David Case knows about which he speaks. To say that David has a wealth of international, cross-border legal expertise would be an egregious understatement.  As the Founding Attorney at Asia Pacific Advisory, David primarily advises and assists clients in Asia and the U.S. with their venture capital, intellectual property, and commercial transactions.
 
Some of the topics David discussed:
  • Growing up in Silicon Valley
  • The intersection of technology and the law
  • How the law is flexible enough to handle technological change
  • The experience of working as a lawyer in Japan for more than 2 decades
  • The power of fluency in written and spoken Japanese
  • NFTs as a legal framework and an economic paradigm
  • Creating a metaverse with laws
Some other titles we considered for this episode:
  1. It’s Hard to Find a Good Attorney
  2. The Law Is Not Simple, It’s Just Flexible
  3. There Are Going to Be Two Worlds for Sure
  4. Everything Was Just Beginning With the Computer Revolution
This episode was produced by Isabelle Goh.

Read the best-effort transcript below (This technology is still not as good as they say it is…):

Michael Waitze 0:31
Hi, this is Michael Waitze. And welcome back to the Asia Tech Podcast. You know, I don’t know what we’re gonna get today. But who cares? I’m here with David Case. And David, where are you from? Originally?

David Case 0:41
I’m originally from the United States. I was born in New York, lived eight years in Southern Ohio. And then in ’77, we moved to Silicon Valley. And I grew up in Saratoga and then lived in the Bay Area until moving to Japan. It’s almost unfair that you grew up in Silicon Valley. I grew up in Silicon Valley before there were sidewalks. Apple Computer was only just getting started. So HP was a thing. Of course, Stanford was a thing, but it was 1977. So everything was just beginning with the computer revolution.

Michael Waitze 1:06
But 1977 means Apple was kind of a thing. Yeah, we knew about Apple.

David Case 1:10
And we had friends who worked for Apple, one of my aunts was like a secretary to Steve Jobs. And I had an Apple computer, Apple two plus and Apple two plus, yeah, what two, five and a quarter inch floppy drives five and

Michael Waitze 1:22
a quarter inch floppies. I was having a conversation with I think the guy at DocuSign yesterday, and he was talking about the five and a quarter inch floppies. Those are great to go back and forth. Did you ever have a Bernoulli? Box? No, I did not. Oh my god, you should look it up. We’ll look it up when we’re done talking today. But we had Bernoulli is at Morgan Stanley. They were big. There was a reason why they called him a Bernoulli box. It was huge. So it probably didn’t have more than a megabyte of storage on it. But a megabyte of storage in 1984 was a lot of storage. That

David Case 1:52
was a lot of storage. Yeah, so primarily, it was a game device. You know, the Apple two plus. I mean, I think my father tried to do his taxes one year on it, like VisiCalc, I think was the original. But otherwise, it was Castle Wolfenstein and Apple Castle Castle Wolfenstein? Yeah. In the original so the green lines like the old tank battle it have so it’s that green line, level of detail in the artwork, and I couldn’t get past the first store. I couldn’t figure it out how to

Michael Waitze 2:18
think I was I was never into computer games. I don’t know, but always into computers. I mean, my life changed when I was a junior in college. And I literally saw somebody carrying around probably a Macintosh to SAE like I don’t remember what it was. Because I used never used to write my papers like in advance. When I was in college. I used to write them kind of the last night because I felt inspired. Like the pressure inspired me to write what I consider to be great stuff was write terrible. But that meant that like if you had a typewriter, which I did have, you know, if you messed up page four,

David Case 2:54
you know, white out was one of the electric typewriters from IBM but was probably an Osborn. I mean, if somebody was carrying around when you were in college was probably I mean, it’s a steal thing would have been those match was a Mac it was a Mac. That’s interesting. Yeah. Because my

Michael Waitze 3:06
roommate, this is just a couple years earlier, my roommate had one of the first compacts. Okay. Remember, they called them compact because they were small. Right? But this thing was huge. That was a suitcase.

David Case 3:15
And that yeah, that’s the one with this keyboard popped out of the front. Yeah, I had I had a counterfeit one in Silicon Valley. I mean, they would just make them pump them. They would just pump them out right there. And I drove down to one of those strip malls in Milpitas in Mountain View somewhere, and just picked my phone bought it ahead of time when I was when I picked it up. But it was that large compact and popped out and you had a yellow screen, and then two floppy drives on the right hand side or something. Yeah, yeah, I remember Turbo Pascal. Do you write code? No, not then. And I had a friend in high school whose name was Pascal. That’s it. I bribed a fellow student to do. And she was very good at it.

Michael Waitze 3:58
I love it. I love it. So like I have this idea. And you have this idea to write if you think about it scale, like what business is about today. Right? What is it? It’s some kind of money, right? Whether it’s fundraising accounting, how fast you growing all this kind of stuff, right? Obviously, technology. You’re from Silicon Valley, you get it. And you’ve gotten it since the early set. Well, the mid to late 70s. Yeah. What else? Is there networking?

David Case 4:25
Yeah, networking companies. Yeah. And then creating an ecosystem. And then building is getting larger and larger, given what

Michael Waitze 4:32
governs all that. Technology and the law and the law, right? So every time somebody writes a shareholder agreement, right, every time somebody writes any kind of contract, and now there are smart contracts as well, I mean, everything that has to do anything with startups and technology and venture capital, you can’t get away from the legal representation. You need to do this the right way. And one of the worst things and this is what VCs tell startups all the time that you can do is not have your legal docs in order, right, right. So there’s no place you can go inside the startup ecosystem. and where the law doesn’t matter.

David Case 5:01
Yeah, that’s right, either. If you’re drafting code writing software,

Michael Waitze 5:05
sure. Open Source, even open source stuff. Yeah, go ahead.

David Case 5:08
Yeah, open source software, there’s a lot of different licenses, very many different ways to comply with those licenses. And if you don’t comply, and you just kind of muddle it all together, you end up with a bunch of code that you’re not complying the license with.

Michael Waitze 5:20
Right. So my feeling on this is that I think that there’s a big audience out there. And again, you tell me where I’m wrong. But I think there’s a big audience out there for people that have heard enough about the finance side of this not enough because it’s an evolving story, right? Our have an endless need to hear about the technology side of it, because it’s always changing, right? I mean, two years ago, no one was talking about the metaverse or NF T’s right, even though the technology that drives that was probably there. Right. And there’s some questions around what that really is, and the other parts of the startup ecosystem, but there’s nobody out there talking about the law. Like I want to know more. And I think everybody out there wants to know more about this, because no one’s talking about it. Does that make sense? So go ahead.

David Case 6:01
No, I think so. And along those same lines, you know, surprisingly, though, America is flooded with attorneys, it’s hard to find a good attorney, just like it’s hard to find a good accountant. There’s lots of people who have a law license, but they don’t all have the same skill set. And they may not have the skill set that’s relevant to a startup company. So startup companies never know where to look. Right. And so they end up having problems, and then those problems come back to bite them later on.

Michael Waitze 6:24
Yeah, I mean, look, when you were a kid, everybody played baseball, too. But not that no, but almost 0% of them could get into the major leagues. That’s right. In my mind, this is the same with everything. Right? No matter what job you have, there are 10 million other people that are trying to do it. Let’s be honest about it. Most of them, yeah, most of them are not very good. Yeah, use a nicer word that I was going to use. But they’re not that good. But the idea is, if you can find somebody great, you should stay with them. Right? But But think about this to the right, if it’s hard for someone who needs to find good legal representation needs to find a good lawyer, then if they need to find a good lawyer, or someone who just understands what the law means in the context of what they’re trying to do, which is a different thing altogether, right? In a specific vertical.

David Case 7:10
Right, right.

Michael Waitze 7:11
Like you can be a personal injury lawyer, or you can be a startup lawyer. And those two guys can’t talk to each other. Right? I mean, they can a little bit because they both went to law school, but they don’t know the same things. Yes, exactly. Right. Right. Yeah. So I think there’s a big conversation I have about this. And it’s not local. Sorry, go ahead. I was gonna

David Case 7:29
say, and I think it affects all all startup companies, and also the VC, you know, the investor side as well. Because even if the laws are different, let’s say between the US and Japan and everywhere else, the issues are effectively the same. You’re set up a corporation, you’ve got certain procedures need to follow, you’ve got shareholders shareholders have certain rights, you have a board board has certain rights as to make decisions, particular way. You You’re making a product, you’re going to be using third party software, making your own software, open source software, you’re going to be connecting into some financial system that you’re going to need some sort of broker dealer license, money transfer license. So the issues are really the same. The laws might be different. Thailand is going to have a different law for money, senders or transmitters in the United States, but they both have one. And you’re going to need to comply. So building out your product, there’s compliance issues, there’s all kinds of things. So

Michael Waitze 8:16
you worked in Japan, eu said, yeah. How does it work

David Case 8:19
that what you end up being as a foreigner, I’m a registered foreign attorney. So it’s pretty much just a registration process. There’s no testing of all because what they’re saying is, you are allowed to practice New York law in Japan, for Japanese clients.

Michael Waitze 8:37
So does that mean that you should just keep banging the table? It sounds good. So does that mean though, that when you’re there, you’re practicing for Japanese clients that are trying to do transactions in New York,

David Case 8:52
in principle, that’s how they tried to create this registration system. So technically, you’re only supposed to be practicing the law of your home jurisdiction. But meaning where you pass the ball? Yeah, where you are, you’ve passed the bar, but okay, even within the United States, if you’re a New York lawyer, it doesn’t mean that if a client puts a California law contract in front of you, you you can’t touch it. What’s the what does it mean? Exactly? So the the American Bar Association, their their position is that if you’re a New York attorney, and a client gives you a California law, contract, it’s on you to get it right. You can certainly advise them on it. If there’s an issue that you don’t understand, and you need to check on California law, they advise you to check with a California Attorney, but you’re not required.

Michael Waitze 9:32
So it’s okay. But it’s not like being a doctor in the sense that like, you simply cannot perform neurosurgery. Yeah, that’s right. Unless you’re a neurosurgeon.

David Case 9:40
Now, if you’re a New York attorney, you cannot live in California and practice New York law.

Michael Waitze 9:45
You can’t wait seconds. You can’t practice New York law from California.

David Case 9:48
What if I was living in one minute in both but let’s say if you pass the bar in New York, you can’t live in California and practice law, but you can live in Tokyo and be registered. You have to get registered now. California doesn’t have a do they know they they the only out of state lawyer registration system they have and what’s a for California is for people who are in house. So let’s say you’re a New York lawyer, you get hired by a California company. Now the Facebook home offices, they don’t make you go and pass the California Bar. But you’re registered as in house counsel, which is kind of its own little category. And there, you can do what you’re doing. But you can’t. You can’t be a New York attorney in California practicing New York law.

Michael Waitze 10:29
I love the minutiae involved in all these different things, right. In other words, it’s so funny, right? Like, even if you know a lawyer, you don’t really know anything about being a lawyer. Like nothing, not you don’t, of course, you are a lawyer, but I don’t know anything

David Case 10:41
about it. Well, they’re trying to change it was particularly because of COVID because everybody was now working from home and remotely and everything else. There’s a number of states and the ABA is trying to push this through. It’s not quite finalized. And we’re still probably number of years off. And it would be that you so long as you’re not practicing local law, as long as so long as you’re not practicing local law, let’s say in California, right. You can be in New York attorney resident in California. Okay. Doing New York law matters. Got it. But you can’t do California law, man.

Michael Waitze 11:07
So let me ask you this. You were in. You pass the bar in New York. Yep. So you were What did you call it not a given what is that thing called? New York attorney? Yeah, no, I know that. But you said you pass the bar admitted. Yes, sir. So

David Case 11:20
you were admitted to the bar in New York. Right. And then you went to Tokyo on practice? went to Tokyo for a long time. No. Yeah. Yeah. 17 years. As an attorney. Yeah. 17 years and attorney in Tokyo.

Michael Waitze 11:29
Wow. That’s a long time. But then you went back to California, where you originally kind of from right, did you pass the bar?

David Case 11:36
Oh, I had to sit for a bar again. In California. Yeah. So for some states, they don’t require you to take the bar. But California does because they don’t grandfather you in they don’t grandfather you and so I had to crack the book open. Like 20 some odd years. I took the last borings first bar exam in 1998. The next one was 2019. I guess it would have been and you crack the Barbary book I just bought on Amazon have a huge set of Barbary books. And you open up property and you read it and you go, Oh, my, I think my head’s going to explode. So you can’t it’s kind of like not having exercised a muscle for so long that all of a sudden we start throwing a baseball, right? Try to throw a baseball after having not thrown a baseball for 30 years, right. And so it’s so it was like an hour every day in two hours every day and you kind of build your mental capacity up.

Michael Waitze 12:19
But there’s got to be a huge benefit, actually to passing the bar in New York, and passing the bar in California.

David Case 12:24
Yeah, it is good. I mean, it’s, it’s a great boost to my practice, because I’m living in California now. And I can help all the California companies even though oddly enough, in the venture capital space, most of the contracts are governed by Delaware law. I forgot about that. And I’d have to go and sit for the Delaware.

Michael Waitze 12:39
But what does that mean that what does that mean? And so if you’re advising a startup in California, that’s incorporated in Delaware. Right, right. For all the benefits that are there, which we don’t have to talk about. You can still do that law can still do that. But again, it’s on the attorney to get it right. But nobody cares in California. I mean, they care, right. But the law in Delaware, as I understand it is also is it simplified in a way that makes it because everything else about Delaware is easy. Taxes are low, and corporations cheap. All that stuff simplified. Is the law simplified as well, the law

David Case 13:06
is not simplified so much as it’s flexible. So they a lot, they give the companies a lot of flexibility to arrange their affairs and hold their board meetings and do all that. All the administrative things that they need to do. But it’s not simple. It’s just flexible.

Michael Waitze 13:19
Got it? Yeah. And I mean, I guess a Flex is flexibility can either add complexity and give you a lot of options? Yeah, fair enough. Fair enough. So do you do a lot of cross border stuff? In other words, you’re in Japan for the longest time, right? 17 years? Not small. I was there for 22. So same, same thing. What

David Case 13:38
do you do? I was I had an earlier life in Japan as well, for five years in business you when I was 17. I was an attorney. Darn it.

Michael Waitze 13:48
I thought I had you there. But that means now that you’ve done law in Asia for years, because my presumption is if you were sitting in Japan doing well for Japanese companies, not just towards New York, but to the rest of the universe as well, right?

David Case 14:02
Yeah. Particularly when I started in Japan, there was a lot of inbound work into Japan, Japan had old non performing loans that they were trying to sell off, he had excess capacity. So this is 2000 to 2003, four and five. And there was a lot of US and European companies coming into Japan. So as an associate, most of the work I did was probably Jap Japanese law. I wasn’t practicing New York law hardly at all even more interesting. Do you speak Japanese? Yeah, I’m fluent in Japanese and also read Japanese. And so I would work with the bingo she kind of together as a team got it. But you know, talk about simple laws. Japanese laws are pretty simple. You know, the tax code. tax codes in every country are complicated. I’m not doing tax work. But if you look at just basic contract law in Japan, basic corporate law in Japan, employment law in Japan, there’s not a lot of difference. And there’s far less complexity than the US because one, we’re so overrun with attorneys that even our right we have regulations on top of regulations. And Japan doesn’t have that they have the law and they’ve got some guidance. And the law is usually written in a very simple way contracts are very, very simply written or they’re in Japan. Very easy to read the key. Okay, so we’ve got a master contract for distribution arrangements is really simple America because there’s so much litigation, you’ve got to include a complicated indemnity and that how’s the indemnity get triggered? And then how, who gets to take over? And what if you don’t? So we add in a lot of complexity into our contracts that we’re trying to address case law. But what does that mean,

Michael Waitze 15:19
then? As an admitted lawyer in New York and in California, who’s practiced in Japan, a lot of that business was inbound, you said, No, I was inbound, inbound, inbound, and then it was outbound. But I mean, it’s almost like you’ve been working all over the world for the past 25 years. Right. But then if that’s the case, right? How do you take all of that stuff because the world has changed? I mean, for God’s sakes, in our lives, the world has changed ridiculously. And it’s changing even faster. And I feel like it’s accelerating, right? I mean, like, three years ago, we weren’t talking about NF T’s in the metaverse, right? We just weren’t. And even if we were talking about Bitcoin and Aetherium, we weren’t talking about in the same way we are today on in this context. Yeah, no way. And so now everything is even more complicated, right? Because now I don’t just have a startup that needs to have shareholder agreements, and other documents associated with company formation. But now we need to understand how smart contracts work, and how this entire universe of things that doesn’t exist in the physical world is not just going to be governed, but potentially litigated and just what are the legal frameworks around that? Right. And in a way, it’s kind of cool, like, do you feel? And I don’t know the answer to this right. But do you feel like all of that law now needs to be developed as well? Or is it just going to mirror the law that was we analog,

David Case 16:34
this has been cyclical, when the internet first started, there was a group of people who said all we need all new laws. Now. They’re never, it’s not robust enough for the internet. And we didn’t really need to change all that many laws are the first internet and you know, 100 years ago, give you more than 100 years ago, when the night 1905 Copyright Act was enacted. We didn’t have television and radio, all we had was some role, pianos, you know, the piano going on, we’re on the big rolls. And then that copyright law stayed with us for 70 plus years, even though during those seven years, we got movies, radio, television, all that kind of stuff. So the law is is flexible enough to handle lots of technological change. Now, we’ve gotten to the point 1975, that okay, we’ve got to upgrade the Copyright Act we’re about to so we got the 1970s Copyright Act, and we did it again, when we acceded to the Berne Convention, but, you know, the laws are really are all there. And courts have a way of dealing with them? You know, is it particularly for the Sabre companies perspective? Are you a shareholder, if you’re a shareholder, you have certain moral rights baked into the corporate company laws, right, you know, various countries, you might have a shareholder agreement, you know, and then if, as a shareholder agreement, okay, now you have a contractual rights that’s separate from your right as a shareholder. And the court would just look at the two and let’s say, for a dowel company, the DA, O, where you’re issuing these tokens, and now everybody has a right to vote on things, akin to a shear. Okay, is that a contractual right? Or is that a shear? And then you would look back at the statute for the state? And you’d say, well, they don’t recognize electronic

Michael Waitze 18:11
shear, you make a really good point. And I’m glad you brought up dad’s right. What is it distributed autonomous organizations, it sounds like really fancy and something that only like what exists in Tron if you know, right. But you know what I mean, right? This whole room should just be the green grid or something like that. But the reality is that a Dow is not that much different in practice than it is to an analog organization that’s offline, right? And I remember having a conversation about the metaverse with someone and they were like, Yeah, we’re gonna have a sub Dow in Southeast Asia, and I was like, sub Dow. It’s not just like a franchise. And they were like, well, yeah, maybe, but we call it a sub Dow. Like, okay, but if that’s the case, this, I think supports what you were saying, which is that we don’t need laws, new laws that govern sub doubts, because we have franchise law. Right. And as long as there’s an agreement globally about what that franchise law means, because it’s different, as you said, in the United States, and in Japan, and in Singapore, wherever, right? We’ve already had those discussions,

David Case 19:05
right? Yeah. And oftentimes the people who are, let’s say, doing the sub now we’re getting into those areas, they don’t realize that those laws already exist. Well, they’ve never gone and read the definition of what is a franchise, right? So in this franchise laws, there would be a definition, and it’s not something like, Well, if you have a Wendy’s, you’re a franchise, I wish the person who’s offering some sort of business in a systematic way. Right, right, Randy, and there’s no there’s gonna be a definition, right. And if you fall within the definition, the law applies, right. So he was dead or not.

Michael Waitze 19:30
So this is the point that I was making to this person because I feel like people in the metaverse besides always being late. Like I don’t understand this, right. Like I do all these podcasts and the only people that are late to their recordings are people that exist in the metaverse. Okay. How can their people be late if there’s no traffic? You’re laughing but you know what I mean, right? I don’t understand it.

David Case 19:52
They’re trying to regenerate themselves, like Star Trek themselves out of the metaverse to

Michael Waitze 19:58
get back into the regular world. And don’t get me wrong. If the world is separate into Metaverse, believers and non believers, I’m deeply a believer. I like to make fun of people there. Because I think in some ways they take themselves way too seriously.

David Case 20:13
Well, there’s gonna be two worlds for sure, more than two, but go ahead and people are gonna live it out. Yeah, speaking broadly, but you know, there’ll be living in both of them. And they’re going to have to think about what they’re doing in each of those worlds. So for example, an NF t, you know, it could be associated with a digital image. Yeah. And you could use that digital image in your metaverse. But at the same time, you that NFT can be connected to some sort of collectible that a physical, there’s a physical collectible or sports memorabilia, and you’re going to have to also then deal with the physical product.

Michael Waitze 20:45
So I don’t want to have a full conversation on this. But I think it introduces a really good topic, right? And I think that I was talking to Robbie young, who’s the CEO of Animoca brands about this. I think it was him. And this was the question, right? It’s like, Isn’t NF? T. A new economic was the metaverse itself like a new economic paradigm? Or is it a new legal framework? Or is it a combination of both? And are people that are existing in the metaverse and trying to create new economic models? Forgetting about the existing legal frameworks there? Right. So I think there’s an entire conversation to have around, you know, not just about two guys joking about franchise law probably is applicable to sub Dows. Right. But just that the law itself, that exists like, just like you said, just like the 1905 Copyright Act, still was valid for because it didn’t just say things like, for the piano for the rolling piano, just like for the franchise, where it doesn’t say just about Wendy’s and McDonald’s. It talks about the relationships between things that even in 1976, were up until 1975. It was good enough for television, radio, movies, newspapers, some kind of digital printing. Right, right. So we’re not 75 years into the metaverse yet. Right. So maybe all these laws don’t need to change with this again, during conversation around it. Sorry.

David Case 22:00
No, no, definitely. I mean, we should go back and dust off the second life litigations, because there’s a lot of similarities there. Second Life had a lot of litigations within the, their own universe, you know, is this do the physical laws apply to Second Life? Or is it purely a contractual relationship? You know, the terms and conditions? Right, right, right. So all of your rights are governed by that contract, you know, that we had the lindens, you know, the the virtual currency inside Second Life. And then we used to get real money trading people trying to sell those coins that they would get in games that they would be able to use to go buy virtual swords and whatever. And then that was getting shut down. So they said, Okay, fine, we’ll come up with crypto. So crypto became, you know, became that tender. Instead of the, the, the tokens you get inside the game,

Michael Waitze 22:44
right. So is, and the real question, I think, in today’s world is is the, or the SLPs. And xe infinity, right, created through yield Gill games, any different than the lindens that were in Second Life?

David Case 22:55
Right. Right. Right. And when you know, authorities look at it. So the SEC, I mean, they don’t care whether it’s digital or physical, they’re gonna look at it and say, okay, is this a security? Or is this a commodity? Right? And if it’s a commodity, they got it in Chicago, it’s a security, they got it in New York and DC. And if you’re neither, then they let you they give you a pass until they figure something else out. And that’s kind of where NF T’s are right now. So,

Michael Waitze 23:21
again, I don’t have the answers to all these questions. And I don’t even think we have time to dig into every single topic. But I think we can have discussions, like in a way, right? We don’t want to talk any more about SimCity or Second Life. And we’ve the world has spent a ton of time talking talking about xe infinity. But what’s happening inside Metaverse is and we can use the sandbox as an example of this is companies like KPMG or PWC. are putting in quotes like buying land their right to prepare for life in the metaverse or even just to test life in the metaverse. I mean, to be fair, in a way, it’s like, let’s just go to the moon and see what’s there. We don’t know what’s there. We may build a colony, we may not build a colony. But let’s put a flag up there anyway, right and see what happens. But I think once that does start to happen, I think the digital world is very different than the world in space, right? Because we can create it. But at some level, the law has to be tested around all of these new companies. And I think a lot of the conversations around it. We don’t know what the answers are yet. But I think there’s got to be a really interesting conversation to have about all this right. In other words, I’ve had a ton of conversations about the metaphors. But I’m not a lawyer. Sorry, I interrupted you. No,

David Case 24:34
no, no, I’m going to say how the laws might apply to the metaverse of the physical world. Two areas. Two key areas of the law, one contractual law, contract law contracts and then the other one is tort. So both of those, what’s tort law tort is where you’re driving in a car and somebody rams you or you’re driving your bicycle and a car runs you over. So tort law is where you’ve been physically injured by the carelessness of somebody else.

Michael Waitze 25:01
That’s it. So it’s just physical injury. Well,

David Case 25:05
injury, but typically it’s a physical injury. So in the physical world, so when we look at it setting aside the metaverse for a moment, tort law is you could get punched or you know, attacked or hit or somebody was driving their car negligently and ran into you. So there’s usually has to be some physical injury. But then later on over time, they also associated mental injuries. So extreme emotional distress was recognized as an injury, it wasn’t always recognized an injury and at some states to have your emotional distress recognized as an injury, you also have to have a physical, your arm has to be broken, your arm has to be broken. And then every day you you’re scared about the because you can’t play baseball, gambling, baseball, you remember in the crash. So we’ve got towards so they look at the injury as a, you know, the damage as some sort of physical damage, right contracts, to bring a cause of action for breach of contract, you have to have damage, you have to have damages, actual damages, you just can’t bring the breach of contract, claim and not have any damages. So if you

Michael Waitze 26:01
see, so if you violate a contract, right, but there’s no real damage.

David Case 26:06
There’s, there’s no way to bring there’s no recovery. Because they can’t do anything other than you can maybe get an injunction maybe you can get them to stop doing something.

Michael Waitze 26:18
Kind of I’m just running through my mind. Is that possible to have a contract where one side violates that contract? It doesn’t meet the contract? And their actual provable damages, but not really, I guess so. Yeah, there

David Case 26:28
wouldn’t be any for whatever reason. So circumstances might change. There’s no provable damages. So for example, I don’t know of a coastal owner supposed to supply a commodity, right? And they did or didn’t in the price, there were some huge price fluctuations such that the person the aggrieved party ended up actually now doubling their profits because they, we have for whatever reason they had it or didn’t have it or something like that. But with the injury, so you know, the law then would have to account for a digital injury. So if you’re in the metaverse and somebody’s avatar comes up and smack you upside the head. You don’t have do you have an injury? So there’s no physical injury? Because it’s in the metaverse. So then you might argue, okay, well, here’s some sort of defamatory sort of thing, because everyone saw me get slapped, and I was hurt my reputation. So you go under some tort claim like that, right, which we also then have in the physical world, of course, and so then, then you have to prove that okay, what avatars around you at the time in the middle of saw that? Or if you have a breach of contract claim, okay. So you lost how many of the tokens and you if you didn’t get the tokens you were supposed to get in the metaverse, that would be damages, because the tokens being what they’re worth, that’s what they’re worth. But you could make a claim for that probably,

Michael Waitze 27:38
I guess, unless they went down in value. And they got them later. Right. But so do you think that and just to get back to this conversation we’re having before you’ve been you passed the bar in New York, you passed the bar in California? I’m sure they have a bar exam and Kansas, in Florida, wherever. Do you think you’ll have to pass the bar in the metaverse and because we have, like you could literally leave here right now. Go back to where you’re staying, and create David’s Metaverse, right and start selling land. They’re creating infrastructure. They’re doing all of that. There’s nothing to stop you from doing that, except some kind of technical knowledge. Well, really listen to you. But you know what I mean, you could do it, right? Like there’s nothing that says that you can’t have a competing Metaverse to sandboxes Metaverse, right, right. They built it and maybe they’re complying with a bunch of different laws, you could do the same thing. But then do you get to create a legal infrastructure inside of that as well. But then if I want to practice law, because think about this, if I can have an avatar in the metaverse, right, and we’re not gonna have all the answers to these questions, but I just want to put it out there so people can think about it. If I can have an avatar in the metaverse, well, then I have an identity the metaphors. If I have an identity and if it looks like a physical identity, well, then I need to be dressed. And I don’t want to wear the same clothes every day. And the metaphor it’s the same way. I don’t want to wear the same clothes every day in the regular universe. Right? Maybe my sneaks wear out because maybe that’s the way I build a business. Maybe I do like Nike for the metaverse, I call it Nike verse. And after four years, if I’ve been using them, they just wear out. And then I’ve got to make better but then I’ve got to make new ones. So I built an entire business around clothing, people in the metaverse. But let’s say the let’s say the contract that I signed with you. So the smart contract that I signed with you says that if I buy my sneakers on April 2 2022, that they’re guaranteed to last until 2026. Right? But I lose them or they get stolen or something and it’s in a contract right that I have with you. So I have an insurance thing that set up with my smart contract that says if they get stolen or I get hacked, right, I get some kind of parametric insurance payment, right? But all these things have laws and regulations and infrastructure around them. But for that to be the case in the same way that you need to understand the law you’re practicing in New York, which is why you pass the bar right because you can’t just go like I got to worry about it. You need to know, right? That’s what the bar is right? Well, we create new things in the metaverse as well, depending on where we’re existing there and what our roles are. And then will you have to pass that bar too?

David Case 30:16
I think so. And as you mentioned that I think the way would work is the organizer of the particular Metaverse terms and conditions. And, you know, internationally, we have, of course, arbitration, we have arbitration, United States, but the main where arbitration came from is you go back again, 100, some odd years, and countries would enter into treaties, you know, trade treaties with each other America would go to these, you know, countries and impose trade terms on them, and then negotiate the the US companies or European companies, and during this during this call at the end of the colonial periods, right, so they were letting some of these colonies go free. And we’re now going to do more trade, but the companies, US companies, European companies said, I’m not going to subject myself to the courts of Japan, or Taiwan or some of these other places, we need to have a separate, neutral forum. So this is the same thing, sorry. So that we can we’re gonna end where we can resolve all these disputes, and that was the birth of arbitration. So the the young attorneys were working on all these treaties during the late 1800s and early 1900s. They said, Oh, international commerce, we’re going to do international arbitration that came up with the New York convention, we’d signed out in the 1940s. Go ahead, go, I believe, and so you have these neutral forums, and they’re purely contractual based. So when you have an agreement to arbitrate, you’re effectively saying I’m giving up my right to go litigate, and contractually, you’re obligating yourself to arbitrate. So if you were in any particular Metaverse, the organizer that Metaverse as part of their terms and conditions could also put in there that you’re going to arbitrate everything within the context of their arbitration rules. And then you could have attorneys write the metaverse then could approve attorneys who familiarize themselves with those arbitration rules the same way that you know, I’m registered with the Japan commercial arbitration, right. So at the Singapore mediation society, and I had to go through training, and that’s how I got registered. So you could do something very similar. So this

Michael Waitze 32:11
again, gets back to this idea and this conversation we’re having earlier, and you saw me just looking something up. So I remember I was just like tooling around YouTube years ago. And I ran into this video that was called everything’s a remix. And I don’t think it’s this guy, Kirby Ferguson, because I think he had a different name, but this guy did this whole video on you know, if you take Stairway to Heaven, it’s really based on something and I’m making it up yet like Muddy Waters did or something from like 30 years prior, and that they took whatever that lick was, and then built this other song around it. And then if you look at Star Wars, and the scene in like the Falcon, I can’t remember what its name is where Harrison Ford is doing something. It’s a complete remix of some other scene, probably

David Case 32:51
like John Wayne movie where you stagecoach same thing. Yeah, he goes underneath it, and he’s on with his whip tied to the stagecoach. And he comes underneath it same as Harrison Ford did, yeah, in

Michael Waitze 32:59
Raiders, Raiders Lost Ark. So the idea is that everything’s a remix. And like you said before, the law already exists. And arbitration is maybe a metaphor for the metaverse because you have all these differing jurisdictions, they have to meet somewhere in the middle and say, okay, look, all that law exists. But we’re not inside that law. We’re in this new place. And if we’re in this new place, why don’t we resolve this, right? So that’s maybe what’s going to happen in

David Case 33:29
terms of conditions, you would bind them to the arbitration procedures at the metaverse companies come up with now people, there’s real people, so they’re gonna maybe have to still meet in the hotel room somewhere. But you could theoretically do it with everybody’s avatar inside the metaverse as well. There’s nothing preventing you from doing that you could you just have to have a written contract now, where are you might run into a conflict. So in the US, not, not every cause of action can be agreed to be arbitrated in advance and Japan is the same way. So that’s interesting could not be required to arbitrate labor disputes in advance, once the labor dispute arises, you then can agree to arbitrate it if you want. But beforehand what so why is that? Well, because? Because does that mean everything would just end up in arbitration? So yeah, and that companies then can can use arbitration to hide that there was a dispute and try to force some sort of understood, you know, settlement with you that you wouldn’t ordinarily get. And so from the Japanese public policy standpoint, it was that, well, we want people to be able to come to the labor tribunals or come to District Court, right and have the rights and the same thing with us. So they just enacted laws in California in New York, and a lot of it went to the Oh, in a sexual harassment case. You can’t force somebody to sign an NDA, and you can’t force them to arbitrate the sexual harassment claims. So they came up with laws that said you cannot require somebody in advance to arbitrate those things. So if you are in the metaverse, and for whatever reason, one of those claims arose, you know, there the physical world might conflict a little bit, but all depends,

Michael Waitze 34:57
but it will conflict until it doesn’t. I mean, isn’t this true with everything We already have a conflict until everybody gets together and says, Wait a second, this is happening all the time. We need another framework to deal with this. Right? And to be fair, if the virtual world at some level is going to mirror the physical world, at least at the beginning, it has to be right because that’s all we kind of know. Right? Well, then the law in Metaverse, A is going to be different than the law and Metaverse B, but at some point, because it’s digital, they’ll merge at some level, because they’ll want the things that are happening here to also be happening here and have some kind of cross border, in quotes trade agreements as well. That’s funny, what’s gonna have to happen though, right? I mean, we laugh about it today, we don’t think it’s real. But you know, the idea that somebody could get in a boat and go from Portugal. I’ll be back in a few months, babe, because I’m gonna go years, a few years, whatever it is, cuz I’m gonna go, I don’t know where to buy that t where those other guys got that T. I don’t know where it came from. But I’ll be back from that. But at some point, if that just happens frequently, and it’s no longer boats going back and forth. Now it’s, you know, sea liners or airplanes, right? Those two entities have to figure out like how they’re going to deal with each other because it’s no longer guns and bows and arrows. Yeah. Now it’s just contracts. Well, you

David Case 36:23
go back, I hate to keep going back all the time. 400 years ago, yep. In London, I mean, part of the stock exchange and paper commercial paper starting because people would say, well, we’re gonna fund this boat, right? We’re gonna get together however much money, well, it’s a long we’re gonna go buy this boat, right? And we’re gonna buy this ship. And these guys are gonna go to the Americans, right? They’re gonna get a bunch of tobacco and some other things, they’re gonna bring it back, and then we’re gonna sell it here with all the investors, they would sell the commercial paper into Canada would have it and then all of a sudden, people started flipping it. Right, right, right. Second, risk, you know,you want some

yeah, I’ve got money I need to get, you know, I need to cash out and they would sell it. People would have hard times. And so, you know, it was the same sort of venture venture capital, right. Okay. The chips sink, right? There’s a risk element. These are the early venture capitalists. And then you had private tears, then it was that that was the dark side of it, or we’re gonna hire ships to go out and attack other ships. And they’re gonna effectively act like pirates. Sounds like we work. Exactly.we’re Elizabeth Holmes. Exactly.

So the you know, the private gangs would go out and attack other places or trading places. They weren’t supposed to trade and they were all underneath the cover.

Michael Waitze 37:26
I guess Everything is a Remix at some level. Here’s the point though. We’ve been sitting here for 40 minutes. Just like talking about the law, right? It doesn’t get any better than this. Does it leave you with a vodka on the rocks? That’s the best way to end it. David Case, thanks for doing that.

David Case 37:48
Oh, thank you very much for having me.

 

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