This WEEK in LAW 30

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This WEEK in LAW
Episode 30

This Week In Law 30: Bright Lines And Blurry



Notable Quotes

"The one question we have to armchair as we think about the law is we have to ask 'Do we think that this is the kind of thing, that maybe not immediately... the content industry also would go for?' And I think the answer is yes. Which is to say I don't think we would be sitting here, let's say we make the rules that say look TiVo must ask and must pay, it's not fair use; they have to ask. It's not like I think the end result would be we then we turn all that stuff off and go back to appointment television. We have technology now that makes appointment television look inefficient, I agree, stupid, very bad to tell me that if I want to watch Battlestar Galactica, I've gotta be home on Friday nights, not my life, not what I want... There's a wonderful market there where they could give me the ability to timeshift. I would watch the program, maybe pay for it, maybe pay for it by watching ads, I don't know but there's two ways to pay for it. And my guess is the market would diversify, so I could pay for an Amazon un-box and have no ads, I could get it on Hulu and have an ad, maybe there'd be a million other things, just like you can go buy it at Walmart today. So I don't think it's fair to say the content industry wouldn't go there; our choice isn't 'do we want timeshifting or not?' our choice is 'how should it evolve? should it be that the content owners have some say? or have no say at all?', 'Should it be the content owners get some of the revenue or get none of the revenue at all'. Those are the real levers we're playing with. The have it or not question isn't the question in my view. And then as you go to, we've gotta say 'well why do we want them to have a say? why do we want them to get some of the value?' And I think the story is a bunch of things: one that these are incentive systems. And if you want SciFi to stay with my example, to pump all the money in that it took to make Battlestar Galactica every week, they've gotta have a way to make their money back. And it might be they made some of it through ads, but there weren't great revenues there, they might need to make some of it by asking me to pay 50 cents a week to watch or by getting some of the TiVo money. So if I pay 20 bucks a month for my TiVo, they would get 30 cents of that and so on. You might want to create a system where they can pick up the value they're helping to create, cause we want them to keep writing the cheques and creating the show. And so there's an incentive story, then there's also the good move you made Ernie, which is if we don't give them that, it's not like they're gonna sit and be, you know, laying dunks and just keep doing it anyway. They're playing, they're strategic too, so what are they gonna do? Well one terrible thing they're gonna do is more product placement, that means I can't avoid the commercials. That means we're distorting the program from what it was supposed to be and the artistic vision of the people who did it, right?, when a Doritos show up on the Galactica. I don't want that. And so we have to sort of see all the moving parts. This is value they help to create, I don't want them to own TiVo, but I don't want TiVo to own them either. I think there's a nice story to be told about these guys should be getting in bed together and cutting deals. As between TiVo, Hulu, selling those box sets at Walmart, showing them live with commercials, without commercials, these are all fun ways to exploit really good content and the content creator ought to have his hands in there to some degree." -- Doug Lichtman, 14m 41s

"As long as we're on this Doug, the inevitable question that always comes up when we're talking about whether the business models work, and if they don't work, people are going to find ways around them and break the law to do it. Uh, if we should step in and impose some kind of system where there is, um, I don't know if you want to call it a compulsory license or a tax, where do you stand on that and do you see any of those systems being a workable solution?" -- Denise Howell, 17m 59s

"I've always been nervous of things like compulsory licenses just because I'm not sure who I want to set the dollar figure and the terms of those licenses. Right it's a pretty sweeping thing...If they make a deal that doesn't balance things intelligently, doesn't get the right incentives, doesn't allow for certain interesting other uses we're kinda stuck. So I've always liked the market as a more dynamic way to set up rules. That said, sometimes the compulsory license is gonna be better... if we're witnessing something where the market is just clearly not working... so I'm not oppposed, I've just always been nervous cause it depends who the government is. Right? if it's the right government making great decisions, fine. But the market is more flexible and allows for more failure and more different strategies and I've always been charmed by that, current economic times notwithstanding." -- Doug Lichtman 18m 33s

"Law and economics believes that ultimately markets shake out relatively efficiently and law and economics is skeptical of too-heavy handed government intervention. I like law and economics as a tool, I believe in markets, I think it's a good perspective to begin thinking about puzzles, but I also hear a lot of the problems with it, so when you lean too heavily on markets and then you look at Remex, in the example we tossed out before... I do think it's a really helpful way to begin thinking about puzzles because it stops us from making a bunch of mistakes... It stops us, I think, from saying that NBC if it could, would turn off TiVo... go back to appointment TV. I think we'd pause and say wait a minute, even in their own private interest new channels of distribution that get busy people like all of us and all of our listeners to actually watch their programs, that's good stuff, they're gonna want that. I think law and econ. reminds us to think about the private parties in a balanced thoughtful way, which I really like. It also then pushes us to be careful in one of the words that was thrown around earlier was the word monopoly. And again a law and econ. guy like me would just call a time-out and say 'wait a minute, we know to think about that in a slightly different way'... Law and econ. reminds us that these economic concepts maybe have some good lessons to teach both ways... I like it as a set of tools for hitting on arguments and starting good conversations about strategy, and then we shouldn't be a true believer in anything. There are times when it doesn't work, we're living through one in a bigger economic system right now... and we shouldn't be afraid to say these are really good ideas but! " -- Doug Lichtman 20m 35s

"The copyright issue they punted on, and so we're not gonna get a good conversation on the copyright issue. And then the settlement is just terrible. The settlement is just disappointing, and not on legal grounds like we sit there and talk copyright law, but you read the settlement you say 'wow, how embarassingly self-serving and unambitious this is'. Here we are, we're settling the rights for a whole bunch of people who are not in the room, a whole bunch of authors who are supposedly be represented here by counsel and the court, and we are not thinking at all ambitiously about what right answers ought to look like. Right? we're making the deal that basically gives Google favoured status and a couple libraries favoured status, when we could make a deal that takes this resource, creates it, and opens it up to everybody so that a whole bunch of entities could use the database and not just to do book search. Let's be clear, that's not what's exciting about this as it stands." -- Doug Lichtman 71m 39s

"That's a really interesting notion what you're talking about there and learning from that, and anytime I recognize people talking about a good application of the semantic web, I always get excited these days. Because given that database there that you're talking about, this enormous, perhaps one of the most comprehensive databases ever assembled, at least from a qualitative standpoint, you know, the stuff that's in there, everything that's been written down and published in a book in the modern age. You know, there's an amazing ability to make conclusions and make connections like you're talking about there and perhaps at this point, you know maybe this is a situation where we need to be forward-looking and seeing what the technology will permit us to do, but at this point I would suggest that the technology probably to make those connections and to do that datamining and to do that analysis and draw those conclusions isn't there. But it would be incumbent upon the custodians of this dataset now to permit it to be a framework, to be substrate in which this kind of knowledge can grow through the aid of machines, and through, uh you know, I always hate saying artificial intelligence but it almost, you know, it's something that would lend itself well to artificial intelligence, I think is what's more the semantic web, the machine-aided assembly of knowledge. Making these connections, drawing those conclusions, something that will, you know, propel us inches at a time closer to the singularity." -- Evan Brown 73m 42s




1968: The Year That Rocked the World by Mark Kurlansky (UNABRIDGED)
Narrated by Christopher Cazenove

Ad times: 0:35-0:43 and 01:21:27-01:23:46

Production Information

  • Recorded Date: September 18, 2009
  • Release Date: September 19, 2009
  • Duration: 2:10:05
  • Log line:
  • Edited by: Erik
  • Notes: Removed Denise's Skype dropout at 6:03.
    • Used PGM2