The intersection of law and technology
By Adam Faderewski, Eric Quitugua, and Amy Starnes
South by Southwest, the annual music, film, and technology conference that takes over Austin each year, featured panels on March 8-17 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/sxsw2019.
Using Music in Film
While Austin lawyer Amy E. Mitchell laid out the basic legal framework for music licensing during a panel titled “Music Licensing Tips and Tricks for Film/TV,” much of the discussion was a cautionary tale as she and fellow panelist Roanna Gillespie, a music supervisor at WOW Sounds, debunked several licensing myths and outlined hurdles to using music in TV or film projects. For filmmakers living in the Live Music Capital of the World, it may seem attractive to make a documentary about a band or a singer, but experts on the “Making a Music Documentary: Hidden Hurdles & Legal Loopholes” panel warned that while music documentaries are surging in popularity and profitability, they are laden with complex legal issues. Michelle Skinner, vice president and counsel to Endeavor Content, said one significant hurdle to music documentary filmmaking is a push in the past several years for artists to own and control much more of the licensing rights to their work. Faced with audience questions about the extent of fair use or analyzing when you need to seek out music licensing rights, Skinner responded, “I hate to say you need a good lawyer, but you kind of do.”
Wide Open Space
Many have the misconception that space law is “unregulated,” but that’s not the case, said panelists at “Reaching the Final Frontier: An Exploration of Space Law.” Franceska Schroeder, of Fish & Richardson, provided an overview of the laws governing space and space exploration, including the Commercial Space Launch Act, the National and Commercial Space Programs Act, the Communications Act, and U.S. export control laws. Caryn Schenewerk, of SpaceX, and Audrey Powers, of Blue Origin, described the ongoing changes to space law. Both said they’ve had to meet with the Federal Aviation Administration to discuss proposals regarding the landing of rocket boosters on autonomous naval vessels. Powers said that though both Blue Origin and SpaceX are private companies, they are still subject to government oversight and regulations. “[It’s the] FAA’s responsibility to govern the safety of people on the ground who are not involved in the launch activities,” Powers said.
The Rise of AI and Virtual Reality
As demand for augmented reality and virtual reality continues to rapidly expand, inevitable legal issues abound. Panelists at “Virtually Legal: Insights on AR, VR, and the Law” examined examples including Keller v. Electronic Arts, which involved former student athletes filing suit against video game company EA for use of their images in its NCAA Football games. “Courts are looking into this and it’s no longer going to be acceptable to say this use is just incidental—it is an evolving issue in the law,” panelist Mary Innis said. Researchers and legal scholars at “AI-Powered Media Manipula-tion and its Consequences” warned that machine-learning tech-nologies are exploding the scope of media manipulation, prompting society-wide concerns. One technique called “deepfake” has been used in politics to mimic and mock world leaders. Joan Donovan, director of the Technology and Social Change Research Project at Harvard Kennedy School’s Shorenstein Center, said the future of AI-powered media manipulation isn’t just mimicry. New technologies are working on the notion of a “data void”—examining human behavioral cues to determine when and how best to influence people.
The Calm Lawyer
Perhaps the quietest moment of all of South by Southwest was when Emily Doskow, an attorney and mediator from the San Francisco Bay Area, asked a room full of attorneys to shut off their phones, plant their feet flat on the floor, loosen up their shoulders, and keep their hands down at their sides. For two minutes, audience members at the panel titled “Namaste, Your Honor: Ethics and Mindfulness for Lawyers” focused on their breathing, noticing their body in relation to their surroundings and acknowledging but not engaging their thoughts. On two different occasions during the hour-long session, they were led through meditation exercises the panelists said could help attorneys regulate their emotional responses to stress, focus more, be kinder to themselves and others, and be more present in everything they do. “It’s not about clearing your mind,” Doskow said. “That’s not the goal. The goal is to have a different relationship with what’s in your mind. It’s being friendly and accepting toward what is happening there.”
Panelists tackled the challenges of combatting invasive online crimes such as sextortion, doxxing, and cyberstalking during a panel titled “When the Internet Turns Violent and Abusive.” Victims’ rights attorney Carrie Goldberg said clients at her New York-based law firm report extremely invasive attacks that cross every facet of life. For example, a harasser in possession of a compromising photo of a victim may repeatedly post it online; use it to force the victim to create or send more images; or even post personal information about the victim on rape fantasy websites asking men to appear at the victim’s home to carry out the rape. These victims often “erase themselves,” Goldberg said. They disappear from social media, distance themselves from friends, sometimes drop out of school, and even stop going to family functions. Mary Anne Franks, professor of law at the University of Miami School of Law, said attempts to stop abusive online speech quickly run into First Amendment concerns, but she notes the inability to stop online harassment actually chills the speech of women and minority groups, who are almost exclusively the victims of this type of harassment. If people can’t be safe from extreme and invasive harassment while using social media, they can’t speak, Franks said.
The New Music Licensing Landscape
The Music Modernization Act, signed into law on October 11, 2018, was designed to update U.S. copyright law to ensure artists and publishers receive proper credit for their music on streaming services, according to panelists at “The MMA Passed: Now What? Navigating the New Licensing Landscape.” Publishing experts said the law is the first step in streamlining licensing for digital music services. But at a panel titled “Copyright at the Crossroads: The Present and Prognostications,” Todd Dupler, senior director of advocacy and public policy for the Recording Academy, said the U.S. Copyright Office has not been able to process registrations for works, such as songs, in a timely manner. “Decades ago, you needed a few days or weeks to get your registration,” Dupler said. “Now, that backlog is typically six months.” The Mechanical Licensing Collective, or MLC, has been created to streamline the process for acquiring song licenses, managing those licenses, collecting the royalties from the licenses, and distributing the royalties, Dupler said. By July 2019, the Copyright Office will decide who comprises the MLC, and in January 2021, the MLC will begin work as the new licensing system.
Data and Privacy
The harvesting of data via artificial intelligence, biometrics technology, and digital data collection is outpacing laws regulating its use, said panelists at “Taming the Orwellian Surveillance State.” Tracy Ann Kosa, a privacy researcher at Stanford University and adjunct faculty member at Seattle University, said regulations should come from engineers and those working in the field rather than the government because those in the field understand the technology. The SXSW workshop “Privacy by Design and by Directive” tested audience members’ knowledge of the California Consumer Privacy Act and the General Data Protection Regulation. Both measures are designed to protect people’s personal data that is collected by businesses. The panel aimed to show attendees how, as business owners, they can build required safeguards for the personal information they process, including IP addresses and device IDs. “You want people to have consent [with how personal data is used] but it shouldn’t be assumed,” said panelist Shoshana Rosenberg, global chief privacy officer and assistant general counsel to WSP. “The user shouldn’t have to do anything extra to ensure they’re protected.” TBJ