The BTLJ Podcast

The Berkeley Technology and Law Journal Podcast interviews Brian Israel, General Counsel of Planetary Resources, an asteroid mining company.

Brian is an expert in space law, and talks about his work managing the US State Department’s space portfolio as well as space law in private industry.

Origin stories, sacred songs, and other types of sacred traditional knowledge are intangible cultural property belonging to tribes or indigenous people. Intangible cultural property is not merely information–it is essential to tribal way of life. Despite its importance, there are currently no federal laws protecting others from appropriating sacred traditional knowledge.

This type of knowledge should seemingly be protected by intellectual property or cultural property laws. Intellectual property laws offer protection for a limited time for works of authorship or inventions as a way to incentivize creation. Cultural property laws, such as the Native American Graves Protection and Repatriation Act (NAGPRA), offer limited protection for some types of tangible cultural property. Neither IP laws nor NAGPRA protect tribal intangible cultural property. This lack of protection leaves tribal intangible cultural property open to appropriation.

Professor Rebecca Tsosie, Regents Professor of Law at the University of Arizona James E. Rogers College of Law with the Indigenous Peoples Law and Policy (IPLP) Program and Special Advisor to the Vice Provost for Diversity and Inclusion for the University of Arizona, and Chante Westmoreland (JD Candidate ’18) discuss this gap in the law and the harm it perpetuates. Professor Tsosie is one of the leading experts in the field of federal Indian law and tribal law and policy, and has been instrumental in shining a light on the lack of cultural property protection. She joins BTLJ to discuss the harm and complications that come from this lack of protection.

Special thanks to Jacob Metoxen (University of Arizona, JD Candidate ’18) for his assistance with this episode.

When someone purchases a book they have an immediate understanding of what they can do with it. They can loan it, toss it, or resell it. When someone purchases digital media, many are surprised to find out that the same rights don’t apply. Trends in the technology and media landscape have elevated the use of licenses in lieu of outright ownership. What are courts to do when consumers and providers lock horns on this issue? Should courts endorse a concept of digital exhaustion and allow consumers to resell copies of digital works without a need for permission from the copyright owner? Or is that not what the seller bargained for? Lothar Determann, a Berkeley Law professor and Baker & McKenzie partner suggests that the old world may provide solutions. Tony Bedel and Christian Chessman sit down with Lothar to discuss his forthcoming BTLJ article, Digital Exhaustion – New Law from the Old World. We thank Chante Westmoreland and Miranda Rutherford for production help on the episode.

What laws apply in space? Gabriel is an attorney with 11 years of experience in the US State Department’s Office of the Legal Advisor. He works on several issues, including international law and space law. This podcast discusses several hot topics in space law including: privately-funded space exploration, weapons in space, liability issues in space, and the future of space law.

In 2005, the U.S. and Israel allegedly used a computer virus (Stuxnet) to hobble the Iranian nuclear program. The U.S. is believed to operate over 7,362 unmanned aerial systems (UAVs). Many decry Russia’s “weaponization” of the internet and social media to interfere with elections. What’s in store for the future of technology and warfare? How do these weapons change how we think about the costs and benefits of military intervention?

Professor John Yoo recently co-authored a new book: Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War. The book explores how these new weapons change the rules of warfare. Professor Yoo notes that these weapons may become a better solution than other alternatives because new weapons can be more effective and minimize harm. Professor Yoo is currently the Emanuel S. Heller Professor of Law at the University of California, Berkeley. He was also appointed as the Deputy Assistant U.S. Attorney General during the Bush Administration.

How does the law handle the latest video games? Niko Plassaras is a litigation associate at Fenwick & West, LLP. His practice focuses on intellectual property litigation and counseling. Niko works closely with video game clients. This practice area requires attorneys to confront intellectual property issues that are unique to video games. For example, which aspects of a game are protected by copyright, patent, trademark or something else? How do video game creators use the law to keep games interesting? Do those click-wrap agreements matter? To find out, listen to this conversation about Niko’s study of how the law and video games intersect and what new lawyers need to consider.

Matt Caplan, a partner at Cooley LLP, and our hosts (Tony Bedel ’18 and Chante Eliaszadeh ’20) discuss how to protect intellectual property with trade secrets. Matt explains how trade secrets are an essential tool for startups and new ventures. The podcast also explores the recent Waymo v. Uber trade secret litigation.

Can a robot get a copyright for its works? If not who owns the property? It would have been difficult for our constitutional framers to envision the rise of artificial intelligence (AI) and machine learning. AI and machine

learning are already creating valuable properties, but how to protect those properties requires careful planning because they do not fit well into our current intellectual property (IP) regimes. Hosts Tony Bedel and Chante Westmoreland (JD Candidates ’18) discuss with White & Case Partner Carrie LeRoy these conflicts. Special thanks to the Berkeley Center for Law and Technology for putting us in touch.

Special Thanks to the Berkeley Law chapter of the American Constitution Society for Law and Policy for assistance with this podcast episode!

Simon Tam found himself at the Supreme Court because of his rock band’s name: “the Slants.” Simon and his band mates chose the name as a way to reclaim a racial slur. The band members, including Simon, are of Asian descent, and wanted to use the name to reframe cultural identities and fight stereotypes. But when the band attempted to get a registered trademark from the federal government, their application was rejected for being offensive. So Simon went to court, and fought it all the way to the Supreme Court, where finally he prevailed. All nine justices supported his argument! See Matal v. Tam, 137 S. Ct. 1744 (2017).

In this podcast, Tony and Chante (JD Candidates ’18) discuss why Simon Tam found himself in the Supreme Court to defend his “offensive” trademark. The group discusses trademark laws’s defunct non-disparagement prohibition and why it failed to advance the plight of minority groups.

Tony Bedel & Chante Westmoreland (JD Candidates ’18) interview Daphne Keller, Director of Intermediary Liability at the Center for Internet and Society at Stanford Law School. This discussion focuses on Europe’s new privacy regime, the General Data Protection Regulation (GDPR) and the right to be forgotten. Under the GDPR companies around the world will be required to keep data private, but how companies should comply with the right for individuals to delist information is less clear. The fast-approaching GDPR implementation date (May 25, 2018) behooves the discussion. Production help from Liz Freeman Rosenzweig (JD Candidate ’20).