 Next up on this week in law Stefan Kinsella and Harry Surden join Evan Brown and me We'll talk about the FCC getting the SOPA treatment piloting a Nautilus through SCOTUS's patent wonderland We're gonna have some other strange boats too and talk about the law's role regarding kids cool tea on social media Much more to you on this week in law and Cass you love from people you trust This is Tweet And with for this week in law is provided by cash fly at CACHE Fly comm This is twill this week in law with Denise Howell and Evan Brown episode 267 recorded July 18th 2014 LMS scenario my dear Watson Hi folks, I'm Denise Howell and you're joining us for this week in law. Thank you so much for joining us We're thrilled to have you and we hope you're gonna be thrilled to be here We have an awesome panel for you today. We haven't done too much on the Supreme Court's recent patent decisions And we're definitely gonna get to that today Plus a whole bunch of other great stuff at the intersection of law and technology and to help us understand it all We've got Stefan Kinsella joining us once again. You're on the show. Hello Stefan. Hello, Denise. Glad to be here Great to have you back. What's going on with you these days? Well trying to set out the Houston heat in the summer but having a good summer and Following all these patent cases and IP developments. It's it's interesting to watch But so far everything is going very well. I the good thing about being on your show is I save time because I listen to it Anyway, so now I can save the podcast for for the walk That's wonderful. I'm great. We could save you some time and make room for somebody else in your podcast lineup Also joining us a return visitor to twill is Harry Sturden from University of Colorado at Boulder's law school. Hello, Harry Hey, Denise, how are you? I'm doing well. Thanks so much for joining us great to have you back. It's really great to be back So tell us about Boulder in the summertime make us all jealous Boulder in the summer is outstanding. I mean, I can't say enough about it There's millions of hikes just within the city borders and it's beautiful. This has been a particularly mild summer and It's sunny almost every day. So it's quite lovely. I must say I Knew that was going to be the case. Yeah, just you know, it was hoping for maybe a random thunderstorm shaking things up for you, but Actually, no, we wish you a wonderfully beautiful summer and also enjoying the lovely summer Weather in Chicago, Illinois is Evan Brown. Hello Evan. Hi, Denise. Yes I am thrilled to be here and you know as nice as it would be to be in Boulder I guess the second best place is to be sitting in front of a computer somewhere else on twill talking with the three of you So this ought to be a lot of fun. So it's great to be here The weather's always good on twill. That's right. It's always sunny here. Good climate control All right Well, let's check out the patent on the the patent climate recently in the wake of a couple of important Supreme Court decisions and some other good patent news So let's go there first Let's head into Wonderland via a Nautilus if we can The couple of big cases out of the Supreme Court this year one called Alice one called Nautilus and Really need to have a better understanding of these because they're already being applied by other courts So let's start with Stefan Stefan. Can you tell us the significance of each of these cases and sort of your take on them? Well, I think generally the significance is a few things the court has been pretty much unanimous in most of its patent rulings They have pretty much reversed the federal court The Court of Appeals for the federal circuit and most of their recent holdings and it seems like they're basically Trying to clarify the law had it be more certain Which was one of the goals of the federal circuit in the first place, which it seems not to have done too good a job of in recent years and also to sort of push the rules slowly in a direction towards clamping down on Fervolous patents fervolous patent claims Patent roll assertions things like that and I don't think we want to get too much into the boring patent lawyer weeds, but you know, there are different aspects of patent law One of them is the requirement to have an enabling disclosure and others to have enough specificity in your claims And the Nautilus case I thought was pretty good because it it's really going to affect patent rolls a lot and companies that assert patents that have vague claims It's basically an attempt to impose certainty on the law One of the justifications for patent law is that it's similar to property law and that the claims set out the meets and bounds of property And usually in the case of say land you can tell where the borders are pretty easily or at least is determinable And in a patent if you you have to use words to describe the meets and bounds of the of the patent claim if you don't Clearly define it then you just create a lot of uncertainty And this can be used in legal bullying by or even extortion as some call it by the patent owner because the The the target of the patent assertion is not sure whether they will win or not because it's not clear exactly what's claimed To be honest, I think patent lawyers even take advantage of this sometimes they will throw in extra claims which have an intentionally broad I'm sorry vague aspect Because they figure they may be able to get this past the examiner and it doesn't really hurt your client to have a vague claim the patentee It doesn't suffer any cost whatsoever from having a vague claim in the patent as long as some of the other ones are clear Because you can always theoretically use that vague claim in defense or for offensive reasons and so patent attorneys will take advantage of the system and Patentees will as well. So I think it's good what the court did was they they basically Clamped down on the standards that you can use to overturn a claim For being too indefinite. Okay, so they made it easier to do that So I think that's a good a good a good move And in some of the other cases, they're also ratcheting back on the scope of patentable subject matter But the most probably the most important thing is the fact that most of these rulings are unanimous and so there's at least a fairly clear ruling I Can't say the same thing about their copyright rulings like in the area case, but at least in the patent field I think they're They're doing they're basically doing the the CAFC's job for them So the idea of whether we need a CAFC is becoming scrutinized if everything's going to be appealed to the spring court anyway Why do we need a federal appellate court that is effectively these the junior supreme court for patents? Why not have a diverse? Multi-circuit system like we have another federal appellate litigation where different circuits can approach the problem And they can learn from each other and the Supreme Court can decide conflicts if they have to so That's that's that's a summary of some of the trends that are going on now in these patent cases Right and for anyone not to up on their lawyerly Acronym CAFC would be the court of appeals for the federal circuit to the court that hears patent cases and has Jurisdiction over them Harry, how is the federal circuit court of appeals fairing these days? Well, let me just before I answer that let me just comment that I really agree that the single biggest force driving patent law at the Supreme Court for the last 10 years or so has been patent rolls and most of your viewers may know what patent rolls are but for those who don't These are folks who are variously called non practicing entities or patent assertion entities But it basically companies that tend not to make actual physical products but just tend to buy patents and make their money by Sewing on patents usually against companies that actually make things like technology Companies or provide goods and services So there are very controversial. It's a controversial business model to be buying patents for the purpose of sewing and monetizing when you're tend not to make products that people use and this has really been a phenomenon of the 2000s maybe late 1990s And it has really dramatically shifted patent law. So you can read the supreme court's decision in alice and in the nautilus case is really being reactive to this context of patent rolls Trying to make it harder for patent rolls or not practicing entities to be successful in extracting money using vague or Overly abstract patents. So a very common technique For one of these non-practicing entities is to buy a patent that's quite old. So patents last for about 20 years So patent rolls will buy a patent, you know, maybe in its 15th to its 20 Year and use the technology that was invented, you know, 18 years ago. That's something completely different But whose language can be Arguably mapped onto a modern day technology and approach that modern day Company and say, hey, uh, you know, it's going to cost five to ten million dollars To resolve this in an actual patent litigation lawsuit. So if you just pay us a couple hundred thousand dollars We'll go away and uh onto the next guy. So that's really the context I think the best way to understand the recent supreme court litigation and So we know that the innovation act didn't go anywhere, right? We're not getting patent reform coming out of congress anytime soon So are these two and and there were some other decisions from the supreme court? uh, sort of helping with that situation helping flood the tide of patent troll litigation I I really think they are so congress is in kind of a stalemate when it comes to significant patent reform because uh, the back story is there are two major Industries that are at opposition with one another on the one side. We have the pharmaceutical and life sciences industry Which heavily depend on patent protection and in that area by and large the patent system is working quite well So they put a lot of their lobbying efforts into making sure that very little changes in the current patent system for fear of Hurting their interests on the opposite side of the spectrum is the technology industry where the patent trolls are the most active and there's a lot of uh criticism of software patents and to what extent they're useful And by and large the consensus is that patents don't work very well in the technology sector So they're pushing from the other side advocating for reform. So the upshot is congress Basically reacts by not doing much because they're caught on Either side So what's interesting is the the courts are kind of coming in and are the entity that are dealing with these really Significant problems much more effectively than congress has over the years And I think the supreme court has done a really a lot of really good improvements to the patent system in the last 10 years that the federal circuit for whatever reason wasn't able to get to those same results Um, didn't he say I add one more thing? Yes, please um, just we should make clear, um I'm I am a patent attorney, but I'm Some people may not know watching. I'm one of the world's biggest opponents of the whole patent system. So let me be clear that, um, I want to say something of the patent troll system The reason I think these are good decisions is because they slightly weaken the patent system in general But I think that There's really not much wrong with patent trolls per se given the patent system. They're not the biggest problem at all And I think this whole issue is a distraction um There is no requirement in the patent law to make or practice an invention to have a patent on it That's been part of it for 200 years So the idea of a patent troll is really a non-practicing entity is perfectly permitted within the law And most companies that make products or in a sense Patent trolls because a lot of the patents they have in their portfolio don't cover products that they make The idea is this if you sue someone for violating one of your patents that might cover one of your products Or might not it's possible that if you're a competitor you're making similar products and they in your and the target of your patent lawsuit May have in their stack of patents A patent that covers something that you're doing so they they have it's a fair fight in other words so they can um, they can Assert a a counter claim against you for infringing one of their patents So the idea that the patent fight is more fair Although the patent attorneys of course make tens tens of millions of dollars off of this process And usually the companies agree with each other to settle And when they do that they shut out smaller competitors and they maintain their cartels and their oligopolies So the entire patent system and I would I would respectfully disagree with harry I don't think the patent system works well anywhere unless you mean that it works well for entrenched business industries and The patent the patent bar It's basically a huge damper on innovation and a huge cost in the economy and it totally distorts the structure of research and development um I think patent rolls are actually the least of our problems because at least the patent roll just wants To take a taste right they're like they're like the mafia Threatening a guy that runs a shop down the street. They just want a little bit. They don't want to kill the business They just want to tax it so it's like a small tax Whereas your competitor may want to shut you down right so apple samsung all these smartphone patent wars So in a way patents held by competitors are a bigger threat um than patents held by Patent rolls if I had to choose I would get rid of Regular patents before I got rid of patent rolls And if I could have a system with only patent rolls that would probably be less bad Than a system where people can patent their actual products and use them to stop stop competition Well stefin it sounds like What you're saying is we need congress to fix this we need You know the court the courts and and businesses are doing what they can based on the laws on the books we saw representatives good lat and eschew and various others trying to Get this patent reform bill through The house and senate. I think it passed the house. It is Not yet taken up by the senate So folks are trying not to let it die, but at the moment it's stalled. Do you think is this going far enough? Steffen or do we need a heck of a lot more? well, so my view is Even the best of congressmen on this issue Only wants to slightly reform the system, but there's no challenge to the fundamental idea of ip and there's no suggestion Even among reformists to do anything radical whatsoever. So any even minor change is called radical by the proponents of the existing system The again the patent troll bill would has been watered down already. It's probably not going to pass anyway. And even if it does It will only have a very minor effect and own pretty much only on patent trolls Which as I said are only a very tiny part of the real problem. The real problem is patent holders So I think congress is pretty much firmly You know controlled by the special interest lobbyists of the pharmaceutical industry And other big tech companies like IBM and microsoft which depend upon patents I mean microsoft ibm gets what one or two billion dollars a year from patent licenses They don't want anything to threaten that income stream So I think they're basically sucking money out of the american economy and Improvering consumers and reducing innovation Using congress to get their will the only legislative change that I can think of Ever in american history that has ever improved patent or copyright law was the the obama Patent law from a couple years ago when they expanded the prior user rights That's it every other change that I can think of ever legislative changes the supreme court It's made some minor interpretive changes recently that are good But every legislative change always ratchets up the problem makes it worse Terms get longer enforcement of copyright gets worse The scope gets expanded. There's talk about fashion rights. There's talk about copyright like rights and bartender recipes for drinks There's always a pressure for more and more anti competitive laws like patent and copyright law Um, so it would be a surprise to me the way that the system is rigged Where congress has basically bought and paid off by the major lobbyists And the patent rolls by the way are pouring hundreds of millions of dollars into into into dc Um, I I don't see and plus the confusion about the whole purpose of the patent system Everyone thinks it's for the inventor and it's for innovation They don't understand its anti competitive origins and it's basically mercantilist and protectionist Purpose that's it's what it is. It's basically completely antithetical to the free market But as long as people confuse it with the free market It's going to survive and I don't see much hope for any legislative change So these small incremental steps the supreme court has made Or at least some sign of hope for a slight improvement in the situation Well, this would be a good time to Yes, please do pick up on it But this would be a good time to mention since we haven't mentioned on the show yet And just picking up on one of the themes that Stefan was mentioning there Uh, I don't think we've yet mentioned mayday dot us on the show But this is um the organization that larry lessig has founded to take some of the money out of politics And it had a funding goal It was trying to get to five million on july 4th, which it hit. It's raised over 7.6 million dollars 110 days left until election day It's trying to form a super PAC To address some of the frustrating issues Evan or not Evan Stefan was just ranting about i'm sorry harry jump in Uh, no, that was that was that was oh, sorry evan jump in Yeah, um, I mean Stefan the things that you say about intellectual property are certainly provocative and and had I Been hearing them for not the first time they would have been You know the shocking is they were the first time I heard you say them And and I hope that people are taking it seriously when you say those things even though it is quite radical to say that IP should be abolished all together and and so I wanted to pick up on the thread you saying it being Uh against the free market essentially mercantilism and all of that and tie that into a another concept that you're talking about Earlier about how it's never been a part of the us patent system or probably any patent system for that matter I don't know But at least I heard from you it's always been this way in the us patent system That it's never been a requirement that you actually practice the art you can hold a patent but it may be that Uh, you you just sit and hold it and decide to do whatever frame and put it on your wall and enjoy the fact that You are a patent holder but not engage in commerce Would it change the calculus notably in your mind and would it temper any of the critical Approach that you have toward this if it were a requirement in patent law that you actually do have to practice the art Actually engage in commerce be a part of the the free market economy rather than Sit back and just enjoy these sort of government granted monopolistic rights and use them or abuse them as the case may be Would that change anything at all Stefan? Well, so my view my view is this the if you really want to improve the situation you have to recognize the problem And the problem is the the very system itself Um, and so to my mind anything that reduces the extent and scope and effectiveness of the system is good. So incompetent Enforcement by the government is a good thing in this case. Uh, I don't want, you know competent enforcement But if if I could say anything that would really help the situation it would be Just the obvious things reduce the term say patents should go from 17 roughly 17 years to 10 years five years three years that would be a big improvement Reduce the scope would be another thing. Um, get rid of treble damages those kinds of things that just reduce the penalty It exacts on the economy um, I would I think be in favor of a working requirement and by the way So the history of patents is it they arose from the practice of, uh, you know the crown the monarchs giving monopolies to favored court cronies and others in a certain area To be the only ones who could sell a certain product or you know, I think, uh, uh, sir francis drake one of the first Privateers or pirates was given a letter patent patent just means open right and latin So it's just like an open letter from the king saying this guy has the right to do this That gradually changed with the statute of monopolies in 1623 You see back in the 1600s. They weren't afraid to call things what they really were We used to have a department of war in the u.s. Now it's the department of defense and uh, uh, He had the statute of monopolies of they they they knew what these things were and that Formalized the process and restricted it primarily to innovation and technological intervention invention Even then it was still a helter-skelter ad hoc type process um The when the u.s. Was founded 1789 and the patent system was was authorized by the constitution Um, then you started having a modern system and ever since then you've never had to provide a working requirement um, and the reason is because you have to um reduce the invention to practice and Theoretically that means you have to make a working model But there's a doctrine called constructive reduction of practice, which is when you file a document with the patent office um that describes it in sufficient enabling and other Detail that's called the constructive reduction of practice And I think the idea behind it is that it would be unfair to penalize people that have Good enough ideas. They can write it on paper. I mean, there's no requirement that you have to sell the product So I think I would be a favor of that requirement only because it would slow down and hamper the process But I and it would increase the cost of getting a patent But one drawback of that was I think it would only Further skew the process towards the large companies because they would be able to afford to make working models And smaller inventors would even be less able to do it So it would only further entrench the cartels and the oligopolies that the patent system helps to prop up Um right now. So I guess I would be mildly in favor of it, but it would only be a patch and it might have some unanticipated um drawbacks So harry tell us then what's happened in the wake of alice and nautilus at least one case out of the federal circuit Has decided that acacia research could not and they are Probably the biggest patent troll out there. They're also my neighbor here. I was getting my haircut, you know within a block of their office yesterday And However, they just got their hat handed to them By the federal circuit in a case involving photography Yeah, so uh, so I think that the alice case is just a third in A string of cases in which the supreme court is saying Abstract patents are bad. And as I said before, I think what's driving that is the fact that patent trolls have been using A variety of patents with a lot of vague or very abstract words arguing that their patent covers very general or Inventions or inventions that have been invented before but I think actually the Alice case is much less significant than the nautilus case Which was uh, that was the one steven talked about the definiteness case that actually dramatically changes patent law So it used to be the case up until the nautilus case that uh patent words Should be rejected if they're too indefinite But the federal circuit had interpreted indefinite to mean Incapable of any definition And the supreme court said that is too low a bar. In fact, we're gonna say Indefinite means that if somebody in the art can't understand what it means But the the upshot of that is a whole bunch of words that were Previously used by patent trolls to cover inventions that they really didn't invent. There's now another Arrow in the quiver of the courts to say, hey, this is too Indefinite this word is too vague. This patent is invalid. So I think that's going to have a really significant effect um, the courts previous to that under the federal circuits Uh ruling really had their hands tied and even in the face of very ambiguous or vague words couldn't do much in the way of invalidating them now. They have a lot more Ability in the wake of the nautilus decision. The alice decision. I think was really nothing new following the supreme court's Recent decisions in bill ski and prometheus where they basically said if you have an invention and it's too abstract Then uh, that's not Patentable if you claim it that way. So I think not much has changed there Although it does again give the courts a little more ammunition and kind of invalidating These very vague patents um One thing I wanted just to point out to steven's point is your readers or your viewers might not know that there's kind of a division between Two kinds of non-practicing entities Maybe what someone called the bad non-practicing entities Which are the patent rolls and these are the companies whose business model is based upon buying patents and Monetizing them and I always say bad in quotes because some people as steven said to see it as Really the symptom of the patent system not really the disease And I I do actually agree with that to some extent that practicing entities Are not morally better or worse But I just want to point out that there's this other category of non-practicing entities Which are universities so Universities do a lot of basic research and by and large When they get patents, they don't practice their patented inventions in the sense that you know MIT or stanford don't have a factory Where they're making the things by and large they license out There are patented inventions. So they too are non-practicing entities. So I think the biggest opposition against a requirement to practice your invention would be that it would be to hurt universities Who are some of the biggest engines of research and development in the united states? And I think the universities particularly the university of wisconsin and some other universities have been very actively Opposing some of these reforms including the requirement to practice your invention Yeah, that's an interesting point. They don't come up a lot in the discussion. They um And you guys correct me if i'm wrong, but my impression is they don't Take their patent portfolios and pursue people who may be infringing That's not The university business model as you said harry it's more about Licensing to people who come to them. Do you know of any universities who are out there aggressively enforcing their patents in litigation? The university of wisconsin is uh notable for being very aggressive in some of its life sciences portfolio But I think by and large You're right. The universities are not out there aggressively Uh, you know, uh pursuing their patent portfolio I thought there was a Sorry, I just was I thought there was a recent couple of cases mit or stanford Had have extracted like a about a billion dollars in a couple of cases and those are clearly Backed by the threat of litigation. So they are classic trolls And that a lot of their patents are sold to patent trolls and become used by patent trolls So the universities are exactly the same Um, it's part of the problem as the the patent troll problem. I believe Got it. And certainly universities are all about protecting their income streams wherever they May originate, uh, they have to obviously to keep going. Um, but You know, we shouldn't think of them as as somehow above Enforcing their patents Doesn't it seem pretty unfortunate doesn't seem unfortunate if the if the universities are doing too much along those lines because Isn't there aren't there opportunities and and I just sort of know the contours of this I've turned it over to harrier or stefan. There's the by dole act, right That gives a real incentive for federal funding of university projects, right? Am I am I? Even pointing in a right direction with all this stuff the the point being that there could be this problem of There actually being taxpayer subsidized research and development going on and if it's used in an irresponsible way by a university It seems doubly bad. Is there anything to that or am I just sort of mixing up two things and missing something here? Um, I know I think you're generally right in the so you're right about the act That is the correct act which allows the university to share in the benefits of federally funded research I think there definitely is a concern with the with a conflict of interest Uh, to some degree and what's good for society and what's good for the universities Stanford is famous for having a very large patent portfolio and income stream based upon patents And many large research universities university of colorado included actively encourage their Researchers to get patents and are increasingly becoming dependent on patent licensing fees And revenues, so I think there it's something to think about at least if there's some conflict of interest among universities I would agree too. They are getting taxpayer dollars even if the state taxpayer dollars and even if by dole doesn't come into effect and You know the whole purpose of the university is to expand knowledge and to share knowledge And the original alleged purpose of the patent act is not to stimulate innovation But to encourage disclosure of information that would otherwise be kept a trade secret Right and so for universities whose mission is to promote human knowledge To be using patents in the threat of patents to stop say the best solution to be used in a given research project You know to threaten to do that with litigation. I think it's contrary to the whole Educational or eliminationary purpose of a university in the first place. So I do think there's a conflict And not only that I think it's kind of rich that a company like twitter for example I don't know if we'll get to this today. This was in our rundown Twitter's IPA their their agreement twitter basically has agreed to shackle itself with an agreement with its inventors So that they can't use patents offensively It's pretty sad that a private for-profit company like that has a more progressive Pro technology pro sharing pro learning policy Then most universities do you would think that that's one way you could appeal to Professors and researchers by saying we're not going to use your patents offensive offensively and uh, just as a follow-up while I would say I'm not as dubious About the patent system as Stefan and sorry. I said your name wrong earlier. I apologize Still what one more time it's Stefan Stefan. Okay. Thank you third time's the charm As I'm not as dubious on the other hand, I will say In looking at the evidence I've looked at the pat the benefits of the patent system are decidedly mixed So if you look at the academic evidence You might think that given that we have this elaborate system of intellectual property rights upon which Many companies participate that the evidence would be overwhelming that the patent system confers net benefits to society But the actual evidence is decidedly mixed That there are possibly some benefits significant number of costs And and some prominent economists have advocated the elimination of the patent system So while not everybody agrees with that, I'd say the way that evidence is that It is mixed with some benefits and some costs. I think many people find that surprising Given how entrenched our patent system is in the marketplace that it's not clearly beneficial to society I like the idea of something being decidedly mixed. That's great. I want to take that one down Um, I'm gonna go ahead and jump in here to put our first mcle passphrase in the show several of our listeners and viewers Like to watch the show because it's educational and uh, I think probably all our listeners and viewers Watch it for that reason and if you're a lawyer or another professional in a field Where our discussions jive with your subject matter, you may be eligible for continuing education credit. We have A wiki the twit wiki wiki dot twit dot tv twill has a page there With a bunch of information about applying for a professional credit in your jurisdiction if you're a lawyer So we put these phrases in the show in case your oversight body needs to know that you actually watched or listened and didn't just You know jot down episode 267 on a piece of paper somewhere Um, I would love to make elemousse scenario Our first word, but I think I'm gonna go with my because I I don't think people are gonna be able to spell it I don't know if they need to spell it, but it's an awesome word I'm gonna go with something a little easier to Spell which was my own sort of Freudian slip in talking about the tide of patent litigation I believe I said flood the tide rather than stem the tide Which seems to be at least uh, the past trend Was for the tide to continue to flood. So let's make it flood the tide and let's talk next about uh, alice and Nautilus and high mark and various other decisions out of the supreme court this last term And whether they are stemming the tide or not Really, this all comes down to the federal circuit harry and and right and whether the supreme court has now given it significant sufficient guidance and guidelines to On how to handle these cases Uh, yeah, I I agree with that. I think the and in particular I'd focus on the lower district courts, which are the courts that patent infringement lawsuits Are filed so they take their marching orders about patent law from the federal circuit When turn takes their marching orders from the supreme court So I I think the federal district courts the trial courts to see these patent infringement cases Now have a lot more tools to deal with Patent trolls are in frivolous litigation. Uh, thanks to the supreme court. They're more able to award fees um, uh, attorney's fees Against in frivolous cases. They're more able to invalidate Um, poor quality patents. So one of the biggest problems that, uh Involving patent trolls as I mentioned are for instance the use of Uh, old patents that covered technologies that were, you know, 18 invented 18 years ago That have nothing to do with technologies today. So a really infamous example that's going on right now is somebody who has a patent on sending Audiotapes through the mail is claiming that that patent covers podcasts And you know something that was uh, not even thought about back in the mid 1990s when this invention Uh came about and is going around suing a lot of purveyors of podcasts saying hey, if you read my words Uh, very abstractly you can see that I've actually claimed podcasts. So I actually invented Uh podcasts and everyone knows that you know, the inventor of this patent did not actually invent podcasts It's just that the language can be used to cover an after arising later Technology and in many cases under the federal circuits Earlier case law the district courts trial courts had their hands tied in dealing with Um patents like this because they didn't have a lot of Tools to deal with it, but now the supreme court increasingly is giving them more tools more discretion to deal with somewhat frivolous cases like this Right, thank you so much for mentioning the podcast patent It's certainly one that we've covered in the past and have been watching The litigation grind on close to Stefan's neck of the woods in the eastern district of texas Stefan, do you think that these recent supreme court decisions will impact that case? I do and um, I agree with harry. Um, I think another one we did mention Which is another big one was the the the limelight case, right? Which had to do with inducing inducing infringement, which is similar to a doctrine in copyright law and What's a little bit interesting to me about this case is how the court Made the right decision. I think legally Whereas they made the wrong decision in the in the area case In both cases you have someone Who you could accuse of taking advantage of a loophole in the law the patent law the copyright law And yet in one case it's okay in the other it's not and in the induced infringement case The idea is that to infringe a patent you have to one person One corporate person or a natural person has to perform every step listed in a method patent or has to Make user cell every element of an apparatus patent claim So one person has to do everything claimed in the patent claims To be in a direct infringer and then inducing infringement can only come after that You could be guilty of inducing infringement if there's first direct infringement by some person And in this case they held I think quite properly based upon The statute and uh case law up to up to this this time That if one company does a b and c And the patent claim has a b c and d and it let's say and then the customer of the company does d Then there's no one person performing all four steps And therefore the company can't be held liable under induced infringement because there's no there's no direct infringement So I think that's a good result actually and that will give companies the ability to Design their internet services and products around this by making sure the customer has to do the final step or something like that If there's a patent that's threatening this method So that's a loophole That's a way of getting around the law by complying with the law which is a good thing Which is what the law wants the direct people to do and that's what ario tried to do in the copyright context by complying with The way the statute is written Um and the court just totally they did a bush versus gorotype analysis. I believe in this one They just did a totally results oriented Um one of a kind thing with no they didn't want it to apply outside this narrow ruling because they knew it was not an honest Reading of the law. I believe um But in any case at least in the patent field the court seems to be better than in the copyright field And let me just weigh in a little bit on the federal circuit So, uh, I might be the only person in america to slightly defend the federal circuit And I actually disagree with a lot of their decisions But here's how I'll defend them the issues in front of them are very hard And there's no obvious clear answer one way or the other for the vast majority of cases So the federal circuit is kind of modeling their way through Patent practitioners disagree on the outcomes of these issues patent attorneys disagree Uh patent professors disagree. So every time you see a nine zero decision from the supreme court Overruling the federal circuit, which is pretty common The supreme court makes it seem like the federal circuit got it obviously wrong and the supreme court got it obviously right But I just want to say and i believe that's not necessarily the case I think a lot of these issues are tricky and could have come out Either way and while I have tended to agree with the outcome of the supreme court Over the federal circuit on some of these issues. They were by no means Clear cut easy answers that the federal circuit was obviously getting wrong for the most part Can I can I make a little comment on that? I actually agree with everything you said there Let me just say that my view as a libertarian to to wave my libertarian flag is that the reason for that Is that this is not objective law that they're interpreting This is just rules written down by a bunch of bureaucrats called legislators that has nothing whatsoever to do with justice Um, so in a way, I agree with the crits the critical legal studies movement that law If you interpret it as statutory law is by and large not objective It's got nothing to do with justice. It's not aimed at justice The judge's job in these cases is not to try to get the right result Their job is simply to interpret words words that were cobbled together by a you know a bureaucratic process by a bunch of people writing Words that are not always consistent with each other and they don't have objective Borders and they're not anchored in justice and property rights So I don't blame the judges on either court for getting it wrong I don't think there's even a right answer all we can really do in some cases is Hope for consistency hope for certainty and hope for the right result that comports with justice Even if the statute is not aimed at that So the reason I like what the supreme court's done is it happens to be in the right direction But I wouldn't fault the the other judges for um having a tough time Interpreting these totally non objective Almost arbitrary Statute, you know, legislated words Which have ambiguous meanings Uh, you know under the americans disabilities act, what is a reasonable accommodation? Uh, what is obviousness really? What is statutory subject matter? Uh, really what is fair use under the copyright act? I don't think anyone really knows because there is no there's no answer because they're just words written on paper As an outcome of the political process when people that write it are subjected to influences by special interest groups Well, there is a lot to unpack there Evan being our philosophical touchstone for the show anything you want to add before we move on to Some market reactions to the patent system Sure Well, I would hate to stand in the way of getting into the compelling discussion about market reactions in the patent system but You know just to touch on the idea that you were saying there stuff and about it not Being related to justice. I mean that seems I mean at best I can just say I guess I'd say that that's intriguing Because I whenever you start talking about, you know critical theorists. It seems this seems like such a Um, such a such a difficult place to be in because it seems like it's just going to quickly Break down because all the critical theorist has to do is just say well, here's the status quo I'm going to go against that and I'm just going to say that it is meaninglessness and And you know, how can you argue against that? You know, it really has to sort of be the the end game then once you say that whatever is written is is Meaningless and there's no objectivity to it or what have you I would tend to think that You know, yes Statutory law may have been cobbled together by bureaucrats that we call legislators You know and and that is what it is But does that necessarily mean though that it has no ability to at least point toward or tend toward justice? Maybe I'm being way too Thomistic, you know thinking of natural law something trying to permeate through You know statues that are promulgated here is sort of tending toward some objective real Justice and and I guess I would want to take that side of things as As being sort of a little less hopeless and sort of Less Aimless and in the fact that you know if we're going to legislate something if we're going to recognize interests and yes They do get embodied in statutes that may be Imperfect, but at least it's tending towards something that's better than the alternative which would just be complete Anarchy, so I don't know if I'm formulating a question or anything just you know sort of sort of put that back Let me have a quick response to that. Um Well, first of all law Did used to be thought of as legislation It was the customary and developed body of rules that were developed by courts and decentralized processes In the search for justice. Um, and so you wouldn't have anarchy even if you didn't have legislation or if you didn't have as much legislation Um, and there may be tendencies for legislation to tend towards some just results Just because of the democratic process and our values in society Uh, and furthermore, I do believe that the legislators know that judges think of themselves as doing justice And so they they they factor that in and judges will try to do justice when they can But the ultimate problem is that judges Job when this when there's a statute of issue their job is simply not to do justice their job is to interpret the words of the statute which is I mean It's a difference between a common law situation Where the job of the judge is to try to find a fair equitable or just result in a particular case Given the developed body of rules of justice in the law Um, so it's just a problem of the way law is made by statute. Um that I think Causes these judges. I'm defending the judges in a sense I'm saying that you can't blame them for not knowing how to interpret words that were written intentionally vaguely sometimes In order to reach a political compromise I mean side a and side b may think the word means something different But they do that anyway just to get it passed And then the judges have to decide and if the judges decide quote wrongly or quote rightly I don't know if you can really blame them in every case I'm not saying law is never objective and the statutes are never objective And there's not a better reading of some statutes, but quite often The the borders become much fuzzier and vaguer and more ambiguous than customary And decentralized law would be right We saw and you mentioned the area. Okay, Stefan. Uh, how the statutory law And considerations helped drive what you characterize as a results driven decision when the court delved into the legislative history and pulled out comments around various portions of the copyright act to justify its outcome But we are getting highly theoretical here I'm feeling like I'm back in law school in some sort of constitutional law or a critical legal studies class So I'm gonna divert us back to our rundown just a bit here To the question we were talking about earlier with twitter and its intellectual property stance toward developers where it's Tying its own hands As far as patent enforcement goes We talked just a few shows ago about tesla doing something similar So I wanted to go around and get all of your respective takes On this kind of approach Whether this is something where companies are Simply playing to a market sentiment or do you think that there's a bottom line interest being served here? Do you think there are higher ideals being served here? And can we expect to see more of this kind of hands-off? We have patents but are not going to Enforce our rights approach. What do you think Harry? So I think this is an interesting development. I think it's a mix of marketing And idealism and actually good business sense. So I think it goes a little bit back to the divide I created earlier between industries And technology with IBM sort of being the one of the notable exceptions most technology Companies seem to be more harmed by the patent system than they're helped. So consequently they tend to be opposed to patents They tend to be targeted a lot by patent trolls and have them used against them much more than they Derived benefit, but I think there is some idealism. So I used to be a software engineer And uh, there is sort of a current Running through the software engineering community. That is deliberately anti intellectual property and uh anti patent for various Reasons that uh, you know, we can talk about and I think some of this does reflect that idealism So I think google is actually a good example Where they have you know implicitly pledged not to use their patents offensively, but only defensively So an offensive patent is where you go out and you sue or you threaten to sue to get licensing fees Defensively by contrast is you only use your patents in litigation after somebody sues you first and then you sue them back in terms of leverage And I think some of that idealism is reflected in the uh test law announcement Um, but it's also a bit of marketing too. So uh, tesla got in you know front page in the news Uh by releasing their patents by making a pledge and you know, that's very good publicity Um to for for tesla and they probably weren't going to be able to monetize them all that much Their interest is much more in establishing an electric car ecosystem So I think uh, you know, it's hard to disentangle all these uh different threads What do you think stefan? I agree with all that. I think it is a mixture of idealism and marketing, which I think is a good thing. They're both good things. Um, um I think that um, they're recognizing that They need a thriving industry of Of electric cars. They need competitors. It's good for them. It's good for their workers It's good to have workers that you can hire that know they can change jobs and go to a competitor Because then you can get more talented workers in the first place So they're sort of dimly recognizing the problem with the patent system And I think more and more companies are sort of Doing this thing like the google although google made this pledge and yet google has uh offensively asserted trademarks I believe and they of course acquired Motorola mobility which had ongoing offensive patents against um Some other companies and they have not quashed those patent suits. I believe so Motorola's hands are not completely snow white Even in this area which gets to the other problem I had a little bit with at first with the announcement by tesla, which I admire and I like It's a little bit confused in some of its reasoning But the big problem I have with it is is the question about enforceability which some of your rundown Links pointed to in which the twitter deal Ames to solve with this agreement And you had a paper that was interesting too, which I read through the ssrn paper about the enforceability of these sort of promises Ultimately i'm concerned that these are not enforceable agreements. They're there. No, there's not an agreement There's no terms that you could even read that are really clear. They can be changed at any time, you know Laterally by the company Ed most I think you could hope for some kind of a stop all based defense to keep someone from going back on their public promise Um, which is sort of what that article by the law professor argues that you linked to in the in the show notes um I'm also concerned about creative commons for similar reasons. Um I may be one of the a big user of creative commons and one of his biggest promoters and supporters But I I may have a mental gap because I have not seen a convincing analysis that any creative commons license is really enforceable There's no consideration There's no clear way for the customer who gets the license to Prove that he had a license. What if the The website just removes the creative commons notice five months later after you've downloaded it and used it in a book So i'm a little bit concerned about all of these things. Um Which is not the fault of the company's trying to use them The fault is the copyright and patent system, which makes it difficult to to leave the system I think you talked last week Denise about this irs ruling which Basically says that um open source non-profit companies can't get a non-profit 501c3 status if they don't Try to enforce copyrights against people So it's almost like the federal government is punishing you you know by taxing you if you don't use their copyright system That they foist on the economy as well I'm not sure which one props up the other if copyrights Prop up the tax system or vice versa, but they they obviously are intertwined with each other and go hand in hand And some of my friends have even hypothesized that something similar is happening and with tesla tesla has been so The receiving a lot of criticism lately Partly because they're you're refusing to use the patent system They're they're announcing that they don't like to use it either So they're starting to get some pushback from the established players as well Because they're not playing the game and they're starting to not use the system. So as more and more companies start voluntarily Uh renouncing the use of the copyright and patent system Um, I expect them to get more and more criticism for not being um, you know a good team players Have you seen the model three by the way the model three tesla? Yes, very sleek looking car Yeah They may be getting criticism, but I I think they're gonna, you know, have a product on the market that people want I'm sorry, harry. I digress. Oh, no, that's okay. I thought the model three is a cool looking car Yeah, although not a particularly creative title um Hard model, uh, but one thing I'll say is, you know almost no legal decisions are with zero risk So, uh, it's always on a spectrum, you know between high risk And low risk. So I while I agree that it's quite true That uh, you would have to depend on the good graces of some future judge Not to uh People who have pledged not to enforce their patents to stop them from later enforcing them. I think, you know, your risk Uh, you know, um Is on the lower end of things as compared to the status quo So it's definitely not an ironclad risk-free scenario, but few things in law are um So, okay. Well, let's let's consider one and whether it is or not, uh, this lot net arrangement that has been in the news this week, uh, what it is is, uh At series of agreements, I would take it. I would guess. Um, I'm not sure how, you know, they're formalizing things, but it's a group of companies getting together Um Right now it has canon dropbox google asana sap and new egg And uh, I think others can join if they want. Uh, you can find it at let's see what's its website lot net dot com and the idea behind it is That all of these companies are agreeing that Should they ever sell Their patents should they ever divest themselves of all their patents? They will license all the other lot net members To use those patents. So they cannot ever be sued by a patent troll This if it's contractual would seem to be enforceable, right stefan I think it is enforceable. Um, and that's what's good about it. Uh, what's interesting about it is, uh, this is another one of several Sort of patent pooling or patent defense league type arrangements that i've seen popping up in the last few years. Um, it seems to be aimed at patent trolls primarily Um, uh with an interesting strategy The the main problem with patent trolls is that you can't counter sue them because they're not making any product that you might have a Patent to cover. So you're pretty much defenseless when a patent troll Attacks you. Um, and so the problem with these patent defense leagues is that they're useful against Sometimes but they're not useful against patent trolls because even if you have 10,000 or 100,000 patents in a pool You could draw upon to use defensively It doesn't do any good to use a patent defensively against trolls It seems to me like what lotteness trying to do is they're trying to disarm the trolls ahead of time By basically putting a poison pill Basically in all the existing patents that are out there so that in five or 10 years when these patents start Coming up for sale as startups go go bankrupt and need to sell their patents that they won't be able to be bought and used by trolls So what they're trying to do is basically take the thorns off the rows ahead of time um And I think it's a valiant effort, but i'm afraid that it's it can only have so much effect You're only going to get a certain percentage of the entire Existing number of live patents in the us that are bound up under such an even if you got 50% There might be another 2 million live inventions out there live patents out there that could be used by trolls So it could reduce the risk somewhat and I admire the effort and I think we're going to see more Uh attempts like this Well, lot the lot part of lot net stands for license on transfer as of today according to their website They have seven members, but I could certainly see this being an attractive kind of thing a startup might want to join um to try and effect itself against Patent troll lawsuits down the road. What do you think Harry? Um, I I really agree with what was just said I think I think it's a valiant effort, but it really is you know a finger in the dam So, you know 500 000 plus patents get Issued every year any one of those might be bought by a troll down the road And I think agreements like this are probably going to only cover a very Small percentage of them on the other hand, uh, very large companies Recently that have either failed or have gone belly up for instance, you know Nortel networks and Polaroid and large companies of the past Um have had their patents sold off Um, so if you can get a bunch of really large players, it might have Some impact, but I I still think it's sort of you know, uh, just the finger in the dam Given how many there is something estimated, you know, 2 million Live patents plus at any given time. So this will only cover a small percentage of them, but I I like the idea theoretically Let me say one more thing about this if it's okay. Um, I think that the value of this Could be more against patent competitors than patent trolls because this could have a network effect Where people start joining this in an industry to get the right to use the patents in the pool defensively like in patent defense leagues against people in their industry And um as I I believe that patent competitors that as competitors in an industry with patents or a bigger threat than patent trolls I think this is actually more promising than it would seem to be Given that it only could have so much of an effect on patent trolls So I would expect and hope that these things could um snow ball and take a take effect in different industries I'm a little bit worried that the The anti the ftc is going to start saying this is anti competitive If these companies that are competitors pooled their patents with each other just for defensive reasons So they're trying to get rid of an anti competitive monopoly The government is forcing them to get to defend themselves And that might be called anti competitive. So you have the interplay of antitrust And patent law in a bad way. I'm afraid But there's some potential here Um In that respect, I think I think my head just exploded We've got the government in your scenario saying you're Taking monopoly tactics to get out of our monopoly law It's pretty funny. All right. Evan. What do you think about lot net? Well, you know, it's interesting because it lends itself to so many useful metaphors cutting off the thorns From the rose ahead of time finger in the dam Uh poison pill, I mean, those are all very apt and I guess we're we're Want to do that in when we're we're confronted with novel situations novel approaches like this And of course, I agree with what stefan and harry say here about it being of limited utility so long as there are only a few participants in that which is not to say that it wouldn't work if uh, you know If it were much larger in a larger set of of uh companies and patent holders that were involved in it here I think if you actually read the license agreement itself, um, excuse me the uh, you know the the the license agreement that actually gives structure and gives Uh, you know, well structure to how it actually works. It's really interesting how it works here You know because you've got this license that is granted to all the other members of the community But that license doesn't take effect until immediately prior to the transfer actually happening So it's sort of like this weird thing that that happens And so we start to think of our think of like no, well, where does this actually happen? When does it particularly happen? But the you know if if one of the members transfers the patent outside of the network outside of the the membership here That license is granted. I guess presumably that moment Before the actual assignment is made So if you start thinking about it too literally that gets sort of wacky to to think about But of course it has to happen that way because it's not a present license You're not allowing all of your competitors to use the patent right as soon as you become a member But then of course after it's been transferred you no longer would have the ability to to grant the license So it has to be that way, but it's just sort of a wacky um, you know novel uh Thing to think about how how it's actually actually done and the license agreement seems to be really well written And it's certainly interesting reading Right, so there's something in a states and trust law that that was about a springing I don't know. I'm trying to remember back to the states and trust on the bar But something that's sprang into life on a contingency And I remember those being not enforceable. So I don't know. I I Don't trust me on this. I am I am decades away from the bar exam at this point and springing arrangements are not fresh in my mind um Let's move on to before we leave us patent law and it's various legislative and judicial aspects Let's check in with the patent office, which had a nominee To head it phil johnson That who has now been withdrawn? I guess the obama administration took a lot of flak for nominating phil johnson he's someone who was in-house with johnson and johnson and known as Someone who was a very strong proponent of strong patents and patent rights and The obama administration decided no, we're just not going to nominate this guy We've you know, who knows what their thought process was but they backed off his nomination And so michelle lee former googler is still the interim head until we have Someone nominated to head the patent office Evan I saw that Evan's texting me funny things on our back channel right now Along the lines of um the name johnson. So sorry. I just doubted you Any event Let's uh, yeah Let's let's uh talk about whether we think that This says anything about the usp to pto and michelle lee's Tenure there And if you have any guesses about who the next nominee might be now would be the time to toss him out. What do you think harry? Well, I just want to say I I don't know uh phil johnson And his qualifications, but I will say I think it is important To for the obama administration to be putting forth somebody who is committed to really improving the patent office and experimenting and trying to make things better and I Think dav capos the former head of the patent office did an excellent job. He was very willing to experiment So somebody in that mold. I think michelle lee would be an excellent choice. I think she's uh eminently qualified um, and as to phil johnson whether or not He was probably very qualified, but I think impurities are important and I think it's important not to Uh pick somebody who comes to the table Kind of with an overhang of a predisposition One where the other and I think that was his problem. The assumption was that Uh, you know, it was going to be the status quo that may or may not have been true But it's it reminds me a little bit at the fdc Tom wheeler who's a former cable lobbyist, you know, may or may not be predisposed Towards favoring the cable industry But the fact that he had that position sort of clouds everything that goes forward Right stephen any thoughts about the heading the us pto Denise congratulations. You finally found a topic about which I have no opinion whatsoever Do I win some kind of prize? I've been a registered patent lawyer for 20 years and I did even know the pto director had anything to do with policy. So this is uh, Obviously, uh, not something I care much about. I I did interview Todd Dickinson though one time When I was an associate patent attorney in Philadelphia, so I did meet one of the earlier patent directors But uh, no, I have no I don't think it matters to be honest Okay, evan Yeah, the same thing. I mean just sort of to Take off on that. It seems like it's a very political decision I don't think if there's as much policymaking as what there is at the FCC to tie in with what harry was saying about the comparison to wheeler Who brought a lot of political baggage to this as well? So there's certainly something to avoid in as much as this is a political position a political appointment Uh, these appearances could you know really detract from that? So I think it's it only makes sense that things are transpiring the way that the way that they are Okay, I think we have to make no opinion our second mcle passphrase for this episode of this week in law There we go. We've got two of them in there and before we leave the topic of patents Let's talk about apple briefly and the fact that it appears apple is in a battle for its ability under Chinese patent law to be able to Put siri Into its phones sold in china because there is a patent holder in china who has a patent It claims covers the siri technology Um, so I guess this just kind of highlights that as much as we can try and tinker with the patent system in the united states All bets are off if you need to sell in an enormous market like china, right? Uh-huh, uh-huh Once again What do you think here I will say that uh the um Intellectual property system in china is very selectively enforced So I'm very skeptic skeptical that you know the extent there was a really Objective basis behind this because there's actually you know on the one hand, uh quite rampant intellectual property law violations that happen But then occasionally, you know the law in china it steps in and often it's you know favoring a chinese country Company now, I guess the same could be said to some degree in the united states But I think the system in china is much less Developed as compared to the united states overall Got it. Uh, stephen anything to add to this I think there's a I put on my blog a while back. There's a chinese proverb about uh Copying something is a beautiful thing or something like that. So they kind of have this ancient tradition Um, which I think is good. Um, right? No, not a lot of comments and such Yeah, I have something like that. Um, but um, I guess you could you could you could have a little shade in freuda here and say Live by the ip sword die by the ip sword, but I don't think it's a good thing ultimately although as a frustrated user of syria I don't know how badly this will hurt them to be honest. Um, I think a more important case is there's another one I don't think it's in the rundown. Um There is a patent troll who I think is poised to collect royalties from apple Um for all iphone sales for like the next 10 15 years and for what getting 1 percent of every iPhone sold and apparently that's about 400 million dollars a year So we're talking about a four billion five six billion dollar Um pay out if this if this patent troll goes so that could be a more substantial Patent hit coming uh google's way. I think they can probably get out of this one with with a little with enough money Apple sway Yes, apple. Sorry All right. Well, we've been talking about ario and its aftermath Let's look at a bit of its aftermath Over in the area of entertainment law So we mentioned that immediately after the ario Decision fox went into the ninth circuit and said hey, you know, this this directly Impacts part of our case against dish. They're suing over dishes hopper technology But also over some streaming Where fox contended that dish was doing basically the same thing that ario was doing and if ario shouldn't be able to do it Then dish shouldn't be able to do it either And uh what happened here is they went in asking for an injunction Against dish for this kind of streaming and the court said no no injunction. So all that that means is uh the court Decided first of all Oops, I just got some feedback there um decided that Ario was narrowly decided and at least it took the supreme court's Admonition to heart in that regard and said look, we're not going to start granting injunctions based on this You're going to have to have a trial Over whether or not the streaming service is the same thing as ario. So any thoughts on this harry? uh, yeah, so I I think that the Uh, as we said earlier, the supreme court took great pains in ario to try to limit it to the facts of ario Now just because they tried doesn't mean it's always going to happen So I think this is one example where you have a different technology and the court recognized that they didn't Apply the ario didn't apply but I think the sort of larger commentary with ario is that um We have laws that were developed in the 1970s that are Being applied to the technology of 2014 and that is a major problem. So I I don't think there was actually a clear outcome One way or another on the ario case for this very reason because uh, you know back in the 1970s and antenna Was a vert, you know several foot thing that attached to a crt tv Fast-forward 40 years and antennas, you know are A fifth the size of a dime and you have a hundred of them attached to a computer card Broadcasting internet broadcasting tv over the internet. These are ideas that just simply didn't exist 40 years ago. So I think it speaks to the fact that maybe This the supreme court and the courts are going to continue to struggle with new technologies that were not anticipated, uh, kind of an antiquated legal framework. Um, but uh, the the other point I'd say in ario's defense, uh, the supreme court Was sort of critical that they were taking advantage of loopholes But ario was very much Following the state of the law in their circuit the second circuit So, uh, I think it's hard to say that they were taking advantage of loopholes when And uh, what they were doing was actually the law of the land in their circuit until the supreme court found otherwise Evan would you have been stunned if uh, the ninth circuit had decided to go fox's way here and grant an injunction Well, I think that would have been sort of an unusual thing for the court to do in that stage It was a preliminary injunction here because when you actually read the the ninth circuit's opinion It doesn't talk about ario. It talks about just the the real analysis that's going on here as to whether fox had shown an irreparable harm So there were plenty of other reasons for the the court to deny A preliminary injunction other than just the simple narrow fact that it is or is not a lot like Ario there were other other factors here besides the likelihood of success on the merits So given the fact that this litigation over this is technology has been going on for a long time and the technology has been out since January of 2012 Uh, it it comes as no surprise that there is no preliminary injunction at this point Which as I think is pretty clear by implication here doesn't mean that ultimately this technology won't get ariode It could um, that's not what the the holding is here Or that's not what the conclusion is here from the ninth circuit having done what it did So there's plenty more to be written about this. Uh, the way the ario may or may not apply to to dish networks technology Right in this case is scheduled to go to trial next january Stefan any thoughts on The role of ario in this case or on ario's Uh, sort of wholehearted adoption of its new cable company moniker Well, I think uh, well, I think ario is playing it smart They may they may still find a way to survive by doing like five ten minutes of time shifting at the customer's request So there's not a transmission to the public. I don't know if they can make it. Um, um, I wasn't surprised by this I think that there was no irreparable harm shown. I I'm afraid dish will ultimately lose Uh, there are some differences between dish and ario, but according to the supreme court's new test They look a little bit like ario Although the word dish doesn't sound like ario So I don't know if that would make a new difference in the new way supreme court thinks about things, but um I'm afraid I'm afraid they're going to be imperiled and what they're doing But uh, maybe ario will find another way to um To to to get out of this with the time shifting idea Area is also Trying to reclassify itself Uh, somewhat unsuccessfully as a cable service as a way to survive Right and I mentioned that a second ago. What do you think harry? Is that going to fly? I'm I'm a little dubious about, uh, whether they'll be able to do it, but I think they're they're going to give it their best effort All right. Well, we will stay tuned to the fox case coming up in january and we'll certainly watch Uh, what happens with ario as they continue to try to have a business Um, right now. I want to switch over to a story having to do with the social web A couple of stories and I got to warn you they're depressing as anything Uh, you know, usually we think of the social web We think of uh grumpy cats being the most depressing thing that might come your way and we think of the great things that Uh, the web becoming more social Has done, you know, people are getting funded People are able to reach audiences. They never could I I don't think anyone Would argue that the social web has been a huge social boon in many many ways But it also as we can see in a couple of stories, uh, one of which was tweeted to me by our Very loyal listener totally fried who is great about tweeting us stuff and putting stuff on our radar. Um A couple of stories showing how When you add a social component to an already terrible situation A bullying harassment kind of situation It can become exponentially worse. Um And in this particular case, uh, there was a 14 year old boy in, um, san diego Uh attending public school who, uh got Sent out of his classroom for eating sunflower seeds in class not allowed. Um, so he's wandering the halls apparently he was not told to go anywhere else and Had some time on his hands and very soon he had other things on his hands in his hands In the restroom at the school And uh, although the poor guy, uh, thought he was alone he apparently was not because another schoolmate was in there captured the Events that transpired on video and then shared them, you know with the public including Many many students members of his school. Um Knew what happened, uh, unfortunately the kids parents never knew what happened Didn't know what was coming their way because uh, they went on a family trip for Thanksgiving And uh, this was just a couple of weeks after this all went public and uh, the poor guy, um killed himself so and left a suicide note saying, um How he just couldn't handle school and it had all, you know spun out of control So the parents are now, you know in this horrific situation, obviously the poor kid What a what a terrible place to find yourself in as a child as a mom. It just the story just breaks my heart um So the social media component of it. I think is interesting just, you know, it would have been awful just to have stories like this being told around school Uh, but because it happened, you know, who knows why the kid didn't tell his parents Maybe they could have done something to to make the situation better But really the fact that everyone saw this video is is what made it so awful for the guy. Um, and then, you know in an even worse kind of situation Up in northern california There was an episode involving a high school girl who passed out at a party and some boys who Decided to physically take advantage of her and film themselves doing it. I'm not sure if it was photographs or video But what have you and then again went viral and The girl Reacted badly and and once again, there was a suicide We have a law that may get enacted in california called audrey's law as a result of the latter case um, and what among the things that it would do is if indeed some a minor is convicted uh for some sort of sexual crime If they have taken the step of sharing pictures or texts of that crime to harass or humiliate the victim They would have a year added to their sentence This audrey's law also would have court proceeding for teens under court proceedings for teens prosecuted under it made public ordinarily Miners court proceedings In this kind of case would not be So that is pending and I wanted to toss it out to you guys just to talk about Um The aggravating role of social media in these kinds of situations and whether the law Should play a role in it in the san diego case Uh, the reason it's in the news right now is the parents are going to sue the school district It sounds like uh for not taking more steps to protect their son I think when the video was going around They haven't filed a lawsuit. So i'm not sure what their claims are at this point But there's also the aspect of you know, what what do you do to the boy who? Posted everything made it public According to the article in our rundown you can access all these links at delicious.com slash this weekend law slash 267 for this show The san diego county district attorney's office declined to say whether the boy Who the claim says took the video might face charges under the state's anti bullying law However a spokesman for the district attorney said a hearing is set for july 23rd in juvenile court on the matter So um, there are a couple of aspects there to consider, you know If you're going to make something like this widely public And you're a minor what sort of consequences should there be and what sort of consequences should there be for a school to police all this Stephen i'll start with you. What what do you think about all this? Well, it's obviously horrible. Both cases are horrible. Um, yeah In the first case The boy case it's harder. It's hard to find an actual Torque that should be recognized under law. Um, it's it's obviously a reprehensible act. Um, I guess you could you could pin it on Some kind of trespass There was a use of property and violation of the say the implicit contract of the owner which is the school district Not to use property in a certain way. So you could probably find a type of trespass that was done by the guy that videoed it And of course in the case of the girl, we already have laws against assault and rape Which sounds like is what happened. And so I see no problem with the law enhancing the Penalty or the damages to be awarded um, if there's If there's a violation of rights and then um, if if it's exacerbated by say publishing photographs Which make the injury done to the victim Even worse. So I I see no problem with those kinds of things being taken into account And I think they they should be whether the the extra year is the right way to go Um, I don't know. Um, but um, these are obviously horrible things. Um, and um, I think in these cases Prevention is of course more important than How we deal with it after the fact but um, they're sad cases Yeah, I'm really hoping that schools in the aftermath of these kinds of events will Hopefully they already are but but even more so I'm spending a lot of time with kids Discussing social media and it's responsible use. Evan. What do you think about? penalizing people who? Take something embarrassing or or horrific and make it public Well, I mean with social media that's that has the ability to Enable someone to inflict greater harm than other Methods, you know, it's much worse than an idea or a rumor You know just going from person to person in the context of actual You know talking to people in the hallway or what have you with social media It has potential for wider distribution And there's also this idea of the permanence of it as well This you know, the digital evidence could be around on the web in some form for a long long time So no doubt it has the ability and the capacity to aggravate the the circumstances and for that reason it ought to form a basis on which to enhance the sentence or somehow Raise the level of culpability that actually happens or do the responsibility of what actually happens here Make it a worse kind of crime Higher form of criminal liabilities What I'm trying to say whether I'm saying it in artfully or not The concern that I have is that When you single out a certain mode like social media to be that which in You know should be the basis for that enhancement I think what it can lead to is ideas of zero tolerance and You know because their social media. Well, then this was inherently much worse And so therefore there shouldn't be any Mitigation going on because of this aggravation any aggravation Any aggravational aspect of this would offset any kind of mitigation that may have may be present because of other Things going on in the context the best comparison I can make of it is The ridiculousness that you see in a lot of situations now with zero tolerance For guns in schools. Of course guns in schools are a terrible thing It's one of the worst things that is present in our society today But you know, there are these stories of like seven-year-old kids getting expelled from school because they you know Formed their fingers in the shape of a gun like this and pointed at another student. That's ridiculous. That's dumb That doesn't that doesn't address the Concern and the aggravation that comes from having carried an actual gun to school and murdered classmates and and all of that stuff so What what I guess I'm really trying to articulate here is yes So the social media aspect of this can indeed be aggravating the law ought to do that But it we've got to be really careful to do it in a way that doesn't lead to absurd results Merely because there is a social media component to it. It's got to be a pretty broad Analysis and there's got to be an evaluation of the entire circumstance before you start adding years On to kids sentences just because they happen to have tweeted about it Yeah, I totally agree with you Evan and and think that you know, it's it's so and I know because I'm I'm mom and These stories impact me very viscerally and it's so Uh possible It's it's probable even in that kind of situation that people will overreact and and want to Take measures that Maybe over broad In trying to make sure that Something like that doesn't happen again and specifically does not happen to their child So I think it's a really dicey kind of situation that we have to watch We are talking about minor kids In all of these situations both the victims and the cyber bulliers if we want to use those terms And I should mention in the audrey's law case too that you know, when I first heard about this case The word rape was used as to what happened to the girl and maybe technically under the law. That's what this was but Um, you know without getting too graphic here on the show. There was no penetration There was it was more of a touching than anything else so and Anyway, actually I'm not going to go too much into the details You can read the story and and get what I'm talking about the reason I'm going into the details is I could see where the boys involved first of all the boys involved, you know Obviously terrible terrible thing that they did Should have been parented better to make better decisions, etc But I I could see, you know in a situation Like that where they're maybe the just just kind of Not thinking they're doing anything too terribly bad That they're just kind of messing around that, you know, that they Rape is not a word in their head as they're doing this. Um, so, you know, again, maybe that's an educational issue But I think it has to factor into, you know, what do you do with a child who has done this? um Obviously, you don't want to be dealing with it after the fact you want to be Taking proactive measures to make sure that it doesn't happen But, you know, if you try to put yourself into the shoes of the parents of The boys in the audrey's law case um, you Might find that All of a sudden you think the law is getting pretty harsh here Harry, what do you think about all this? I certainly agree with all that's been said. It's a really tragic Circumstance, and I want to echo something you and evan said is that I think we're living in a world now Where social media has the ability to magnify harms of the past that may not have been so problematic and we're living in a new world where we have to Deal with these situations, which you know, my other in the past 30 years ago might have been just a harmful rumor Now can explode on the internet in a video or posting that really drive these drastic drastic circumstances Uh, and you know technology brings benefits, but it also has its costs um, I think similarly we uh, and really to echo a theme you just said which is I think the social media Allows teenagers to make bad decisions much worse than they would have been in the past So, you know, not to defend Uh, the bullies in this case. So I think did a terrible Thing, but you know teenagers have underdeveloped Impulse control and uh Risk-taking and social media allows them to turn bad decisions into really bad decisions that lead to Tragic results. So it's something we just need to be aware of in this new world and it's not really going away Um from a larger level, I would say as a law professor I am definitely skeptical about any law that tends to be a reactive law that reacts to a particular incident so without having looked at the details of Audrey's law one where they are I just want to say in general Laws that get passed in response to a particular incident have a tendency Uh to have unintended consequences down the road Um, and I'm really not a fan of sort of emotional reactive Lawmaking of this way generally speaking Yep, something to be very very cautious of as uh, You try to deal with these situations and make policy decisions around them Let's uh lighten things up substantially maybe jarringly With let's go to our resource of the week too. So at first so it's not too jarring The net neutrality Debate has somewhat sop ed the FCC site as it was trying to Deal with all the comments. It was getting this week. It had an initial deadline of July 15th To close the initial comment period on the pending open internet proposal They've gone ahead and extended that to tonight at midnight eastern time If you have not gotten in your comments to the FCC Now would be the time if you need some refreshers on net neutrality, of course There are lots of resources out there for it, but if you wanted a more light-hearted one Uh, call the people at college humor have done one. So I just wanted to point you toward that briefly Bruce I am your father Hi, I'm adam and I'm emerald we make funny videos on the internet, but soon we may not be able to That's because net neutrality is in jeopardy net neutrality is the principle that says that isp You know these can't discriminate between different types of traffic That means that whether you're a bedroom music producer a couple with an amateur porn site or just one of the great startup idea It's like Dropbox for your food. Great idea. Hope it will end on Dropbox for your food. It goes on uh for quite some time uh Going through um, obviously one side of the net neutrality debate. Um, so you know, I would encourage you to seek out more detailed and serious resources on net neutrality, but Every now and then you have to have to lighten things up and the main point Here is that friday Tonight is the the first deadline and then september 10th will be the deadline for reply comments Let me also Yes, let me also give a shout out to if you haven't seen john oliver's Hilarious and brilliant take on net neutrality. You can find it on youtube. I think uh really fun And uh, just a brilliant piece of social commentary. I think it's a nice Complement to the video you just showed both informative and humorous as well And he just seems to nail that informative and humorous Uh, milieu. So good for him or metier. Maybe is what i'm thinking of for john oliver. So, um, yes, definitely Check those out and uh once again pay attention to net neutrality get those comments in Oh and bear is mentioning here too They've topped a million comments to the fcc and are closing in on the record comments on any issue that the fcc has ever received that was 1.4 million And guess what that was on that was for the janet jackson Uh clothing malfunction at the super bowl So, um arguably this is a far more important issue So, uh, hope you're paying attention And uh our tip of the week would be um for anyone Wishing to make a boat In the country of japan Uh that is a digitally accurate rendering of their vejeje That has been found to be illegal in japan So, uh, there's a really hysterical youtube video on this that highlights The the poor artist who wanted to make it was sort of like a kayak That uh, she had digital scans done to um Make it a an accurate representation of her nether regions and The whole point of this artist's work is to demystify The pussy as she calls it And she she makes iphone cases and various other things here. She uh sought to make a boat But no it violated the country's obscenity laws. So um our tip would be Uh, I guess you can't do that in japan. Sorry anyone who had uh similar designs The uh the irony of all this uh is to that apparently Fertility parades in japan are very common With full three-dimensional renderings of the male genitalia, but that Apparently is not problematic under the law at all. So a bit of a double standard going on there Our tip would be uh not to make uh your vejeje a boat in japan So I hope I've sufficiently enlightened things up here at the end of the show. It's been so fun talking about Both heady and lighthearted issues With harry serdon from the university of colorado at boulder harry so great having you back Thank you so much for having me. It's really been a pleasure. I'm always Enjoy doing this. So thank you Good. We'll definitely have you back again. Tell us though in the meantime What you have coming up if anything folks in the area Could come buy for or keep an eye out for or anything folks online could Absolutely. So once the semester starts up, which for us is uh late august. It's coming up University of colorado silken flat irons has a series of really interesting conferences on privacy patent law internet law Open to the public So come on there's a lot going on at the university of colorado in terms of entrepreneurship intellectual property law Computers in law. So come on down if you're in boulder. We're always happy to see you Great would love to do that when we're in town. Well, you know, obviously great to get to colorado when you ever you can Uh, stefan, uh, I love getting to houston too. It's I was reminiscing with a friend who has A youngster about the age of mine that pretty soon. We're gonna have to get on over to nasa and take them on the tour Other than interesting Space tourism, uh, what what else is going on in your neck of the woods? Well, um I am working on a collection of my Law review articles and essays called law in a libertarian world, which should be coming out as a book In the next six to nine months whenever I finish it up. So I'm working on that Um and another ip uh monograph Called copy this book. So that would be another year or so. So I'm working on those things in the background while I'm doing my legal practice and raising an 11 year old and uh Trying to keep keep the fort under control here, but everything is good and I really appreciate the show. Nice to meet you harry And uh, it was enjoyable as as ever So great to chat with you again stefan and yes, uh raising an 11 year old in addition to everything else you have going on is definitely a Lot to juggle. So good luck with that. And uh, evan, you've got your hands full too in that regard Yeah, are you done with that japan story yet? I'm done with the japan story Once again, you can blame. I think it was again totally frider. It was someone else on twitter who pointed me toward that And I went okay. That's gonna be our tip. Okay. Good. I can't believe you're getting after me for the things I was Skyping you when you were I know Yes, great fun. Yeah, as uh, certainly lived up to the expectations I knew this would be a fun conversation with you harry and with you stefan lots of fun You know, so a great way to spend a friday afternoon, especially in the summertime So good times and uh, it was great to be here Wonderful to see you as always evan and enjoy the rest of your weekend here at the end of the summer Uh, we don't have any breaks coming up anytime soon. We'll let you know if we do As the summer winds down, uh, so we're just gonna keep on chugging away We're gonna keep on posting shows at twit.tv slash twill and at youtube.com slash this weekend live You've missed any of our other recent shows. That's where you're gonna find them. Uh, what else see you can watch us on roku That's always a fun way to go And uh in itunes et cetera et cetera And if you want to send us just completely face palm stories that uh, you'd like us to put on the show The way to do that would be to send us a tweet evan is internet cases And i'm d howl on twitter or if you have a more lengthy Exposition you'd like to give us head on over to our facebook or google plus page And we'll chat with you there or you could email us. Uh, evan is evan at twit.tv I'm denise at twit.tv. We love hearing from you However, you decide to get in touch with us because uh, really we couldn't do the show without you You give us so many great ideas And suggestions, uh, keep us up to speed on things that we haven't been paying attention to So we really really appreciate all the help And uh with that we'll go ahead and wrap up this episode of this week in law and we'll see you next week Thanks for everything. Take care