Last night at the Santa Clara County Bar

I gave a talk yesterday evening at a Santa Clara County Bar Association CLE on some of the work I've been doing on podcasting and the law. I have to thank Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC, for the opportunity to give this presentation. Thanks also to those who came to the event and raised some good questions. Slides for the talk are available for download here (.ppt).

{UPDATE: Regarding my slides, Sandy Shepard of Good Solutions pointed out to me that the point I make on slide 15 that the idea of a "spy character in a novel" is not protectable by copyright might confuse some people, because "facts about fictional characters" are protectible. The Star Trek case lead to this distinction. It remains true that "stock" characters (like the Punk Rocker who gets the Vulcan Death Grip in Star Trek IV) are not protectible by copyright, and that line between stock character and sufficiently detailed fictional character can be difficult to walk. Thanks Sandy!}

Cindy Cohn, EFF's legal director, also spoke at this CLE. Her topic was the recent Sony RootKit debacle (EFF's FAQ here). Though I followed the news on this issue last fall, hearing it first hand from the attorney who led the class action was fantastic and inspiring. Cindy makes these complex DRM issues boil down into very understandable terms. She also highlighted how Sony was so unprepared to deal with the problems created by its DRM, and made many missteps along the way in solving the problem (including two uninstaller programs that created some of the same problems that the original DRM created). Among other things, I think many companies can learn an important public relations lesson from the way this played out.

Cindy also explained the basic terms of the settlement reached in December. The terms are up for a fairness hearing next week. (A "fairness hearing" is required in class actions and at that hearing, the parties explain to the Judge why the settlement is appropriate; if the Judge agrees, then the settlement can be entered.) Assuming the settlement is approved, the 23 million consumers who purchased the DRM-laced music CDs will get their music replaced with non-DRM'd and non-EULA'd versions. The settlement also has some excellent consumer-protection terms. (I'm sure there will be an announcement with the details and summary if the Judge accepts the settlement.)

In the Q&A at the end, Nicole made an observation that I hadn't really thought of head on before. She pointed out that on privacy, DRM, and some other technology/Internet issues, there's an "unholy alliance" of sorts between corporate interests and the government. Namely, both these enormous and powerful groups would love to have our personal information for a variety of reasons (some bad, and some probably not so bad). But this alliance means that individuals ("we the people") -- to the extent we want to keep our information private -- are fighting against the two strongest forces in our captitalist democracy. That creates an unbelievable imbalance when it comes to creating policy and protections for individual privacy rights. This was the gem of the evening for me, and really captured why it's important to support the organizations that both Cindy and Nicole represent. So here's a plug for their organizations (both of which I proudly support). Join them now by clicking on these links: