number one, it's just, it requires taxation. And number two, do you really want the government to provide the communications infrastructure that is in jeopardy by the government itself as in Egypt when they cut the internet off? So I do believe it is a violation of individual rights and property rights when the state, and especially in the earlier drafts of the Acta, and by the way, one of your show notes linked to this great interview by Leo and I think Tom Merritt with Michael Geist, right, the most one or two shows ago of their triangulation podcast. And it's a great discussion of how this Acta, this any counterfeiting trade agreement, which is winding its way through the world system, tried to sort of sneak in in a stealth way in a very dishonest way by shifting the agreement from what it should be. It should have been an openly negotiated treaty instead of being called a trade agreement, which are typically negotiated in secret. But it had these provisions in there earlier about the kicking someone off after the three-structure-out rule, things like this. And those are clearly bad ideas for the government to have this power. Now, whether you characterize it as a human right or not is, to me, packaging and semantics. I just think you have to be careful not to characterize it in such a way that it gives people a positive right to expect the government to come take over this service and provide it at taxpayer support. Right. And I'm going to go ahead and just throw in here. Since we brought up the triangulation interview with Michael Geist, that is our resource of the week. And if folks have not checked that out, you need to go listen to episode two of triangulation with Tom Merritt and Leo and Professor Geist from Canada. Really wonderful background, primarily on ACTAB. But on lots that Professor Geist has been up to, a great professor of intellectual property law and thinker and blogger and activist. So definitely check that out. Ben, what do you think about casting internet access as a fundamental or human right? Lots of people in IRC are saying it's like the phone and phone is not something that people are unilaterally entitled to and can be cut off. What do you think? The most interesting thing that I've seen so far about this in the IRC is a reverb mic says that he has data stored on the internet on services like Carbonite and to cut off access to his internet would block him from using the data that he has stored there. You could frame that as a seizure of personal property without due process and without a warrant of any kind. So that's certainly an interesting take on it. I haven't really had enough time to work it through to know if that's a really good argument or just a decent argument. But to go back to what Evan said, the internet has become a major channel of speech for pretty much everyone on the internet these days and cutting off somebody's access to the internet while they still have other channels of speech available to them. I think you could cast as a pretty decent infringement on First Amendment rights to freedom of speech and even association. So while I'm kind of reluctant to go so far as to say it's a fundamental human right, I would go so far as to say that their First Amendment and even maybe other constitutional implications can have somebody's internet that, from what I can tell, no one at ACTO or Congress has really sat down to consider and work out yet. I agree with that, Ben. I think that's a good analysis about the First Amendment. Evan, let's play this out sort of logically. If a law were enacted in the United States that the government could unilaterally shut down the internet in the event of some dire national security emergency, what do you think the constitutional chances of such a law would be? Do you think it would get struck down a la Roe versus Wade? Well, you threw me off when you said Roe versus Wade because I was thinking more of just like a pure First Amendment case when I think Roe versus Wade. And I was thinking more sort of fundamental human rights. Yeah. If I hadn't known the way that Stefan and Ben were going to kind of attack that characterization of human rights, I would have taken issue with it as well. I agree that that's very freighted, if you will, with kind of a semantic connotation that opens it up to these positive rights that Stefan was talking about, which I have a certain disdain for as well, not because I characterized myself as a libertarian, just because I consider myself a pretty moderate guy all the way around. I don't want there to be a government obligation to do all that stuff. So the best way that we could characterize it using the nomenclature of our jurisprudence would be to characterize it, I think, as a... Well, certainly as a constitutional issue, as you're saying there, and my knee-jerk reaction was to say that it was a First Amendment issue. So then we would go through that whole strict scrutiny analysis. Is this restriction that we're placing on here narrowly tailored to meet a compelling government interest? Should the internet be cut off to this group over here because they're plotting to fly airplanes into skyscrapers in large cities? Is that a compelling government interest that means that we should sever their cable? Maybe so. That's at least a framework that I see of it. And I'm interested to hear what you were saying about the real versus the way due process kind of autonomy kind of argument. What were you thinking along those lines? Well, I was thinking, I think, kind of what Sandy McKeon was thinking over on our Facebook page that access to information is a basic human right and the internet has become. Again, this goes to the Carbonite comment from IRC, the way that so many people access information and communicate. So if you're going to have limitations on that, they're going to have to pass due process and other constitutional muster as well, I should think. So I think that it's an interesting question. We'll have to see if that legislation comes back around in the U.S. or not. But it's certainly timely in light of what we've seen happening globally this week. What I want to switch to now and anybody who'd like to can take a break at this point because we're going to thank one of our sponsors for today's show, hover.com, which is one of my favorite online services. It is domain name registration made simple. Over the years, domain registration sites have become more and more complicated. I still use GoDaddy for some sites, but I am in the process of moving my domains there over to hover.com for all of the reasons that we talk about here on Twill. 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So for all these reasons and many more that you'll discover when you go over to Hever.com, do go there and use offer code TWIL, that's T-W-I-L dot Hever.com and the offer code TWIL, T-W-I-L. And you'll get 10% off each and every service that you use over there on their site. So check them out and we thank Hever for their support of this weekend law. So guys, the other thing that has been in the news lately that relates somewhat to what we've been talking about with Google and Bing is the state of do not track technology. So the browsers and the browser makers are all responding to some privacy recommendations from the FTC that came out last December about letting users opt out of behavioral advertising and tracking. And presumably if Bing and the Bing toolbar had had these kinds of fine-tuned controls for users in place, perhaps Google would not have been able to find out that Bing was doing this kind of thing with the data they were collecting because perhaps they would not have been authorized to collect the data. It's an interesting twist. I think that the do not track tweaks that are being proposed for browsers are thinking about third party advertisers and not for the browser supplier themselves. But of course data can be collected and used by anybody as we see in this Google Bing example. So Mozilla has new proposals out. Chrome will follow suit. IE says they're readying features. We had Jeff Jarvis on the show a few episodes ago and he says this is ridiculous. We need to not have the government coming in and mucking about with people's free choice to allow themselves to receive targeted ads and the other services that may be beneficial to them by having their web experience tailored. But again, what these browser changes are designed to do is to let people choose whether they're going to be tracked by whom and under what circumstances. So it's not necessarily the death of the entire online advertising industry or is it? Stefan, what do you think? I was a little confused about exactly what the FTC's role is in this. To the extent the FTC has a role, of course, I would think it's a little ironic for one of the biggest threats to our privacy and one of the biggest collectors of information that can be used against us to be acting like it's concerned about our privacy. This is almost always a Trojan horse or some kind of... There's something else going on here. To the extent it's a private thing, I'm in favor of it. I do think... My view is this. I mean, we heard about sort of PGP and encrypted emails 10, 15 years ago and it really hasn't caught on yet. But I do think that as a lot of problems are on the world increase and the government's sort of cracking down on a lot of things, IP piracy, terrorism threats, things like this. And as a technology becomes more sophisticated and the users do too, I think there will be a greater demand for this type of thing, a way to cover your tracks, a way to encrypt your data, especially in light of one of your other show notes about the idea of... I think it was the Department of Justice or one of the federal agencies trying to require ISPs and other service providers to store data for a while so that they can be subpoenaed later on in courts. So I think in response to that, you're going to see an increasing demand on the part of customers, especially people that have dissenting views or in areas that are... Countries that are not as stable as this one is right now. They're going to... They might prefer a service that allows their data to be encrypted and only they have the key. So even if a subpoena request comes in, the ISP just cannot comply. So I think that these things are going to become more popular. I do whether the FTC pushes it or not. What do you think, Ben? Generally, I mean, I agree. It doesn't seem like the FTC is requiring this quite yet, which I like. I'd rather the FTC come out with a good idea and lots of people implement it and those people who understand it and want to use it can opt in and those people who don't want to use it don't have to opt in. I mean, I've personally always been of the mindset that if I'm going to see ads on websites, I'd rather see ads that are relevant to me than ads that are not relevant to me. So, you know, overall, I think that it's great that they're suggesting something, a feature that a lot of people like and the less that they actively interfere in the internet, the better. But again, if they want to suggest things that people like and are implemented, you know, have fun. Right. Evan, is there a correlation between these browser tweaks and what we've discussed on the show before about what's going on in the mobile app world about information being gathered about you without any sort of disclosure or opt-in regime in place? I think the mobile aspect of it just makes it a bit creepier, if you will, because when you're out and about, you're painting a higher resolution picture of yourself and the things that you like to do and the places that you like to be rather than just more than what you do when you're stationary in front of your machine at home or even sitting on the couch on your iPad or whatever going from site to site, you know, when you're out checking into places and to use the word triangulation again, you know, in the literal sense, you know, putting this information out there to the cell sites and all that stuff about where you are, you know, that just elevates the level of creepiness a little bit in as much as if that information is put together in a way and a certain dossier is developed about you. It's much more revealing than just, you know, plain old browser activity from here to there. So it definitely needs to be thought of as one package with, you know, enhanced components from the mobile aspect of it all. Right. So let's talk about the permutation on this that Stefan brought up and that is, okay, so people are either being tracked because they've opted into it or they're being tracked because they haven't and that information is all being stored somewhere and in our current way of doing things and service providers current way of doing things, how long that information gets stored is all over the map. It might be a couple of days. It might be several months. It might be a matter of years, but that is left to the service providers at this point to determine and my personal experience and anecdotal impression is that service providers want to dump this information as quickly as possible. You know, they want to keep it for as long as they might reasonably need it for, which is not very long. And then they want to get it out of their system so that they're not constantly forced to respond to discovery and subpoena type requests for information about users. The DOJ wants ISPs and other service providers to be compelled to retain user data for up to two years. I was hearing about this on January 25th, where the DOJ said it was necessary to put this two-year or up to, I'm not quite sure why we're talking about up to two years versus two years, to put this sort of limitation on data dumping in place because they need it to fight internet crime, especially child porn. And you know, whenever the DOJ invokes child porn, they really want to get everybody's attention. So Ben, what do you think about this? Do you think it's going to go anywhere? And if so, what sort of a burden will this be on service providers? Oh, I'm not the best as far as guessing where legislation or new regulations are going to go. I mean, I really don't know what to say. It would be nice to have, at least as a user, some kind of ideas to how long my data was going to stick around. But again, as far as somebody forcing the service providers to, as far as the government saying, you know, it has to be around for this long, that's, again, I like that less I would like to be able to choose which service provider, you know, keeps my information around for the least amount of time. You know, I say this in the ideal world where I have a choice of more than two internet service providers that provide wired internet to my house. And it's much more than just, you know, service providers that we're talking about here. I mean, we're talking about any social media platform, really. I mean, you know, just, you know, it could be useful to a criminal investigation of, you know, what IP address you use to upload a photo to Flickr, you know, for example. And so that would be, you know, a burden on Yahoo. I look at this whole problem from the perspective of the intermediate, the service provider, because it's those kinds of companies that I represent. And so I'm always looking out for their interests in all of this. And, you know, if you were to generalize across this, you know, very broad category of entities that I refer to as intermediaries or service providers, you know, that whole layer right there. You know, especially for startups doing innovative things, the profit margins are not huge for these things. And bandwidth costs are expensive. If you have a data center, that's expensive. You owe rent there and you've got lots of things to do. You've got a lot of money that you're dumping into tech support and, you know, just paying to keep the lights on and all that stuff. So the thing that troubles me the most is I don't have any proposed legislation or, you know, pronouncements, whatever the Department of Justice could do when it comes to extending or enlarging the period of time that information has to be kept here is to, what I really would like to see along with this is some kind of financial component to ease the burden on the intermediaries for this. And that could come in a number of different forms. The easiest way it seems to be would be in some really nice tax break for the extra expenses that are incurred both in human resources cost and storage and, you know, the data center costs, you know, from maintaining this information for a long time and also the administrative headache of just having to respond to subpoenas and to court orders and requests for information and what are those called CIDs, those civil investigative demands from the FTC and things like that. All the things that would be eliciting this information from the intermediary, that's expensive to administer all that. So I would not be as unsupportive of a longer period of time because I recognize there's a true public interest in that and that is fighting crime, keeping pedophiles off the internet and all that stuff, but it's got to be met with some kind of incentive or at least cost-defraying mechanism for the service provider and all of this. Right. I sort of have mixed feelings about it. On the one hand, I'm with you, Evan. I want to try and, you know, think about what makes the best sense from the business standpoint balanced against the public interest of law enforcement, of course, and, you know, you don't want to overly handicap either one of those and it seems like we have a real tension here going on, particularly because we could wind up with a problem where there is no uniform standard and we have different states then stepping in and acting there, you know, having their law enforcement agencies say, well, we need you if you're doing business in our state to keep data for X amount of time and so you maybe have a benchmark that's set by one of the states since everyone does business everywhere these days. Stephen, do you see any rhyme or reason to a solution for all this? Well, so my take on it is this. First of all, I think we should distinguish between the state and the federal government. So this is a federal initiative, right, by the DOJ, which we should put a sick after, as I see. And they're enforcing mostly unconstitutional laws. Laws against drugs, laws against, excuse me, well, actually unlawful property is constitutional. It's just a bad idea. But the point is to the extent it's legitimate it will be down to the benefit of the states, which by and large enforce reasonable laws. But the problem is you have, like in the last segment we talked about the FTC, you have this agency which goes around telling companies they cannot form monopolies and yet it's colluding and trying to have concerted action among all these companies with a policy it favors. So there's hypocrisy there. It's the same thing with the DOJ here. So the DOJ is part of the federal government, which, I mean, from one perspective you could say it does a lot more harm to children in the world than even child pornographers do. I mean, it's bombing and murdering children in other countries. It's destroyed the African-American family with its welfare and its drug laws, robbing them of fathers and causing a criminal class to arise. So I think we have to keep our eyes on the ball. The federal government, when it claims these things that tug at our heartstrings like child pornography, I don't think that's their main interest. Their main interest and there are bigger damage, a bigger threat than that. Their main interest is terrorism and these federal issues. And I think what's going to happen is that if these kind of regulations are imposed, people will start having encrypted data. They'll just insist on that. At least the terrorists and the bad guys are going to do that. They'll take the time and expense to do that. So then you're going to have regular, fairly law-abiding people who are subjected to all these inconveniences and encumbrances and invasions of their liberty and data being stored and files kept on them. So you basically criminalize the average person sort of like the digital millennium copyright act does right with regard to anti-circumvention technology and ripping DVDs and things like this. I mean, your average pirater is not going to be affected by this. They're going to find a way around it. So I think this is not a good idea and I think it's just going to lead to more federal power. I think that, go ahead. Well, there's a certain analogy that can be made with what you're saying that goes back to an issue that we were all, all of the United States was talking about around Thanksgiving and on into the Christmas holidays with the scanners. You remember all the brouhaha over the back scatter scanners and the groping by the TSA and all that stuff. I mean, it's no mystery. I can't remember if somebody here on this show said this or if I just had it in a conversation with somebody, but you give five, 10-year-old kids some C4, a little bit of C4 and make it their challenge to get that through airport security and onto a plane. You know, they could accomplish that and the point being I'm trying to make here is that the government in its grabbiness and all of this stuff is penalizing the 99.999% of people who fly the friendly skies without the intention of blowing up an airplane, but we're all penalized by having to go through all these standards there. That seems similar to what you were talking about. The true bad guys are just going to go further underground and be harder to catch and it's an inconvenience for everyone else. Right. Yeah, and then the law, and then the congressmen and the state agents are able to get out of this, right? So they have an exemption, so they don't suffer this in the same way. And then you have Obama in the State of the Union address making a joke about it, which was kind of chilling, I thought. I mean, he's making a joke about how if we have more travel on trains then you can skip the pat-down. And people in the audience laughed and it's a little bit strange because this is a group of people who won't be subject to it because they're congressmen and Supreme Court judges and the executive branch. And they're the ones that are enforcing this on us and they're joking about it like it's something they can't help and that we should have travel on trains instead. And there's no guarantee that they won't impose these kinds of pat-downs on trains, too, in the future. So if we have more travel on trains, they will. They'll have to. So this whole discussion is reminding me of something else topical going on right now. Here's a quote by our Solicitor General nominee. The record companies my clients have said for some time and it's been on their website for some time now that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer and put it onto your iPod. This made news when he said it in open court during the Groxter case. He was an attorney for the entertainment side of the table in that case. Don Verrilli has been put forward as the next Solicitor General of the US. And so I think that, you know, he may have, he tossed that out there and I think he raised a lot of eyebrows on both sides of the table. Number one, you know, on his own side where it was sort of back and forth, you know, whether you could actually, whether it was legal to rip a CD under the DMCA or not, had never been definitively said until this lawyer for the copyright industry set it in court. And secondly, he, you know, I think to the great rejoicing of the other side of the table was confirming something that they'd already been asserting for years, but it points out how arbitrary these things can be if you have all the power in your own hand to say what is legal and what is not. So Ben, any thoughts on this, on Don being nominated for Solicitor General? Yeah, I'm kind of happy that you went to me because throughout the, since the beginning of the Obama administration there have been lots and lots of stories about Obama and the White House or the Department of Justice hiring former attorneys for the recording industry and other, you know, agencies and companies that the people in technology tend not to like. And I don't think a lot of people understand this about lawyers is that we are very good at making arguments that our clients pay us to make. Yes, it's true that, you know, some people will gravitate towards areas where they, you know, especially special interest lawyers, people who work for things like the ACLU and the NAACP, they will, the NAACP defense fund, they will gravitate to those areas because it's what they really believe. People who work for, you know, defense attorneys don't believe that every client is innocent. And, you know, they, in fact, having worked in criminal defense for a little while, they don't spend a whole lot of time wondering whether or not our clients are innocent. It's just because we're there to make legal arguments one way or the other. I don't think we should describe this person, Malice, toward, you know, consumers of music because he worked for the RIAA. I think he worked for the RIAA because he probably had an interest in copyright law or licensing and they were hiring. So, really, the vast majority of the time lawyers are not, you know, wholly gung-ho and supportive of the positions that they put forth in court. They make the positions that they're paid to put forth. Mm-hmm. Evan, any thoughts about the Solicitor General to be? Make you nervous? Well, not in particular. I mean, he'll do a fine job. He's a smart lawyer. He's a good advocate. He's well-spoken and all that stuff. But I would just echo what Ben just said right there. I mean, that's one reason why, you know, you've always got to take what a lawyer says with the grain of salt, except for all of the participants on this show, of course, because, you know, they're often motivated by interests that are subterranean, so to speak, you know, on the surface, which is no further underground than, you know, where the checks from their clients are coming from. But I suppose that the best lawyers, regardless of whether they're purely a, you know, going after a specific interest like what Ben was talking about using the NAACP Defense Fund, and I suppose that, you know, kind of in our little corner of the universe here, the things that we talk about, you know, like the folks who are with public citizen or EFF or something like that, you know, there's a certain intrinsic motivation from all of this. But good lawyers, even, you know, who work for big firms, you know, can kind of align the work that they do with a certain motivation that they have, and so good work is often done by attorneys who are using that synergy of a certain intrinsic motivation with the pecuniary gain that can be had from this noble line of work. Or something like that. I want to give a hat tip to Matt Niko, a former toil guest and former general counsel for Morpheus and Streamcast in that same case for posting that quote from Don Verrilli on his Facebook page and triggering a little discussion on all this there. Stefan, as an IP abolitionist, does Don Verrilli, as Lister General, make you nervous or are you okay with this? Well, I don't see much distinction between all these guys. They all come in and they follow the federal policies and the interests of the RAAA and all these groups. I do agree with Ben and Evan and what they said about being an advocate. I mean, I file patents for my company primarily defensively. I think it's a waste of, not a waste of money given the climate, it's an unfortunate waste of money. But lawyers do represent their clients. I've often thought that one reason lawyers get a bad rap in the populace is because we so vigorously represent our client's interests even more vigorously than they would sometimes, right? So we sort of get the blame for what our clients are doing by proxy through us. In my experience, most lawyers, I know they're litigators or representing someone who's upset about something, they try to dissuade them from suing and settle or be reasonable, but almost every case where I see a crazy trial, now I'm not really close to the sort of plaintiff's contingency fee bar where it may be different. But usually it's a hot-headed or a stubborn client. And the lawyer has no duty, no option but to go with this client's wishes. And so we get sort of the blame because we're just a vigorous representer of their interest. And I think that's a good thing. I think that people need to have someone who represents their interest 100%, especially against an opponent or against a state in a criminal matter. Right. Yes. Well, someone else who's going to represent your interest 100% when it comes to keeping viruses and spam out of your email. How about that for a transition? That is nice. 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Small business accounts start at $2 per user per month for 10 users, but there's been huge demand from the folks who listen to the Tweet network, and so MailRoute has added a new service for individual users as well. Less than $30 per user per year. So visit MailRoute.info to sign up with the email filtering service that Tom and Leo here at Tweet use and love. Thank you so much, MailRoute, for your support. Hey, Ben, I see that the shoe has fallen in the net neutrality ongoing back and forth, and that is because Verizon is now challenging the FCC's net neutrality light in order preserving the free and open internet. So when that came out in December, lots of people were saying, well, this is all well and good, but we've seen what the DC Circuit thinks about the FCC's authority along these lines, which is not much, as it evidenced earlier in the year in the Comcast case. And now Verizon wants to get right back in front of that very court, and in fact has hired the same lawyers that Comcast used and wants to put that issue, I guess, to the test again. You want to tell us about that? There's not a whole lot to tell quite yet, so you covered a lot of it. After the FCC published their paper explaining their impending net neutrality regulations, Verizon filed a notice of appeal with the U.S. District Court, the appeals court for the DC Circuit, basically saying, well, now that these are public, we're going to challenge them on constitutional grounds. They filed a little short, I think it was about a three-page document that explained in kind of broad strokes what their arguments are going to be, that it was unconstitutional, that it was in excess of the FCC authority, and after they did this, MetroPCS got on board and also filed a notice of appeal. The most recent development, though, that I could find was that the FCC has filed a motion to dismiss the appeal because it was prematurely filed by Verizon, apparently. And this is kind of a weird statute that allows certain companies to appeal directly from the publishing of a new regulation, the federal register, certain companies under certain circumstances can appeal that regulation directly to the DC Circuit Court of Appeals as opposed to the typical path, which would be filing a suit under the Administrative Agencies Act and the District Court and then appealing that. So back to what I was saying, the FCC has filed a motion to dismiss the appeal because they're saying, because the regulation hasn't been published in the federal register yet, this appeal is premature. So I mean, I guess the first thing we're going to hear is whether or not, is the ruling on that motion, whether or not the appeal is dismissed or whether or not Verizon has to refile it. And then once we get past that, we can expect the first round of briefing as far as whether or not Verizon and MetroPCS's argument as to why these net neutrality regulations are unconstitutional or in excess of the FCC's power. All right, Stefan, I'm guessing you think that the DC Circuit is going to go as it did last spring and slap the FCC for what it's done here? I'm actually not sure. I think their power may be broad enough to do this. I think it's unclear. I mean, I go back and forth on this issue. I read the show note on this. It was a little bit confusing, but I've logged on this issue before. I mean, the whole issue is confused because in a perfect world and a free market, well, there would be no state, but there would be just protecting property rights. They wouldn't be regulating how companies do things, and you'd have more competition presumably in the long run and so you wouldn't have as many limited choices as we have now. The problem is the government buys its regulations. A lot of regulations that people think on their face support the small guy or the little guy, like the minimum wage or pro-union legislation, anti-trust law, actually or advocated for and actually benefit the larger companies, the big businesses that are basically in bed with the government. So we have sort of a version of crony capitalism in this country where we don't have a completely free market, although it's sort of mischaracterized in that way. And so what you have is you have companies that have a larger monopoly power than they would have in a free market. And then the government uses that as an excuse to come in and say, well, they have too much power so we need to regulate what they're doing. So the government's winning it all three or four ends. My personal view is that the federal government should not interfere with the contractual relations between these companies and their employee and their customers, even though they probably have extra market power that they would not have without say government copyright law, government anti-trust regulation and all the other laws I mentioned. They should reduce those things too. So I'm really opposed to that neutrality because I think the state is going to use it as a way to control the internet in the long run and it's better to let the even imperfect free market we have now just sort it out. I mean, we do have competition, even if it's not as grainy or granular as we would like. There's wireless broadband access. There's sometimes two or three competing carriers in an area and I just say let competition sort it out. But I'm afraid the FCC will have the power to do what they want to do. Yeah, that's a pretty frequent complaint about that neutrality even from people who you might otherwise expect to be advocates of it is that yeah, it sounds good now, maybe under this regime, but you give the government this kind of power and you're not quite sure what it's going to do in the future. Evan, any thoughts? I appreciate what Stefan just said about there because I think the easy reaction to have is just to say network neutrality is a good thing. Therefore, whatever needs to be done should be done to implicate it. But if the government gets that power, it's going to be much harder to take that power away than it would be to suffer the consequences of the imperfect state of affairs that would arise if the government never got that power in the first place. So I'm glad Stefan said that. Yep. Hey, let's talk about abolishing intellectual property for a minute. Since we have a renowned advocate that IPB abolished on the show with us today, I thought we have a couple of stories that kind of relate to that. Evan, you brought up Cory Doctorow's post about Francis Ford Coppola. Stefan actually sent that my way earlier this week. And also there's a fellow out there who's written a book called Don't File a Patent. His name is John Smith. And he has written this tome explicating why basically the patent system is broken and you can get further in competition and in business by steering clear of it. So let's toss those couple of things out. Let's take patent first since also Stefan has just posted, I think just today, something that relates to defensive patents and is all kind of part of the same discussion. Stefan, do you think that people shouldn't file a patent or is it too dangerous? And you're right, the post I did today does relate to this. I didn't think about it at the time, but it does. I understand this guy's frustration. This is John Smith. I read the post you had up there. I file patents for my company. We have a small private high-tech company. I think in an ideal world, a lot of my salary or at least the filing fees wouldn't have to be there. But in today's world, there is a patent system and if you don't arm yourself, you're in danger. You're in danger of being sued or having no defense, right? Accountant defense. So just like tax attorneys are necessary and just like oncologists are necessary because there's cancer, it doesn't mean that in an ideal world there would be cancer or taxes or patent law. But given the existence of these things, I think you have to be realistic. That said, a lot of small companies do not have the ability or the monetary resources to file for patents or to enforce them if they get them because it's multimillion-dollar expenses to enforce a patent or even to defend against a patent claim with one of your patents. So one of the strategies you can use is what I blogged about today. If you practice an invention that you came up with in private, there's a danger that it could be independently invented by a competitor who can patent it and then shut you down and stop you from using your own invention because there is no prior user or independent inventor defense in the patent law. There's a limited defense for a business method patents, which ironically are being challenged as being unconstitutional. I don't know how that can be unconstitutional. There's a business method patent defense in section 273 of the Patent Act. But anyway, about this article, I thought this guy, John Smith, had a bad experience with the patent office and he called some of the rejections he got of what he calls legitimate inventions absurd. And then he said, on the other hand, he got some bad ideas passed through. I don't think it's absurd. I've dealt with a lot of patent examiners over the years and I don't really blame them to be honest. They are doing the best they can, just like judges do the best they can when they interpret difficult to interpret federal legislation. The patent standards are not objective and they're not grounded in natural law or anything in the real world. They're just sort of legislative compromises. And so, I mean, I've done this for almost 20 years and I really can't tell you exactly what non-obviousness means. I mean, I can tell you what the latest courts, you know, the rulings say. So you basically have a judgment call by the examiner sometimes and there's really no way to fight them if you think they're wrong. And there's really no way to say they're objectively wrong in a lot of cases. So this guy's understandably frustrated. I do think he's right that in a lot of cases people do over-reli on patents and I think a better strategy would be instead of spending $20,000 to obtain a patent that might just paper your wall and you would never be able to use, you can file a statutory invention registration or you could publish a document for about $200 on one of these websites that publishes your idea and makes it prior art. So it reveals it to the world but then it stands as a barrier to someone else patenting it in the future. So I think that's a reasonable practical approach for companies and small inventors that don't have a lot of resources. Matt McCarries in IRC, he was on the show last week, he says patents have a meaningful self-enforcement value that may never require you to file suit or defend. Ben, do you agree? Do I agree that they have a meaningful self-enforcement? I'm still trying to wrap my head around what exactly it means by that. I guess that you don't have to sue to enforce them. That just having the patent... Oh, that's really threatening as suit is enough. I mean, that's fair to the extent that a threat can also get some sort of settlement if not some sort of licensing. But I mean that's the same way with any statutory scheme or any type of statutory right that allows you to sue. I mean, if there are lots of consumer protection statutes out of the same way, they often require you to send some sort of demand letter saying, listen, this is what I'm alleging you did wrong. This is how much I think would be a fair settlement and you can either settle with me now or we can go to court about it. And in that way, yes, patents also have that same enforcement mechanism where merely by threatening suit or merely by the patent existing, you can sometimes dodge some sort of legal proceeding, a formal legal proceeding, but I don't know if that gets to the heart of do we want patents or should people be filing patents? Personally, I'm not convinced yet that we should get rid of patents. It seems a little, what's the word I'm looking for? It seems like a little reactionary, a little beyond where we need to go right now. But I'm also a little more moderate like that. Maybe we should scale back patents from not covering software then we may get to this later, not covering genes. And those I think are reasonable steps. And if we get past those and still think that we need to scale back patents more, I think it may be worth kind of re-looking at the Constitution and the whole patent system, but I don't think we're there yet. There seems to be some use left in patents. Let me mention something. I think what Matt's point was, he clarifies in IRC, is not so much just that you have a stick that you can shake at people, but that it sort of has a more passive role if there's a patent out there, then the currents of design and new inventions are going to route around it and do something else. And that they actually might encourage innovation in a different direction because there's something out there that you can't go there because someone already has and they've got the patent. I think that's what he had in mind. It's hard to tell from little tiny sound bites in IRC. But Stefan, go ahead and add your two cents and then let's get to talking about genes and patents real quick. Yeah, what I was going to say, I think what he's talking about is there are two other effects of patents. If there's a thicket of patents or a lot of patents or patents by a given company, yeah, there's something called designing around. So one defense of a patent infringement is that you don't infringe and so you design something different. So the existence of these patents causes companies to avoid innovating or producing products in this area or to invent around it to change the design of their products, which of course means that the market technology is distorted by the effect of the patent system, right? But the other effect is a defensive one and that is like a company, a medium-sized company like my own company, we have a large number of patents. Let's say we don't have the resources to sue someone for infringement, but if we were to be sued, we have an arsenal of patents we could use against them. So someone who might sue us if we didn't have any patents may pick the next target. So it's like a porcupine defense. The effect of these patents held by companies sort of insulates them from being sued. But what that does is that it erects barriers to entry to the smaller companies in the independent inventor because they don't have the resources to get a lot of patents. So basically the effect of patents is to cause companies to expend resources to build up these arsenals of patents which keep them from suing each other so they don't do any good. And it erects a barrier to entry to smaller companies and individuals to enter into that market. Right. Well, that seems like a good transition to talking about. I actually have a second resource of the week we talked about triangulation earlier. But Stefan has been interviewed for a documentary film about gene patents called Who Owns You to shed some light on that issue. The film is not available yet, but just know that it's out there and coming down the pike and it could be pretty interesting. Sounds as though it will be. Let's go to Ben, our molecular geneticist enthusiast. And why don't you give us a few minutes on the state of patent law and genes and why there are some dangers there. Well, I guess the current status of the law is that it's in flux a little bit. There was a big case that was filed, and I want to say in 2009 called ACLUV Myriad. And essentially what the nugget of that case was that the ACLU and a handful of other companies were challenging a patent held by Myriad, a pharmaceutical company. Myriad had a patent on one, I think both of the two main breast cancer genes. And specifically they had a patent on what's called the cDNA of that gene. Again, in a nugget here. If you take a gene out of a person and you transcribe it from DNA to RNA, RNA is just, it's similar to DNA, it's single-stranded and it has different purposes. What you then do is you turn that back, that RNA, you turn that back into DNA and you get something what's called the cDNA, a complement DNA. You can then, at least according to Myriad and the U.S. Patent and Trademark Office for a period of time, you can then get a patent on that cDNA because it wasn't found in nature, it was something that through a process was created and that causes a lot of problems. First of which is that Myriad doesn't license the use of these patents to anyone else so that if you want a breast cancer test, there's only one place you can go to get it. You cannot get a second opinion, you can't get a different lab to run the test. There's one lab that runs the test because they own the patent on the gene. Anyone else who runs the test will be sued for patent infringement. So ACLU and a few other companies brought a suit to invalidate this patent. There are a few fold, one of which was that it's a violation of basic human rights to have some company own a patent on a gene that's in each and every person. Another was that it was invalid for other reasons. If I recall, one of the reasons which the court relied upon, and this was a district court that invalidated the patent, the case has been appealed and I think we're still waiting on an appellate decision. The nugget that the judge concentrated on is that the essential, the thing that's important about this DNA strand, this complementary DNA strand that was patented, is that it's information. And the important thing about it is information. And you can't really patent information. You can patent a process of making something, you can patent something that's artificial that you made. But because the important thing about DNA is the information that it contains, information is protected either by trade secret or copyright and not by patent. So you just can't patent that. Stefan, is that about right? Or is your take on that different? Before you jump in, Stefan, I just want to mention a crucial wax in IRC has pointed out that I think we figured out a way to cure breast cancer here on the show today, which is wonderful because people are going to be too afraid to get it if they're going to be violating a patent when they do. So go ahead, Stefan. Yeah, that's fair. No, I agree with Ben's analysis. I think that's correct. The problem is this is such an arcane area of the law as you'll see that even lawyers who are not, I won't even say they're not IP lawyers, even IP lawyers who are not patent lawyers and even patent lawyers who are not specialists in genetics, you know, all these areas are so arcane that people just hear this buzz. They don't really understand it. Now, as I understand it, there was, you know, earlier controversies about the Harvard mouse and things like this about whether human life could be patented. The Harvard mouse was patentable, if I remember correctly, but human life is not supposed to be. So then the question was, what about the human genome? Now, most people don't realize that different legal systems around the world and the U.S. system throughout history, you know, they have so many different ways to approach this and that may be a reason to think that this is not really grounded in objective principles of fairness that people really don't know what to do with this, but with regard to biochemicals and pharmaceuticals and genomes, different countries, some protect only the process of making something. Some protect only... So for example, if you have a way to make a new drug, like let's take aspirin, you don't get a patent on the aspirin. You only get a patent on the way to make it because you shouldn't have a patent on a thing that's a natural thing in the world. And so if someone else can make it by another process, they can do that. Well, in America and other countries, you can protect the end result. With respect to genomes, the problem is that the reasoning that allows you to protect the actual use of that purified or isolated genome, I'm not a geneticist, so I'm a little confused on how all this works, but I think the patents are on isolated genomes and the analogy would be to a purified molecule. For example, there is a debate among patent lawyers about whether I think priestly who isolated the O2 molecule. Under the same principle that you can obtain patents for isolated genes, priestly should have been able to get a patent on the sale of any O2 molecule that's a purified O2 molecule. As long as he found a way to produce it that was novel and he gets this patent, he's now got a monopoly for 17 or so years on the sale of the oxygen-2 molecule that's purified. All those bottled waters out there. Yeah. Well, I mean, I'm talking about O2 in a canister, you know, but if you found a natural source of it or another way to produce it. So a lot of these patent applications, if you apply them consistently, they result in clearly unethical and absurd results. I mean, it's clearly immoral to have ownership of the human genome. It should be obvious to almost everyone, but there are financial interests behind this. And the people with a financial interest have the incentive to lobby Congress and the government, but everyone else who is harmed by it is harmed in a little way and they're diffuse across the society so they don't organize against it. So this is the reason these bad laws can come into place. Well, Stefan, please be sure and let me know when the documentary comes out and I'll let listeners and viewers know here on 12 because I'm sure people will be interested to see the whole thing laid out and get your views as expressed there, too. I'll do that. I have a tip of the week for us, too, from viewer Dan O'Connor sent in an article about, and this is a great tip, actually, about some Baptist missionaries scattered around the world. They've been cut off from their Indianapolis-based source of funding because of dispute about control of a website. So there's a lawsuit going on because the designer is basically... There's not good documentation for who owns what with regard to their website. And this is something I've thought about a lot in the process of, you know, as folks get themselves on the web that there's frequently a rush to just get something designed and put together and out there and you don't necessarily make sure that once somebody's built your site they have assigned everything that you need to you and given you all the access and rights that you need. So that's something to definitely pay attention to. Our tip of the week is to make sure that once you've had someone build a website for you that you now have succeeded to all the right title and interest that you need to be able to run and access every aspect of your site. So I think, guys, I'll go around the table and let you add any final thoughts about anything we've discussed today or anything that is on your mind or coming up, Evan. Happy 100th birthday, Ronald Reagan, coming up on Sunday. There we go. Got the Reagan Library, not too far up the freeway here. Happy 100th, Ron. And then the Nixon Library is just around the corner up a different freeway from our house. So we've paid a visit to that recently to go see the trains that they put out at Christmas. They've got replica of the Oval Office there. I'm sure the Reagan Library, which I have not visited, would be a great sort of West Coast Smithsonian-esque experience as well. They've got Air Force One there and stuff. The old one. Is it in Santa Barbara? Is that where that is? It's Seamy Valley, I believe. There's actually a story about that on This American Life the other week. Good, good. I love that show. All right, Ben, any final thoughts? I'm all set. All set. Well, then we will look forward to seeing you over at technicallylegal.org and encourage folks to check out your podcast. And thanks so much again for coming on the show. My pleasure. And Stefan, great to finally meet you. I think you were blogging before I was, which means basically in the 50s. No, I think you actually covered my legal blog, which is more of a now, cansellallaw.com. You wrote something for LLRX or something, about seven, eight years ago. Yeah. And because I was one of the first blogs, it's not a very good blog, but because I was one of the first ones, I was like in the top, I don't know, 20 in the country or something, which is strange. And I think you were the author of it because I blogged your name to try to remember what interaction we'd had. And I saw, hey, Denise Howell, wrote an article about my blog a long time ago. Yeah, yeah. Back in the days when we used to have blogs and blog roles, you know, you were on my blog role forever because you were, you know, on the ground zero. Not too far after robot wisdom came up with that. But if I can give a tip, let me just say, there's a friend of mine who her name is Nina Paley. She is an artist. Oh, yes. Oh, if she's your friend, please intercede on our behalf. I have contacted her directly to ask around the show and I've never heard back. So if you could tell her what a great time you had today. I'd love to have her on the show. I will. And she's wonderful. The libertarian talk show in Keen, New Hampshire called Free Talk Live, actually. So she did appear on there at my intercession. But she is a creative artist and she wrote this wonderful documentary, which is open source called Sita Sings the Blues. Actually, that's the website. Sita S-I-T-A Sings the Blues. And she has her website as Nina Paley.com. But she has a series of interesting videos on question copyright.org. And one of them is really interesting, I would like to recommend people check out. It's just a 90 second YouTube video. It's called Copying Is Not Theft. And it's really creative and it's thought provoking. So just check out NinaPaley.com or questioncopyright.org and check out her Copying Is Not Theft video. Great. Thank you so much for that. And thanks for coming on the show today. Thank you very much. Enjoyed it. Evan, great to see you as always. Yes, great to see you. I mean, these shows just get better and better all the time. Wonderful conversation today. So I'm so happy that I could be a part of it. Yes. And we're happy that you made it to your office. Yes. The first time in a few days. It's very cold and there is lots of snow. So it's a fun time here in the Midwest. Cool. Quite literally cool. Yes. Take care and be safe. Thank you. And we'll see you next week. And hopefully all you viewers can tune in next week as well. We're live while we record at live.twit.tv and we post our pre-show questions over on the Facebook page at facebook.com slash twill. Thanks so much everyone. We'll see you soon. Bye-bye.