Gordon Firemark is an entertainment and media lawyer — this interview has been lightly edited for style and readability
This interview is from the Podnews Weekly Review
Sam Sethi: Gordon Firemark is known as the Podcast Lawyer. How did you get that name?
Gordon Firemark: I was a lawyer first, and as I was getting into marketing my practice and being a bit of a geek, I was following Leo Laporte when he left television and went and started the TWiT Network. And I thought, That’s cool, maybe that’s something I can do. And having had a background as a sound engineer before I became a lawyer, I thought, okay, I can make this work. I started my own podcast after having been a guest on a couple of other shows. I sat down and I wrote a book called The Podcast, Blog and New Media Producers Legal Survival Guide. And when you write a book that makes you the expert - certainly more than anybody who hasn’t written a book. A few people started introducing me as the “podcast lawyer”, and I embraced it and decided, okay, this is my brand.
SS: Why do we need a podcast lawyer?
GF: Making podcasts is creating media content, and there are rules and laws around how we go about doing that. And it’s not just copyright, although that is a big factor. What can you use? How do you protect what you’ve created? There’s also podcast titles as brands; so we look into trademark registration and protection.
Content creators sometimes talk about other people. And if you say something that’s false and it hurts their reputation, now you’ve got a possible defamation libel case. We have invasions of privacy.
There are deals between the members of a podcast team. Marriages don’t always work, and neither do business partnerships in relationships. So a lot of what I do is help clients to either structure those relationships at the beginning, or help them negotiate the outcome when things start to go wrong.
So it’s like any business, there is a need for lawyers for some, and not for all. I think that this is an area where the barriers to entry are so low that it’s easy for people to come in and not having ever given any thought to these legal frameworks. And so I view part of my job as educating folks.
SS: Recently, someone at Microsoft claimed that anything on the internet is free use and can be copied.
GF: I find it hard to believe that he is as willfully ignorant as he seems in that story. It’s just preposterous for him to suggest that by posting something on the Web or on the Internet, you’ve created a social contract that says, go ahead, use my stuff. If that was the case, then every single piece of Microsoft software that I could possibly find on the Web, what you just told me, I can use it freely. I don’t have to pay for it.
SS: Are people asking you how they can protect their audio from AI companies like OpenAI, and Microsoft and Google?
GF: We don’t have to take any affirmative step to to protect against these things. It’s incumbent on the users to come and ask for the permission if we don’t have a publicly available license that’s out there for people to look at.
I think there are a number of technological solutions that should be implemented. Some have been invented and some haven’t yet, but one of them is as simple as the robots.txt text file that is on your web server that says to the crawlers of the world, don’t index this page, don look at this or don’t access this page. The trouble is, it only works if people adhere to the protocol. And there’s no law that says you must follow robot.txt instructions.
It wouldn’t hurt, I think, to just put on your website header or footer or somewhere. This content is protected. All rights reserved. Not available for AI. At least you can say you warned them. Whether that has any legal effect is hard to say.
I think there are about 40 lawsuits going on against the AI companies currently that are asking this question. Is it fair use or not? When we use this stuff to train? Because the AI companies take the view that this is not copying, all we’re doing is really just consuming. I think a lot of that depends on how the AI training technology really works and maybe a little adjustment of the definition of what’s a copy, what’s a performance, those kinds of things.
SS: Where’s the legal precedent? I clearly shouldn’t be allowed to take that original content, should I?
GF: There is some case law that suggests that capturing bits of information from sources on the web may be fair use. But you publish the result, you have now used the AI technology to create a new work, a derivative work based on those other things that you’ve incorporated. And that’s again, the exclusive purview of a copyright owner.
I love the idea of using AI for my own consumption - “here are the five websites I read each day, give me a morning summary” or something like that. Technically, it’s probably still an infringement, but I’m one consumer - there’s no real harm. As soon as it becomes more widely public, that is a harm. And if you get millions of consumers doing the same thing, we’re taking away the ad views on those websites.
SS: If people want to find you, where would they go?
GF: My website is probably the hub of things; or there’s the law firm’s website. And you can find me on YouTube and most of the social media channels.