Held at Stanford yesterday, the URL for this conf:
http://lawschool.stanford.edu/slata/ideas_without_boundary/index.html
Panel 1: Ethics
Michelle Galloway (Moderator), Lecturer at Stanford Law School; Of Counsel, Cooley Godward
Prof. Richard Marcus, UC Hastings College of the Law
Carol Langford, Adjunct Professor at University of San Francisco School of Law; Partner, Langford & Bell
John Steele, Lecturer in legal ethics, Boalt Hall School of Law (UC-Berkeley) and Santa Clara University School of Law; Rogers, Joseph, O’Donnell & Phillips
Carol: who’s your client?
Richard: how to conduct int’l discovery
John Steele: challenging privilege/conflict issues
Carol: liability insurance is affected when this comes up: inventors, licensees, assignees, parent and subsidiary companies, merger interests, vendors, others that think they might be a client. How do issues come up? Affiliate of a corp, one sues other; sometimes they don’t know who each other are, don’t know what the invention is: does conflict system pick it up? Lateral hires infected with conflicts? Law firms merging, 3rd party entanglements (Morrison Knudson). Litigation mergers.
Rule 3600 (CA) Organization as client, acting thru highest org agent. Need to explain identity of client, CA is liberal as to atty:client relationships. Discussion section is important in change of control, rely on case law (ducking rule). Brooklyn Navy Yard: PMNC & Parsons suing BNY (law firm also represents others), Parsons moves to disqualify Lebuff law firm (look for unity of interests). BNY appeals, found overly broad “unity of interest”, rep of subsidiaries isn’t necessarily same interest when impact doesn’t go to parent corp, “alter-ego” standard.
Morrison case rejected BNY, MK suing Sentinal (parent co = Morrison) for construction defects. Underwriters hired MK to monitor legal situations, court used “substantial relationship” test, didn’t use BNY, court looking for something less than alter-ego: unity of interests test. Weird case.
Lots of case tests: does litigation affect corp’s bottom line? Alter-ego? Unity of interests? Direct vs indirect impact. All factually driven.
ABA opinion 95390 re: affiliates, look to facts/factors; lots of dissent. ABA suggested that Attys talk with their clients, ask them who they are.
Individual inventors: attys work directly with them, but lots of times they think they’re clients but lawyers don’t think so, lawyers get sued a lot over this. Also as to confidential info (can be broad).
U Rochester v GE Searle, Pharmacia? Teltronics case
Re clear who your client is, do conflicts checks.
Richard: admission: he went to law school before there was “ethics.” (laughter) When might you be inclined to paint with a broad brush? Your job as litigator is to be aware of and assert privileges to prevent discovery… at least two ways of looking at: how is discovery handled in rest of world, and here that affects entities elsewhere? Third of great present interest: how differently should one look at this where discovery is digital? Also: commercial litigation WRT rest of world?
Discovery in Global Perspective: Are We Nuts? (article): discoverable info is bizarre in rest of world: recognizing a “right.” Relaxing elsewhere: japan: adopting something like American discovery (not implemented). Arbitration (A Lowenthal, NYU): over time, better features have become routine…. WSJ (about a year ago, re; Dawn Raids (antitrust) in Europe): no warning, no review, no notice, EU wanted to expand searches to include exec homes. No protection against disclosure. US discovery is what rest of world thinks of as bizarre, world wants constraints. America relies on private enforcement of public norms. (Lawyers w/ subpoenas, congress’ use of atty gen’l, calibration of discovery = effectiveness. Considerable impatience (Rule 26(b)(5)) w/ privileges here, attitudes toward waiver is aggressive. Depends on if you’re in US. AMD v Intel (9th circuit)
What privilege rules should apply? (suit in Korea, what if Korea has no privilege rules?)
E-discovery: ’96-97 Rules Committee discussion, need to include e-mat’l including email. No obvious answer. Two considerations: location of documentary material is less important (courts haven’t taken this up yet other than one case in NY re: Puerto Rico company that could move its records to NY); privilege waiver & inadvertent disclosure.
Future: UNIDROIT: Rules for Transnational Procedure. Set of principles applies to litigants of different states, detailed pleading rules. Falls in place (next 20 years)? If so, American-style discovery will expand.
John: International suits, arbitration, related patent apps pending in foreign countries (Amer = secret, foreign = open)… Different kinds of docs/communications in ethics context: want info on foreign affiliates, want to apply US discovery, what kind of docs subject to privilege? May be located between opposing counsel & someone else, somewhere in world, in-house counsel have no privilege. Who are we talking about? Traditional doc between foreign corp and counsel out-of-US, “touching base” test: affects filing of US patent, US privilege applies. Foreign, use law of that country. Courts often uphold privileges. Docs in hands of corp overseas are not privileged, but in hands of foreign counsel might be. Communications w/ non-atty agent abroad: Astra case (208 FRD 92) traces evolution of applying privilege.
“Proof of Foreign Law” (how foreign law is proven up). Comity to foreign jurisdictions: if burden-holder can prove up law, outside of if law exists or not… (see Astra). Outside-retained counsel: get control of info asap, get local knowledge quickly, doc/info flow plan. Damage control (looking backward).
Inadvertent disclosure: what can you do upfront? Constant education (yearly, particularly sales people). Metaphors: sports (gets a D grade), military (F). Discussing competition: always robust, barriers to entry low, gaining efficiencies & lower cost, early in a disaster situation: don’t say what happened in email. You’re stuck w/ worst way it was worded. “green eggs and ham” test: someone wants email, ask: would you like this in the press? Would you like this at Brand X? Would you say this on the stand? …
John to Carol: how to determine which test or which law to use? Carol: whatever the court decides. Geographic scope of CA, jurisdiction practice, PTO rules, handcuffs case… sometimes lawyers don’t know/agree. Judge may determine in process; which ones do you want to apply? Which are more strict? John: counsel lawyers to use more prudent Morrison-Knudsen rules? Carol: yes, better to assume stricter law will apply.
Questions: US Patent applications & topic of patent atty who may/not have privilege: outcome different under 18-month publication rules, or remains secret during pendency? John: Once application becomes public, no downstream affect. Richard: Privilege opens in context of defensive, good-faith situation. Ground for waiver: reliance on counsel is #1 ground. John: 2 different tests on how broad scope of waiver is: timing, who, affects. Courts inconsistent about applying, need much clearer rules.
Int’l companies doing to counter threats? If serious matter: send docs to outside counsel. How does crime-fraud privilege apply? Big deal w/ e-stored materials (one policy: can store everything! — oversimplification). When does the “litigation on the horizon” cause discarding to come into play? Re: crime-fraud: doc retention rules, invoke info flow control. Obstruction of justice may also apply.
Ethics and experts: say what your opinions are. Be firm. Caution for those hiring experts: how Rule 26(a)(2) applies to core work product is at issue. If you’re trying to twist experts’ arm, don’t do it in writing. Firms may need scientist/lawyer to sit and look at issues to find conflicts.
Panel 2: Pharma/Bio Industries:
Prof. John Barton (Moderator), Stanford Law School
Donald Francis, M.D., President and Co-founder, Vaxgen
Stephen Maurer, Lecturer in Public Policy, University of California at Berkeley, Intellectual Property Attorney
Dr. Herwig von Morze, International Patent Consultant, Heller, Ehrman
Mr. Harinder S. Sikka, Senior President, Corporate Affairs, Nicholas Piramal India Limited
Vernon M. Winters, Partner, Weil, Gotschal & Manges LLP
Steve Maurer: Reimaging IP: monopoly objections: 1: costs too much (but can tax the rich and put $ back into market), 2: inefficient (depends on flatness of demand curve). Benefits of IP: Eliciting info, econ risk (Botox) v scientific risk (gene sequencing, Nixon’s war on cancer). 3rd world challenges: not enough money in Africa, Washington, flat demand curves (across & within countries). Proposals: global diseases (Mortality: 1.8M AIDS deaths/year (Africa): parellel imports (P Danzon), Tiered Pricing (J Barton), Foreign Filing Licenses (J Lanjouw). In Practice: Pharmacia deal (shape and color), problem? (90-97% discounts, Do patents matter? Tropical diseases: 1.1M malaria deaths/yr, 1.8M TB deaths/yr: prizes, vaccine fund, DEFEND proposal, Roaming exclusivity (Mann). Politics: underfunding, ?. Cheapest solutions? What do we give up? (only game in town? How hard (malaria vaccine)? Pessimist story: USAID, Optimist story: March of Dimes.
Harinder Sikka: black marketing concerns, defensive pricing as to R&D. TRIPS does not talk about a particular disease; rather as healthcare as a whole. Responsibility of each country to judicially use provisions of licenses. Not about tech transfer. Poor countries can’t afford higher cost meds. Multinationals develop drugs for disease patterns of developed world. HIV/AIDS, malaria behind. World Bank: provides max incentive, enhances value of patent (how?), financial benefits accrue to US and developers. India has 25k drug manufacturers; can afford? 2M children die/yr of pneumonia, priced too high. India produces generic at 1/5 cost, still too high. US highest user of compulsory licenses. Black market: 20 year patent protections, cheaper substitutes nightmare for mfgr but good for consumer, no insurance. Differential pricing: short v long term, both used simultaneously. R&D: wish to achieve research focused on developing countries and avoid possible polarization between developing/ed world? Important to develop health care policies.
Herwig von Morze: Patents are for economic welfare of any nation. Essential medicines in developing world: balance need to innovate w/ patent protection. Developing countries = different contexts: sub-Saharan, different from other regions. My problem is your problem is world problem. Sub-Saharan areas & AIDS: currently 15 retrovirals available, existing patents don’t protect from that equally in 53 countries. Patent system in Mozambique (no patent system), no money, rich countries don’t donate, no heathcare system or infrastructure. Price is one factor, education of MDs, roads for delivery, other factors needed; $100/patient/year is needed, but countries can afford $tens/p/yr. India has new legislation (1992, 1999, TRIPS), but 20 year term is misleading, more like 10 years. Patent enforcement & compulsory licenses: focused on local manufacturers, but price/country is high. Brazil: reports that they’re using compulsory licenses but not true. Pharma companies supply drugs at generic prices, 20% supplemented by local mfgr. Efforts to Pfizer to make some drugs available for river blindness in Africa, has been helpful. Patent system isn’t culprit.
Vernon Winters: Historic: genome sequences, advances in biotech. Gene sequences moratorium, patentable? Not clear under US patent laws. Public feedback: risks acceptable, Diamond case, living things were patentable. What happened since then? FDA approval, biotech outspends other industries by factors of 2-3, 16$B, $47B revenues, $11B r&D, $11B tax revenues. Could have happened w/out patent protections? “Patents are lifeblood of biotech industry.” Risks: reward ratio is high (Tufts U studies): $802M + 10-15 years for first drug to get to patient. 5000 drugs developed, 5 get to testing, 1 gets to people. Cautionary look forward: stem-cell technology’s promise: patentable? Investing? Uncertainty causes key tech to go elsewhere: Korea, UK. Concluding certain tech should/not have protections…
Donald Francis: AIDS vax: modern tech used to think of global problem, which side (private/public partnership) could get job done? (Industry) HIV is unique: high incidence in developed, huge incidence in less developed world, some way to balance? Requires hundreds of millions of dollars. Other companies, opportunity costs, vaccines don’t compete. Public side can’t do it, public side not interested. High drug cost, tiered pricing might help. Trials difficult in 3rd world too. Regulatory/ethical overviews vary in different countries (not same as American drug trial approval process.) Supply of product: developed country pays well but limited production and how to balance w/ great public need? Immense need for other issues to be addressed, social doesn’t value prevention.
Question: to Vernon: pharma prices increasing rapidly, tensions w/ healthcare systems, gov programs or price controls, how to resolve? Future? Facts: time to create, high-risk R&D. Early successes funding current work. Industry is badly managed, largely focused in US (maybe UK). Some countries money-poor but intellectually rich; more focus to these countries might come up with solutions. Concerns w/ price controls, might be established even in US. Future is here: buying power. Outside us: 50% price differential w/ Euro, Canada prices also different. Degree of subsidy? Put at front end (moving NIH) or back end (pricing)? Palpable example from post-war: March of Dimes, US Gov, others, no intellectual property but monopoly rights like national labs; more expensive, but drilling more dry holes w/ IP as incentives? Info pathologies that believe certain sectors do it better, where other sectors may want to do work. Descriptions and articles very different from delivering a drug. Gov isn’t product development oriented. How to measure output and effectiveness? Gov priority not high (book: Big Shot), like Anthrax vaccine.
Sub-saharan vaccine for AIDS? Money going in is small, prevention is also out of balance.
Pharma fastest growing sector, cost justify outcomes? Risks associated w/ what products have best market: daily drugs, tort liabilities, concerns for children/pregnant women, etc. as opposed to what else we might be doing.
How much ill will are we gathering up? Not ill will, matter of how we take a pause, how to go about development, how to meet requirements, how to deal with healthcare costs. Kenya methodology vs Norway: different schemes & priorities, need for buffer zone.
Trials cost is so high, possible to run trials in developing countries at cheaper price? Lots being done, but it’s not the market that will give return. Ethical situation: do trials there then not supply drug? Doing high quality trials can be done anywhere, harmonization when FDA is setting standards can be problematic (assumes pharma co’s are cheating).
Cost-benefit in US from IP and negative aspects/risks (litigation)? Saving a life vs costs to group? Litigation can go to extreme, some things are unique to vax industry: if you give vax to everyone in this room, someone will get sick and sue you, drove vax companies out of business, now have a system to help. (non-negligent liability different)
Role of generic drug co, esp as to low cost to other countries? Fundamental aspects of Hatch-Waxman act (1984?+): brand-name co has patent protections, when patent ends generics can end showing equivalent quality, how to compete w/ traditional companies? Problem isn’t only price differential, helpful in other countries… need to develop pro-competitive solutions in/for other countries.
TRIPS compulsory licensing and India’s role, developing and distributing to lesser-developed areas? Compulsory licensing almost never happens. Political pressure, donations for sub-saharan Africa. Details of TRIPS: what do I do when everyone has patent system and I don’t have generics? Small percent of market: health maintenance costs also considered. Watch for change in 2005.
Higher incidence in other countries? Everyone looks at entire market. Tiered pricing straightforward, marketing AIDS drug in Africa isn’t a problem.
LUNCH with Larry Lessig
IP has valid places. Drug companies afraid that giving low cost drugs to 3rd world will cause them problems in pricing elsewhere; they’re probably right. Find and encourage exceptions. 28,500,000 people have AIDS in Africa. (Will write more on this, but didn’t get to take notes while eating lunch.)
Panel 3: Copyright’s Long Arm
Prof. Paul Goldstein (Moderator), Stanford Law School
Lawrence Hadley, Partner, Hennigan, Bennett & Dorman LLP, lawyers for Sharman Networks, distributor of the Kazaa peer-to-peer service
David Kendall, Partner, Williams & Connolly, counsel for motion picture studios in their action against Kazaa
Carl Oppedahl, Partner, Oppedahl & Larson LLP
Rufus Pichler, Morrison & Foerster
Paul Goldstein: private international law and territoriality: enforcement, (not just copyright and Internet; harbingers), domain names, trademark law, patents raise same issues of jurisdiction, territoriality, applicable law. To what extent can US law be enforced abroad? A good moment to reflect on the capacities of other nations.
Rufus Pichler: overview of issues, cross-border enforcements, judgments. Infringement originates (in US or abroad). Where do you bring lawsuit? If US, enforced abroad: not only about finding personal jurisdiction, also consider where you will enforce and how your choice of court is viewed overseas. Injunction or damages? Temp restraining order: difficult to do in other countries. Permanent/extraterritorial injunction: property rights are territorial, US law is limited to US. May or may not get injunction covering more than US. (Yahoo: judgment in France would have shut down server for whole world) Limit damages abroad or in US? Depends on which law in which area. When judgment obtained, how to enforce (assuming non-compliance)? Damages: injunction use different measures. Injunction might result in contempt of court proceedings. Off-shore assets of company, directors and officers (under pierce-corp-veil theory) may include IP rights, like patents or trademarks registered in US, domain names, stocks or shares, claims against others…. Assets in other countries that recognize full faith and credit (UK), judgment will have to be enforced. Service may be an issue. Personal jurisdiction based on min contacts may be differentially weighed. (Yahoo: possible free speech violations). Enforcement in foreign country is cumbersome, where else can you go? Difficult to work abroad for various reasons, may want to go after local resources: payment companies, employers or resources, ICANN, business partners, advertisers, investors…
Larry & David: litigation as examples/case studies
Lawrence Hadley: KaZaa, ongoing litigation limits possible remarks. 20 year look-back standard: “what was all the fuss about?” Raises fascinating legal questions, enforcing copyrights under existing technology and laws: no easy answers. Granularity of Rufus’ outline: P2P issues: who should decide? Political or judicial branches? Which ones? Most decided in courts, domestic and international legislation. May see solutions in future. Enforcement in courts: what court do you look to? US is party to intl treaties depending on which country: BERN & Universal Copyright conventions, etc. Nature of alleged activity, jurisdictional issues, who has assets, what’s legal theory? 3 major reasons for enforcement in US courts: 1) holders have counsel that they’re comfortable with, including going into court. 2) US has developed body of law in this area, predictable courts. 3) expense factor: more expensive to bring a case overseas w/ more unknowns. If action is brought in US, 3 issues come up when defendant is foreign: personal jurisdiction, subject matter jurisdiction, enforcement if successful. Sharman networks located in Venatu, does business w/ Australia, server software in Denmark, however PJ given by US court given that they do business in US. Court held: Purposeful availment: 2 million CA residents had downloaded servers from Denmark. But undefined numbers factor used, software indirectly generates revenue for sharman doesn’t have connection with people that pay revenue (advertisers, etc). Users have to agree to quick wrap license, but didn’t consider where license was formed. Opinion of decision didn’t consider terms of contract. Ct’s Effects test: users were allegedly infringers and Sharman was aware and most infringers were CA residents (substituting knowledge for intent; not same). Falwell (Dist VA) case slightly different tact. Subject matter: reach of copyright laws goes to effects test. Considerations might be different than what was learned in law school: look at damages and enforcement first.
David Kendall (MPAA): nothing new (quoting Eclisiastes as to application of law to technology). Areas of law enjoying surprising renaissance. Jurisdiction issues relating to enforcement in context of multinationals: long-arm principles not novel or difficult. No international tribunal. When suing in US by outsiders claiming to be foreign (International Shoe): does firm do business in forum state, does cause arise out of conduct, reasonable to bring suit. WWVW: can aggregate contact over US to determine position. Zippo pitted lighter co against zippo.com, news agency; court analyzed, came up with sliding scale of activity, held to have jurisdiction due to PA mailing list members. Cybersquatting: maybe one contact w/ forum state justifies jurisdiction. Kazaa’s position: 20M members, 2M in CA, all had clickwrap license; also advertising dept and press releases out of LA, all factors gave jurisdiction. Copyright infringement is when you copy, criminal violation: defense that “we’re not doing copying (AIMster and Napster) is invalid (a la swap meets) and resulted in liability.
Carl: users (IP underdogs): Register your copyrights. Prevention means you can get your attorney’s fees paid plus statutory damages. Students: consider giving your talents to IP area. Zippo: technical competence prevailed in finding jurisdiction. Even if a company is foreign (India), server may be in US. Tech training can also help in tailoring injunction narrowly and appropriately, may result in lower bond to your client. How law (take-down provisions) affects ISPs, including non-profit ISP co-ops? Verizon court held they had to reveal their customer. Bits are bits: images, music, news in terms of propagation and speed. Ease of use not thinkable 5 years ago, now commonplace. Routing can facilitate, prevention can be routed around (China). Will society have adjusted to P2P and other changes, comfortably or w/ pain and strain?
Questions: large firms using P2P? David: we make sure we’re legal, no P2P on firm computers. Larry: we’re not large firm. Carl: small ISP has greater bandwidth costs. Larry: diversions, variety of uses more in future.
Fred from EFF maintains a node, distributes their documents that way, as to security: Microsoft has transferred much of the problem elsewhere. Copyright has been on Intl horizon for some time, but w/ respect to secondary liability, no consensus re: scope and standards of liability principles. What impact? (had to go stand in line for question)
Register copyright, but binary terms?; creative commons allows terms to be used. Copyright is registered under terms: but freedom of action for users to determine users.
Legal institutions move slowly, but tech moves quickly. DRM? Hard to compete with free. Some firms/industries are incorporating DRM. Won’t solve international legal issues as to restrictions.
Panel 4: Tracking pirates
Jennifer Stisa Granick (Moderator) Director, Center for Internet and Society, Stanford Law School
Peter Harter, Managing Principal, The Farrington Group
Joe Kraus, Co-founder, DigitalConsumer.org
Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation
Kent Rowald, Partner, Bracewell & Patterson
Mark Ishikawa, President, BayTSP
Jennifer’s hypothetical: I own a small audio/video firm and I suspect some Stanford students are downloading them. Can the law help me?
Kent: I assume they’re registered, if not register before you file suit. Legal issues exist. Who are your potential defendants, and who do you want to sue? (different issues): state or private university? Chavez (immunity issues), separate ISP, students who uploaded, creator and/or distributor of P2P software, domain holder, host? (allowed by DMCA)?
Jennifer: why do I have to shell out the money for this? Isn’t this a gov problem? Peter: law enforcement law officials have/are limited resource. Enforceability. WIPO: folklore and database dumped out, lots got lost in shuffle of 100+ countries with more significant problems. What’s public good of enforcement? Public policy context, priorities: do you want local FBI to go after copiers or murderers? Fred: perhaps you as small company owner want to realize that perhaps you have fans at Stanford: treat them as an audience, book local coffeehouse, understand your demand. Business downside (bad press) in hunting down Stanford students, no shortage of ownerous tools: subpoenas, filters, search tools… Kent: true, what are you trying to do?
Jennifer: what’s the government thinking about this problem? Joe: one challenge is that government views copyright as enforcement issue. Prosecuting violators more important than addressing the market.
Jennifer: still not happy with people trading and not buying. Mark: what’s effectiveness of other technologies? Give client an idea of damages, tools they might use. Jennifer: do you find out who user is? Mark: go to administration or network, DMCA database is PDF file. Firms mostly want problem to go away once served w/ notice. Professional pirates are best target. Use DRM (watermarks, interdiction, etc). Jennifer: what’s downside to DRM? Fred: technologies available, but trends: (see DarkNet paper by Microsoft group) technology can’t stop exchange, new technologies will arise, FREEnet (filesharing) due for new version on Monday(?), so is tech the best protection? For some, maybe, but for most may not be effective. Alternatives: compensation, compulsory licenses… Joe: DRM industry takes different view than software: layering didn’t stop piracy (there’s a way around everything), punished paying customers (altered software behavior, couldn’t move software from one machine to another. Embrace customers instead. Escalating war between those who wish to suppress and consumers who demand content. No one is addressing the market effectively. Mark: not a victimless crime, it’s theft. Fred: motion picture industry having the most successful year in history claiming filesharing is cutting off their legs is a fantasy. Some sales not being hurt (eminem), saying every download is a lost sale isn’t true.
Jennifer: prevention isn’t always a choice, but what intervention tools? Kent: Mark is sort of like locking doors in record store. Record companies want to know who ultimate downloading customer is to have someone to hammer. Mark: about mindset of digital infringer. No understanding that this is illegal and they won’t get caught. Jennifer: why should i worry about violating anonymity? Fred: that’s where I get worried, blanket subpoena power w/ large immunity, changes balance of due process — is this infringement or speech? Mark: we can identify the content prior to issuance of papers. Joe: automated law enforcement: technology is brittle. List from RIAA includes files that should never be included. Mark: our technology is not automated law enforcement. Verizon = good example, Harry Potter book report not same as HP video.
Jennifer: what do you think? Peter: might be good biz to invest in, but (story: when one guy hunted down people, they hunted him back) not always savory, not always good idea to make policy in marketplace. Mark: I’m ex-DOD, I’m not worried. We’re not enforcement arm for client. My name isn’t on notices (anymore). Fred: Pink Champagne not tracing intradiction, traces trends for possible businesses. Might continue down path of “theft” and criminal conduct, where doesn’t give artist any new cash, or address need that content companies have failed to address. Almost nothing in music space that offers compelling anything. Compulsory licenses. Joe: misunderstanding that major consumer shift is occurring: analog (passive) to digital (create, compose, alter); shift from centralized, high cost productions to decentralized, lower production costs. Much of technology is about control (including broadcast flag).
Jennifer: worried about bottom line now. Can I sue Stanford? Kent: don’t know yet. Go to university first, say we have a problem, they’ll probably shut them down (want to do good). Jennifer: difference between public and private university? Kent: yes as to liability policies and insurance. Jennifer: what if someone in Korea is using Stanford’s servers? Mark: DMCA empowers, ISPs want to comply. Fred: safe harbor provision of DMCA (section 512) applies, requires some compliance, currently being litigated. P2P no notice and take-down provision, 512(a) applies and is same for all, requirements: subpoena power (w/out due process, violates anonymity?), 512(i): policy of terminating repeat infringers (not well defined, termination notices being delivered by thousands especially by motion picture industry.) If univ is friend or foe: book your artist locally, otherwise to be determined. Universities log everything. Peter: sex, drugs, rock-n-roll. When state law changes liability, policy changes (admin that looked away now don’t). Abuse of discretion as users, who’s responsible? Exposure to IT departments or insurance companies? Who’s blind eye? Kent: individuals behind the networks: right and ability to control infringing activity, financial interest involved? Can pierce corp veil? Who’s at risk? Fred: 512, ISP industry needs to stand up together and test it in court. Technology will keep moving. University students can build non-univ network, 512(a) applies. Joe: why does Silicon Valley suck in Washington? Engineering orientation, fact-based, doesn’t work in DC. Technologies outpace law, investment fleeing digital technology due to liability, SV acting like a teenager: go away, I’ll come to you, treat me specially. Comes in late, spends money to get out of problems, doesn’t work.
Jennifer: where’s my recourse? Kent: if you can get them here in US, good. Avoid copyright claims in complaint (use unfair competition, tortious interference, trademarks), get into jurisdictional issues taken care of then add copyright claims. Peter: pub a lien on tuition? Kent: once tuition is paid, it’s Stanford’s. If copyright is registered, $750/file, add injunction to stop or remove files. Sue owner of domain name, transfer it to your site. Fred: 512 and overseas: backbone or ISPs can block foreign servers known to violate.
Jennifer: what’s in the future? Mark: game of cat and mouse, critical mass for activities. Joe: political docket: broadcast flag, analog hole space: regulating analog ports on digital devices & mandating watermarking.
Best way to deal: attack the worse offenders, compulsory license, damn the torpedoes, compulsory licenses, (?).
Question: why not turn your Korean filesharer into revenue generator via P2P? Peter: File sharing not same as search engine. We’re trapped paying $18 for a CD when we only want a couple of cuts, waste of bits in a package. Social(?) jukebox would be more enriching. Who’s developing A&R creatively? Platten is a sickness. Music at risk relative to games.
Wait for best solution in a mature marketplace? Fred: main event is not legislation, certain industries’ demise is exaggerated. Major danger is onslaught of litigation, change in balance of secondary liability. Music publishers against Bertlesmann (debt transaction) where B’s being held liable — a terrifying precedent: to loan money to a company who may offer something that might be used for infringing uses would hold me liable. Joe: much easier to stop something than get it passed. If one of 6 record companies goes belly up, blamed on P2P and be incentive to pass really bad legislation. Motivation provided by offense from unlikely places.
Political process failure: consumers as citizens, what if they don’t look out for their own interests? Joe: I was surprised when 50K people signed up. Challenge in DC: consumer activism puts an issue on the radar screen, but consumers are necessary but not sufficient. Growing alignment between tech and consumers? I’m optimistic, the more Hollywood overreaches, the more activism you’ll see. Kent: companies that embrace technologies, has a guy that lets his first “cut” go as MP3 w/ “tell your friends where you got it,” sells other cuts on “CD” for $1 each. Fred: Keep an eye on Natalie merchant who just severed ties to recording industry.
ON to the Reception.
Life, Policy biotech, copyright, DRM, EFF, ethics, global, healthcare, ICANN, intellectual property, laws, litigation, R&D, rights management
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