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Texas Center for Legal Ethics offers free online ethics CLEs on Texas Day of Civility in Law

Fri, 03/30/2018 - 09:00

The Texas Supreme Court, Court of Criminal Appeals of Texas, and the State Bar of Texas have declared April 20 as the “Texas Day of Civility in Law.”

As part of the recognition of the day, The Texas Center for Legal Ethics, or TCLE, is offering a pair of free online ethics CLEs to Texas attorneys. The CLEs are “The Noble Lawyer,” and “Developing Your Professional Reputation.”

Texas attorney and former TCLE Executive Director William J. Chriss will present “The Noble Lawyer,” based on his book of the same name.

“Developing Your Professional Reputation” will be moderated by Judge Jennifer Walker Elrod, of the U.S. Court of Appeals for the 5th Circuit, and panelists include Texas Supreme Court Justice Debra Lehrmann, past State Bar President Roland Johnson, and San Antonio attorney Lamont Jefferson.

“The Day of Civility gives all Texas attorneys an opportunity to reflect on their obligation to practice law with the utmost respect for judges, fellow attorneys and the public that we serve,” said Beverley Godbey, chair of the TCLE Board of Trustees, in a press release. “Both of these online programs provide a useful framework for lawyers to incorporate greater civility into their professional lives.”

For more information, contact TCLE Executive Director Jonathan Smaby at (512) 427-1477 or jonathan.smaby@texasbar.com.

Opinion: National Vietnam War Veterans Day

Thu, 03/29/2018 - 13:00

Richard Pena left on the last day of American military involvement in Vietnam.

The last American combat troops left Vietnam on March 29, 1973—45 years ago today. On that last day of American military withdrawal, pursuant to the Paris Peace Accords, there were two commercial planes left on the runway that were to take those of us left out. Most Americans had left as had most of the press, officers, and doctors. Lining the path to the two planes were the enemy Viet Cong and North Vietnamese soldiers. Those of us left walked the gauntlet of Vietnamese soldiers to the last two planes. A Vietnamese soldier took a picture of us getting on the plane, which later hung in the War Remnants Museum in Ho Chi Minh City (formerly Saigon). The two planes took off from Tan Son Nhat Airport in Saigon as the last prisoners of war were leaving Hanoi. That was the end of the long American nightmare in Vietnam. Two years later the American Embassy fell.

On March 29, 2018, America will observe National Vietnam War Veterans Day, which was added to our national holidays last year pursuant to the Vietnam War Veterans Recognition Act of 2017. It is good and right that America now recognizes the courage and sacrifices of the approximately 2.7 million American soldiers who served in Vietnam in a war that history now recognizes as a colossal mistake. PBS recently aired a 10-part, 18-hour look at the conflict by Ken Burns and Lynn Novick titled The Vietnam War. President Lyndon B. Johnson aptly described this quicksand war when he said, “I don’t think it’s worth fighting for and I don’t think we can get out.”

It is important that we not only remember those who served in Vietnam, but also the lessons from the war. In fact, of all the mistakes made in Vietnam, the gravest would be our failure to learn from these mistakes. Vietnam taught us that we should be ever vigilant not to send American soldiers halfway around the world to a foreign land—into a civil war—for a questionable cause and without an exit strategy. Regrettably, our policymakers did not learn the lessons of Vietnam when U.S. forces were sent to Iraq without clear understanding of the consequences.

It is important for policymakers and the public, especially the young, to understand that war is not a video game and wars have consequences. For example, over 58,000 American soldiers were killed in Vietnam and countless others were wounded, many severely. Of the 2.7 million who served, many came back with addictions or post-traumatic stress disorder, or PTSD. It is estimated that 8 to 11 percent of the homeless are veterans and of those, almost half are Vietnam veterans.

The families of these soldiers also grieve and suffer. Earlier this month, I made a presentation before the Rotary Club of Dallas, and afterward, a doctor shared with me that his brother was a Vietnam veteran who came back with severe PTSD. He would have nightmares at night, choke his wife, and load a gun when he got angry. To this day he suffers from these symptoms and only now is he beginning to speak about his experiences. He cannot forget. Nor should America forget.

Many Vietnam veterans say “thank you” for finally recognizing their service. Some others, myself included, want America to understand that we went to Vietnam because we felt we were, in some strange way, sacrificing for America. The America we sacrificed for begins with the Constitution and the First Amendment freedoms of speech, of the press, of the right of the people to peacefully assemble, and to petition the government for a redress of grievances. Over 58,000 died in Vietnam for these freedoms.

We have fought external enemies and we must fight against those within our country who would tear down our institutions and subvert our democracy.

Ronnie Dugger, founding editor of the Texas Observer, said it best: “[F]or God’s sake, don’t get into stupid wars.”

Richard Pena left on the last day of American military involvement in Vietnam. He is an Austin attorney and the co-author of Last Plane Out of Saigon.


Update: Through the editing process, the number of American soldiers that were killed in Vietnam was changed from “over 58,000” to “over 47,000.” The correct number is “over 58,000.” This article has been updated with the correct information.

Stories of Recovery: My personal story is one of success—and mental illness

Thu, 03/29/2018 - 06:00

By C. Kelly Rentzel

Editor’s note: This post is part of the Texas Lawyers’ Assistance Program’s Stories of Recovery series. TLAP offers confidential assistance for lawyers, law students, and judges with substance abuse or mental health issues. Call TLAP at 1-800-343-8527 (TLAP) and find more information at tlaphelps.org.

According to a recent study, those who score top grades in school are four times more likely to develop bipolar disorder than those with average grades. The correlation is even stronger among those who study literature. Like many lawyers, as a high-achieving English major, I already had two strikes against me.

My résumé reads like a success story: I was salutatorian of my class at Highland Park High School and a National Merit Scholar. I graduated from Rice University with honors and a double major. I was awarded a full-tuition scholarship to the Dedman School of Law at SMU; there, I won the 1L “Best Brief Award,” served on the staff of the SMU Law Review, and graduated with honors. I began my 15-year legal career at Baker Botts LLP and later spent six years as a federal court staff attorney. In 2012, I was hired as the first in-house attorney at one of Texas’ largest banks; I now serve as its general counsel. Best of all, I am the mother of a bright and beautiful 8-year-old daughter.

But my story has had its challenging chapters: While at Rice, I had a spontaneous major manic episode and spent a month in a psychiatric facility. I was diagnosed with Bipolar I. Fourteen years later, while working at the courthouse, I had severe postpartum depression that failed to resolve and, after two years, bottomed out into severe, medication-resistant clinical depression. Following a suicide attempt, I was hospitalized and received life-saving shock treatment. Four months later, I began working at the bank. I have since been blessed with five years of remission and remain on a steady regimen of medication and talk therapy.

My personal story is one of success and mental illness. A diagnosis of mental illness is not an indication of weakness or lack of ability; in fact, as the aforementioned study suggests, it may indicate quite the opposite. I was fortunate to have received my diagnosis in such an undeniable way (mania is hard to ignore) so early in my life. Because I was so young, I did not feel responsible or ashamed of my bipolar diagnosis, and it served as a roadmap rather than a roadblock. Through the Texas Lawyers’ Assistance Program, I hope to help others accept, understand, and use their own diagnoses to improve their lives.

Register now for the 29th Annual Texas Lawyers Concerned for Lawyers Convention

Wed, 03/28/2018 - 16:23

The 29th Annual Texas Lawyers Concerned for Lawyers Convention will take place on June 1-3 at the Austin Marriott South.

The convention will feature national speakers sharing their thoughts about current research on mental health, substance abuse recovery, and maintaining a more balanced professional life. Attendees will also have a chance to earn at least 6 hours of CLE (including ethics).

Fill out the registration form here and mail it to TLCL Convention, c/o Sara Dysart, 206 Primera Drive, San Antonio, TX 78212. The registration fee is $225 before May 4, which includes the CLE, the Saturday banquet, and the Sunday brunch. Scholarships are available.

Book your room by May 14 for the reduced rate of $109 per night.

TLCL is a volunteer group for lawyers in recovery and works in partnership with the Texas Lawyers’ Assistance Program (TLAP) of the State Bar of Texas.

For more information, please contact TLAP at (800) 343-8527.


Updates from the State Bar President-elect Candidates

Wed, 03/28/2018 - 13:42

Editor’s note: The following message was sent to State Bar of Texas members on Tuesday.

In an effort to encourage voter participation and educate members on the 2018 State Bar president-elect candidates, the State Bar is sending periodic emails with messages submitted by the candidates addressing topics of their choosing. The fourth messages are available at the links below.

Note: Opinions expressed by the candidates do not necessarily reflect the views of the State Bar of Texas.

Lisa Blue

Randy Sorrels
Houston Click here to read Lisa Blue’s message.  Click here to read Randy Sorrels’ message. 

Voting in the 2018 election for State Bar president-elect and district director will take place April 2 to May 1. On April 2, attorneys eligible to vote will be mailed an election packet that includes a paper ballot, candidate brochures, and instructions on how to cast their vote. An email also will be sent to attorneys, giving them instructions on how to vote online. Be sure to check your spam filter. Election emails are sent by the State Bar’s election provider, Election Services Corporation, and will be sent from statebaroftexas@electionservicescorp.com.

The election packet and email will contain a voter authorization number (VAN) with instructions on how to vote online. Attorneys may use this VAN and their bar card number to log on to the election website to cast their ballot. If attorneys do not have their VAN, they can also go to the State Bar website, texasbar.com, to cast their vote during the voting period.

Attorneys may either submit their paper ballot via mail or vote online using the information provided. The secure election system will not allow duplicate votes.

More information on the election is available at texasbar.com/election.

TexasBarCLE honors outstanding volunteers

Tue, 03/27/2018 - 16:00

Six attorneys and one justice were honored for their exceptional contributions in 2017 to the State Bar of Texas’ continuing legal education efforts. TexasBarCLE gave Standing Ovation Awards to Justice Patricia Alvarez, of the Texas Court of Appeals for the 4th District in San Antonio; William J. Chriss, of Gravely & Pearson in Corpus Christi; Mark A. Correro, of Correro & Leisure in Houston; Mickey R. Davis, of Davis & Willms in Houston; Linda C. Goehrs, of Horrigan & Goehrs in Houston; Heather L. King, of KoonsFuller in Southlake; and Kennon L. Wooten, of Scott Douglass & McConnico in Austin. “To recognize CLE volunteers who stand out each year for their extraordinary energy, commitment of time, and leadership, the TexasBarCLE staff created the Standing Ovation Award,” said Hedy Bower, director of TexasBarCLE. “The State Bar thanks these committed lawyers who strive to improve the profession through education.”

Should you pursue life rights for movies?

Mon, 03/26/2018 - 15:00

When it comes to actors, musicians, and other notable people, much information—from major events in their lives and careers to the personal fodder for tabloids—is made public and can generally be used for fiction films and documentaries.

But the intimate, sometimes sordid details of the subject may not always be readily available on your average gossip rag. That’s when filmmakers, who want to get closer to the subject, pursue life rights to a story.

“The best kinds of documentaries tell a human story from a person’s perspective—so much of that is having that access,” said Megan Gilbride, an Emmy-winning and Producers Guild of America Award-nominated documentary producer and panelist on SXSW’s “To Get or Not to Get: Life Rights & Non-fiction Films.”

Life rights are legal agreements with a subject or estate that give full access to a subject—including artwork, journals, recordings, and anything else that can give extensive insight into the person.

Panelists Lisa Callif and Dean Cheley, both partners in entertainment law firm Donaldson + Callif, Fox Rothschild partner Lincoln Bandlow; and Gilbride explained the nuances of such agreements.

Life rights can protect filmmakers from litigation. Typically, agreements include a waiver of claim that ensures a subject won’t sue the filmmaker if he or she doesn’t like the depiction. These waivers can also grant the filmmaker exclusive access to the subject.

According to the panelists, the disadvantages of not having the life rights:

  • It’s tougher and more expensive to get Errors & Omissions Insurance;
  • Distribution can be limited with a lack of the subject’s participation; and
  • The risk of litigation increases.

That’s not to say life rights agreements aren’t without their downsides—and that every panelist agrees filmmakers should seek such contracts when producing documentaries.

The idea of a life agreement that hands over the keys to an entire life story can be off-putting to a subject and scare them away from participating in production. These contracts can be especially troubling when filmmakers are building trusting relationships with the subject or estate, Cheley said.

“Should we seek life rights for documentaries? My answer is generally no,” he said.

Another focus of the panel was the right of publicity. This is an individual’s right to control commercial use of his or her name, image, and likeness. Whereas life rights agreements deal with accuracies in portrayals in film, cases involving alleged violations of the right of publicity deal with advertisements and alleged exploitation of a person’s image.

However, Bandlow said questions linger on the success of such cases when they deal with advertisements, and that they typically get overturned. This was the case with actor Dustin Hoffman after he claimed in 1999 that Los Angeles Magazine violated his right of publicity in a digitally altered photo spread featuring his image.

He was initially rewarded about $3 million by a federal judge in Los Angeles but the Ninth Circuit Court of Appeals in California reversed the decision, concluding the photo spread was speech protected by the First Amendment and not commercial speech.

Bandlow called litigation difficult in the case of violation claims in movies. “A movie isn’t commercial so it’s protected speech,” he said. “It’s transformative so it’s protected.”

Something the attorneys are paying attention to is a California appellate court’s upcoming decision in “Gone With the Wind” actress Olivia de Havilland’s June 2017 lawsuit against FX over her portrayal in “Feud: Bette and Joan.”

The veteran actress of Hollywood’s Golden Age said the docudrama recounted stories that never happened or that she never gave permission to use, and portrayed her as a gossip. De Havilland made claims of false light, defamation, and violation of her right of publicity.

Bandlow said the case could set a standard for how right of publicity cases are handled in California.

The future of licensing music on social media

Mon, 03/26/2018 - 14:30

Panelists Tracy Gardner, senior vice president of digital strategy and global business development for Warner Music Group, Bobby Rosenbloum, vice-chairman of global entertainment and media practice at Greenberg Traurig, and Ted Suh, vice president of digital music at musical.ly, discussed some of the hot-button issues in social media music licensing at SXSW session this month.

The music industry is carefully watching the Music Modernization Act, which was introduced in the House and Senate in January 2018 and aims to streamline the music licensing process.

One of the reasons startups operate without licensing agreements is the cost in terms of staff time and money, Suh said. One of the benefits of doing business this way is that it gives startups data to present to record companies that shows how their platforms can benefit artists and what they will get from these deals. Once in place, these deals generate royalty money for the record companies while giving the social media platforms legitimate access to the catalog of music.

The free model helps drive negotiations because the startup can show how many listeners they have, especially in “hot markets” like tweens and teens, Suh said.

“We have a lot of eyes and ears on our platform… How can we leverage that to partner with these companies to accomplish everyone’s goals?” Suh said.

While record companies would prefer platforms to license their music from the beginning, it’s not a reality, Gardner said, so the data startups generate by operating without a license can be helpful.

“The recognition of what these services are doing to fuel consumption both in those platforms and on other platforms; we’re taking a more open approach to licensing,” Gardner said. “We realize that these platforms are moving so quickly. If we were to try to hold them back, then we’re losing out.”

This take on music licensing has broken from the traditional method used by record labels, Gardner said. “Traditionally, perhaps the music industry has been slow to the game when it came to tech, and almost would try to block it. Now we’re actually leaning in and trying not only to focus on what we can do, but how we can grow the ecosystem,” Gardner said.

There’s also the benefit to artists of being on the platform, Gardner said.

“These platforms are helping breaking artists to cross over into a global sphere, as opposed to being in their territories and not being able to expand beyond that,” Gardner said.

Crossing over into the global sphere creates a whole new world of problems for licensing, Rosenbloum said.

“The minute that you are dealing with global licensing, you can’t just go to a music publisher … and get global rights,” Rosenbloum said. “You have to do deal with societies country by country.”

To ensure everyone is getting their share of the licensing rights, musical.ly and other platforms used third-party companies that specialize in publishing databases to track down the owners, Suh said.

Another hot spot for licensing in social media is user-generated content, or UGC, created in the form of remixes and covers of songs, Rosebloum said.

The lack of a structure in current copyright statutes may not even apply to UGC, Gardner said.

“We always want to be respectful of artist rights. This is a whole new world of creating derivative works where perhaps a lot of the older contracts don’t even address this,” Gardner said.

Startups are taking steps toward ensuring that their licensing agreement partners are compensated for the usage of their material, whether by the service or through UGC, Rosenbloum said.

Suh said his company has integrated with a third-party company to track all of the music uploaded to musical.ly. If an uploaded song matches one in the database that’s not permitted, then the song is blocked. Remixes and covers by users often can slip past the filters in place though, but Suh said he sees that problem becoming less common.

“I think we’re going to see content ID get much better,” Suh said, noting advancements in technology and artificial intelligence specifically.

Law Night at the Ballpark to raise money for veterans’ legal services

Mon, 03/26/2018 - 14:23

Join us for Law Night at the Ballpark as members of the legal community bring out their friends and family from around the state to beautiful Globe Life Park in Arlington to raise funds for veterans’ legal services.

The Texas Rangers take on the Houston Astros at 7:05 p.m. Tuesday, July 3. For every advanced ticket purchased, a $5 donation will be made to the Texas Access to Justice Foundation’s Joe Jamail Endowment for Veteran Legal Services.

Stay after the game for a special post-game fireworks show to celebrate Independence Day.

Get your tickets here.

State Bar offers e-billing to easily handle annual membership statement

Mon, 03/26/2018 - 05:48

The State Bar of Texas membership department reminds Texas lawyers that they can receive their annual membership statements in a fast and convenient way by signing up for e-billing before April 12.

Lawyers who choose e-billing will receive their annual membership dues statement by email shortly after May 1, with a direct link to the State Bar’s secure online payment process.

E-billing, combined with the online payment system, speeds up the processing of payments. Lawyers who pay online receive immediate verification that their payment was processed and applied to their account. Payments for membership dues, sections dues, access to justice contributions, and legal services fees can be made online with one easy payment, by debit or credit card.

To update an email address, log on to your Bar Page at texasbar.com and click “edit contact info” before May 1. If you sign up for e-billing and have not received your statement by May 15, please contact the membership department at (800) 204-2222 ext. 1383.

For additional information, call Karen Conlon at (800) 204-2222, ext. 1421, or Sandy Gavin at ext. 1813, or email ebill@texasbar.com.

How Lenz changed the music industry

Fri, 03/23/2018 - 10:00

In 2007, Stefanie Lenz uploaded to YouTube a 29-second clip of her 13-month-old son dancing to Prince’s “Let’s Go Crazy.” Universal Music Corp., the owner of the copyright of the song, filed a takedown notice in accordance with the Digital Millennium Copyright Act, or DMCA, to YouTube. In response, YouTube removed the post.

What followed was a legal battle that ultimately was decided before the U.S. District Court for the 9th Circuit. The court’s decision in Lenz v. Universal Music Corp. drastically changed the landscape of digital music.

Panelists Dan Dymtrow, an executive at Maverick, Dina LaPolt, an entertainment attorney at LaPolt Law, Wade Leak, senior vice president and deputy general counsel to Sony Music Entertainment, and Valerie Pensa, vice president of marketing at RCA Records, discussed the ruling in Lenz and the effect it has had on the music industry over the past decade.

The impact of Lenz
“Before the implications of Lenz, when there was an infringing file, we’d pull it down,” LaPolt said. Her firm, along with other businesses, the Recording Industry Association of America, or RIAA, and the International Federation of the Phonographic Industry, or IFPI, in Europe, all worked to remove infringing files from the internet.

The 9th Circuit ruling put an end to the quick removal of infringing files and introduced “fair use” analysis into takedown decisions, Leak said. “The case literally tells the content owner that before you issue that takedown, you have to do some type of fair use analysis.”

The thought process has changed from preventing “leaks” of material to assuming there will be leaks, Dymtrow added.

“Nowadays with this issue, we’re planning for a leak, just as much as we’re planning for release,” Dymtrow said.

Lenz “solutions”
The music industry has tried to come up with solutions to prevent leaks, a large number of which come from physical copies of the music, Leak said.

“For the artist and company there’s still a lot of revenue in physical out there,” Leak said. “Certain countries, like Japan and Germany, have robust physical markets. It would be a mistake to not still leverage that market.”

But physical copies aren’t the only source of leaks, Dymtrow said. “We’ve held back the music part, but it’s still our artwork, the package, the track list, and all of that stuff is out there, and it’s going to be all over the internet as well,” Dymtrow said.

Pensa said there have been leaks in the marketing material and that music videos have also been leaked. “We have had video leaks that are not approved by the artist. Some of the people in the company haven’t even seen the music video and it is all over the internet,” Pensa said.

Confiscating cellphones of employees on set for music video shoots has been one solution, LaPolt said, and having agreements in place for people who need to have their cellphones on the set is one way to prevent leaks.

Another option is to look at streaming music, LaPolt said, especially with its increasing percentage of market share.

“Sixty-two percent of revenue from recorded music in the U.S. is now from streaming, and it’s going up,” LaPolt said. “By 2024, we estimate it will be over eighty-five percent.”

LaPolt said there are three sources of streaming music: 1) non-interactive digital streaming, like Pandora; 2) SiriusXM and any corresponding terrestrial internet radio; and 3) interactive digital streaming services, such as Spotify, Apple Music, TIDAL, and YouTube.

The introduction of Spotify and other streaming services has eliminated the arguments the record companies frequently faced before courts, Leak said.

“One of the things we kept confronting in the early days of this litigation was courts saying, ‘There’s no alternative. You don’t offer a legitimate alternative to these people.’ So we’re happy now that that argument is gone,” Leak said.

Reclaiming fair use as a defense
The 9th Circuit’s opinion in Lenz changed how entertainment and music lawyers had long viewed fair use, LaPolt said. Before Lenz, LaPolt said she would advise clients that they could not use fair use as a defense when another artist sued them for infringing on their copyrighted materials. But Lenz changed that stance.

“The 9th Circuit said that thinking it’s a defense is actually a misnomer,” LaPolt said. The opinion said, “Although the traditional approach is to view fair use as a form of defense, it’s better to view it as a right granted by the Copyright Act of 1976.”

This interpretation of fair use is what has led to the current struggle to prevent leaks before the official release, Leak said.

“You couple that with the fact that the Copyright Act says that fair use applies to unpublished material—which his why what we’re talking about requires us to go through that fair use analysis.”

Having a system in place for fair use analysis was much different in 2007 when Lenz was first ruled upon, Leak said.

“In 2007, the number of things that were online with potential leaks was so minimal compared to what they are [today]. The landscape changes and law and business try to catch up to it,” Leak said.

With the increased amount of potential leaks being posted at anytime, Leak said it might be time to look at fair use again.

What happens when AI gets creative?

Thu, 03/22/2018 - 10:30

When artificial intelligence creates something; who gets the credit? Is it the programmer, the designer, the artist, or the AI itself? What about when AI destroys? Who or what takes the blame?

Panelists Jessica Fjeld, a clinical instructor at Harvard Law School Cyberlaw Clinic, Sarah Newman, a creative researcher at metaLAB at Harvard, Alexander Reben, an artist at Stochastic Labs/ANTEPOSSIBLE, and Sarah Schwettmann, a computational neuroscientist at the Massachusetts Institute of Technology, discussed these issues and other topics at “AI Creativity in Art, Neuroscience, and the Law” at SXSW in Austin last week.

Who gets the credit?
Fjeld asked panelists a few questions: Who is responsible for a work that’s created by a machine? Is it the artist who created the inputs for the AI model? Could it be the programmer who wrote the learning algorithm for the AI? At what point does the AI gain credit?

Schwettmann said her team had created an algorithm that “used machine learning and a set of example artworks to train a model on part of [an] artist’s artistic process and implement that model on a machine that could generate works in the artist’s characteristic style that were indistinguishable from the artist’s and run in parallel to the artist’s creations.”

Even though an algorithm from a team with input from an artist generated the creations, they cannot be displayed or published without the artist’s consent, Schwettmann said, due to a contract signed with the artist.

Reben agreed that the real question behind the generation of ideas or art is where ownership falls and where it extends with AI. For example, Reben designed a program that randomly generates ideas for patents and published them online.

“The idea is that if you are publishing an idea, say you’re publishing an academic paper or something online, it’s considered prior art and no one’s able to patent that idea anymore,” Reben said.

While 99.9 percent of the AI-generated ideas are nonsensical, Reben asked whether those 0.1 percent of ideas that would fall under prior art would belong to him or the AI that was creating them.

In this situation, would the random generation of ideas by the AI be enough to merit ownership? Schwettmann said we need to be careful when we talk about random processes.

“Talking about randomness is tough because at some level there was a model there, especially in terms of computers, especially in terms of AI,” Schwettmann said. “Somebody either wrote the code or the model was trained on a set of examples, and it could iterate on those examples and intentionally produce something.”

Could intentionality be an indicator of ownership by an AI?

“I think intentionality is really important to make something art,” Newman said. “I don’t think we should close a future where AIs can have intentionality.”

Schwettmann said perhaps there is a huge field of questions when it comes to AI and ownership. Her team at MIT is working on templates to distinguish ownership rights of materials.

“We’re working to develop a set of template legal agreements for collaborations between artists and hackers, developers, programmers, and to collect and publish a set of associated use cases,” Schwettmann said. “We fear a future where AI replaces the artist, and people are very wary about it, especially artists, but these tools and AI lend themselves to parallelization.”

Who takes the blame?
Isaac Asimov’s “Three Laws of Robotics” are: “1) a robot may not injure a human being, or through inaction, allow a human being to come to harm; 2) a robot must obey orders given it by human beings except when such orders would conflict with the first law; and 3) a robot must protect its own existence as long as such protection does not conflict with the first or second law.”

Focusing on the “First Law,” Reben’s team studied whether there were any AI systems in use today that had broken that law.

“We couldn’t think of any. The two closest are the Close-In Weapons … that has no real decision process being made here. This is basically a fancy landmine,” Reben said. The second is a “drone-controlled system. Drones do kill people, but there is still a human in the loop here.”

Since there were no clear examples of AI in violation of the “First Law,” Reben created one. The robot would choose whether or not to strike Reben’s finger, drawing blood, when it was placed near it.

Reben said there were distinguishing features of the robot’s choice to strike him. “That it’s a non-random and unpredictable decision. That is, it’s not a decision of me—the programmer—by proxy of the robot. So it makes the decision in a way that I can’t predict, yet it’s not random.”

It’s unexplained why the robot chose to strike Reben at a particular time and this unexplainable action could drive humans to imagine reasoning behind it, Newman said.

“Our human disposition to tell a story about what it is that’s happening, especially as we get to a place where it’s harder to understand and explain what’s happening,” Newman said.

In creating stories to explain the unknown, Newman said we project human values onto AI, but the AI doesn’t hold to human beliefs.

“How do we make sure the systems are developing values that are aligned with ours? This is especially challenging in a time where we can’t agree about what our values are,” Newman said.

As far as questions to ownership and blame, Schwettman said there are no right answers “except ones that avoid the fears that we have—like replacement of artists and creating terrible, horrible things. We want to create beautiful things.”

Free legal clinic for veterans in Conroe

Wed, 03/21/2018 - 11:45

Veterans in need of legal assistance can attend a free clinic in Conroe on Saturday, March 24, from 9 a.m. to noon. The event will be held at the Conroe VA Outpatient Clinic, 690 S. Loop 336 W., 77304.

Veterans and spouses of deceased veterans can receive one-on-one advice from a volunteer attorney in any area of law, including family law, wills and probate, consumer law, real estate and tax law, and disability and veterans benefits.

Veterans who qualify for legal aid and are in need of legal representation may be assigned a pro bono attorney from the Houston Volunteer Lawyers.

The clinic is sponsored by the Montgomery County Bar Association, the Houston Northwest Bar Association, The Woodlands Bar Association, and the Houston Bar Foundation’s Veterans Legal Initiative.

No appointment is necessary.

For more information on the clinic, as well as the Houston Bar Foundation’s Friday clinics at the Michael E. DeBakey VA Medical Center, go to hba.org.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

Morals clauses multiply in Hollywood

Wed, 03/21/2018 - 09:00

Sally Helppie, a film producer and entertainment attorney with Vincent Serafino Geary Waddell Jenevein in Dallas, and Amy E. Mitchell, an Austin-based entertainment attorney focused on music and television, discussed morals clauses during a panel last week at SXSW in Austin.

“A morals clause is a contractual condition that gives one contracting party, usually a producer or production company, the right to unilaterally terminate the agreement or take some kind of punitive action against the other party, who is usually an actor, or an individual who they want to use their image, in the event that other party engages in bad behavior or conduct that could negatively impact the project because the association with his or her public image,” Mitchell said.

Morals clauses differ from Title VII. “Title VII of the Civil Rights Act of 1964 deals with discrimination, including in the workplace, and that’s what we’ve seen in the news lately with the Harvey Weinstein matter, the [Kevin] Spacey matter, and people acting badly,” Helppie said.

Adding a morals clause to a contract can create friction between producers and talent, sometimes resulting in the talent not even wanting to work with the producer.

“Morals clauses are often hotly contested by the talent reps in negotiation. Being able to identify the conduct specifically that you want prohibited, based on the specific client needs, should really be your goal. You don’t want to insist on these vague prohibitions that tend to bring somebody into disrepute or rely on these social norms that change over time,” Mitchell said.

There are a number of questions that one should ask when negotiating a morals contract regarding specificity, natures of the crime or activity, and whether a conviction is necessary to trigger the morals clause, Mitchell said.

The duration or reach of the contract should also go into consideration during negotiations, Helppie said.

“Another questions to consider is whether it should apply only to conduct that occurs during the contract term or conduct that may have occurred in the past but came to light during the contract term,” Helppie said. Helppie referenced Paula Deen as an example of past conduct creating a problem.

Defining behavior makes it easier to define what constitutes a breach of the morals clause in a contract. The production side of the contract will prefer the objective measurement of the conduct be left to the sole discretion of the producer. The talent side will argue for reasonable judgment by a panel of two or more people involved with the project, Helppie said.

The New York Yankees signed a morality clause agreement with star slugger Babe Ruth in 1920s to rein in Ruth’s notorious drinking and partying habits. Today, most professional sports leagues carry morals clauses in their standard contracts.

Punishments as the result of a breach can range from termination, loss of future payments related to a project, disgorgement of money paid, loss of editing rights, and loss of credit, Helppie said.

There are sometimes “cures” inserted into morals clauses. These “cures” allow the producer, at their own discretion, to elect not to trigger the morals clause against a performer for illicit behavior, Mitchell said.

Morals clauses are forbidden in the contracts of the Directors Guild of America and the Writers Guild of America. Most professional sports leagues have morals clauses in their contracts; however, the scope of some of those morals clauses are being argued in court, Mitchell said.

The talent side does have its own recourse in the reverse morals clause that they can use against their employers.

“It protects the reputation of the talent, in this case, from corporate crimes and scandals. It allows clients to terminate agreements when an employer behaves badly,” Mitchell said.

Helppie said that reverse morals clauses are mainly appearing in endorsements rather than contracts with production.

“I don’t see that we’re going to see the reverse morals provisions get much traction with the actual productions, but I think we’re going to see it more in endorsement contracts,” Helppie said.

However, Helppie said talent representatives should consider proposing a reverse morals clause to the contract.

“It could be a negotiating term to soften language in other parts of morality provisions that are in the overall contract,” Helppie said.

DBA to host Texas Day of Civility & Professionalism

Tue, 03/20/2018 - 17:47

The Dallas Bar Association will host a Texas Day of Civility and Professionalism with a half-day seminar at the Belo Mansion in downtown Dallas.

The day was created to reaffirm the Texas Lawyer’s Creed, which calls for attorneys to conduct themselves with courtesy and professionalism toward judges, adversaries, peers, colleagues, and clients.

The DBA’s seminar is co-sponsored by the Dallas Bar Foundation, the American Board of Trial Advocates, AlixPartners, Inns of Court and the State Bar of Texas Professionalism Committee and will feature a judicial fireside chat with Justice Douglas Lang, a general counsel panel led by Patrick Long, a Morris Harrell professionalism panel led by Ashley Jones Wright, and 4.5 hours of CLE credit in ethics.

The seminar will also feature speakers Kim Askew, of K&L Gates; Hon. Jane Boyle, of the Northern District of Texas; Dean Royal Furgeson, of UNT Dallas College of Law; Justice Eva Guzman, of the Supreme Court of Texas; DBA President Michael K. Hurst; Harriet Miers, of Locke Lord; Roy Stacy, of Stacy Conder Allen; State Bar of Texas President Tom Vick; and Chief Justice Carolyn Wright, of the 5th Court of Appeals in Dallas.

The program will run at no cost on Friday, April 20, at the Pavilion at the Belo Mansion, 2101 Ross Ave., Dallas. Lunch will be available for $14.95.

Those unable to attend can view a live stream of the seminar at https://onlinecle.dallasbar.org. For more information, contact Kathryn Zack at (214) 220-7450 or kzack@dallasbar.org.





The GDPR and Europe’s new digital economy

Tue, 03/20/2018 - 17:41

Depending on whom you talk to, the footprint you leave online, whether it is the websites you visit or the emails you send, is essentially private and shouldn’t get in the hands of advertisers or anyone else. But to others, that history is merely business—data that can be used by companies to tailor ads to users.

At SXSW’s “A Game-Changing Shift in Control of Personal Data” panelists Nicky Hickman, founder and CEO of the U.K.-based Inglis Jane, Karen McCabe, senior director of technology policy and international affairs at the IEEE Standards Association, and Doc Searls, senior editor of Linux Journal and director of ProjectVRM at Harvard University, discussed the concept of data control in Europe’s new digital economy, where people set the terms of how their information is used.

In 2016, Europe adopted the General Data Protection Regulation, or GDPR. The measure, set to become enforceable in May 2018, requires businesses to follow regulations designed to safeguard user information.

A hot word in the discussion, Searls said, is “agency,” or the power people have to act with full effect in the world. Referring to websites that require visitors to accept terms and conditions concerning use of information, the Linux editor said the GDPR could give users the chance to turn around agreements so that companies “have to check yes to us.”

Hickman alluded to concern over how enforceable the GDPR will be and how businesses can comply with its standards. The regulation requires businesses to provide “reasonable” levels of protection of personal data, though it doesn’t define the term.

However, she said the GDPR could “change the economy” and possibly “end the online feudal system.”

Vick: 6 lawyers to be interviewed for State Bar general counsel position

Tue, 03/20/2018 - 16:38

Editor’s note: State Bar of Texas President Tom Vick sent the following message to members Tuesday. 

I’m writing to share progress on our search for a general counsel to serve the State Bar of Texas Board of Directors.

The board voted unanimously in January to approve the hiring of a general counsel. The general counsel will provide counsel to the State Bar Board of Directors and officers on an as-needed, contract basis as the board directed. The board agreed to structure the job this way after determining there wasn’t enough work to justify the cost of a full-time, in-house position. Having an attorney available anytime, on contract, is a prudent way to provide the independent general counsel services that the board desires.

The board’s General Counsel Search Committee met today and, after careful review of the responses to the Request for Proposals (RFP), selected six Texas lawyers to interview for the position.

Their names appear below in alphabetical order:

• Martha S. Dickie, Austin
• Ross Fischer, Austin
• Karissa Hostrup Gonzalez, San Antonio
• George Edward Hyde, Georgetown
• Kevin O’Hanlon, Austin
• Michael A. Shaunessy, Austin

If you would like to view their resumes, please click here.

The search committee will interview these candidates in Austin and recommend a nominee to the Board of Directors, which will elect the general counsel by a majority vote. The board will consider the committee’s recommendation at an open board meeting on April 27 in Fort Worth.

The search committee developed and approved the RFP, which was issued on February 20 and emailed to bar members. The deadline for proposals to be submitted was 5 p.m. CST on March 12. The committee received 12 proposals by the deadline, from which the six names above were selected.

If you have any questions or comments on the search process, please contact Amy Turner, the State Bar’s human resources director, at (512) 427-1708.




Tom Vick

President, State Bar of Texas

Can racial bias and privacy concerns be corrected in face recognition?

Fri, 03/16/2018 - 14:00

Face recognition has its benefits in securing iPhones or, in the case of artificial intelligence company Kairos, its use in helping people with Alzheimer’s identify family members without feeling embarrassed or helping law enforcement identify criminals as founder and CEO Brian Brackeen said of his business’ work at a panel discussion at the Fairmont during South By Southwest.

But with the technology’s benefits comes a host of major ethical issues to address and improve on: privacy and racial bias, which was the focus of the panel “Face Recognition: Please Search Responsibly.”

The discussion was led by Clare Garvie, a privacy lawyer and associate of the Center on Privacy & Technology at Georgetown Law; Brackeen; and Arun Ross, the director of the Integrated Pattern Recognition and Biometrics Lab at Michigan State University. Each offered ideas for where the road to protecting privacy and undoing racial bias in developing face recognition begins.

Face recognition algorithms extract facial features and reduce them to numerical code, which can then be used to match photos in a database. Law enforcement agencies can use it to match against mug shots, for example.

But, according to the New York Times, when it comes to photo identification, some commercial software is 99 percent accurate if the person of the photo is a white man—for darker skinned women, it’s 35 percent.

The AI behind face recognition relies on the data used to train it. If that data doesn’t reflect diversity, e.g. is composed of mostly white men and few black women, the software will identify less accurately people of color, the Times reported. When people are crafting the technology—choosing features to extract—bias comes about, Ross said.

“The more we raise questions like Clare asked, it forces researchers to go back to the drawing board since it comes down to training,” Ross said in response to Garvie asking the other panelists if racial bias in face recognition technology can be corrected.

The early stages of Kairos also faced limitations in recognizing people of color. “Our first algorithms didn’t even perform well on me compared to my team members,” said Brackeen, who is black. Of Kairos’ many features—there’s gender detection, emotion detection, and face verification, among others—the firm also touts a diversity recognition app that allows a user to upload a photo and see their ethnic makeup in percentages.

At the panel discussion, Brackeen announced his firm will also open source face recognition technology at their own cost that will be accurate in identifying people of different races.

Face recognition’s versatility also lends itself to privacy concerns and little regulation. Metropolitan police used the technology to scan crowds during last year’s Notting Hill carnival in London. Early this week, the Times reported that Madison Square Garden, as a security measure, has also been using face recognition to identify people entering the arena (and comparing images to a photograph database).

In 2016, Georgetown Law’s Center on Privacy & Technology released a report that detailed American police departments’ own use of face recognition in identifying criminals and suspects. “The Perpetual Line-Up,” co-authored by Garvie, highlighted a need to better understand just how privacy and civil liberties are impacted and made recommendations, including law enforcement agencies and legislators crafting policies protecting citizens from misuse and abuse.

Face recognition is also used in retail, where companies may look for suspected shoplifters, or on social media. The fear is what else it may be used for, so it’s good for entities using the technology to be clear about its use, Garvie said at the panel.

Changes to patent law and possibilities for future change

Thu, 03/15/2018 - 16:00

Changes in patent law over the past five years have created some relief in the number of cases filed but big problems remain.

Colleen Chien, a law professor at Santa Clara University School of Law; Evan Engstrom, executive director of Engine; U.S. Rep. Darrell Issa, a member of the House Judiciary Committee and chairman of the Subcommittee on Courts, Intellectual Property, and the Internet; and Ruben Rodrigues, an intellectual property trial attorney and senior counsel to Foley & Lardner, comprised a panel that discussed the “Persistence of Patent Trolls in Tech” at SXSW in Austin.

The panel discussed some of the changes to patent law and suggested changes to patent law that could deter frivolous lawsuits.

Changes to Patent Law
The Leahy-Smith America Invents Act’s central provisions went into effect on September 16, 2012, and on March 16, 2013. Rodrigues said the act is “much quicker and cheaper than the previously available methods for validating patents.”

But the act isn’t perfect, Rodrigues said, “It’s still very expensive. The final fee alone is almost $50,000 to get the thing going and the attorneys’ fees can range from being $150,000 to $500,000 depending on the complexity of the matter.”

Supreme Court decisions in Octane Fitness v. Icon Health & Fitness in 2014 and Highmark v. Allcare Health Management System in 2014 changed the “exceptional case” definition under the U.S. Patent Act’s fee-shifting provision.

After Octane and Highmark decisions, “exceptional” was defined as “a case that sets out from others or stands out from others,” Rodrigues said.

Even with the change, Rodrigues said there has been little increase in fee-shifting provisions in patent cases. Chien said the fee-shifting provision might be too difficult of a culture shift for the U.S. as compared to countries with regular rates of compensation in place.

The panel also referenced Rule 11 of the Federal Rules of Civil Procedure as a way to possibly have litigation labeled as frivolous. Rodrigues said, “it is, however, a gruesome process because of the back and forth that goes on and at the end of the day the judge has to entertain a motion for sanctioning.”

Another change was a result of the 2014 Supreme Court ruling in Alice Corporation v. CLS Bank International, where “the Supreme Court struck down one patent for claiming an abstract idea,” Rodrigues said.

A Supreme Court order in 2015 abrogated Rule 84 of the Federal Rules of Civil Procedure and thus eliminated Form 18. Rodrigues said before the changes “it used to be that there was a form for a patent complaint and it was very basic. If you complied with the form, you basically met your obligations to file a suit. So courts wouldn’t dismiss a lawsuit, no matter how bare bones the pleading was, if it complied with Form 18.”

In 2017, the Supreme Court issued a decision in TC Heartland v. Kraft Food Groups Brand. “You can only sue someone for patent infringement where they’re incorporated or where they have a place of business and have committed acts of infringement,” Rodrigues said.

The decision affected the U.S. District Court for the Eastern District of Texas, which had been a hot bed of patent litigation because plaintiffs did very well there, Rodrigues said. The “stats as of two years ago, the win rate of plaintiffs was above 80 percent, whereas the national average was 40 percent.”

Rodrigues also identified other trends that have reduced patent litigation, including “the willingness of courts to entertain early summary judgment [and] a willingness of large companies to fight trolls to discourage copycat suits.”

Trolls Change Tactics
With larger companies now showing a willingness to combat patent trolls, there has been a change in demand. “Now they ask for $50,000 rather than ask for a million dollars, and that’s been my experience in practice,” Rodrigues said. “They’re not going after large companies, but they continue to be very active in going after small and medium companies getting these ‘nuisance value’ settlements.”

Proposed Changes
Loser Pays system. A possible solution to frivolous patent lawsuit would be the “Loser Pays” system where the idea is that the losing parties in the suit pay the winners’ legal expenses, including attorneys’ fees.

Engstrom said he doesn’t see the loser pay system as a solution for the problems startups face in battling patent trolls because startups are really capitally strained.

“Even the notion of having a loser pay system may not work if your decision point is ‘do I pay $3,500 and wash my hands of this or take a loan out to finance litigation that is going to cost up to $6 million even if it’s a 95 percent chance that I’ll win?’ Really, it’s about preventing these things from happening in the first place.”

Cheaper court costs. A common tactic of patent trolls is to offer a “nuisance cost” to settle lawsuits. The nuisance cost is a fee that the troll knows will be less than the cost of litigation.

The most impactful changes to patent law have been around “the introduction of cheaper alternatives to litigation, such as inter partes review, which is still expensive,” Chien said. “I think this is an indictment of our court system that’s so expensive, so cumbersome, that we’ll try to go around by going to the PTAB [Patent Trial and Appeal Board].”

The notion of inter partes review, or IPR, is highly contested, Chien said. In fact, a current Supreme Court case, Oil States Energy Services v. Greene’s Energy Group, is challenging whether IPR violates the Constitution by removing private property rights through a non-Article III forum without a jury.

Compulsory Licensing Act. “One of the first things that may end up in the long run happening is more situations like the famous IBM case, where IBM was forced to license their patent portfolio because they had effectively locked out—in perpetuity—anyone from making an effective computer simply because by the time you’d get to use their patents it would be useless,” Issa said.

Although, there may be certain circumstances where compulsory licensing is necessary for the continuance of innovation, Issa said.

All of the changes aimed at controlling patent controls may have an undesired effect though, said Chien. “Now there’s a lot of concern in the patent community that the pendulum has swung too far in a direction that sort of devalued patents.”

Token creators want SEC to clarify regulations

Wed, 03/14/2018 - 15:30

The amount of initial coin offerings, or ICOs, has increased with the success of bitcoin and other cryptocurrencies over the past two years. A lack of a government regulatory structure has created a playing field ripe for scammers.

“Bitcoin and the New World of Programmable Money,” a panel at SXSW in Austin, featured Kathleen Breitman, co-founder of Tezos Blockchain; Michael Casey, senior adviser to the Massachusetts Institute of Technology Media Lab’s Digital Currency Initiative and managing partner at Agentic Group; Vinny Lingham, chief executive officer and co-founder of Civic; and Paul Vigna, a Wall Street Journal reporter who covers bitcoin, blockchain, and cryptocurrencies; discussed possible solutions to the current rules governing ICOs and cryptocurrencies.

Without guidance from the Securities Exchange Commission, the token community has been left to regulate itself and scammers have taken advantage of it.

Breitman described the community during its rise last year, “What was surprising to me about the whole ICO phenomenon early last year was actually about the self-policing that the communities were encouraged around. So in January 2017, it was easy to raise capital.”

The ease of raising capital led to scammers. Many people wanted to get into the bitcoin/cryptocurrency market so they would, sometimes, blindly invest in ICOs.

“Companies that are less reputable were suddenly coming out of the woodwork and actually they weren’t even companies, they were a couple of people who stuck together a website,” Vigna said. “You had a situation where people were just throwing together material to sell something to the public and they were selling it to raise money because this thing was so hot.”

Lingham said he was surprised how “gullible” investors were. He noted a token called PonziCoin, which actually described itself as a “the world’s first legitimate Ponzi scheme,” yet raised $250,000.

Lingham also said plagiarism of other ICOs’ business plans has led investors to blindly believe what they see on websites. He said investors need to do their research, as he has been included on a number of companies’ teams, but he has actually never even heard of the company.

He added that the current climate of the market is a “speculative bubble” where people are looking at the projected future profits of tokens, without taking into account that most of these ICOs will fail. Lingham said there will be “lots of failures in the next six to 12 to 18 months.” With these failures, Lingham believes the SEC will become involved, as people don’t complain to the SEC when they make money, they complain when they lose.

Indeed, the SEC has already issued a statement on cryptocurrencies and ICOs, which provided advice to “Main Street” investors and market investors whose actions impact Main Street investors. Some of the questions the SEC suggested investors ask are:

• “Is the product legal?”;
• “Are the trading markets fair?”; and
• “Are there substantial risks of theft or loss, including from hacking?”

Vigna said this was the SEC’s way of trying to figure out where to draw the line on ICOs.

Casey said he feared the shift in SEC policy might hurt the positive aspects tokens have to offer. “I think the SEC was making a much more open, constructive voice when they were saying ‘look we’re going to protect our financial system; we’re going to protect investors, that’s our role.’ I think that they’ve become more draconian.”

Casey was specifically referring to utility tokens, which represent future access to a company’s product or service, and do not act as investments. “I would love to see much more clarity from [the SEC] on where they stand on that issue, particularly so that there’s a roadmap for how these developers can move towards the most important thing.”

Lingham said the clarifying of regulations from the SEC was the ultimate issue. “Right now, we’re in a gray area and we don’t know where we stand as investors, or entrepreneurs… What we really want is clarity and when we get clarity then we can play by the rules, but right now people are stretching the rules to the extreme because of that lack of clarity.”

As to how the SEC can provide clarity, Lingham said the SEC could answer questions such as “What do you define as a security? What is a utility token? If people are going to raise money, how should they do it? What are the terms of engagement?”

Lingham said, “When we have that we can move forward, and until we have that, it’s a guessing game.”