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

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