SXSW 2017
The intersection of law and technology.
By Jillian Beck and Amy Starnes
South by Southwest, the annual music, film, and technology conference that takes over Austin each year, featured panels on March 10-19 that provided updates on the law, offered continuing legal education for attorneys, and explored current and potential future legal trends. Highlights from some of the law-related sessions follow. For more coverage, go to texasbar.com/sxsw2017.
Data and
Privacy
While businesses and law enforcement agencies
grapple with who should have access to people’s data, laws addressing
electronic privacy are evolving at a speed far slower than the Pony
Express, according to experts at the session “When Should My Data Become
the Government’s Data?” The panelists laid out the conundrums they said
have weighed down action on legislation that would advance electronic
privacy concerns. U.S. Rep. Kevin Yoder (R-Kansas) said the Electronic
Communications Privacy Act, enacted in 1986, made several assumptions
about how individuals use email that don’t hold up today. In an attempt
to secure greater electronic protections, Yoder has sponsored the Email
Privacy Act, which first passed the House in 2016 but died in the Senate
that session. It was re-filed this year and passed the House in the
first 60 days but may stall again in the Senate.
Building Brands in
Film and TV
The growth of reality television and new
technology, such as DVRs, has introduced opportunities for celebrities,
influencers, and advertisers to build their brands, Los Angeles-based
entertainment attorney Jody Simon said at the panel “Building Brands in
Film & Television is the New Normal.” That growth has also led to
increased product integration—like Coca Cola’s prevalence in
American Idol, said Simon, a partner in Fox Rothschild.
Celebrities and online personalities have capitalized on the
proliferation of social media to enhance their brands and build large
followings. “The critical thing for social media personalities in
particular is their brand—and they have to be true to (it),” Simon
said.
Crowdsourcing
Justice
With wide interest in closing the access to
justice gap, lawyers at the “Crowdsourcing Justice” panel discussed
creative ways to use technology to meet the rising demand for legal
assistance, focusing on several new immigration case crowdsourcing
projects that consist of gathering information from a large number of
people using the internet. The intricacies of the legal system can
sometimes make it difficult for lawyers to use new technological tools
to solve problems, said Jennifer Gonzalez, founder and CEO of Torchlight
Legal. Still, Gonzalez said she remains hopeful as her organization
works to create a platform that can centralize and streamline lawyer and
non-lawyer volunteers across the country with specific expertise to
assist with cases. “How do you optimize technology for legal spaces? We
are just starting to answer that,” Gonzalez said. “We are finally at the
point where we can understand that legal users are different than
consumer or business users.”
Copyright
Infringement
Entertainment attorney Stan Soocher, a tenured
associate professor of music and entertainment industry studies at the
University of Colorado’s Denver campus, took attendees at the panel
“Copyright Infringement: Get a Hit, Get a Writ” through a musical
history of copyright infringement lawsuits starting with litigation over
George Harrison’s “My Sweet Lord,” which, he said, was the most famous
musical copyright infringement case of all time before the most recent
“Blurred Lines” case involving Pharrell Williams and Robin Thicke.
Soocher advised the audience of attorneys—with a few musicians sprinkled
in—that key elements plaintiffs must show in a musical copyright
infringement case are: ownership of the product, that the defendant had
access to the plaintiff’s work, and that the products are substantially
similar. The panel “Musical Soundalikes and Infringement in Media”
included Richard Busch, an attorney with King & Ballow who
represented the Marvin Gaye family in the infamous “Blurred Lines” case,
recounting what led to their $7.4 million winning jury verdict. Fellow
panelist Judith Fennell, a musicologist and frequent expert witness,
said material is accessible in ways never possible before. “It creates a
really fertile ground for using other people’s materials without their
permission and also creates vulnerabilities for entities that produce
and distribute the music,” she said.
Out of This World
Law
With companies unveiling plans for manned missions to
Mars and NASA progressing on its Mars Exploration Program, the concept
of interplanetary inhabitation isn’t as far-fetched as it once was.
Berin Szoka, an attorney and president of policy think tank TechFreedom,
and fellow panelist Peter Suderman, features editor at Reason
magazine, discussed the current law governing space exploration and
possible issues that may arise as more private companies, governments,
and human activity venture into the area at the panel “Making Law on
Mars.” As exploration continues, governments around the world will need
to determine how much or how little regulation to place on private
enterprise beyond Earth. “When it comes to law in space and in Mars,
people often just don’t talk about it at all,” Suderman said. “This is
an exciting time—not just about what’s happening but the possibilities
about what could happen.”
Trade Secret
Protection
Anyone can have an idea about a product or a
service, but it’s the execution of it that constitutes a trade secret
that may need protection, said experts at the session “Trade Secret
Protection and Cybersecurity Risks.” Panelist Adam Gislason, an attorney
with Fox Rothschild, told attendees that trade secrets are difficult to
establish under the law. If a business owner doesn’t take steps to
protect the “secret sauce” of his or her business, it’s hard to prove
later that it was actually a key component of the company and
proprietary information, he said. Ryan Tabloff, managing partner of
Avantgarde Partners, said not to toss around non-disclosure agreements
loosely; however, innovators need to make sure they have appropriate
agreements and contracts in place covering their employees.
Ethics in Entertainment Law
Top legal experts
explored the “four Cs” of entertainment law ethics—competence,
conflicts, confidentiality, and compensation—during the panel “Ethics
Matter.” Peter Strand, a partner at the Chicago-based Leavens Strand
& Glover; Lawrence Waks of Wilson Elser Moskowitz Edelman &
Dicker; and former Texas Supreme Court Chief Justice Wallace B.
Jefferson, now with Alexander Dubose Jefferson & Townsend, walked
attendees through the categories. They often noted that strictly
adhering to ethics requirements in entertainment law can present some
high hurdles given the industry’s small size and inherent challenges. On
the matter of confidentiality, the panelists advised lawyers to always
keep in mind that their client is the artist—not the manager or parents.
Sometimes maintaining confidentiality requires not disclosing certain
information to some of the management personnel with whom you are most
commonly communicating.TBJ