Fair use in the digital house of mirrors

Fair use in the digital house of mirrors

In today’s highly digitized world, copyright infringement actions, among others, are often brought against alleged infringers using information culled from Internet service provider addresses. While fair use defenses may exist against such suits, particularly when one is doing a music mash up, a preliminary question is whether the initial source evidence is accurate.

There exist technologies wherein users can mask themselves behind other users’ Internet service provider addresses. In this way, one can be located in Timbuktu, for example, and use an Internet service provider address of a user in the North Pole. By doing such masking, some users seek to avoid infringement lawsuits by using the address of another user, in essence leaving them with the hot infringement potato.

In prosecuting civil actions for unlawful downloads of Microsoft software, for example, it becomes imperative to understand such masking methods, and their limits. Prima facie evidence of the source of the infringement, while good for the initial stages of litigation, will evaporate upon further investigation. In some cases, a case brought without sufficient evidence of the source can, upon written documentary notice that the user wasn’t responsible for the download, such as via browser history evidence, lead to a motion for sanctions against plaintiff’s counsel for bringing a frivolous case.

Even with such evidence as to source, due attention needs to be paid to the transformative nature of the use. In digital music mash ups, for example, a sample from Mr. Bob Dylan recording can be modified, and blended into a new piece, so that the old version becomes impossible to recognize. In this case, the defendant likely has a bona fide fair use defense even when the attribution of the source is correct. Thus, in prosecuting a copyright infringement action, proper steps need to be made at the outset so that a sustainable case can be made.

Leaks, geeks, & reporters

Leaks, geeks, & reporters

The recent spat of Washington D.C. leaks is “unusually active,” according to FBI Director Mr. James Comey. Even if the leaks are as normal as they are in an allergic nose dealing with New Orleans spring pollen, what are the legal and ethical issues in leaking such confidential information, unknowingly reverse engineering it, or in publishing the leaks?

Generally speaking, liability for the leaker inside the government is clear. Numerous federal laws apply to confidential information circulated within the labyrinth of the federal government, and they generally hold such leakers criminally liable for the willful, and sometimes even negligent, disclosure (or even handling) of such information, including the identity of a Central Intelligence Agency (“CIA”) “covert agent” or President Trump’s tax returns.

However, what about geeks who reverse engineer publicly available information and then end up discovering government secrets and/or strategies through such analysis?

Imagine a modern day Matthew Broderick from WarGames (1983) who correctly intuits a covert government strategy to liquidate foreign ambassadors or heads of state via proxies and then warns how such molehill practices have on prior occasions caused mountains of problems. In the 13 century, Iraqis killed Genghis Khan’s chief envoy and had the beards of the others burned so they could travel back to him humiliated. Thereafter, Mr. Khan massacred almost all of the 200,000 to 1,000,000 inhabitants of Baghdad in one week, at the time the “House of Wisdom” in Islam’s Golden Age. Or take the assassination of Archduke Franz Ferdinand of Austria and his wife in 1914. Many believe that this killing led to the start of World War I, in which nine million combatants and seven million civilians died.

In such instances of geeky reverse engineering of covert government strategies, criminal liability will generally be lacking because such a geek would have no contractual or statutory responsibility to keep quiet, and his speech about an issue of grave public concern – potentially preventing a global conflict — would be protected by the First Amendment. Even so, would be geeks are well advised to consider reprisals from said officials, whether via Nixon type IRS audits or otherwise, and how to protect themselves against them. (Genghis Khan 2.0 protection is one way.)

That’s the leaker and the geek. What about the reporter?

The law in this area is murkier. While there are federal statutes which some have argued would impose criminal liability on a reporter for publishing confidential information, such as a Department of Defense (“DOD”) plan to defeat ISIS, prosecutions have been rare. The First Amendment generally protects the publication of such intelligence. However, in a case where the reporter and leaker work in concert (think offer-acceptance) to violate federal law, a conspiracy case can be brought against the reporter. What is more, prosecutions have been brought against reporters to reveal their confidential sources, as happened with Ms. Judith Miller of The New York Times when she refused to identify the source of information leading to the unmasking of a CIA covert agent, as many say happened in the case of Mrs. Valeire Plame under President George H. Bush’s tenure.

But even if there is no legal liability for the media professional, there is also the question of unintended consequences. Take, for example, a DOD strategy to replace ISIS with “new sheriff in town” Eddie Murphy. Assume a person within President Trump’s DOD, or CIA, who dislikes the President, and/or his political agenda, leaks such the details about the “Murphy Plan” to an unwitting New York Times reporter. The reporter is likely protected in publishing the plan, but should it be published? Asymmetrical information is the key to effective conflict, whether you are in the courtroom, on the battlefield, or in a chess match. Disclosing such a plan, especially if it is already being carried out but even if it hasn’t, would risk the lives of military personnel and/or threaten the security of major cities like New York, Boston, Chicago, and Los Angeles.

Any professional working in media would be well served not only to consider the legalities of reporting leaked information, but also such unintended but foreseeable potential blow back.

Gossip can be fun, but also unlawful?

Gossip can be fun, but also unlawful?

Recently, New York Times reporter Mr. Jacob Bernstein was overheard at a party calling Mrs. Melania Trump a “hooker.” Although he subsequently apologized, the legal question is what legal liability, if any, does either he or The New York Timeshave for his statement? In these times of fast and loose media stories, the question is timely for media professionals and consumers of news.

The First Amendment does not protect all speech. One category of unprotected speech is defamation, an actionable tort. In order to prove defamation, a plaintiff must generally show that an untrue statement was communicated about him or her, that the statement was false, and that such statement injured their reputation in the community. Proof of damage can include, but is not limited to, lost sales for a business. In the case of defamation per se, however, a plaintiff need not show damage because the statement in question is considered harmful on it’s face. Examples of defamation per se generally include calling someone a “bank robber,” a “prostitute,” or both.

Of course, context matters. Where the statements are made under the guise of parody or the words, when read in context, do no mean what they would otherwise mean in isolation, then there may be a potential defense against liability. Barring such context, however, legal liability generally exists. This is true even if you republish the defamatory statement or if the statement was made by one of your employees during the course and scope of their duties to you.

That being said, it is harder to prove defamation if you are a pubic figure. In such a case, you must show that the allegedly false statement was made with actual malice, which means that the person knew the statement to be untrue, or that the person made the statement with reckless disregard of whether the statement was true or false.

Under these guidelines, Mr. Bernstein’s recent statement would be considered defamatory per se. Needless to say, truth is an absolute defense to a defamation claim, so if he could proffer admissible evidence showing his statement to be true, then there would be no liability. Whether his apology absolves him of liability is another question. Defamation law varies by state. In all likelihood, the apology wouldn’t absolve him of liability, but it would be an issue for the jury to consider in determining the amount of compensatory or punitive damages.

Whether The New York Times could be held liable for Mr. Bernstein’s statement is unclear. To be liable, Mrs. Trump would need to show that Mr. Bernstein made the statement within the course and scope of his employment. Courts use various factors to determine this question. One factual issue would be whether Mr. Bernstein was attending the party on behalf of The New York Times, or in his personal capacity. If the former, liability will be more likely. If the latter, less likely, for The New York Times.

Media professionals are under immense pressure to get views of their content, and the quick way to do that is to run salacious eye-grabbing headlines. At the same time, the First Amendment’s protections are not infinite for media professionals. Finding the right balance between offering tantalizing news and also respecting the lines of defamation is a prudent course, but one that may be at risk of attack in today’s fast food news environment.

FBI v. Apple — can doesn’t mean should obey.

FBI v. Apple — can doesn’t mean should obey.

The FBI investigates a grizzly murder. You are a bank president. The murderer stored his phone book in your bank’s safety deposit box, the code for which is encrypted with copyrighted proprietary software, before he committed the murder. The FBI demands that you provide it with the master code for the box, which can be used to unlock other boxes, too. You can give the FBI the code, but should you? Apple CEO Tim Cook is asking himself the same question, his answer is rightly “no.”

On February 14, 2016, United States Magistrate Judge Sheri Pym ordered Apple to provide the FBI the means to circumvent the iPhone 5c’s encryption technology. That way, the FBI can obtain Mr. Syed Rizwan Farook’s phone contacts to see who else, if anyone, conspired with him on the December 2, 2015 killings. So the FBI’s endgame is understandable, justified, and a matter of public safety. At the same time, Judge Pym’s February order is constitutionally questionable, for these reasons.

First, there are less invasive and more reasonable means of obtaining the evidence. While the February order is ostensibly based on the “All Writs Act,” it was issued to give effect to a warrant directing Apple to give the FBI “reasonable technical assistance.” If the February order permits the FBI to unreasonably search and seize Apple’s property, it is constitutionally defective under the Fourth Amendment. Whether the ordered search is unreasonable depends on if there are other less invasive means of gathering the evidence.

Here, there are at least three other less invasive methods. First – the FBI could back its way into Mr. Farook’s contact list by getting from Verizon, his cell phone carrier, phone calls, texts, or e-mails to or from his phone. Second — Apple can provide the FBI the desired information from the Mr. Farook’s iPhone. This would be akin to you, as the bank president, copying the murderer’s phone book and providing copies to the FBI. Third – have the court review Mr. Farook’s phone information in camera, that is behind closed doors, and cross-reference that information with the phone records around the time of the killings to determine relevance. Once that is done, some or all of the phone’s information can be produced to the FBI.

Second, there is a strong presumption in federal copyright law against allowing circumvention of encrypted copyrighted software. The Digital Millennium Copyright Act (“DMCA”) forbids devices from being made, imported, or marketed to the public which are primarily designed to circumvent technology that controls access to copyrighted content, such as Apple’s software. Because Apple manufactures the phone, and owns the copyrights to the software located within, Apple is free to circumvent it’s own technology under the DMCA. But Apple shouldn’t be forced to so by the FBI. That’s because the DMCA shows how important copyright encryption is to content creators like Apple, to Congress, and the consuming public. As a result, Apple’s interest in protecting the integrity of its iPhone 5c — and potentially other generations of iPhone – isn’t mere “marketing strategy,” as stated by the FBI.

Third, there is no telling how far the government will go if the February order stands without being overturned. According to Apple, the FBI has sought to access to 11 other iPhones since September, and states attorney generals are biting at the bit to do the same. Given this rising tide, the elephant in the room is a lack of trust in what the government will do with the new path it is foraging. While some 51% of Americans apparently side with the FBI on the unlocking of Mr. Farook’s iPhone 5c, American trust in the federal government in general is at an historical low of 19%, according to NPR.

Seen more broadly, the magistrate judge’s February order can be the first rock in an Orwellian rockslide where the government requires all phone makers to make such backdoors to the encrypted software as a matter of policy. The unstated and yet real concern with such a domino effect is that executive agencies will not only use this information for criminal investigation purposes, but to violate the Constitutional and privacy rights of Americans. These concerns aren’t academic. Nor are they paranoid. President Richard Nixon used the Internal Revenue Service go after American citizens he deemed to be his enemies, which led to his articles of impeachment. There is no telling what another Nixon would do with such unfettered power. Thus, Mr. Cook’s concern about the magistrate’s order setting “dangerous precedent” should not be taken lightly.

In the end, it is a shame that Apple and the FBI didn’t partner up outside of court to craft a mutually beneficial solution that would maintain the integrity of Apple’s iPhone 5c and also give FBI the evidence it needs. But amicable solutions like this won’t happen as long as executive agencies like the FBI downplay legitimate concerns of corporate citizens like Apple as “marketing strategy,” and then pursue heavy-handed discovery tactics not because they should and need to – but because they can. It is up the judiciary to stop them by ensuring that the government’s right to know is balanced against citizens’ legitimate intellectual property and Constitutional rights. In the meantime, just because Apple can obey the likely unconstitutional February order doesn’t mean it should. Instead, Apple should get a higher court to overturn and limit it.

Grandma’s going to jail for digital trespassing?

Grandma’s going to jail for digital trespassing?

“No digital trespassing! Violators will be sued. Survivors will be sued again!” Ever seen that sign? Not likely. That’s because, technically, there is no law against digital trespassingĀ per se. This occurs when your grandma’s new universal remote control climbs over, figuratively speaking, the encryption security fence on copyrighted content, such as the software to her old garage opener, so as to enable communication between the new control and old garage door opener. And yet some copyright owners want to hold your grandma civilly or even criminally liable under federal law for such trespassing. Allowing them to bust grandma would be an unwise expansion of their copyright monopoly.

Say you buy your grandma a garage door opener made by Acme Inc. The garage door opener comes with a control. Now, granny has a lot of controls, and she is too old to futz around with a control for her television, one for her radio, and one for her garage. Given you love your grandma and want to make her happy, you buy her Bling Inc.’s universal remote control. Bling’s one size fits all control circumvents the encryption technology fence on Acme’s garage door opener. In so doing, Bling’s remote is now able to gain access to Acme’s copyrighted software, thereby enabling interoperability. Otherwise, they wouldn’t be able to communicate because Bling’s remote would be speaking kilometers per hour to the miles per hour garage door opener without a translation protocol.

Does Acme have a claim for digital trespass against Bling or your grandmother? In the view of some copyright holders, the answer is yes. That’s because, in their view, Bling’s universal remote control has enabled your grandma to violate the anti-circumvention provisions of what is called the Digital Millennium Copyright Act (“DMCA”). This is so even if neither Bling nor your grandma infringe, or otherwise induce infringement of, Acme’s copyright in the source code by copying, reproducing, or otherwise publishing it. Under this view, there is a per se — automatic — violation of the DMCA whenever Bling or your grandma trespass, regardless of the circumstances.

But in the view of federal courts, there is no per se rule against digital trespassing under the DMCA. Bling’s universal remote control allows for what is called interoperability between grandma’s different devices, which is an efficiency that Congress didn’t want to do away with when passing the DMCA. In fact, the DMCA explicitly states as much in Section 1201(f)(1), in case you want to bore yourself by looking it up. What is more, courts have dismissed claims brought under the DMCA where the plaintiff is only able to allege or prove digital trespass, no corresponding copyright infringement or conscious inducement of the same.

Then why do companies like Acme file lawsuits seeking redress for digital trespassing? There are various reasons. One is security. Closed software universes, like Apple’s, protect better against viruses that can more easily attack porous systems that are liberal in their approaches to interoperability. This is one of the reasons why Apple’s computers are hacked less often than personal computers. The second is the fear that digital trespassers will pirate copyrighted content. The third is lost revenues. Conversion technology which allows newer kilometers per hour devices to communicate with older miles per hour ones via a translation protocol cost companies money. Rather than forcing granny to buy a new television in order for her to gain access to content protected by new encryption technology, conversion technology enables her old television to communicate with the new encrypted content. In the process, new technology sales suffer.

In the end, your 92 year old grandma isn’t going to jail! One reason is that her and her friends pack heat with silencers. The other is that the DMCA didn’t expand the scope of a copyright holder’s monopoly, and it expressly says that. However, it may take some more court decisions to make that clear to aggressive copyright holders who seek to pursue granny for digital trespass merely because she uses conversion technology to watch Netflix’s “Just Call Saul” on an old outdated screen. Otherwise, grandma’s crew might just shoot them all.

Google is moving to Moscow!

Google is moving to Moscow!

Google is moving to Moscow! Not really. But Mr. Sergey Brin, the founder of Google, was born in Moscow. How does Russia ensure that Sergey 2.0 will stay in Moscow – and not flee to Mountain View? You should care. Russia’s economy is over leveraged in the energy market. When oil prices drop, the Kremlin will be all the more desperate to do unwise deals for arms, among other things, to fill its coffers at the risk of longer term Russian — and American — stability. To keep Sergey 2.0, the Kremlin should take the following steps.


1. Encourage entrepreneurial risk taking

Who likes failing? Nobody does. But failing is a necessary part of being an entrepreneur in the tech space, and can be like compost for future successes. Numerous players, including Steve Jobs, failed miserably before they succeeded. He started Apple, was kicked out, started NeXT, that failed horribly, and created America’s largest capitalized company. There is a lesson to be learned from success stories like Apple for the Kremlin, whose oil and natural gas sales accounted for almost 70% of exports in 2013.

By failing to diversity its economic portfolio into the technology sector, Russia’s economy remains overly beholden to the volatile energy market. When oil prices drop, as they have recently, the Russian ruble suffers. This also makes the Russian economy subservient to good short term but bad long-term deals. To make Russia more economically robust in the long term, which ensures that America has a stable trading partner (Ford currently has a factory in Saint Petersburg), Kremlin policy makers should encourage more entrepreneurial risk taking among its inventive youth. This will make it more likely that a Russian version of Google will arise, employing numerous Russians and giving the country an alternative revenue source alternative to energy. This means going backwards and dismantling some of the centralized state control apparatus — whether under the Czar or under the Bolsheviks — that dominates Russia’s history.

Going backwards isn’t always bad. As any tech entrepreneur will tell you, including Mr. Jobs if he were alive, oftentimes you need to go backwards before you can leap forward. That’s why those who risk more get more. But most cultures – including Russian – look upon failing as being weak. While I am a California boy hailing from the City of Angels (Los Angeles), I have been living in New York City for twelve years now. And I can tell you first hand that the mentality here is less failure forgiving than in my Los Angeles birthplace, where, according to artists like Moby, there is “freedom to fail.” This explains why most of the top 50 venture backed companies in 2011 were located in California.

Like Californians, Russians are inventive, too. That’s why they were first to the moon, are the top rated chess players in the world, and are number 14 on Bloomberg’s list of most innovative countries in the world. But, as MIT points out, there is a difference between inventing and innovating. It’s one thing to invent something, like new ways of training for hockey, as recounted in Red Army, a documentary about the Soviet Union’s invincible Red Army hockey team. It’s another to take that invention and make it an innovation by packaging and marketing as a product that will disrupt the market. Part of the reason why there isn’t more innovation – as opposed to just invention – in Russia is the fear of commercial failure, as I have seen with Russian clients.

To temper this fear, Kremlin policy makers should encourage schools to teach Russian children about the benefits of trial and error so that they know that the risky path less taken isn’t necessarily the wrong one.

Otherwise, the world wouldn’t have Apple, Microsoft, or Google.

2. Create tech incubators

Some say “isolation is required” for creativity to flourish, as the famed Russian physicist Isaac Asimov says in his essay On Creativity. Others say that creativity is collaborative, as recounted in The Innovators by Walter Isaacson in telling about the starting of companies like Texas Instruments by a team of mavericks. Like with most things, the truth lies somewhere between these two poles.

Even Mr. Asimov says that cross-fertilization of ideas happens best when creative types are able to collaborate in an environment that encourages “ease, relaxation, and a general sense of permissiveness.” That’s because “the world in general disapproves of creativity, and to be creative in public is particularly bad. Even to speculate in public is rather worrisome. The individuals must, therefore, have the feeling that the others won’t object.” This means Russia needs to develop incubators and co-working spaces where collaborative creativity can thrive.

The benefits of such collaborative creativity can be seen throughout the United States. It can be seen in California or even New York skate parks, where kids make up new moves on their own, but try them in front of others to receive applause, pointers, or thumbs down. It can also be seen in tech incubators and co-working spaces located in both states – and in places like Cambridge, Massachusetts – where start-up companies work on their own inventions, but then can have practice pitch sessions in preparation for venture capital showdowns with other start-ups.

By mixing the collaborative and individualistic aspects of creativity, these innovators are able to get better feed back on their minimum viable products — a sample of the larger product to test — in preparation for either venture capital pitches or launching into the marketplace. This type of feedback is impossible in pure isolation. It would be like me testing out one of my new novels on a maple tree in Maine. The tree makes for an obedient audience, but I don’t want that when trying out new work. I want the good, bad, and ugly comments – stomach punches! – so that I can perfect my work for the real world.

The same type of culture can be encouraged in Russia by funding incubators or shared work spaces where entrepreneurs can find the environment they need to prosper.

3. Keep public hands off private intellectual property

Some products are produced and developed with government – taxpayer — money, and others with private money. To the extent I am developing a product using public money, then it is to be expected that the government – taxpayers – will own the the fruits of my labor. In that case, public copying isn’t theft. If, however, I receive private money for my development project, then the government should have less of a stake in the pot of intellectual property gold at the end of my entrepreneurial rainbow. In such a case, public copying is theft.

This risk reward relationship is one of the main drivers of innovation. Of course, some creators will make things regardless of the economic benefit. But these folks are usually hobbyists, not professionals. Those who seek to take a new product to market with their own — or borrowed private — money will expect to receive the financial spoils, and to have the state enforce their intellectual property rights, whether they be copyright, patent, or trademark. To the extent that the Kremlin is able to take away this pot of gold at the end of the rainbow from law-abiding citizens — not tax cheats — as a form of redistribution or retribution for challenging centralized power, then Russians like Mr. Brin will continue to flee to the West. This will further leverage the Russian economy into energy, and make job creating private tech innovation a pipe dream.

However, if the Kremlin makes the next Sergey Brin firmly confident that the gold at the end of his tech rainbow will not be seized, or otherwise taxed at 99%, then tech innovation will boom in Russia.

4. Ensure legal stability

Finally, there needs to be regulatory stability in Russia. This means that before I launch a new tech gadget product, the law might be settled concerning the patentability of a piece of hardware I developed, or copyrightability of source code. However, if the government is able to be lobbied by a larger competitor so that the law can swiftly change via regulatory diktat, smaller tech entreprenerus can no longer rely on the law being principled, which is what many smaller entrepreneurs in the U.S. feel about the legal system. Further regulatory uncertainty is created — which isn’t not good.

Such uncertainty is one of the biggest obstacles to creating and fostering an environment that encourages innovation. Sudden regulatory changes create a new factor that may go wrong after launching a product, or in the process of research and development. These types of regulatory changes also add another barrier to entry. In the United States, it makes it more costly for products to be developed by cash strapped start-ups without having expensive regulatory lobbying might in Washington D.C. so as to protect against well-connected competitors. This explains why so many companies from Silicon Valley now have lobbyists in the Capitol, whereas they didn’t before. The Kremlin can learn from Washington D.C. what to do — and not do — to enhance tech innovation in Russia.

Don’t be surprised to see a Silicon Moscow in the coming years. This will be beneficial to Americans since it will make it less likely that the Kremlin will do short term desperate arms deals that will be injurious to longer term Russian — and world wide — security and stability. It will also give American companies another fertile market in which to do business. And yet to get to this tech motherland, Russia will need to create the right type of environment. If it does, watch out for Sergey Brin 2.0 in Moscow.

The good, bad, and ugly of binary thinking

The good, bad, and ugly of binary thinking

Sometimes the best choice when you come to a fork in the road is to retreat, or even merge the two forks by taking one then going off road to the other! And yet binary thinking will force us to choose between the right or left fork, even if both forks suck standing alone. Only by understanding the perils of binary thinking can you protect against its destabilizing bipolar effects in conflict resolution.

First, the good. Binary logic is what makes many computer software programs run. The logic of going between “0” and “1” on streams of code is what gives direction to hardware. Not only that, but compact discs use the same logical geography to play music. Plus, in some cases, as Professor Steven Pinker points out in How the Mind Works or Malcolm Gladwell in Blink, binary logic helps us decide, often in split seconds, between: fight or flight in a dark alley, taking one fork in the ski slope or another, one moral decision as opposed to another in our relationships.

Second, the bad and ugly. The same logic that helps us make split second decisions in dark alleys also causes disaster in conflict resolution. In most but not all legal disputes I have handled, binary thinking keeps each side stuck in their black and white view of the law and facts, like the gun men pictured above. In most cases, both sides are right, and wrong, in different respects. (In others, there is a right, and a wrong, but that is quite rare.) As pointed out by Mr. John Kenneth Galbraith about the Myth of Consumer Sovereignty in The Affluent Society, rational decision making often gets irrational because consumers make decisions based on their perceived necessary choices — not their actual available choices.

The same goes with decision making in conflict resolution. Take negotiations between Democrats and Republicans. Labeling an idea “Republican” or “Democrat” can change an otherwise great idea in a split second into a horrible idea, depending on the listener’s prejudice. This is so even though each party may claim to have the same stated goal, such as less American unemployment. Rather than considering the idea with an open mind, the political listener shoves the idea into one pigeonhole or the other, even when the idea doesn’t fit into either hole, and then smashes it. Alternatively, the listener blasts the idea because it doesn’t fit into either hole. In so doing, yesterday’s distrust taints the new today. Thus, the circle of distrust is continued, as recounted in Politics of Distrust, which shows that, as of 2012, only 22% of Americans trust government.

While binary thinking can help us survive, it can, at other times, be deadly. Such thinking blinds us to innovative solutions available outside the binary system we desperately cling to. By considering these solutions, the two forks in the road can merge more often towards common goals.

Here come the robot lawyers! Is that a good thing?

Here come the robot lawyers! Is that a good thing?

What do you call 5,000,001 lawyers at the bottom of the ocean? A good start! Hah! While there may be some truth to the joke given the unprofessional behavior of many lawyers, the question is whether we want robot replacing human lawyers as decision makers for global reaching legal — and policy — decisions. I think not.

Robot lawyers aren’t pure fantasy. As reported in Who Will Own the Robots, an article in MIT Technology Review, Narrative Science is a Chicago based company which is “able to take data — say, the box score of a baseball game or a company’s annual report — and not only summarize the content but extract a ‘narrative’ from it.” Imagine that Google — or Microsoft! — creates an app called “Robot Lawyer.” You download the app, choose your accent (Chinese, Russian, or, um, So Cal surfer), input your facts, and then ask your legal questions. The input-output algorithm of the Robot Lawyer system resembles the means-end reasoning of the human mind.

But does it? Have you ever seen War Games? If you haven’t seen it, in the movie, the Department of Defense (“DOD”) replaces human with computer fingers on the nuclear bomb buttons. With everything governed by that intelligence, the chances of error decrease, right?

Wrong. In the movie, Matthew Broderick unintentionally — and easily — hacks — surprising, eh? — the government’s server. He ends up playing a virtual game of thermonuclear war with Joshua, the war game computer that the DOD created to play war games without actually conducting nuclear war. When Broderick intentionally launches a virtual nuclear attack from U.S.S.R. on the U.S. through Joshua, the DOD generals without computer knowledge think it is a real nuclear attack.

Why? Because those generals were living in their virtual tech cave — a system closed off from objective reality — and were tempted to trust that system rather than wait for reports from humans in the field to see if bombs were actually dropping. (Not only that, but the generals didn’t understand the workings of Joshua. Only Joshua’s father, and Broderick did, which is why these outsiders saved the world from catastrophe.)

No matter how rational lawyers make the legal system appear, it is not. External political factors can change the outcomes of cases which, without these unpredictable intervening influences, can be more susceptible to prediction by simple law applied to facts reasoning. In this respect, law practice is more akin to a humanistic art form merged with soft science than a pure mathematical system. While artificial intelligence can supplement the art of human decision making, it cannot replace it.

That’s why I’d prefer a creative, principled, and savvy Atticus Finch from To Kill of Mockingbird as my lawyer over his Robot Lawyer counterpart any day.

The big bad wolf to the . . . rescue?

The big bad wolf to the . . . rescue?

If you work in technology, the big bad fair use wolf can be your best friend. Read below to find out why.

A few days ago, the U.S. Supreme court denied Google’s appeal from a decision by the United States Court of Appeals for the Federal Circuit which found that source code — written instructions that run computer software — can be protected by copyright law. In so doing, the nation’s highest court left in tact a ruling by the Federal Circuit which found Google could have infringed the copyright to Oracle’s software programming platform.

To the extent Oracle’s code is original and non-functional, then it should find protection against wolves inside a nice cozy copyright house during the cold winter. That’s because this type of source code is akin to the original combinations of words that authors use as inputs into their own hardware — books, screenplays, or plays. Because these words are original expressions of perhaps unoriginal ideas, they are copyrightable subject matter. No less should be true about original non-functional source code.

Nonetheless, the copyright house isn’t impervious to the elements outside. If you copy the idea behind a copyrighted work, then you have no liability because ideas aren’t protected by copyright law — but functional ideas can be potentially patented. That’s why, when copyrighted expression is so inextricably linked with a functional idea, many federal courts will deny copyright protection to the expression, especially in the case of functional source code. Small tweaks in code inspired by not all that original — but original enough for copyright protection — source code can keep you away from the infringement line. In such a crowded market, there are only so many ways to express a functional idea, which is why courts are remiss about extending the scope of copyright protection for any one particular expression. To do otherwise would hurt innovation. No less is true in other expressive endeavors. The scope of copyright protecting less original works — such as a “me too” drip style painting inspired by the works of Jackson Pollock — is smaller than that for pioneering ones — such as an architectural design that blends, for the first time, Frank Lloyd Wright with Frank Gehry.

Even if Oracle’s source code can jump the foregoing copyright hurdles, the story doesn’t end there.The lower court has yet to decide whether Google has a fair use defense. In the end, if Oracle’s source code is original enough for copyright but not so original so as to read that protection broadly, then Google’s fair use big bad wolf will likely huff, puff, and blow over Oracle’s copyright lawsuit to the ground.

Devil’s in the details? Good news!

Devil’s in the details? Good news!

The Devil is in the details. Good news! This means picking a trade name for your new business venture will involve a great deal of planning and detail oriented thinking about your launch plan, and the market you serve. This will only serve you in good stead down the line.

Take, for example, a company called “Designbook.” According to a recent article, Established Firms Fight Startups on Names, they are a fledging upstart who is seeking entry into the now crowded social networking market. In attempt to gain a nationwide monopoly on their name, Designbook filed an application to register it’s name with the federal government’s Patent and Trademark office.

Guess who opposed the application? Facebook. According to the networking giant, Designbook’s use of “book” in it’s name is confusingly similar to the “book” used in “Facebook.” Of course, if Designbook was a pen manufacturer, Facebook’s claim wouldn’t likely have merit.

However, as applied to the social networking market, “book” has gained a worldwide reputation as being associated with “Facebook.” So the mammoth’s argument about confusingly similar use has merit — in this instance. Imagine if the market became saturated with “Desginbook,” “Loobook,” “Cokebook,” “Gangabook,” “Pornbook,” and so on? Such uses give the impression that the companies are affiliated with Facebook (as in the case of “Designbook” or “Lookbook”). Otherwise, the tradenames dilute the “Facebook” name (as in the case of “Cokebook,” “Gangabook,” and “Pornbook.”). Unlike confusion, dilution doesn’t require that folks think one brand is affiliated with the other, but merely that that the new brand — i.e. “Cokebook” — makes the famous brand — “Facebook” — less unique.

That being said, assume “Pornbook” launched a website, not in the social networking realm, but as a new humorous online publication by evolutionary biologists like E.O. Wilson for the study of sexual practices among Rhesus monkeys, in addition to other non-human mammals, throughout history. In that case, Facebook would be hard pressed to bring a claim. “Book” is a generic word. Facebook doesn’t own it. So the question becomes, how do you, as a new venture backed company, pick a good name to enter into an otherwise crowded market?

Be original. While “Designbook” describes, in some ways, what the company does, the trade name “Nike” does not. If you didn’t know that “Nike” referred to the shoe company, you’d otherwise think it may apply to a Greek God for victory — it does. All this means is that a company like “Designbook” needs to pick a more original — “fanciful” — name that doesn’t describe, in anyway, what they do. They then can make a splash in the market — like Nike did after Mr. Jordan helped revamp the brand. (Remember those Spike Lee/Michael Jordan commercials?) In the end, an original name can actually help “Designbook” gain more market share instead of merely being a “me too” Facebook.

Only by respecting the Devil and his details will you arrive at a sustainable, attention grabbing, name.