I recently had the opportunity on Blue Yonder to interview Ian Samuel who not just a DOJ lawyer but also a techie and geek. This article contains excerpts from the interview. The full audio interview can be found at Episode 70 of Blue Yonder or there is a full transcript available as well.
We’ll be doing a followup interview so please submit your questions or feedback in our forums or by email. You can also send them to us on Facebook or Twitter.
Without further ado, appropriately highlighted in red/white/blue…
Jim Jones (Blue Yonder): Why don’t you introduce yourself and tell the audience a little about yourself.
Ian Samuel (DOJ): Sure. I’m an attorney; I live in Washington DC, where I have lived for about two years. I have known your co-host since I was just a kid, basically, 15 years? A long time. In addition to being all that stuff I am also the world’s biggest nerd.
Jim Jones (Blue Yonder): I hear you have a disclaimer you want to drop on us up front.
Ian Samuel (DOJ): I’m not sure why people have to say this anymore, but I work as an attorney for the Justice Dept. I’m not sure anyone at the Justice Department has an opinion on anything I’m about to espouse, but the point is, I’m speaking for myself. But I think everything I say is so persuasive, and so obviously correct, that it should be the position of the government. If they haven’t said it yet, just keep waiting. It’ll be their official position soon.
A.Ron Hubbard (Blue Yonder): Gotcha, so you are in fact, a lawyer, but this is not legal advice.
Ian Samuel (DOJ): Right, listening to this show does not create an attorney/client relationship. You’d have to give me money for that.
A.Ron Hubbard (Blue Yonder): You say you’re the world’s biggest nerd but I have to say, you also are pretty high amongst the functional geeks that I know. I mean you’re confident, successful with the ladies, but we met on an internet usegroup arguing which is better, Star Trek or Star Wars.
Ian Samuel (DOJ): Yeah. Not just which is better, you’re making it sound better than it is. Which would be militarily superior, in a hypothetical scenario, an all Imperial vs. all Federation conflict. Better would be a sort of interesting aesthetic debate, this was more, let’s measure the length of the beams on the screenand figure out turbolaser wattage ratings that kind of thing.
A.Ron Hubbard (Blue Yonder): Yeah, and when I say this was a hobby, I don’t mean that we got some digest once a month, we were in the trenches fighting every fucking day.
Ian Samuel (DOJ): Every day. I went back to check a while ago, to see how many posts I had in that Usenet group and it was around ten thousand. And a lot of them were long, too. I mean this was a huge, huge investment of my early teenage years.
A.Ron Hubbard (Blue Yonder): What do you owe this dichotomy to?
Ian Samuel (DOJ): I guess it’s partly that a lot of geeks are younger guys who haven’t really grown into themselves yet, and haven’t yet found the sort of confidence that can come from understanding that all the stuff that makes you different can also be the source of being really great at stuff, once you get into your life more. I see guys and girls, sort of grow into themselves. They all end up pretty highly functional.
I think in 99% of the cases, geeks pretty much end up running the world, I mean the richest guys in the world are huge nerds. They seem highly functioning. It’s just that you have to get through your teens and it kind of sucks for awhile, but then you realize that you’re destined for greatness.
A.Ron Hubbard (Blue Yonder): You work for the Justice Department. Within the DOJ, is it all one homogeneous department or are there different divisions? If so, tell us specifically what you do and how you fit in.
Ian Samuel (DOJ): The Justice Department is really big. There are thousands of people, and a lot of attorneys, so there are definitely different divisions. The one I work in is the Civil Division, which is not concerned with criminal prosecutions. Specifically I work on the appellate staff, exclusively in the courts of appeal for the United States. So if people have heard of the 9th Circuit, for example, that is a court of appeal that I work in.
What we do is any matter that is not a criminal case. For example, if people have read about challenges to the health care law, we are handling the defense of that. It’s very fun, very satisfying, I’ve been able to have a lot of responsibility early, which makes up for the fact that you don’t make as much money.
Jim Jones (Blue Yonder): I’m picturing this scene from a Few Good Men. What is it like to argue in front of such a high level court, and how does it compare to what you see in the movies?
Ian Samuel (DOJ): The main thing that is different, I think, in the courts of appeal and the Supreme Court, there is no jury. There are three justices in the appeals, and of course nine justices in the Supreme Court.
The way the argument works, you have a set amount of time, like maybe 30 minutes set aside, and you go up there, and start presenting your argument, and you are immediately interrupted with questions from the panel. And you answer their question, and your answer will likely be interrupted as well, and it’s a back and forth, much more, than a sort of monologue presentation. This is more true the more important the case is, and the higher you go, so a Supreme Court oral advocate the first thing they are told, is you probably aren’t going to get a second sentence out, so you better make sure the first one is good.
It’s very interesting, adrenaline filled, and you’re up there in a back and forth for however long you’re up there. There’s nothing quite like it that I’ve done, but it’s also about dry points of law. These are courts of law, they aren’t really interested in figuring out what really happened and a set of facts. There are no witnesses, so you’re not cross examining people or anything like that. Whether or not that would make for good TV? I mean, I’d watch it, but I think it’s pretty different from what we see most of the time.
Jim Jones (Blue Yonder): Why would you suggest anyone go into a legal career?
Ian Samuel (DOJ): The only reason anyone should go to law school is if they want to be a lawyer. It seems like, duh, right, but all the time people go into law school, and they say you can do a lot with a legal degree. Yeah, that’s true. But it’s a very expensive credential to not use for the main thing it’s for, and these people inevitably end up unhappy in law school and they don’t like it very much.
So you should do it if you think the actual work of lawyers is something you’d be happy doing on a daily basis. For a lot of people when they find out about what lawyers actually do, the answer is no. It’s not very fun, in which case you should save yourself the $100k and do something else. But I love it. So I’m very happy I went.
A.Ron Hubbard (Blue Yonder): Every once in a while you’ll see a decision handed down by a judge that’s been passed around Slashdot or Hacker News and he’ll just eviscerate a defense or the prosecutor for being stupid or snarky. I know there is a lot of writing in the legal profession, but it seems like there’d be a lot of boilerplate, and not much chance to be creative, clever or funny. Do you get to do a lot of clever writing in legal papers?
Ian Samuel (DOJ): The chances to write well are there, if you want to take them. The reason that most legal writing isn’t very good it’s because it doesn’t have to be good. A boring brief that isn’t particularly well written can, and does, still win.
In everything a lawyer writes, whether a brief, or legal opinion, there is some argument where the boilerplate is set aside and you try to explain what your argument is and why you are right, and in the process of doing that, you can write as well as you want to write.
A.Ron Hubbard (Blue Yonder): We’ve been talking off-cast about the Supreme Court ruling which involves a California Law that seems to ban or limit violent video games. [Update: This decision was handed down this past week. See here for details.] Do you have an update on this case? What’s it about, what’s the fight for, and what do we as geeks have to be afraid of or hopeful for?
Ian Samuel (DOJ): The law says it is illegal to sell a violent video game to anyone under 18, unless the game has substantial literary, artistic, or political value for minors. And who knows what that means?
A.Ron Hubbard (Blue Yonder): Is this like the Miller Law for video games?
Ian Samuel (DOJ): Exactly. It’s very strange, every courts of appeals have considered laws like this, and all courts of appeals have said that they’re unconstitutional, that they are restrictions on free speech that aren’t justified by any of the sort of exceptions to the usual rule that you can’t restrict what people want to say to each other. So far so good, and I think those rulings are correct and there have been no courts of appeals so far that have come out the other way.
Then the Supreme Court decides to take this case, rising out of the state of California, and the ninth circuit. By itself that doesn’t mean the decision below is wrong. It could mean they want to clarify some point of law, and sometimes they affirm a decision that they’ve decided to take and listen to.
A.Ron Hubbard (Blue Yonder): How is this different than movie theater chains requiring minors to show ID or have a parent or guardian with them to purchase a ticket?
Ian Samuel (DOJ): The reason is that movie theater guideline is voluntary. It is imposed by the Motion Picture Association of America as a condition of their member theater groups; to get the prints you may have to do this. But there is no law at all that says a 16 year old kid can’t go in to a video store and buy a copy of Shindler’s List because it is too violent. That would be rather shocking to have a law like that.
It’s one thing to say, we as a movie theater chain want the clientele we want and we’re going to let people in of a certain age. Fine, that’s a business decision, it’s none of my business. But for the government to say, we decided that people who aren’t 18 yet can’t know about violence in the world — that’s shocking, and surprising, and much different than anything we’ve ever had in this country before. Like it or not violence is a part of history and a part of human affairs, it’s part of the way the world works, and to get to 18 without having been exposed to a story about it, to not be allowed to read the Iliad and the Odyssey because they’re too violent? It’s crazy. It’s crazy that the government would be allowed to do that.
A.Ron Hubbard (Blue Yonder): One thing that I’ve been annoyed with are gaming content creators being possessive of their server space. In fact at one LAN party, we could not run our own local servers, we had to use the officially blessed servers to play on which gave us a hard time.
Ian Samuel (DOJ): This is a problem in Star Craft tournaments, in Star Craft 2 there is no way to play locally.
A.Ron Hubbard (Blue Yonder): Blizzard has been one of the assholes at the root of this. I can remember a long time ago one of the first times I had a bitch session about this with you was over the BNETD project. They were shut down by legal threat, not something coming down out of case law. Where do projects stand that try to replace official clients or servers with some sort of homebrew, unofficial software?
Ian Samuel (DOJ): Well, it’s murky. Let me lay out the sort of tools companies use to fight this thing. You have a game, and it’s copyrighted, and that’s fine. Now, to install this game, or to run it, you have to make a copy of this software, to disk and then to memory, and that’s making a copy of something copyrighted. You aren’t allowed to do this without permission. Every game comes with a license, that you have to click through, before you install or do anything with it, and this agreement allows you to do something you aren’t normally allowed to do, which is copy this software.
But here are the conditions, on this license, and one of them are you don’t do something like BNETD, you don’t run it on an unofficial server, whatever behavior we don’t like, we’ll say that’s a condition to the license. If you do one of these things, the argument goes, you have violated the terms of the license, and you are now making copies of the game without our permission. When you run that game in a way that violates the terms of the license, you are copying illegally. And we can come get you.
A.Ron Hubbard (Blue Yonder): Isn’t that insane, just on principle? That loading software from disk to memory is making a copy? That’s like saying if I’m reading a book my eyes are converting the images of the word to my memory and it’s making a copy of the book in my brain.
Ian Samuel (DOJ): I think that’s a serious objection. It’s possible that people can disagree, to say the least. The other response is that there is a provision of the copyright law that says you are allowed to make a copy of software you own for the purposes of installing it to your computer, or making a back up. This is section 117 of copyright law, you’re allowed to do that. That is a right granted to you in the same piece of law that grants the copyright holder their rights in the first place. You may ask, why doesn’t it cover this? The answer is, which you can likely predict, “ah, but you don’t own this software, we’re just licensing it to you.” Oh, I was confused, because I went to the store, and I bought a box, and I gave them money, and I took it home, and I would have thought I owned this box, but it turns out I don’t, you are the real owner of this thing I paid money for and will keep in my house for an indefinite period of time. Usually when I go to the store and pay money and take something home, I own that thing. You can sort of tell what I think of this argument. But that’s the argument they’ve made, and they haven’t been wholly unsuccessful.
It’s unsettled. There is different law in different courts, and it has never been addressed by the Supreme Court, and it may never be. The threat of legal action, which is very expensive, is generally enough to deter these projects, unfortunately. The way these projects get shut down, is they use copyright law, and the threat of infringement lawsuits, to get to the point where it is too expensive to develop them.
Jim Jones (Blue Yonder): This is a question from one of our listeners, Stafa. He wants to know about ROMs. We’re all sort of old school gamers here, so this pertains to us. What’s the legality of that? If you own a cartridge, what is the legality of downloading a copy of that to play on your computer, emulated?
Ian Samuel (DOJ): This is unsurprisingly a grey area. I think there is a good argument, and it may not win, that the very same section of 117 we were just talking about, when you own a piece of software, like a video game cartridge, you have a right to make a backup copy, that’s unquestionable. I think this situation would be covered by that. You say, “Look, I own this cartridge, the way I’m making a backup copy is to download it to my PC over the internet. If I lose my cartridge I won’t lose the software that I own and I paid for.” The interesting thing about video game cartridges, there aren’t EULAs, there is nothing to click through, and there are no licenses. So, I think you’d have a good argument that this is an exercise of your section 117 rights, because how else are you going to make a backup? I’m not an expert in this, particularly, don’t go out and do this on my say so. But I think there is a reasonable case made that this is a lawful exercise of your rights. Obviously downloading things you don’t own is bad. Don’t do that. That’s copyright infringement, and whether you want to run the risk of doing that is up to you. But I think your friend is within the bounds of the law, which is unsettled.
A.Ron Hubbard (Blue Yonder): Has anyone legally challenged these EULAs?
Ian Samuel (DOJ): There is a case before the 9th circuit, not too long ago, about World of War craft bots, which violate the terms of Blizzard’s license. Blizzard sued somebody, I’m not sure if it was the players or the makers of the boot or what, and the conclusion of the 9th circuit was, if I recall, was, you don’t own the software. But the bots aren’t illegal, it’s not copyright infringement, so they went into a technical distinction I won’t bother anyone with. But there are cases about this, and they are litigated, and it’s like the Electronic Frontier Foundation, (EFF) and places like that, the Free Software Foundation (FSF) they get involved in these things and have not totally been unsuccessful. This is a live thing, a fight that’s ongoing.
Jim Jones (Blue Yonder): I want to direct us toward the IP concerns around cloud based music services, like Google and Amazon have launched, and even Apple has started to go to, and they’re being sued by the media companies. What do you think about the most recent developments where Amazon basically just pushes into the market and says “challenge us!”
Ian Samuel (DOJ): I think it’s interesting. It’s good in the following respect. I don’t know if Amazon will win their legal fight with the labels, I really don’t, they have a pretty good argument, that all they’re doing is providing a place for you to store your music online, that you upload the files and store the files, and we have a little player you can use to play the files. It’s no different than Drop Box, really. It sounds like a good argument to me.
But whether they win or not, I’m glad it’s happening, because the only way you get good results in the realm of user rights and IP and copyright and things like that is when you have moneyed interests on both sides who can afford to litigate this as part of their business. The music industry can crush people who don’t have the financial wherewithal to fight forever, even if they are completely in the right. Amazon obviously thinks this is the bet. They obviously knew the music labels whom they did not seek the permission of, they knew they would object, and this objection would take the form of litigation, so they were prepared to fight to do this.
A.Ron Hubbard (Blue Yonder): In 1984 they had Sony vs. Universal that kind of solved, for a generation of technology, a lot of intellectual property disputes. “Can I make a recording of a television show and play it back?” And because the court ruled in the way they did, it really blew the lid off of a lot of things we take for granted now. Time-shifting content, DVRs, stuff like that was all made possible by that ruling.
Ian Samuel (DOJ): Right, they say it’s fair use for you to make a copy of a program for you to watch it later. That’s what the decision says.
A.Ron Hubbard (Blue Yonder): Right. And that kind of solved a lot of things until the internet era. Do you think we’ll have a similar landmark law or landmark ruling that will solve the tension between content producers, consumers and pirates? Consumer just want their stuff to work and stuff to play, content producers just want to get paid for producing content and pirates just want to rip it off for free. There’s got to be a way to protect the rights of consumers without just giving the keys to the kingdom away to the pirates. We could argue about what’s “wise” and what the content producers should do, but do you think there will be a nice, neat bow of a law that indemnifies consumers and allows content providers to effectively prosecute pirates?
Ian Samuel (DOJ): Unfortunately, I don’t think so. I think that basically if you’re a consumer in the world right now, like if you listen to music or you watch movies or you play video games, I think you basically right now have a couple of problems.
The first problem you have is that copyright lasts way too long. Well the Supreme Court already heard that case and they basically said Congress can keep going back and extending it and extending it forever and ever. So that problem doesn’t feel like it’s going to get solved.
The other problem you have is that, to the extent that all of your stuff is burdened with crappy digital rights management stuff, it’s impossible to take your movie that you bought on iTunes and play it on some other device. That doesn’t seem like a thing that the law can really solve. People are just going to have to decide that they don’t want to pay money for that. Because you wouldn’t want to make that illegal. I mean, digital rights management is a bad idea but it would be hard to think of a way to make it unlawful that wouldn’t also have a lot of unintended consequences.
I think in the long run, the solution to the problem you’re talking about is — when it is more convenient to pay for stuff at a reasonable price, you will get enough of the market that you will make money. This is why Steam is great. It’s a DRM system. But it’s like the best one you’ve ever used because instead of making it harder than it used to be to play games, it’s so much better because you can install it, then delete it, then install it again later, install it on a different computer that you own or stuff like that.
So as a result, I think a lot of people who might have pirated games in the past will go on Steam and pay $5 on a Steam sale. The content producer makes money, there’s some protection against piracy, the consumer gets to play a game he wants; sort of everybody wins. This is why the iTunes store displaced casual piracy for a lot of people. It’s just more convenient and the price is reasonable.
Jim Jones (Blue Yonder): So you mentioned that you think it’s not going to be a problem solved by the law but is there any threat right now that someone will try to litigate this or try to make laws to cover this and royally “eff it up”?
Ian Samuel (DOJ): Oh sure. For example, there’s the PROTECT IP act which expands and criminalizes just an amazingly, stupidly large amount of stuff; even linking to a website. As I understand the PROTECT IP act — if you link to a website that is accused of copyright infringement, you’re on the hook for a federal crime essentially. It’s beyond ridiculous.
The other thing that we’re seeing is a lot of moves to make certain digital locker services — websites where you can store files and send a link to people to download those for free — to make those illegal or make them more regulated.
These threats are not going away — this sort of “copyright maximalism” where we’ve just got to expand and expand and expand the legal rights that content owners have — that’s not going away.
Jim Jones (Blue Yonder): Ok, so that kind of brings us back around to the trademark question that was asked by MadBrew on our forums. He wanted to know what your thoughts concerning the protection of corporate IP was. He says his stance is that the “current extension should be rolled back to the original specs. I think it does the opposite of its constitutional intent which was to promote creativity.”
Ian Samuel (DOJ): Right, the Sonny Bono thing. Well I agree with that.
The constitution says that copyrights are to be secured for a limited time, ok? That’s actually in article 1 of the constitution. To me, if Congress can extend a copyright term indefinitely, that is no longer of a limited time in any practical sense. And the economic rationale for it is non-existent because if the argument for copyright is “we have to incentivize creators so they’ll get a reasonable return on whatever they make” — Mickey Mouse is already made and so the incentives are already done operating on the creation of Mickey Mouse. So I think on the Sonny Bono thing — I’m not familiar with a legal academic who works in the realm of copyright anywhere who thinks that was a good idea or is even mildly supportable by anything other than just interest group politics. So that’s my answer.
A.Ron Hubbard (Blue Yonder): It sounds like it’s going to be up to “we the people”, if this comes up and Congress extends it again, to get awareness out to be like: “This is bullshit and this is going to mean your jobs.”
Ian Samuel (DOJ): Yeah, I don’t remember how long the extension was but I remember a couple months ago, I was looking at it and I realized that in the next few years, the extra years from the Sonny Bono copyright thing were going to be over and they were going to have to either do it again or let some of this stuff go into the public domain. And I think that the last time it happened it was in the late 90s and the internet was not quite a “thing” yet. I mean, people were online, I was online, but it had not had the mass impact that it has now. I’ll be very interested to see what that fight looks like because it’s one that the every person and politically interested individual on the internet is going to obviously want to say something about. I’ll certainly be paying attention.
Jim Jones (Blue Yonder): Okay, so we’ve talked about some of the frightening IP precedents I guess, but are there any really promising IP-related legal precedents that you’ve seen developing recently?
Ian Samuel (DOJ): Well actually, yes. Actually there is one.
There is a thing in the patent law called “inducement of patent infringement” where you’re not the primary infringer but you encourage someone else to violate the patent. You’re liable as an infringer just the same as if you’d done it yourself. Now, the Supreme Court, this term, confronted the following question:
To infringe a patent, you don’t have to know about the patent. If you have a patent for a certain kind of vacuum cleaner and I build that vacuum cleaner, I infringed the patent and I owe you money whether I knew you had a patent or not. It’s a strict liability. The question in the case was: Is inducement of infringement the same? So, for example, if I hire a factory to build me a bunch of vacuum cleaners they’re probably violating the patent directly and that’s their problem. But am I liable for violating the patent if am inducing someone else to do something that, in fact, violates the patent but I don’t know there’s a patent out there? The answer, hearteningly, was “No.” To be liable as an inducer you have to know about the existence of the patent.
So that’s not a big deal but it’s nice. Software companies really cared about this big time because they get hit with tons of patent trolls all the time and they really care about the inducement rules. So they were big participants in this case and it came out the good way so how about that?
A.Ron Hubbard (Blue Yonder): What role do Wikileaks and independent journalists play in our future? Can newspapers and that kind of in-depth journalism survive in an environment where anyone can leak any information out instantaneously and anyone can write a reasonably informed opinion and publish it anywhere instantly?
Ian Samuel (DOJ): I don’t think that the Wikileaks model is particularly sustainable because it involves — I want to phrase very carefully my comments about Wikileaks because they are — In fact, I think I should say nothing about Wikileaks. I’ll just talk about journalists.
A.Ron Hubbard (Blue Yonder): Is that because you have a complex view of the matter or is that because the U.S. government is actively involved in litigation in that regard?
Ian Samuel (DOJ): Yeah, it’s that. I have many complicated thoughts on Wikileaks but the Justice Department is not messing around with these guys and even though I have disclaimed up and down that my views are not the Justice Department’s views, this is one of those really sensitive areas where I don’t think I should say anything at all because, at the end of the day, I am still a lawyer who works at the Justice Department. Like I said, everyone’s risk-averse. Everyone like to keep their job. I just don’t want to be the guy on the podcast talking about Wikileaks when he shouldn’t. I don’t want to be that guy.
Journalists are going to be fine. The success of places like Talking Points Memo and a lot of the online-only journalism outlets, or even places like Politico, prove that you can run a business and make money selling news online. You can do it. People are doing it every day. Now the old newspapers, the Washington Post — I don’t know. Their business model was built for a completely different era. I’m a lot less sure about those guys.
What I know for sure is that local newspapers are pretty much dead. There’s maybe a market for one or two big English language newspapers in the United States. Like the New York Times I think is going to survive in some form. But the Pueblo Chieftain, the paper of my hometown? No. It’s not gonna happen. What’s the argument for it? You can get online and learn everything that’s going to be in the Pueblo Chieftain for free. Local news is very well-handled by local bloggers. I learn plenty about my D.C. neighborhood through a couple of blogs. These are hobbyists doing it for free. The reality is it’s just going to be very hard for those places to make money.
A.Ron Hubbard (Blue Yonder): It seems like we’re heading into a world that wants one-way transparency; everybody wants to know what’s going on in the citizens’ lives but us knowing what’s going on in the government’s lives is being frowned upon. How do you see the privacy landscape in 10 – 25 years?
Ian Samuel (DOJ): Yeah, it’s a good question. So everyone knows that we sort of put ourselves online and give away our privacy, right? That’s sort of a trite observation. Everybody knows that. What I’ve been thinking about lately is that, in the process of doing that, we’re living these lives that are framed to be put online. Like you see people taking pictures of what they’re doing so they can post them to Flickr or Facebook or whatever and you realize that you suddenly have a directorial distance from your own experiences and you’re doing stuff because it will be fun to tweet about, or whatever. I don’t know if that’s exactly a privacy problem or what it is but I’m starting to notice a little bit of that in my own life.
I was on this big road trip and I was tweeting a bunch about it and I realized that I was subtly being influenced to go to different places because “that will make a cool tweet.” It’s very strange, you know what I mean? So I think that is the real unexplored consequence of all this stuff and I have no idea how it’s going to play out. I’m really not trying to be the grumpy old man about this. It’s nice to be able to share this stuff with people and it can obviously be a huge force for good and it’s not going away. But just lately I’ve been thinking about what that’s doing to people. Is it good? Is it bad? It’s obviously some mix of the two but it’s pretty interesting.
Jim Jones (Blue Yonder): As it relates to IP law and the gaming industry, are there any effective ways for us to combat these sorts of negative trends that we’re seeing?
Ian Samuel (DOJ): Well, I think that there are 2 things. At the macro level, when legislation, the sort of PROTECT IP stuff, comes up, you’ve got to care and it’s very important that you actually do stuff. The thing is, as weird as it sounds; senators and congressmen are bizarrely influenced by constituent mail and constituent phone calls. It doesn’t always make a difference, it’s not inevitable. Obviously if they have a million bucks in campaign money on the line, some nice call from somebody isn’t going to make a difference but you’ve got to do stuff like that.
On a micro level, the only thing you can do is not give money to schemes that don’t provide a relatively robust set of rights for you. For example, I feel very comfortable buying music on iTunes because it’s all DRM-free, I can do whatever I want with it, etc. I feel a lot less comfortable about some of the games that are crippled by design if you don’t have an internet connection. I don’t want to give money to a company who thinks that’s a good way to do it. So I just don’t play those things.
I realize those are both really trite answers but I think they’re trite because they’re correct. That’s what you have to do.
And over time, I think things go in the right direction. Music on iTunes used to be all DRM’ed, now it’s not. Now there’s a MP3 store on Amazon, it didn’t used to be that way before. Over time, these are businesses and they will work themselves out.
A.Ron Hubbard (Blue Yonder): That’s scary because you’re saying that letters and phone calls are what sways. I feel like our generation — we’ll get on Slashdot and we’ll bitch or we’ll make an ironic tweet or get on Facebook and share links but that’s kind of like public masturbation; it’s not actually doing anything.
Ian Samuel (DOJ): It’s not. It’s a good community-building exercise and how people find out about stuff but it has to be cashed in with the stuff that’s going to make a difference to the people who have the decision-making authority. I did not believe this for a long time but legislators really care disproportionately about constituent contact. Like I say, for really big stuff, I’m not going to make the claim that everyone’s voting their conscience all the time but it is the one thing that anyone can do and you should.
In the end, legislators are human beings and they want to keep their jobs and they don’t always have a good sense of what that’s going to require and so they’re very risk averse. So when there’s a lot of stuff frightening them, they’re going to do something about it.
Jim Jones (Blue Yonder): What is the importance of organizations like the EFF and is it worthwhile to donate to their causes; to give them money to fight these battles for us.
Ian Samuel (DOJ): Well I think so. I should say that I have some skin in this game because there are EFF lawyers who are friends of mine and Software Freedom Foundation guys — these people are my friends so I’m obviously biased.
But long before that was true; I did give money regularly to the EFF. Every month I think I gave $20 for a long time. And it is worthwhile because they are doing tremendous work and they really make the money count. These are very, very smart guys and girls. The friends I have who are doing this kind of work are my smart friends. So they’ve got the best folks and those folks are working for way less than they could make at a private law firm. And they are doing top quality stuff. So is it worth it? Hell yeah it’s worth it. These are good organizations and I really feel like they put the money to good use. They get stuff for people that you may never even know about.
Let me give you an example. The EFF started litigating a series of cases about cell phone tracking where, basically, a government investigator wanted to know about your whereabouts. So they’d get an order from a court that would allow them to track your cell phone using cell tower positioning, which is pretty accurate. And they were getting this without actually showing probable cause that you had committed a crime or anything like that. They just kind of wanted to know.
The EFF started to get involved in these cases, quite successfully in many cases, and actually challenged the ability of government to do this. Now, it was the Justice Department that was doing this but I’m already on record because I wrote my student note about this thinking that we’ll probably need probable cause for that so nothing new here. You’ve probably never heard of this before but they’re doing a great job. They get right in at the beginning and they make very effective use of that money and end up winning important privacy rights for a lot of people.
So these are good groups and if you’re looking for an effective way to use your charitable dollar, boy you could do a lot worse.
Jim Jones (Blue Yonder): Do you see any role of business in fighting the legal trends alongside the EFF and other organizations?
Ian Samuel (DOJ): Yeah, I absolutely do. Remember the case that A.Ron was talking about, the time shifting case, was a case between a movie studio and Sony. Sony had an interest in being able to sell you a device that time shifted this thing so they had an incentive to stick up for the rights of consumers and they did so very successfully. So I would encourage people not to think about the world in business vs. consumer terms. It’s not quite that simple. It’s really about different business models competing to survive.
I like to use the example of when the refrigerator was invented, a lot of milkmen went out of business because all of a sudden you didn’t need milk delivered to you every single day because you’d just refrigerate it for a week. And so the businessman who made his living running the milkman company, his business model didn’t make sense anymore and all of a sudden a different guy’s business model, the refrigerator salesman, his business model suddenly made a lot more sense.
It’s the same thing now. You have competition between old and new business models. On the one hand, the way Amazon makes its money is by giving you access to all of your music anywhere you want to have it and selling it to you at a very low price. The music industry traditionally made their money by selling you the same song over and over again; you buy it on tape, you buy it on vinyl, you buy it on CD, then you buy a digital download. So it’s just a competition between these two business models.
So yeah, there’s a big role for businesses to fight these things and it’s definitely a good thing.
A.Ron Hubbard (Blue Yonder): What’s your opinion of this bullshit going on in the country where police officers and public officials are persecuting and prosecuting individuals for shooting pictures and film of them doing their duty?
Ian Samuel (DOJ): Well, I agree. I don’t think this is good. It’s too bad because, for one, I think that everybody should be able to agree that having a record of how our public officials go about their duties is good, not just for the public, but actually for the officials. If every police officer’s every move were recorded, what we would discover is that most of them are very decent, conscientious people who are working hard to do the right thing and we would be able to identify the ones who aren’t very rapidly.
There’s nothing that’s worse for a decent police officer than a bad apple who makes everyone look terrible. And that’s who’s driving this stuff. The bad apples. The 0.1 percent of the guys who cause 99 percent of the problems and don’t want any accountability. Whereas most police officers are really just trying to do the right thing and, of course, recording those guys would show nothing exceptional at all.
So I agree. I think it’s very disturbing, the idea that there would be something wrong with making a record of a public official discharging their duties in public. There should be no objection to that at all.
A.Ron Hubbard (Blue Yonder): This is from MadBrew as well. “What are your thoughts on the ability of the little guy to be able to defend himself in a case of fair use, or even wildly off-base lawsuits, without major funding? It seems like corporations with deep pockets can pretty much bulldoze anyone they want. What can a little guy do? Represent himself?” And he lists a couple case laws. One that seemed particularly ridiculous was Monster energy drinks successfully getting this brewery, Rock Art Brewery, to not sell a beverage called the “Vermonster” which was a play on the state Vermont, not Monster energy drink.
That does seem like it’s very oppressive if you are in the right but you can’t stand up for yourself because you can’t afford to defend yourself.
Ian Samuel (DOJ): Yeah, or another example of this is, just this week, this guy Andy Baio released this album called “Kind of Bloop” which was a chip tune version of Miles Davis’ “Kind of Blue” which he funded through Kickstarter and it was very cool. The cover of it was a pixel art version — it was meticulously, you could tell, hand-created — of the actual album cover of “Kind of Blue”. And it looks great. You can find it online. I bought it at the time, I’m glad I did.
Well the photographer who had taken that picture sued this guy just recently. And this guy said “Look, I have no doubt that my pixel art version of the album cover constitutes fair use. There is no doubt in my mind. I know I’m right. But the litigation to fight this would be more expensive than I can afford.” So he settled it and not for nothing either. He settled for $32,000. That’s not nothing. And he also agreed to stop using it as the album cover for “Kind of Bloop”. So one thing I would say is if you have $5, go buy Andy Baio’s chiptune album “Kind of Bloop” because he could really use the money.
It’s unfortunate but the reality is the American legal system is expensive. Litigation is very expensive and it really cannot be done by amateurs. Do not freelance this stuff because if you lose you are very screwed. It can’t be done by amateurs and it’s expensive and each side pays their own costs. So even if you win, it’s not like you, except in some very particular and rare circumstances, it’s not like you get attorney’s fees from the loser just for having won. So even a victory may be more than you can afford.
So unfortunately it does create the possibility for a lot of bullying and we see that. It’s the same thing that just happened to all those iPhone developers who were getting pushed around by a patent troll. What can you really do? You can fight it but it’s just going to be more expensive than giving in. It’s terrible but it’s the way the system is. So what can you do? Unfortunately the answer is “nothing”.
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