CBS v. ABC: Reality TV Drama Unfolds at Court (No, Really) – by “Varoon B – YLT2012”



Majority Opinion: ABC is not guilty of copyright infringement 

CBS, the company that films and produces “Big Brother” filed a lawsuit against ABC for creating an allegedly rip-off show, “The Glass House,” which—CBS claims—violates its copyrights in June 2012.  In case you haven’t watched “Big Brother” before, check out some season highlights.

You get the idea—hot people, inevitable drama, fierce competition (contestants compete for a six-figure cash prize) all packed into one big house isolated from the rest of the world for a couple months makes for American reality television par excellence, especially with camera crews recording contestants’ every gesture 24/7.  The moment the contestants enter the house and the door is closed, they are left to their own devices.  Producers and camera crews provide no input to the contestants but instead act as invisible observers for the show’s audience.  There are no scripts or prescribed plots, though there are “challenges” during the show just in case cast members aren’t meshing well for the show or to stir up more drama just for fun.  “Big Brother” has run for thirteen seasons and counting.

“The Glass House” is quite similar: about a dozen contestants of mixed gender and ethnic backgrounds live together and compete for a large sum of cash.  Camera crews record everything, and—like in Big Brother—the public can interact with contestants and influence the show through online media.

Okay, so the shows are similar.  But how do we determine if ABC infringed copyright?

Now the legal stuff begins.  Luckily, these sorts of allegations aren’t new, and past court decisions have arrived at certain conclusions regarding evaluating copyright that can help inform our decision here.  In particular, Rice v. Fox Broadcasting Co., from 2003 cited the “substantial similarity” comparison established in a 1994 lawsuit used to assess copyright violation.  The comparison has two parts: an intrinsic test and an extrinsic test.  The intrinsic test is softer and more intuitive.  It basically tests whether any reasonable audience would find the two pieces under question similar with respect to their underlying ideas and concepts.  The extrinsic test, on the other hand, is harder and more specific.  The extrinsic test is an impartial, evidence-based comparison of the “‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’” (Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir. 1994)).  Both the intrinsic and extrinsic tests must favor “substantial similarities” between the two pieces under consideration in order to establish true copyright infringement.

The intrinsic test is easy.  Clearly, the two shows are pretty similar, and any ordinary viewer would recognize these them.  The extrinsic test is more tricky, but still rather straightforward, as we shall soon discover.  It will help to review the extent and scope of copyright protection.  As per federal copyright law, 17 U.S.C. § 102(b) states, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”  Given that the extrinsic test explicitly requires a comparison of the plots, themes, moods, settings, etc. of “Big Brother” and “The Glass House,” the only way in which the extrinsic test will favor “substantial similarity” between the two works is if the similarities that emerge from the aforementioned components of the show are articulable, concrete, and specific.  This is where “Big Brother” fails.  To understand why, we need to do recap some details.

1)    In its statement against ABC, CBS underscores that “Big Brother” is the result of years of trial and error with regard to the selection of contestants, filming, editing, and generally structuring the show.  In particular, CBS claims that ABC has stolen its “trade secrets” and basically blames ABC of stealing them and using them in “The Glass House.”

2)    CBS seems to pride itself on the manner in which it has learned to create a show out of something entirely unpredictable.  Because there are no scripts and set plots, nothing is predetermined ahead of time, but their “trade secrets” and other strategic decisions—the house with an attached pool/spa, character choices, etc.—enable them to create a product that sells.

CBS failed to demonstrate copyright infringement on both of these counts.  First, the trade secrets it has developed are apparently pretty standard practices in the industry.  Filming people 24/7 isn’t a new idea; in fact, the idea was first introduced to the media in Amsterdam during the early 1990s.  And the other technical feats that CBS claims to have developed are not copyright protected.  Moreover, there simply fail to exist any specific, articulable similarities between the shows.  Let’s take, for instance, an argument CBS made against ABC.  CBS claimed that ABC’s character choice too closely resembled theirs in the way character dynamics played out.  If producers from CBS had told contestants in “Big Brother” to act in a well-defined, specific way, and if these same behaviors were present in “The Glass House,” there might be some evidence of specific, articulable similarities between the two shows.  However, because there is no plot in “Big Brother” and because the creators and producers of the show have no influence over these interpersonal dynamics the moment the doors to the “Big Brother” house are closed, CBS can’t blame ABC for violating their copyright.  The lack of plot, scripts, and other such specific features of the show doesn’t permit CBS to fault ABC for their own related events in “The Glass House.”  Thus, the “substantial similarity” comparison fails the extrinsic test, and ABC has not been found guilty of copyright infringement.

Dissenting Opinion: ABC has committed copyright infringement 

While a lot of people think that CBS’s lawsuit against ABC was anti-competitive and merely a sign that CBS was upset another network was trying to steal their audience, I – or at least, in my incarnation as Justice Herz-Roiphe – was inclined to see the situation differently.  It’s true that CBS did include a lot of fluff in its complaint alleging copyright infringement against ABC – things like claiming that ABC was infringing because it was using the same camera angles as CBS did in Big Brother.  However, putting aside all the fluff, it turns out that CBS has a legitimate gripe.

The logic used by Judge Feess in denying CBS’s application for a temporary restraining order was flawed.  Judge Feess wrote that “CBS contends that the key ‘articulable similarities’ between the two shows are the ‘plot, themes, dialogue, mood, setting, pace, characters, and sequences of events’…Big Brother does not, as a concept, readily exhibit any of these elements.”  Judge Feess argued that, because Big Brother was an unscripted reality show where all of those elements were determined by the contestants on the show, he could not find infringement.  On this count, Judge Feess is clearly wrong: the producers decide which parts of the “story” are included in the episodes that air on television.  With thousands of hours of footage available to them, it is easy for the producers to selectively edit the show in order to create compelling narratives.  These narratives may be exaggerated versions of conflicts that do actually take place in the house, but they may also be wholly fictional, made clear to the viewer by selective editing and using music to cue emotions to the viewer.  In this manner, Big Brother exhibits – and the producers have control over – a plot, specific themes, and a specific mood.

Is this a reality show or a work of fiction?

The characters who appear on our televisions are not the same as the people who are filmed on the set – anyone who has been on a reality show can tell you as much.  The characters who appear on television are fictional, and by virtue of extensive editing, they are entirely creations of the producers.  As such, it falls to us to determine if the fiction that the producers of Glass House created was “substantially similar” – to use the legal jargon – to that created by the producers of Big Brother.  We must determine that it is substantially similar both extrinsically (in terms of overall concept, mood, and feel) and intrinsically (in terms of plot, themes, dialogue, mood, setting, pace, characters, and sequences of events).  Extrinsically, there is no doubt that the two shows are substantially similar.  The concepts – putting strangers together in a house wired with cameras where they compete, strategize, and have romantic relations – and the attendant “feels” of the show are essentially identical.  Intrinsically, the shows have many substantial similarities as well.  The characters – not the actual recruited to be on the show, but the fictional characters that the producers make out the footage of them – are very much alike, as are the settings (houses with many cameras), themes (backstabbing, romance, competition), and sequences of events (competition, vote for elimination, reaction to that vote).

Imagine that we were presented with a series of books about a British wizard who attended a school of magic with a wise headmaster and a suspicious potions teacher and had to fight off a dark evil wizard.  There is little question that we would be very inclined to find copyright infringement on the Harry Potter series.  It is the same here.  The fact that the works of fiction in question were created by using “reality” techniques makes no difference at all.


We’re just SO glad you came… – by “Rasmus B – YLT2012”

As final project, our group took to experimenting with the merits of Arnold Schwarzenegger’s muscles, The Wanted’s unknowingly witty lyricism, and the world of meme culture that has exploded across the internet in the last couple of years. The final result of the project took shape in two forms: (1) a video (see below) that uses clips from the film original “Pumping Iron” and an audio mash-up of “Glad You Came” and Kanye West’s “Stronger” and (2) a blog incorporating  Playing off of the source material’s assertions of masculinity, the video is meant to explore questions of copyright, vidding and the culture of remix.


The opening bit takes directly from the movie, a “steal” we considered essential to our recreation of Arnie’s character into a ‘cumming’-ecstatic beast. In pairing the “Glad You Came” song to these clips of Arnie, we meant to introduce a sexual connotation that related to the source material but deviated significantly from the song’s intention. In that sense, the work is purposefully referential to the culture of vidding that the course touched on. With respect to copyright law, we found our work to pass all tests: it is made for educational use, is significantly transformative in its combination of several audio and video sources for a whole that is a new invention and this work bears no effect on the potential market for any of the copyright source materials involved.

File this under "Things I never needed to think about"

The second piece of the project translated into a meme-centric blog using the same catch phrase from the “Glad You Came” song. The Tumbr can be seen here. The blog drew from a number of image sources, most prominently Google image searches and our team’s more personal finds from friends’ Facebook pages. In each case, issues of fair use are relevant but we found the degree to which the GLAD YOU CAME meme-tagline could have transformative effect on the interpretation of these images. In all cases the (albeit crude) message implies a sexuality to which none of our subjects, with the exception of a couple of team submissions, have verbally consented. To be clear: the works were not meant to bully or attack the subjects: instead, to develop a meme that was significantly transformative of the original intentions of each picture manipulated by suggesting that the facial expressions were orgasm-based, not unlike our video tries to establish.

Finding My Friends – by “Kojiro M – YLT2012”

Keeping track of friends

When people find out about Apple’s Find My Friends app for the iPhone, they usually say, “That’s pretty creepy.”  They then immediately download the app onto their phone.

Find My Friends takes location sharing to its inevitable conclusion.  You know how it’s always such a pain to have to update your location manually (on Foursquare, Facebook, or Twitter) whenever you arrive somewhere in order to let your online friends know where you are?  Well, Find My Friends solves this problem with a simple solution: it shares your location with your friends, all the time.  That is, if you add a follower on Find My Friends, he will be able to look up where you are at any time of the day, without alerting you that he’s checking up on you.  (I think Google Latitude does the same thing as Find My Friends, but does anybody actually use that?)

The implications of this app are incredible.  To be honest, over the course of the month that I’ve had it, I’ve really enjoyed this app.  I don’t have to text friends about getting to lunch or class at the same time, because I can see if they’re already there.  And no longer can friends just mutter an excuse about “attending to some business” and sneak out of the door on a Thursday night.  Sometimes, I don’t even bother looking up from my phone to see if a friend is sitting across the room from me.  I just look it up on Find My Friends.

All of this sounds like Big Brother’s wet dream.  Who would have thought that people would be not only able, but also willing to share their every movement with others?  Who would have thought that locational privacy would be a commodity that we prize so little?  Will our GPS data really only be used by us?  The sum of our privacy is probably a combination of where we are, what we are doing, and what we are thinking.  Find My Friends makes it seem normal to have people always knowing where you are, and perhaps even, by extension, what you are doing.

To point out the madness, I tried to think up a way to tangibly demonstrate the problem of oversharing.  The result is this video.

To make this video, I followed two of my friends on Find My Friends over the course of 48 hours (Friday, Nov. 30 and Saturday, Dec. 1) by taking regular screenshots on my iPhone.  Then, using Google Street View, I basically made a stop-motion video retracing their steps through New Haven.  In essence, I recreated their day (or at least the time they spent outside) through the information I gleaned from Find My Friends.  You’ll see that I also threw in a few Facebook pictures to illustrate that using other social media, I can add context to their locations as well.

It’s worth noting that Find My Friends doesn’t keep a log of users’ movements, so I had to manually take screenshots in order to keep track of my friends.  If you’re curious, both of the friends are sophomores, one in JE and the other in Saybrook.  I’m not revealing information beyond that, but you can probably infer a few more personal details from their various destinations.

I hope that people come away from this video a bit troubled by how easy it is nowadays to knowingly overshare and make your every movement a public affair.  I certainly came away from this project with that impression.  I also came away from this video with a newfound respect for the editors of stop-motion videos and a lasting hatred of screenshots.

So many screenshots...

The video’s production was hampered by a number of technical limitations.  Google Street View does not cover all of the streets in New Haven, so I had to choose my source material carefully to make sure that nobody had to, for instance, walk all the way down High Street.  In addition, my original intention had been to retrace my friends’ movements over two or three weeks, but I cut it down to two days when it became apparent how impractical that task would have been.  I had also originally intended to follow four of my friends instead of two, but iMovie had no option for a four-way split screen (this says as much about the problems with appliancization as it does about my technical ineptitude).    Finally, the compression artifacts and graininess of the video is due the fact that it was apparently necessary to convert the format of screenshots several times before I could import them into my video.

Finally, it might be worth making note of the blatant copyright infringement in the musical accompaniment of my video.  It seems to me that this video could qualify for fair use on the grounds that it is educational and has no effect on the song’s market value, but we all know that YouTube doesn’t care about fair use.  I’ll just write “No Copyright Infringement Intended” right here.  That should keep those DMCA complaints away.

Yalies, Law, and Technology: Personal Stories – by “Joseph Y – YLT2012”

Check out our new website, Yalies, Law, and Technology: Personal Stories. The goal of the project was twofold: First, we wanted to bring the course material beyond the confines of our own classroom and see how what we studied in class applied to the lives of our friends and classmates. Second, we hoped to see how the stories of our classmates built on top of class material and forced us to think about what stories of individual lives can tell us about legal and cultural institutions.

We hope you enjoy hearing these stories and can send in your own!

~MH and JY

Final Project–Advice for Seniors Interested in Entrepreneurship – by “George O – YLT2012”

Our final projected consisted of interviewing four professionals, two in the start-up industry and two in Venture Capital. We interviewed them over Skype and recorded our interviews to get some answers to the top questions seniors ask about startups. We wanted to get some great advice from people who have been in our shoes and see how they would respond to the job market today. We compiled these valuable interviews into one youtube video that will be made public once we obtain permission to release the footage from all four interviewees. For now though, we leave you with a summary of our findings, a brief overview of the venture capital industry, and some biography entries on our interviewees.

—George Ortega, Sharon Ji, and Eric Li


1. What advice do you have for seniors who are interested in startups?


Seniors should join startups if they’re committed to learning in a small and challenging environment. Christiaan Vorkink urges seniors to join startups that are working to address a problem that means a lot to them given the intensity of work they could expect in a small startup environment that is constrained with few labor and financial resources.


As for seniors interested in venture capital, Yanev Suissa from NEA says there are three main ways to get into the industry: 1) work for a technology investment bank or technology investment banking group, 2) work for a buyer of startups, like Google or Amazon, or 3) work in a startup either as the entrepreneur or early-stage employee.



2. What if these seniors do not have the technical skills?


Joining startups without technical skills was unanimously judged to be difficult but certainly possible according to our interviewees. Stuart Wall urges non-technical entrepreneurs to find a technical co-founder and divide the equity stake equally since the technical aspects of a business are just as important as the marketing and product design elements a non-technical person would be in charge of. Christiaan suggests that seniors look for startups that need what you have to offer. If you’re non-technical, for example, a small startup that is seeking to build a prototype may not be the best option. If there is a product already created, as in a more developed startup, there is likely to be a need for your skillset as a liberal arts major. You can handle business development or become responsible for maintaining relationships with investors and customers. As Yanev Suissa sums it up, technical entrepreneurs are great and important, but they often don’t know how to build products and companies. That’s where you can come in to help.



3. Does consulting or banking prepare you for startups or venture capital?


While Ka Mo Lau didn’t think consulting or banking prepared entrepreneurs to become adaptive, Stuart Wall said his consulting experience had some transferrable skills, like a strong work ethic and sharp analytical skills. Yanev Suissa recognizes the importance of these two career paths but does point out that consulting and banking usually involve busywork, as younger associates are often “cogs in a machine.” Christiaan thinks that people should follow their main passions, whether that is consulting or starting a company. You should not postpone your plans because you want to get experience first. As both the venture capitalists and entrepreneurs attest to, the best preparatory experience for being a successful entrepreneur is being a failed entrepreneur before that and learning from your past mistakes.



4.  What are common characteristics of young entrepreneurs?


The main common characteristics mentioned were persistence, action-oriented, passionate, adaptive, and tenacious. Entrepreneurs need to be completely committed to their companies and never take no for an answer. As Stuart Wall says, obstacles like getting no investor money or having an employee quit make the journey more difficult, but entrepreneurs need to have the crazy idea and faith that their business will still become successful. Having said that, having faith is not the same as leading blind when your idea no longer makes sense. Yanev Suissa stresses that the best entrepreneurs can pivot quickly to a dynamic environment in order to maximize their opportunities and grow their businesses the most possible.



5.   What’s the next big idea?


The next big idea is what’s on everyone’s mind right now. Answers ranged from data analytics to education technology to payment processing to healthcare technologies. The most common answer was healthcare technology given that disruption in this area has been limited due to new legislation that has steered some innovators away. Christiaan Vorkink explains soon we will hopefully see a new healthcare system where a world of applications, services, and products will be designed to help people recover more quickly and live better and longer.



Here are some facts to put things in perspective in the VC industry. Below are information from a HBS case study on venture capital: 

–       Venture capital investing is a “hits” business, with a majority of the reward coming from a relative small number of spectacular success

Payoff Count Total Cost % of Cost Value % of Value Average Payoff







1X to 3X







3X to 6X







6X to 10X





















Source: HBS Case study on risk and rewards in VC      


–       Returns on venture capital investments (individual deals with funds) are highest when market “over-value” individual companies over sectors, with the best examples being the Internet-stock bubble in 1999-earliy 2000

–       Through returns to VCs have been low, the industry has been disproportionately responsible for creating some of the most important companies

  • E.g. Federal Express, Google, Genentech and Apple

–       The industry is very cyclical. Sometime it’s easier to start an internet company than others. It was great in 2000, as shown below.

  • Source: HBS case study, NVCA 2010

–       We are back in a internet investment height again right now. Should you be an entrepreneur and join the ride?




Ka Mo Lau, Paper G, CFO and Co-Founder

Ka Mo Lau is the cofounder and Chief Financial Officer of PaperG, an advertising technology company recently named one of Forbes’ 100 Most Promising Companies in America. Prior to PaperG, he spent time as an investment banker at Credit Suisse, as a consultant at IBM. He holds a BA in Economics from Yale University, and is a fellow of the Yale Entrepreneurial Institute. During his time as an undergraduate, he also served as the Executive Director of the Elmseed Enterprise Fund, the oldest student-run microlending organization in America.

(Source: Taken from YEI Institute)


Stuart Wall, SignPost, CEO and Founder

Stuart Wall is the founder and CEO of Signpost, a local advertising platform funded by Spark Capital and Google Ventures. Signpost is working to create the AdSense of local commerce and currently powers monetization campaigns for over 1,200 publishers. Stuart developed the concept while in business school at Harvard University and led the company through bootstrapped product development and initial fund raising. Stuart was previously a consultant in the Private Equity Group at Bain & Company where he provided strategic advice for large buyout funds.

(Source: Taken from Huffington Post)


Yanev Suissa, Venture Capital Investor, NEA

Yanev joined NEA officially in 2010, having worked with the firm since 2009. He currently works with the boards of Solidfire, Bridge International Academies, Bandgap Engineering, and Boulder Wind Power for NEA.  In the tech space, Yanev focuses on earlier stage investments, including enterprise and cloud solutions, digital media, and consumer technologies. In the energy space, Yanev focuses on both supply and demand side solutions across all renewable technologies while simultaneously providing regular advice to energy companies within NEA’s portfolio.

Prior to joining NEA, Yanev was a Senior Investment Officer with the Department of Energy’s Loan Guarantee Program, where he helped form the group back in 2007. At the Department of Energy, Yanev was engaged in the underwriting of billions of dollars of debt for issuance to companies spanning all sectors within the energy technology industry. Prior to joining the DOE, Yanev served as a consultant working with a range of leading financial industry clients to assess growth opportunities. He also worked as an advisor to several successful startups around the world.
Yanev serves on the board of NYCVC, a group dedicated to building relationships and facilitating interaction among the next generation of New York venture capitalists.   He is also the recipient of a series of fellowships, including the Kauffman Fellowship, the Presidential Management Fellowship, the Heymann Fellowship, the Kennedy Fellowship, and the Cravath Fellowship.

Yanev earned an MBA with distinction from the Oxford Said School of Business (Christ Church), a JD from Harvard Law School, and a Master’s degree  from Sydney Law School.  He graduated magna cum laude and Phi Beta Kappa from Yale University, receiving his BA in Ethics, Politics & Economics and Sociology.

(Source: Taken from NEA)


Christiaan Vorkink,

Christiaan joined True Ventures in 2008 after spending eight years working in and around early stage technology companies. His first foray into entrepreneurship came in elementary school when he and his best friend managed the largest downtown newspaper delivery service in the small town in New Hampshire where they grew up. After graduating college, he taught history for two years in suburban New York before moving to Boston to work in a variety of roles in support of local startups and in finance. Prior to joining True, Christiaan was a senior analyst in the venture capital research group at Cambridge Associates and worked in network development at BrightRoll, a True portfolio company.


Outside the office, Christiaan is an enthusiastic consumer of Mexican food, an aspiring urban gardener and an avid supporter of all but one of Boston’s four major professional sports teams. He is a graduate of Yale and MIT. Christiaan also serves on the board of directors of YMCA Camp Belknap, a summer camp for boys that he attended and worked at for a dozen years as a child and young adult.


(Source: Taken from True Ventures)

Levels – by “Clay G – YLT2012”

Here is our final project, a short film of our freshman year antics, edited together in the spirit of vidding. In addition to creating a nostalgic montage of youthful naivety, we hoped to create a video that shed light upon fair use.



The video used the original works “Shots,” by LMFAO and “Levels” by Avicii. We felt that these songs were necessary to use in the background because they help to bring us back to freshman year.  Many memories from our first semester here were accompanied by Avicii’s song. However, these songs are copyrighted works. If it were not for the fair use statute, it would be illegal for us to use these songs in our video.

Fair use exists as the lone, strong legal defense against copyright infringement, and allows for reproduction of an original work for such uses as criticism, comment, reporting, and education. This project was educational, as it was made for the Law, Technology, and Culture course; but even if we made the video in our free time, this derivative work would be fair use.


Section 107 of the Copyright Law of 1976 defines four factors that help courts to determine if a work is fair use:

  1. The purpose and character of the use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for the value of the copyrighted work


Our video is a transformative use of the songs. The clips are edited to have a distinct beginning, middle, and end. Just like many freshman year night, the film begins with drinks, is filled with dancing and play violence, and ends with passing out. We edited the songs together to make a smooth transition between “Shots” and “Levels.” Some of the video footage is sped up to match the tempo of the music. We cut the clips such that important events landed on the beat. (Look at the swipes at the camera, or Jacob slapping the sink). Since the derivative use is transformative, this is a sign that it is fair use.

In theory, the strength of a copyright suit should be proportional to the amount of the original work used in the derivative work. Only the chorus of “Shots” is used, but most of “Levels” is playing during the video. But given other fair use considerations, this one does not play an important role in determining if our video is copyright infringement.

Lastly, our use does not interfere with the utilitarian basis of copyright law. Our Youtube video does not take away or hurt the market for either song because, let’s get real, it’s not going to get a lot of views, and anyone who wanted to hear the entirety of the original songs would not watch our creation.

Clearly, our montage is not copyright infringement, and addresses many aspects of the fair use statute. In addition, it brought Jacob and I back to all the stupid shit we did as freshman, and reminded us that we should continue to film ourselves when things get cray.

Porn in the Closet: A Tribute to CPSC 183 – by “Jennifer S – YLT2012”

Say you wake up in the morning, after a hard night of partying, surrounded by empty bottles, your hungover girlfriend, and your laptop—with windows open to kiddie porn. How the hell did that get there? What the hell is wrong with you? And what legal conundrum will you find yourself in should the police discover your hoards of mysteriously downloaded child pornography? And if, by chance, you like making fannish vids of The Land Before Time set to Prince music, can you legally claim fair use? Yes.

This is the situation that our hero faces in our magnum opus, “Porn in the Closet,” a musical tribute to the great lyrical prodigy R. Kelly. Check out the original R. Kelly song here. “Porn in the Closet” is a scandalous synthesis of modern legal code and case law governing the legality of internet activity, privacy, and free speech in the United States today.

Allow us to explain the twisted tale of our “Porn in the Closet” protagonist. Poor P. Kelly (the “P” of course stands for “Porn”) wakes up to discover child pornography–for decency’s sake, here represented by Sesame Street characters with censored chests. Police officers who thermo-scanned the house, thinking P.Kelly had a marijuana growing operation, enter P. Kelly’s place with a warrant. Their warrant was unlawfully obtained, however, according to the 2001 Supreme Court Ruling in Kyllo v. United States, which found that thermo-scanning violates the Fourth Amendment’s protection against unlawful search and seizure. P. Kelly lets the officers in, and they discover the laptop full of kiddie porn hidden in the closet. The laptop was given away by the sound of a Skype call, which we may legally use in our video because this is created for educational purposes and is therefore not a copyright violation, but rather fair use!

While the officers, P. Kelly, and his girlfriend Polly ponder what do about the kiddie porn situation, two DMCA (Digital Millenium Copyright Act) Agents walk in. While DMCA agents typically issue take-down requests online, the artist formerly known as the Artist Formerly Known as Prince is particularly vengeful with protecting his music online. P. Kelly had created fannish vids, splicing footage from The Land Before Time movies with Prince songs. Thankfully, Judge Pierre Leval is on hand to clear up any confusion about transformative work and fair use. Judge Leval is in midget form, an homage to Chapter 9 of the original “Trapped in the Closet.” Our song is, of course, a parody and therefore fair use. Fannish vids are also, in fact, fair use, according to Section 107 of Title 17 of the U.S. Code.

Another knock comes on the door. P. Kelly questions what else he could have possibly done… Did they eat Roger Whitmore, the cannibalized cave explorer in The Speluncean Explorers? Did they hack into SendMail and create a virus, like the worm that wrought havoc in 1990, created by bored college student Robert Tappan Morris? No, we will never know what other internet crimes or gaffes P. Kelly has committed, because our favorite deus ex machina saves the day. Brad Rosen, in all of his glory, brings our tale to a close.
Follow along with our lyrics:
Seven o’clock in the morning
And the rays from the sun wakes me
I’m stretchin’ and yawnin’
My laptop is there right beside me
And I hear her retching from the bathroom
Then along comes Polly, she kisses me
And unsurprisingly she’s hungover, skank.

Now I’ve got this dumb look on my face
Like, what have we done?
How could I be so stupid to have downloaded all this kiddie porn?
Must have blacked out last night
Oh, what was on my mind?
Met on 4chan, took her home
Didn’t plan to sing this song
Knock on the door hearin, “Police, open up!”
My girlfag looks at me
Tells me to delete the kiddie porn
Keep trying to close windows
“Kiddie porn move out my way”
Police said “We have a warrant”
“Open up sometime today!”
“Shit think, shit think,  shit quick: put it in the closet.”

“Smelled weed last night,
Got a warrant to search your place.
Thermo-scanned your house,
Think you have a growing space.”
“Grow weed? What, we don’t do that.
That was just my tanning bed.”

You’re not gonna believe it, but things get deeper as the story goes on
Next thing you know they hear my laptop with the kiddie porn

“This is child pornography
We’re going to have to take you in”
“Whoa, this isn’t our kiddie porn
Someone else must have put that there.
We’re not into that
We only watch porn between legally-consenting, and unionized disease-free adults”

I’m telling you now, I wish this was the worst part of my day
But then another knock
In walks an agent of the DMCA
We’re by the closet, like man, what the fuck is happenin’?
“We have a takedown request”
From the artist formerly known as Prince
Is this about my fannish vids?  Those were transformative
Land Before Time needed a bit of Prince
Fair use from section 107 of Title 17 of the US Code
A midget said, “Vidding is fair use.”
“Oh I didn’t watch it”
And I’m like, “God it’s Judge Pierre Leval from the second circuit!”

“Why is he a midget?”
“We needed a midget.”
She says, “Baby, we’re in deep shit.”
Another knock on the door.
We stop, all look at each other
Like, Who the hell is that
We say, “What else did we do?”
We need a jailbreak IRL
Did we eat Roger Whitmore?
Did we hack into mail?
The knocking gets louder
I pull out my Baretta
They pull out their Tasers
Said “Don’t tase me bro!”
Midget opens the door
I can’t believe it’s Brad Rosen…

Irresponsible Journalism in the Age of the Internet – by “Brad”


I generally leave the blogging to my students, but a story “breaking” today leaves me compelled to write.

I’m among one of many that’s spouted “Google before you tweet is the new think before you speak.”  In this case, a horrific story about a Judge making insensitive comments at a rape sentencing in 2008 is breaking throughout the mainstream media.  Why four years later?

Because the California Commission on Judicial Performance just released its order censuring (‘publicly admonishing’) Judge Johnson.

In particular, I’m going to single out New York Magazine’s Adam Martin as most irresponsible reporter of the day.

Adam’s article claims:

It’s only coming out now because the California Commission on Judicial Performance finally decided to admonish him publicly — he’s still on the bench, and hasn’t commented.”  (emphasis mine)

No Adam, the exact comments came out in October 2008.  Credit where credit is due, OCWeekly’s R. Scott Moxley broke the story on October 30, 2008.

Moxley wrote:

There’s no mystery about Johnson’s thoughts. During the sentencing hearing, the judge explained that he did not believe the woman, whom we’ll call Jane Doe, had been raped. According to transcripts, he stated that Doe’s vagina had not been “shredded” during the sexual assault, an indication in his mind that she’d given some sort of consent.

“If someone doesn’t want to have sexual intercourse, the body shuts down,” the judge opined. “The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight.”

That statement is so outrageous it’s reminiscent of the cockamamie theories offered by defense lawyers during the sensational trial for the 2002 Haidl gang rape. Those lawyers hired doctors, flew them in from far-away places, paid them more than $750 per hour, and had them claim in court that the only way an erect penis could enter a woman’s vagina and rectum was if she consciously agreed to penetration. In essence, they argued (and a wise jury rejected) that successful penetration without massive tears means no rape.

Again, emphasis mine.

Yes, the comments are horrifying.  And yes, they have “echos” of Todd Akin and Richard Mourdock.  Except there’s one small wrinkle:  Akin and Mourdock have echoes of Johnson, not the other way around.

Moxley’s story was not hard to find:  I was absolutely gobsmacked that no one would have covered the story back in 2008. So I went to Google News, typed in “judge derek johnson rape” and date restricted to 1/1/2008 to 1/1/2009.

It took me 15, maybe 20 seconds.  (To add insult to injury, the story that Adam cites, from the LAist, correctly credited Moxley.)

So Adam — please tell me, when you say “It’s only coming out now” did you really mean that  journalists are only paying attention to these kinds of stories now that national attention has been focused on to stories about the insensitivities towards rape?  Or did you mean that the story was only coming out in NY Magazine now, as an apology for missing the story four years ago?  Update: Moxley needs no such apology or disclaimer, as his coverage of the Commissions decision references his own previous story.

Stories may “pop” for a variety of reasons — and if the story was missed in 2008, be upfront about it.  It should have gotten more media attention, but it didn’t.  But don’t play the CYA game.  The comments have been out for four years.  (If anything, the “story” might be why the Commission only learned of the comments in May 2012 (see page 5)).

We live in a new online journalism culture, where everyone is copy-pasting as furiously as they can to get the story out.  I believe bloggers are journalists — and I think as journalists, bloggers have an obligation to try and get their facts right.  Is a quick Google News search too much to ask?




Battle for Control: Apple Versus Developers – by “Bowei J – YLT2012”

With the appliancization of the Internet, more and more consumers are accessing the web using a variety of non-browser based applications. Because the applications are built for specific platforms, the shift to apps gives more power to the owners of the platforms. Developers have to choose whether to build their apps for Android, Apple, Windows or a combination of the options.

So far, Apple has been falling out of favor among developers. With its much tighter restriction on which App gets approved, Apple is losing to the Android operating system where developers enjoy more freedom in designing their programs. As Windows mobile platform starts to pick market share, Apple might fall further since Microsoft plans to sets its restrictions on app distribution and approval process somewhere between that of Android and Apple.

            In 2009, Google filed a complaint against Apple for rejecting its Google Voice app, citing the decision as outrageous and requesting FCC to investigate. Another bad press for Apple was when it rejected Google Latitude on the ground there was already another map app on iPhone, and it would be confusing for users to have two. Despite the negative PR, theoretically Apple should be allowed to choose whichever program it permits on its platform. Some would argue that Apple is just like a supermarket that provides platform for products, such as fruit and vegetables. The supermarket reserves the right to decide which products it takes on, and Apple should be allowed to do the same with apps from developers.

Is Apple and apps analogous to supermarket and products (in this case, apples)?

However, the fundamental difference between Apple’s platform and a supermarket is that unlike the supermarket, Apple does not purchase the apps from developers. Instead, it takes a 30% cut on the revenue generated by the program. Though Apple still has the right to decide who to partner with, it should not just arbitrarily decide which app to reject. Often the decision standard Apple uses becomes controversial, and its practices reflect excessive protection of the App Store revenue model. Earlier this year, Apple rejected a few apps that used Dropbox, because once a user is in Safari in the “Desktop Version”, it was possible for him to directly purchase additional space from the website without going through Apple’s App Store. This violated the App Store Review Guidelines that outlaw Apps using a system other than the Apple’s In App Purchase API to buy services. Dropbox saved developer’s apps by getting rid of its “create account” option in one of its APIs. However, it seems Apple is simply getting too much control over what external links can be referenced in an app.

Unfortunately, developers are losing in the battle in software distribution as well. Instead of the freedom of software distribution spreading to App stores, we are experiencing the opposite. A Forbes article compared the new distribution model to the Hollywood studio model where a few large companies, such as Warner Brothers, are in control of all the distribution. Just as Paramount and Columbia Pictures decide most all movies’ distributions, we will have Apple, Google and Microsoft deciding the fate of software. Apple gained additional leverage by introducing the Sandboxing requirement. Apps will have to be Sandboxed before introduced to the Mac App Store, and through the process Apple will have the power to determine whether to restrict certain resource access of the Apps. Software programs will be completely at Apple’s mercy in term of whether it could access internet, networking or write access.

Apple is even better at Gate Keeping -- Steve Jobs at Heavenly Gate

As appliancization continues, platform and app store providers will act as the Gate Keeper to check for security issue, copyright violations and other regulations. App and software developers will lose more and more freedom as they become increasingly reliant on the distribution functions of Apple, Google and Microsoft. Unless developers rise up and revolt against Apple’s control, the Gate Keeper’s restrictions will dampen creativity, freedom of speech and innovation.


Additional Resources:–latitude-7


The New Higher Education? – by “Jacob W – YLT2012”

A couple hundred years ago, higher education was not something that could be sought by anyone. Only rich white males could ever hope to continue on in academia past basic literacy and arithmetic. Fortunately this is no longer the case. Now, people from all backgrounds can attend through grade 12 for free and can apply to colleges via need-blind application processes that assure a more level playing field for those seeking traditional higher education.  But even now, there are those that think higher education should abandon the brick and mortar edifices that have housed great libraries for centuries. They suggest that knowledge could be disseminated much more efficiently through technological means, and with the price of an elite Yale education currently sitting at $200,000 (and rising quickly), I have to admit that I agree with them.

The Access to Knowledge (A2K) movement is a recent movement that has sought to reform the way people think about education. According to its proponents, education is not something that should be denied to anyone. In fact, it’s put on the same level of importance as justice and freedom, and with education‘s profound effect on the economic development of a country, this seems reasonable. After all, if a developing country is dependent on foreign aid for educated reformers and leaders, then how can the country hope to become self-sustaining?

Some pretty high profile universities are jumping on this A2K bandwagon, and the results are pretty astounding. MIT OpenCourseWare was launched in 2002, yet already has over 2000 courses online, 46 of which have complete video lecture series. These courses have been visited over 146 million times by more than 104 million viewers worldwide. Yale followed suit in 2007 launching Open Yale Courses with 7 full video lecture series. Since then the library of video lectures has grown to include 42 courses and is still rapidly expanding. Other programs that aren’t linked to universities include Khan Academy, which boasts a large collection of over 3600 videos explaining high school and college topics.

With the vast amount of resource online, many people are now seeking some sort of proof that they have completed online courses. Many users want some sort of certificate that they can show to potential employers to show that they have mastered certain material and others seek credit at the institution that provided the open courseware, but open course providers are reluctant to offer any sort of accreditation. Administrators insist that these programs are designed to help with the University’s goal of disseminating knowledge, but are in no way meant to serve as a duplicate to a Yale or MIT education.

As a student at Yale, I would have to agree with the administration of OYC that credit at the provider institution would be unearned. The course material is an important part of a Yale education, but in no way is it the only part. For example, students who learn via open courseware are able to view videos of lectures and complete assignments, but it would be nigh on impossible for professors to grade and provide feedback for the millions of people that are viewing the courses. Furthermore, an education at an elite institution is about more than just the knowledge you acquire in class. A degree from an institution such as Yale or MIT signifies not only that you are extremely knowledgeable in your field of study, but also that you have spent 4 years cultivating a new way of thinking by engaging with some of the brightest professors and students on the planet. This isn’t to say that interaction among peers is impossible via an online course, but it certainly isn’t the same as what you would experience on an elite college campus.

This being said, it is still possible that some sort of certificate could be presented to those users who demonstrate an adequate knowledge of the subject via an online test (that could feasibly be graded electronically), but the value of this certificate would have to be decided by potential employers. It wouldn’t be the same as a degree earned at an old-fashioned brick-and-mortar institution, but someone who had already proved their aptitude in, say, applied mathematics, would certainly be more valuable than someone who hadn’t done so.  And when you consider the possibilities of open courseware in the developing world it once again seems worthy of high praise.

With the high cost of textbooks and the added cost of transportation of those textbooks it seems unreasonable to even suggest transporting small libraries to the developing world, much hiring world-renowned staff to go give lectures there. However, open courseware makes a similar reality much more plausible. Rather than purchasing hundreds or thousands of books, schools in the developing world could instead purchase a small handful of computers for a fraction of the cost. These computers could support satellite internet connections and thus circumvent the need for infrastructure improvements. Most open courseware was created in English, but many open courseware resources are being translated into multiple languages, so it is likely that students will be able to learn in their native tongue before long. Furthermore, exposure to computer technology is likely to be instrumental in helping developing countries establish themselves in the developed world.

So maybe open courseware isn’t ready to completely replace brick-and-mortar institutions, but in the coming decades, it will certainly play an important role in equalizing access to education for people across the globe.