Category Archives: Law

Still more to come from Aereo

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As always – these opinions are my own. I speak for no entities or organizations.

Many sources reported that Aereo was handed a winning decision this week its it case against many of the national broadcasters. You can read the opinion here.

Most sources reported this as victory for Aereo. While it was a win, the situation has not been fully settled yet. I’ll explain three reasons why it might be too soon to celebrate if you are Aereo.

First, what tends to get overlooked the most is that this was an appeal to a decision in a request for preliminary injunction. That means the broadcasters were asking the court to stop Aereo while the case was on going. To allow this, the party asking has to prove four things. Most important is the first factor: that they will almost assuredly win (“likelihood of success on the merits”).

The trial court did not find that they would absolutely win, because there are hairy copyright questions. The appeal court confirmed this and hence why they confirmed the trial court’s opinion and sided with Aereo. You can see this in the opinion:

The district court (Nathan, J.) denied the motion, concluding that the plaintiffs were unlikely to prevail on the merits in light of our prior decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”). We agree and affirm the order of the district court denying the motion for a preliminary injunction.

What this means is that if the broadcasters want to, they can still go through and have a full on trial. While it is discouraging that the court states they were “unlikely to prevail”, this is before any real trial has taken place. The reason we have trials is to fully examine issues in detail. Perhaps the court could be persuaded differently.

Second, this decision was made by an appeals board of 3 judges. And it was a split decision, where 2 voted for Aereo and 1 for the broadcasters. The broadcasters can request the entire bench of appeals judges look a the issue. This is know as an en banc review. The court would have to agree to take it, but since it was not a full decision, they might choose to do so.

Let’s stick with the idea of divided opinions. The third and final point to consider about this decision is the location.  This appeal came from the 2nd federal circuit. The country is divided into various circuits, each having jurisdiction over their own territory of states.

So, this decision holds for the 2nd circuit. Often, if a similar issue hasn’t been settled in other circuits, and they agree, they will just let that decision hold (“persuasive but not mandatory”). So, for most of the country this will probably be good law.

However, in the 9th Circuit, there was a decision on a similar case already. A service that was exactly like Aereo called (ironically) Aereokiller operated in California. A similar lawsuit was brought and a decision was made that found it infringing. So, while the 2nd found it didn’t the 9th found this type of service does infringe copyright. This has a few implications.

First, check out the map of Aereo’s operating and expanding cities:
Screen Shot 2013-04-06 at 6.43.58 PMNotice how it lines up with the federal district map above. Aereo won’t risk going into the 9th circuit, because there they could be found infringing and be forced to shut down.

Second, there is a conflict of decisions! We tend to not like that because it means things operate differently and people can’t operate smoothly across the country. So, likely, an appeal will be made to the Supreme Court to make a final decision and tell us who is right. Decisions from the Supreme Court would supercede any federal district court opinion. So, if the Supreme Court likes the 9th circuit’s rationale better than the 2nd, Aereo will still be in hot water.

As an aside: how is it that two courts came to two different decisions? It comes down to my favorite area of fuzzy law – the “Public Performance“. As a reminder the Copyright Act defines a “public performance” as:

“To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. ”

The 2nd court interprets shows recorded independently and sent to a specific device over the internet to not be a public performance because an individual is setting the recording, no one else accesses it, and it is sent to specific user. This piggyback’s on the circuit’s previous Cablevision decision.

The 9th circuit on the other hand focuses on the second clause and see the internet as accessible by the public, no matter whether the people watch the performance at the same or different place or time.

In my opinion, this issue is still contentious and could easily go either way. I’ll be eagerly anticipating a decision in this area in the future!

Patent Trolls

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Patent Trolls have been getting more and more attention is recent years. A “Patent Troll” or Non-Practicing Entity (NPE) for those in the industry, is a company (or person) that owns a patent, but doesn’t really make anything using it. Instead they just look for someone else who is using their patented process/device and sue them. Most of the time they don’t really want to go to court, which can be expensive (and sometimes a losing process!) but instead want to work out a settlement fee from whoever is using their protected invention.

A quick note: Not ALL NPEs are bad. Sometimes it is an individual inventor who really does come up with something unique, but lacks the ability to manufacture. A true garage inventor. Sadly, more often it is just a shell company set up that purchases a block of attractive assets (patents someone else invented).

What often happens is that some company gets a letter in the mail, claiming that a product they make uses a patent belonging to the NPE. The NPE says we are going to sue you, or you can agree to settle by paying us $X for every product you make that includes our patent. For many companies, the licensed fee is cheaper than it would be to go to court (insert lawyer joke).

For many small companies, this is a make-or-break moment. They often run on such small capital that they can’t afford to litigate and have to shut down. Large companies have realized the importance of this and have started to acquired large libraries of patents in case a rival comes after them in some weird IP arms race.

While thinking about this, I thought of what I think to be a unique solution. What about some sort of patent litigation insurance. We spread risk out for many things, why not this. You could pay a certain amount every year, and if someone claims you are infringing their patent, the funds could be used to pay for your defense.

The real trick to why I think this would work is that the Patent Trolls don’t really want to go to trial. They are hoping you settle. Trials are expensive, which is against their purpose, and second, if they lose they lose their entire reason for being. They do not actually want their patent to go in front of a jury. If they know you won’t blink and will make them actually prove 1) their patent is valid and 2) you infringe it, they might just move along and not mess with you.

Case in point, Newegg. Newegg is one of those nerdy hidden gems. Its a place where you can find super cheap computer parts, systems and accessories. They have a strict no settlement patent policy. A patent troll sued them (and many other companies!) claiming they invented the online shopping cart, and Newegg was violating their patent. Newegg fought back and won, invalidating the patent. Luckily, Newegg had the money, and gumption to fight. Many other companies did not and were paying this troll for something they didn’t need to.

Instead of hoping for a white knight to stand up to the Patent Trolls, instead we should recognize that getting rid of them is a great public good – leading to more innovation, and we should be teaming up to fight them.

Vague Law – Difficulties in Drafting Legislation

I don’t envy lawmakers at all. In addition to being blamed for everything, and having an approval rating lower than practically anything else, they have to craft the language for the laws that governs us.

My criminal law professor in college ran an exercise with us where we had to draft a law. It was futile of course, as he found loopholes in everything we came up with. Socratic method at its best. And the point stuck with me.

I wanted to point out three examples of this that have been in the news recently.

DMCA Exceptions

The DMCA (Digital Millenium Copyright Act) is a section of legislation passed in order to help protect digital content. It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

The interesting thing about this is that while copyright law provides fair use exceptions for certain actions that would be typically copyright violations – say using clips from a film in a news report – technically if you had to rip a DVD, thus breaking the locks on a DVD that prevent it from being copied, it is an illegal way to acquire that video. There is no legal “fair use” exception for DMCA.

There are certain legal exemption activities that the Copyright office reviews and states every three years, but no broad “fair use” style analysis. Only individual instances. For example, until January 2013, unlocking a cell phone was legal, even though it violated the DMCA. Not anymore.

Computer Fraud and Abuse Act

The CFAA has been in the news recently because of a person who committed suicide after being charged with the crime. The law has very strict and severe penalties, but covers very broad activities based on its language.

Section 2(c) of the language covers whoever:

“…intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains…information from any protected computer.”

You can see how this is very vague. The law was passed in 1986, and was amended several times, expanding it broad nature. So, it now covers almost anytime someone accesses a computer “without authorization”. It is basically up to the owner of the computer whether they decide to pursue.

The question comes down to what “without authorization or exceeds authorized access” means. And, as you would expect this is open to interpretation. Even different circuits of the federal courts can’t agree. The 7th circuit decided that an employee who erased an employer’s laptop before giving it back after he was fired was found to have exceeded authorized access. (International Airport Centers v Citrin), while the 9th found (in US v Nosal) that an employee who went to start his own company did not violate it when he copied the contents of his laptop including other company files, as long as he didn’t break any kind of electronic protection mechanisms. (back to the DMCA!)

Until the Supreme Court or Congress addresses this, it remains both vague and broad.

Public Performance

Copyright affords a bunch of rights to the copyright holder (in many cases this is referred to a bundle of sticks), of which they can individually give away and/or keep for themselves. Among those rights (along with others like reproduction and distribution) is the right of public performance.

But, the question is, what exactly is a public performance? Would playing a stereo in a park be a public performance? What about hosting a movie night with 3 friends? 30 friends? What if you charged? What if you streamed it online? If only one person watched? If anyone could watch?

The language of public performance is defined in the Copyright Act:

“To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. ”

Never have so many words failed to clarify anything. Needless to say, much argument has been made about exactly what this means. Whether it is determining if online streaming radio stations are in public, or watching a video in a movie rental business, in the age of digital media and the internet this is only bound to get foggier.

Online Terms of Service Agreements and Instagram

The internet is buzzing with overreactions to Instagram changing its terms of service. Sharp eyed people noticed that part of it changed so that Instagram claimed the right to use images uploaded in ads without having to compensate users.

Many, many people online have been loudly seeking alternatives and complaining. This isn’t unusual. Just like the Facebook post meme that went around, many uneducated knee-jerk reactionaries are causing a stink. Funny how the loudest complainers are always the least informed. 

I have three thoughts.

1) This is overreaction at its worst, especially when you compare to other online companies.

Instagram is not making its terms of service any different than other social networks (including Facebook, its parent company). In fact, these onerous terms are needed because many argue without them, pictures wouldn’t be useful. Google had to change its terms of service so that videos you upload to YouTube could be used on Google plus without violating any contractual terms.

Companies have to use broad language in order to allow you to use their social networks to share like you expect to. Otherwise, they aren’t useful.

2) Online social networks are companies that cost money to run.

All these social networks you use? They cost money to run. Bandwidth, computer resources, storage. Coders to pay. Etc. This all takes money. And because you don’t pay anything to use these services, they have to sell advertising. And advertisers demand information about you to make money. Its an exchange of valuable information for valuable services. Why should you expect otherwise?

3) Those complaining likely didn’t read it well, and it was poorly written

The language does not say that Instagram can sell your stuff, as many are claiming. All the language did was clarify what Instagram always said in their TOS. They can use your photos to help sell ads.

But what this highlights is something larger and more imporant, and hopefully brings some good out of this. Just like the other social networks, this is not the first time confusing legalese has created an uproar for a social network. How many times have you seen the silly long TOS for itunes and just clicked OK and moved on?

Its time for companies to create a straightforward, simply phrased translation of TOS. As an attorney, I emphathize that companies need to cover themselves. However, it doesn’t help in a PR sense when the entire world thinks you are trying to pull something on them because of your awkwardly worded contract. Simplify and be more transparent and straightforward with what you are getting from users, and what value you are giving them in return. Users will love how refreshing that is and reward you for it.

YouTube Monetizing Piracy

On the YouTube blog, the company posted an announcement about a deal struck with many music publishers. Now, when users upload videos with background music that is copyrighted music, instead of begin taken down, if it belongs to certain publishers, an ad will play, and at least some of the revenue sent to that publisher to pay for the royalties that should be paid.

These new deals, along with the licenses from the many publishers who have opted in to last year’s deal with the NMPA / Harry Fox Agency, will allow us to monetize nearly all of the user generated videos with music on YouTube. Why is this important? When these publishers allow YouTube to run ads alongside user generated videos that incorporate their compositions, then the publishers, the songwriters they represent, and the record labels and artists using their compositions, all make money – so they can reinvest in their careers and keep making great music, and the music industry can thrive.

My problem with this is that it only further to cloud the layman YouTube user’s understand of proper copyright music use in videos. Google tried to educate users with a cute video. But you still see people upload full songs with nothing but a picture of the artist then post in the comments “COPYRIGHT NOTICE – I DONT OWN THIS MUSIC NOR CLAIM TO, DONT TAKE THIS DOWN OR SUE ME”. There is a terrible lack of understanding about what copyright protects with most users.

Now, some videos with music in them will be left up. But what about publishers who don’t agree to this scheme? Those videos will still be taken down. And users will not understand – but this video stayed up, why didn’t this one? I understand the benefit of this policy and business arrangement, but it is not serving to help users understand this is an exception to a violation (assuming whatever video did not have a valid fair use claim…. let’s not even attempt to try to get users to understand what constitutes fair use – “BUT IM NOT CHARGING FOR IT!?!”)

The Hopper – DVR Legal Issues

Dish Network recently launched a new DVR called “The Hopper”. This new DVR has a few neat features. You can set up “Joey” boxes on your other TVs and stream anything recorded on your Hopper to any of up to 4 other TVs. You can also set it to record all Primetime Network shows for 2 weeks. So everything on ABC, CBS, FOX and NBC from 8-11 pm every night is available to watch on demand.

However, one last feature is raising the eyebrows of the networks and content production companies. They have started a feature called “auto hop”. What this does is that Dish will automatically take out the commercial for you if you turn this feature on. Available after 1AM the morning after the recordings are made (presumably so Dish can go through, find the commercials, and send out the jump points to their DVRs), no longer do viewers have to hit the 30 seconds skip button, or fast-forward through ads during their favorite shows.

The networks are mad because if this technology is widely adopted, advertisers would realize their ads aren’t being seen (to an even larger extent than they aren’t being seen now). They have filed suits (FOX, CBS, NBC) to stop the use of this product, and Dish filed its own motion seeking a declaration from the court that the product is legal.

There are a ton of meaty copyright issues here. How does this differ from normal DVRs? Does copyright to a program include the ads during a broadcast? How come viewers can skip commercials but not Dish? Is this just protection of a lost business model or a legitimate claim of copyright infringement?

A quick boring lesson in copyright law. There are essentially two types of copyright infringement, Direct and Secondary. Direct, as it sounds is when you are violating copyrights (like making a copy of something and selling it). Secondary is when you enable another to violate copyright, most often through a product or service of yours. To further muddy things, there are two types of secondary infringement – Vicarious and Contributory. Vicarious is when you have the right and ability to stop infringement (like a mall that has a store selling counterfeit goods), while Contributory is when your product is used to violate (think Grokster or various P2P programs).

DVRs and Copies of Television Programming

The legality of a viewer recording a copy of a TV show to their home DVR is based on case law going back to VCRs (and Betamax!) in the Sony v Universal case of the 80s.  In this case, Sony made Betamax machines which allowed people to record TV programs to videocassettes. Universal sued claiming copyright infringement. The court found that a consumer making a copy of something they could have watched for free, and simply watching it at a different time (what came to be known as time-shifting, which still describes what DVRs do) is a fair use for the consumer. Thus, while technically there is a copy being made, which would normally be an infringement, this an exception of Fair Use, and is allowed.

When one considers the nature of a televised copyrighted audiovisual work … and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact … that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use.

Consumers of the product therefore were protected. What about Sony as a secondary contributor? The court noted that it is important to not stall technology that has uses for legal purposes, even if it can be used illegally. Since videotapes could be used to create home videos, or competition to the major movie studios, this technology was cleared.

[There must be] a balance between a copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses….

On a side note, this is often what P2P software companies try to argue about their products. Yes, you can download music illegally, but you can share totally legal stuff like free software! This can be a protection, but what often happens is that they adversities the illegal benefits of their product, and thus are guilty of inducement, or suggesting that you violate copyright.

Thus, this case created a precedent that home viewers can create copies of shows for home use (not for profit), and the companies creating those copying technologies are generally safe, as long as there is a legal purpose for those technologies.

Streaming DVRs

As technology progressed, new features were added and litigated. Recently, Cablevision a cable company introduced a product that acted as a DVR, but stored the shows on the company’s servers and then streamed the programming to the consumer when they decided to watch it. This meant no home DVR was recording the show.

The content producers sued claiming Cablevision was violating their rights by making a copy of a copyrighted work, and then putting out a public performance of a copyrighted work. The Court again sided the technology producer. They claimed that since a user was directing the copy to be made, this again was a legal copy, and that since the one copy was going to one customer, the transmission to the home user from the company’s hard drive was not a public performance.

The Hopper

Now we come to Dish’s new product. It seems to me that this case will turn on the factors the Courts have focused on in the past, but one new aspect will be addressed (which is exciting as a copyright nerd).

  • Who is making the recording?
The courts have protected the DVR companies in the past when the user is the one requesting the recording be made. Even when Cablevision stored the recording, the fact that the customer requested it protected them from liability. Here, is the customer requesting the recording? According to the ad, The Hopper records all the primetime networks every night. Is the user really “requesting” this, even if they choose the “Primetime” option? How does the fact that Dish sends the jump points back to the DVR (which stores the video) factor in?
  • What is included in the copyrighted work?

The networks obviously have copyright protection in their programming. However, does this extend to the commercials that appear between the shows? I can see an argument that the entirety of what is coming off their broadcast is their programming. Will the court accept that? Before, using traditional DVRs, customers saved the “entire” program, ads and all. Even if they chose to skip them, they still were saving them. Here, the ads are cut out. Is that a derivative work? Or an unlawful reproduction of the original programming?

Conclusion

In the end, this will be a big decision for the networks. If allowed, new models for advertisers will have to be created. You will probably see much more product placement, in-show type advertising. Further, one expert hinted that you could see permanent bottom-third style ads (like those pop ups on Youtube, or the ticker on CNN) instead of commercial breaks. However, should we be protecting an old business model just for the sake of propping up an industry? Perhaps this will force new revenue models that some have said are long overdue.

Piracy and Game of Thrones

Over the week I’ve seen the headline over and over describing how HBO’s Game of Thrones show is set to be the most pirated TV show ever.

Most of these people blame HBO, because the only way to get the show rightfuckingnowthissecond is to subscribe to HBO. Which means you have to subscribe to Cable, since you can’t just pay HBO to stream their programming over the internet. Otherwise, you have to wait 6 whole months for the series to come on DVD (or iTunes). So, the only solution is to illegally pirate/download it. Of course.

This idea has been discuss ad naseum over and over lately.

“HBO hasn’t helped the problem by making the show tough to watch online for the young and cable-less,” notes Greenberg. “The show isn’t available through Hulu or Netflix, iTunes offers only Season 1, and using HBO’s own streaming site HBO Go requires a cable subscription.”

For the millions of Americans who don’t subscribe to HBO, or who may not even watch shows on a television, this means there is no legal way to watchGame of Thrones. If you only watch TV on your laptop, there’s no way you’re going to pay $50/month for cable and another $15/month for HBO. -Forbes

My favorite response to this idea is by Andy Ihnatko:

The single least-attractive attribute of many of the people who download content illegally is their smug sense of entitlement.

Here’s the terms of use for commercial content: you have to pay for this stuff. This means either you need to wait for it to become commercially available, or if you torrent it today you need to buy it when it gets released. So long as you buy it as soon as it’s possible to do so, I can confidently reach for my “No Harm Done” rubber stamp. Some content is commercially unavailable because the publisher or distributor has no desire to ever release it. I’ll even go so far as to say that downloading it illegally is a positive thing; you’re helping to keep this creative work alive.

If you avoid purchasing the media in some form, however…you’re just one of those people who prefer to steal things if they think they can get away with it. Simple as that. Get off your high horse.

The world does not OWE you Season 1 of “Game Of Thrones” in the form you want it at the moment you want it at the price you want to pay for it. If it’s not available under 100% your terms, you have the free-and-clear option of not having it.

But, I’ll ignore the “I demand HBO’s awesome well crafted expensive to produce content on my terms immediately instead of in a method that makes money for them” argument.

The other aspect of this argument is “See, HBO, look at all these people who want your show? That is money on the table because you won’t give it to them in an easy to access format.” There is of course the idea that they would have to give up lucrative licensing deals and start a whole new consumer services division.

If HBO were to break off and do a stand-alone service they would be giving up those subsidies and would incur huge additional costs in terms of support, billing, and infrastructure that they currently aren’t burdened with. This would make producing the content they produce now – including extremely expensive shows such as Game of Thrones - impossible. At the very least, it would be a huge risk.

Not going to happen. But let’s skip that part too. What I like to focus on is the hypocrisy. Pirates and piracy supporters (sigh) argue that if HBO would just offer this up, then all these people would just start paying HBO for the content. Except, that when its convenient, they make the exact opposite argument. These same proponents argue that Hollywood’s losses are overstated because “not every pirated copy equals a sale.” Not everyone who downloads a song on BitTorrent would have bought that song on iTunes they argue. They are sampling/getting something they wouldn’t actually buy. So, why would this change when it comes to Game of Thrones? No one seems to be able to address this shortcoming. You simply cannot argue both ways.

Readability and Content Theft

John Gruber has brought some attention to Readability and, in his opinion, their sketchy actions regarding how they compensate content creators.

Readability is a service that allows you to save web pages to an app, so that you can view them later in a clean format without ads etc. You can also pay them to automatically deliver updates to these pages to your app automatically. The problem Gruber had with it is that this means if you run a website, you are stripped of any ad revenue from viewers who read the page on your website. Readability claims to pay 70% of any money they get from the subscription service they provide to content owners. But, he contends that they aren’t really making it easy to collect that money, but are benefitting from all the goodwill of claiming to.

I pondered more about this because of a comment made by Gruber on his podcast with Dan Benjamin, The Talk Show. He mentioned that if a magazine company were to collect a bunch of different articles from other sources, take just the content but not the ads and then sell it, those sources would be pissed. More than that, I thought, it would be copyright infringement. Copyright law protects content creators by giving them the right to control distribution of their content. Someone else can’t take an essay I write and republish it for profit. Nothing about changing the media from paper to the web changes that.

The key fact here is that when you get a new article in your Readability app, and you share that or go look at it, you are sent to a copy of that article on Readability’s servers, stripped of the ads, to make it easy to read. So, Readability has made a copy, which they host on their own servers.

The pertinent case on this is Perfect 10 v Google. Perfect 10 is a pornography company (side note: porn has a weird amount of intellectual property precedent establishing cases) that sued Google because Google included thumbnails of their images in Google’s image search service. Google would cache copies of the images on their servers to make search results faster. Google was protected largely because they were able to make a Fair Use defense. Namely that they are providing a service in image search that didn’t take away from Perfect 10′s profits.

I believe Readability would not be able to claim this same defense, since they are directly competing with displaying this content with the original content creators. Further, they are affecting the creator’s profits because the ads aren’t being viewed by readers.

This would be very worrisome, and recently Readability changed their software so that when you share a link it goes to the original content instead of the ad-free Readability version.

However, I was discussing this with a colleague, and he brought up that Readability could probably be protected under the DMCA safe habor provisions since users are the ones directing the service to remove the ads. Whether this is true even with subscription services is up for debate.

Don’t Become A Lawyer

State Bars require attorneys to keep up with current developments in the law through classes and presentations. Because attorneys have higher levels of substance abuse and depression, many State Bar organizations try to preemptively educate their members about options for help and tactics for coping.

A quote about attorneys and depression:

“For reasons that we don’t yet fully understand, some individuals who are susceptible to experiencing substance use and mood problems appear to be drawn to the practice of law. The same personality traits that are over-represented in the populations of adults recovering from substance-related disorders and mood disorders—high achievement orientation, perfectionism, obsessive-compulsive—are also common in the legal community. Law School Professor and Psychologist Susan Daicoff explains that the law school experience further exacerbates these tendencies, often producing increased aggression under stress, a preference for competition versus cooperation, and a failure to rely on natural sources of social support from ones peers. These tendencies, combined with the law school experience, produce individuals with a disproportionate preference for “thinking” versus “feeling” and a pessimistic outlook on life. Lawyers are taught to anticipate and prepare for a whole range of problems that non-lawyers are generally blind to—even far-fetched outcomes need to be considered; this trait that helps lawyers be good at their profession may make many miserable when applied to personal life.”

Translation:

People who like arguing often have mood problems and drink too much. Lawyers are trained to be perfect, because their jobs often require it. Perfectionists often have mood problems because it creates a lot of stress to achieve that high level of satisfaction all the time at your job.

It begins in law school, because you are trained that every other lawyer is an opponent, so you can’t work together, only as adversaries. You will be stabbed in the back by a friend if you show any weakness. You will only be successful if you are perfect and ruthless and win. Always. Otherwise all the money you spent on law school tuition was a big waste and you are a failure.

Further, law school trains you to turn off your emotions so you can rationally analyze an issue. Unfortunately this makes you a robot.

Finally, lawyers are used to looking at everything for potential problems so they can advise clients to avoid them. They then look at everything in life this way. Nothing is ever good. We find flaws and obsess on them, sucking the enjoyment of it. You will never have fun talking with us about anything.

Difficulties of Copyright

Admittedly this title is a bit of link bait. Most people will click this post thinking I am going to go on a rant of how stupid and difficult copyright law is. But I’m not.

Instead, I’m going to point to an example of why it is important and necessary and that it is difficult because it is very hard to be an artist and make a decent living by selling your works when we live in the age of the internet and easy copying and distribution.

Louis CK is a fantastic comedian. He was wildly popular as a “comedian’s comedian” for a long time during the early 2000s, but is finally getting some big recognition. Check out his early hour long HBO comedy specials, or his FX show “Louie”.

Many don’t know that he actually directs, shoots and edits “Louie” himself. He has explained how he puts it all together on his own mac which lets him express his creativity and keep his budget low or allow him to use it on other things, like a freaking helicopter in the pilot.

Anyway, he recently decided to put out his latest stand up special out on video using his website as the distribution method. And, he is doing so against lots of strong opinions that he is being dumb. See this disclaimer on his own website:

To those who might wish to “torrent” this video: look, I don’t really get the whole “torrent” thing. I don’t know enough about it to judge either way. But I’d just like you to consider this: I made this video extremely easy to use against well-informed advice. I was told that it would be easier to torrent the way I made it, but I chose to do it this way anyway, because I want it to be easy for people to watch and enjoy this video in any way they want without “corporate” restrictions.

Please bear in mind that I am not a company or a corporation. I’m just some guy. I paid for the production and posting of this video with my own money. I would like to be able to post more material to the fans in this way, which makes it cheaper for the buyer and more pleasant for me. So, please help me keep this being a good idea. I can’t stop you from torrenting; all I can do is politely ask you to pay your five little dollars, enjoy the video, and let other people find it in the same way.

Sincerely,
Louis C.K.

Already he is admitting it is almost futile to fight pirates who are going to steal his material. It is rare to see an artist address it so openly. Normally, they want to appear cool to their audience, so they let the distribution arm take the heat of enforcement.

In order to make a living, an artist needs to sell their work. But in order to do that in a digital world, it takes money and requires technology that restricts easy usage. That makes the product cost more.

Louis CK is in a unique position because no one (other than his kids) rely on the profit from this experiment. If it fails there is little risk of big loss. But, when a big media studio makes a film requiring a director, several writers, actors and technical experts like editors to pull together the risks of putting something out without protections are far too great.

I would also argue that people feel worse when it feels like a more direct stealing of a piece of work. When you illegally download this special you are very aware you are taking money from Louie. When you download the latest studio film from some faceless corporation it is far easier to rationalize that no one is getting hurt.

Edit: A few days later and Louie’s experiment seems to have paid off. He has sold many copies. However, I still argue this is an outlier. Giant media corporations couldn’t pull this off, for exactly the reason I articulate in the last paragraph above. And Louie agrees:

Fascinating, wide-ranging group interview with Louis C.K. On piracy and bootlegging:

To steal from someone and not feel bad, you either have to be a sociopath or view the act differently. One way is to remove “Someone” from the equation. You’re not stealing from a person. Big companies do a lot to help people view them as less than human. I heard a speech by Noam Chomsky who said that corporations are like super humans. They cannot be hurt like a human can and they never die. They are not susceptible to scrutiny or accountability. This makes them more profitable. If companies want to enjoy these benefits to some degree they have to live with what else comes with being not human. You miss out on compassion, forgiveness, camaraderie, empathy, trust all kinds of shit.