New York Disbars Infamous Copyright Troll

From Above the Law:

For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady. But Liebowitz gained a degree of infamy across a number of matters for high-profile missteps in cases that sparked the ire of federal judges. Now, finally, New York has disbarred him.

Liebowitz wasn’t alone in the copyright trolling practice. A number of entities scour the internet looking for photographs that they can claim are “unlicensed” and demanding thousands of dollars to settle the matter knowing that between statutory damages for copyright infringement and the cost of litigation, most companies will just pay it. Many times, the photo in question actually is legally licensed through an agency like Getty Images, but the plaintiff photographer has, for whatever reason, pulled the image since the license was granted.

This runs the risk that some plaintiff might do this on purpose hoping to catch some legal licenseholder unawares and bank on the target just settling to avoid bringing any lawyers into the situation. Which is why, for example, a judge in one case cited by the disbarment opinion ordered Liebowitz “produce to the defendant records sufficient to show the royalty paid the last three times that the picture at issue was licensed, and the number of times the picture was licensed in the last five years; if the picture was never licensed, the plaintiff was to certify that fact as part of the plaintiff’s production.” In this case, Liebowitz “did not timely produce the required royalty information to the defendant” per the disbarment opinion.

Though most of the opinion describes more fundamental case management problems. From a case brought in 2017:

The respondent stated under penalty of perjury that he did not and had never made a settlement demand in this matter. In fact, the respondent had sent the defendant’s counsel an email in which the respondent proposed settling the matter for the sum of $25,000.

And another case brought in 2017:

On January 13, 2018, the respondent submitted a letter (hereinafter the January 13, 2018 letter) to the District Court, requesting an adjournment of the pretrial conference scheduled for January 19, 2018, and stating that the defendant “had yet to respond to the complaint” and that the plaintiff intended to file a motion for a default judgment. Judge Cote granted the request and ordered the motion for entry of default due on January 26, 2018.

The respondent’s statement in his January 13, 2018 letter that the defendant “had yet to respond to the complaint” was false and misleading, and the respondent knew that it was false and misleading when he made it. The January 13, 2018 letter failed to advise the court of the months-long history of communication between the parties, beginning in July 2017, as mentioned above.

. . . .

From yet another matter:

The plaintiff admitted in a deposition and in other documents that the Photograph had been previously published on numerous occasions. To prevent the defendants from learning that the plaintiff did not hold a valid registration, the respondent stonewalled the defendants’ requests for documents and information. The respondent also failed to comply with an order by Magistrate Judge Debra Freeman to obtain and produce Copyright Office documents to demonstrate a valid registration. After it came to light that the Photograph was not registered, and despite the record stating otherwise, the respondent argued, without evidence, that the lack of registration was merely a mistake.

If there’s a lesson to take away from these and the many, many more examples included in the opinion, it’s that copyright trolling outfits are largely unprepared for someone to push back on their demands. Firing off demand letters, memorializing boilerplate licensing agreements, and collecting cash is a tidy business model right up until a firm has to juggle hearings and discovery requests and experts and “not committing perjury.”

But perhaps the most bizarre story involves Liebowitz missing an April 12, 2019 hearing, explaining that his grandfather had passed. When Judge Seibel directed Liebowitz under penalty of contempt to furnish evidence or documentation regarding the date of his grandfather’s death, Liebowitz shot back that the order “likely constitutes a usurpation of judicial authority or a breach of judicial decorum.”

On November 7, 2019, the respondent retained counsel to represent him in the contempt proceedings, and on November 11, 2019, the respondent sent a letter to Judge Seibel admitting that he failed to carry out his responsibilities to the District Court and to his adversary. The respondent also admitted that his grandfather died on April 9, 2019, and was buried that same day.

Link to the rest at Above the Law

While most lawyers don’t engage in this sort of behavior, either because they regard it as intrinsically dishonest or worried they’ll get caught, as the OP demonstrates, somebody is going to call their bluff. That’s easier to do in places that are not so clogged with cases like New York, Chicago, etc.

In less massive and chaotic court systems where a lawyer is likely to encounter opposing counsel in another case sooner or later, the rule of living by the sword/dying by the sword comes into play as an effective deterrent to not being a jerk.

Federal Court Suspends Florida Attorney Over Filing Fabricated Cases Hallucinated by AI

From LawNext:

Just a few weeks ago, I wrote about two more cases of AI-hallucinated citations in court filings leading to sanctions, and now comes the case of a Florida lawyer suspended from practice after filing cases that were “completely fabricated.”

On March 8, the U.S. District Court for the Middle District of Florida suspended attorney Thomas Grant Neusom from practicing in that court for one year, after which he will be eligible to apply for reinstatement.

In ordering the suspension, the court adopted the report and recommendation of its grievance committee, which issued a report in January finding that Neusom violated rules of the court and Florida’s Rules of Professional Conduct through a series of actions, including having filed pleadings that contained frivolous legal arguments based on fabricated cases.

The matter was brought to the attention of the disciplinary committee after Neusom’s opposing counsel, Nabil Joseph, was unable to find the cases and asked Neusom to furnish text versions. Neusom “provided non-responsive and evasive answers to the request for the cited authorities,” according to the committee.

When the committee asked Neusom about the pleadings during a telephone interview, he said that “he used Westlaw and Fastcase and may have used artificial intelligence to draft the filing(s) but was not able to check the excerpts and citations.” In a subsequent written response, he failed to offer any explanation for the fabricated cases “or provide any sense of understanding of the seriousness of the situation.”

Based on this, the committee found that Neusom had not only failed to exercise the reasonable due diligence required of an attorney, but that his conduct went “beyond a lack of due diligence as some of his legal authorities were completely fabricated.”

Link to the rest at LawNext

PG’s immediate response was that the penalty was not severe enough. He would have added a sizeable fine on top of the suspension.

PG wouldn’t be surprised if the attorney’s malpractice carrier had voided his policy, based on intentional idiocy.

It’s Time for Publishers to Tell the Truth About Posthumously Published Books

From Book Riot:

This week saw the publication of Until August by Gabriel García Márquez, a work that was incomplete at the time of his death in 2014 and which he expressly stated should not just be kept private but completely destroyed. The novella, which is being marketed as a “rediscovered” work, was published with the permission of García Márquez’s sons, the executors of his literary estate. 

The reasoning goes like this: their father worked doggedly on the book until memory loss due to dementia required him to stop writing in 2004. At the time, he had amassed nearly 800 pages of drafts, fragments, and notes and even once submitted a draft to his agent before ultimately declaring, “This book doesn’t work” and instructing his sons to destroy it upon his death. Now here’s where it gets tricky. 

It was only when he was suffering severe memory loss from dementia that he decided it wasn’t good enough.

When they revisited the last draft, García Márquez’s sons found it was better than they remembered. Had dementia clouded their father’s judgment of his own work? Fearing that they had made a mistake by honoring his wishes and holding back what could be a meaningful addition to his legacy and literary history, the brothers decided to reverse course. They told the New York Times’s Alexandra Alter that they know it might look like a cash grab.

His sons acknowledge that the book doesn’t rank among García Márquez’s masterpieces, and fear that some might dismiss the publication as a cynical effort to make more money off their father’s legacy.

I’m deciding to take García Márquez’s sons at their word and assume that they are trying to do the right thing in a very complicated situation. 

I’m not asking literary executors and publishers to do something different because I’m not sure they should, and I know better than to think they will. What I am asking is for them to do better

As scholar Álvaro Santana-Acuña notes, having to weigh your loved one’s last wishes against Global Literary History (especially when your loved one was a Nobel Prize-winning author) is an impossible position to be in. From my comfortable perch as an armchair ethicist in this debate, the answer to “Should you publish work your loved one expressly instructed you to destroy?” is “It depends.” 

What it depends on is largely how you do it. 

Like many readers, I am of two minds about posthumous publication that defies a writer’s wishes. The financial, reputational, and historical incentives are compelling. I get it, and I understand that for those reasons, posthumous publication of lost/incomplete/etc work will continue to be a thing. Fine. I’m not asking literary executors and publishers to do something different because I’m not sure they should, and I know better than to think they will. What I am asking is for them to do better

. . . .

Go Set a Watchman wasn’t a sequel to To Kill a Mockingbird; it was an early draft Harper Lee wanted to keep out of the public eye for good reason. Until August is not a rediscovered Gabriel García Márquez novel; it’s a 144-page construction Frankensteined together from the author’s working material. And there’s nothing wrong with that! What is wrong is the profit-driven decision to package and market these books as something that they aren’t. 

. . . .

Publishers do readers and authors alike a disservice when they misrepresent the nature of posthumously published work to make it more commercially appealing, and literary executors fail their charges when they agree to this packaging. There are plenty real reasons for readers to be interested in a posthumously published work, publishers and estates don’t need to fudge the backstory.

Link to the rest at Book Riot

New Concerns at Albert Whitman

From Publishers Weekly:

Three years after Albert Whitman & Company came under fire from authors and illustrators over delayed royalty payments, numerous agents are saying that the 105-year-old Chicagoland children’s publisher has once again fallen behind on its obligations.

PW spoke with more than a dozen authors and agents over the past month who all shared similar complaints and concerns after agreeing to speak on condition of anonymity. One agent said that the publisher managed to get current after its troubles in 2020–2021, but has since slipped. Another agent offered a more blunt assessment: AW&C is “up to their old games” and “not behaving like a reputable publisher.”

“Frankly, their schedule of paying five months after sending the royalty statement is frustrating,” one agent said, while another added that the company owes payments on multiple illustrator contracts as well as royalty payments for other clients. “They have always been slow to pay, but they have become unresponsive, and that is quite concerning.”

In an interview, AW&C v-p and co-owner Patrick McPartland acknowledged the publisher’s recent difficulties and told PW that executives have been reaching out to author and agent groups, including the Association of American Literary Agents, the Society of Children’s Book Writers and Illustrators, and the Authors Guild. McPartland cited a tough 2023 in terms of sales and cash flow—a common theme among many indie presses. Those challenges were exacerbated, he said, by the death of business director Joseph Campbell in August 2022.

“We’re doing our best to get out in front of this and make sure that everyone is aware that we are aware,” McPartland said, adding that the company is also “slowing down acquisitions” to prioritize paying author advances and royalties.

Still, the latest round of troubles has shaken the confidence of some authors and agents. One author (whose agent succeeded in reverting the rights from AW&C to a series she’d created) reported that a royalty check dated November 15 did not arrive until the end of January. A second author, who spoke with PW about the publisher’s troubles back in 2020 and 2021, complained of a continuing lack of transparency: “I don’t know what they’re doing with the royalties, and I don’t see any way I can find out. With a publisher you have to have some sense of trust. I absolutely have no trust in Albert Whitman after struggling with them for over a decade.”

A third author, a former children’s book editor at various New York City houses who has published more than a dozen books with AW&C, concurred. “The editorial staff is lovely and I have done some very nice books with them, but the payment stuff is just a sin,” the author said. “Not only do they not pay but they offer zero explanation. Each time, one person will say, ‘I am going to check on that,’ or, ‘It’s waiting for an okay from the people in charge.’ No one wants to have to scream and shout to get their money. It’s not respectful.”

Link to the rest at Publishers Weekly

PG says that this sort of problem with a publisher is a massive headache for authors, who rightly feel trapped by their publishing contracts. No other traditional publisher is likely to be interested in purchasing a basket full of headaches represented by this small publisher.

PG has no inside information about the publisher, but bankruptcy is often the ending for companies that cannot pay their bills on time over a period of years.

Amazon must face narrowed lawsuit over eBook prices

From Reuters:

A federal judge on Monday heavily trimmed an antitrust lawsuit that accused Amazon.com, opens new tab and others of causing consumers to overpay for eBooks.

U.S. District Judge Gregory Woods in Manhattan accepted a recommendation from a U.S. magistrate last year that the case be narrowed to include, for now, only two plaintiffs who purchased eBooks directly from Amazon.

The judge completely dismissed the plaintiffs’ claims against Hachette Book Group, HarperCollins Publishers, Macmillan Publishing Group, Penguin Random House and Simon & Schuster, finding that the plaintiffs had not shown a conspiracy between Amazon and the book publishers.

The plaintiffs alleged Amazon and the book publishers restricted competition on price through what the complaint called “coercive contractual terms,” leading to higher eBook prices. The lawsuit said Amazon curbed the ability of publishers sell eBooks for lower prices on non-Amazon platforms.

The judge on Monday allowed the plaintiffs’ monopolization claims to proceed against Amazon alone.
Amazon did not immediately respond to a request for comment, and a lawyer for the plaintiffs had no immediate comment. The publishers also did not immediately respond to requests for comment.

. . . .

Woods’ ruling dismissed claims by 13 individual consumers who purchased eBooks through Amazon competitors including Apple, Google and Barnes & Noble. The “indirect” purchasers have no legal standing to support their antitrust allegations, the court said.

. . . .

In one case, the U.S. Federal Trade Commission last year accused Amazon of operating an illegal monopoly that curbs merchants from offering better deals on other platforms. A trial is scheduled for 2026. Amazon has denied the claims.

Link to the rest at Reuters

Authors Equity points toward the future of publishing

From Nathan Bransford:

Some pretty significant news arrived this week as some of the smartest and most experienced people in publishing are joining forces on a new imprint called Author Equity. Its business model says a lot about where we’re headed as an industry.

Essentially, Author Equity pledges to put authors first, and they won’t offer advances. They will instead offer the “lion’s share” (the former agent in me is shouting, “HOW MUCH IS THAT EXACTLY”) of the profits, and will maintain a lean staff that relies on freelancers for editing and production, with distribution by Simon & Schuster. Its author investors (including Atomic Habits author James Clear and The 4-Hour Workweek author Tim Ferriss) probably point the way toward the types of books they’re likely looking for. Namely, entrepreneurial bestsellers and bestsellers-in-the-making who are willing to forego the upfront investment of the advance in favor of making more on the backend.

Those of us who have been in this business for twenty odd years know that parts of this publishing model aren’t new. The no-advance-but-marketing-guarantees was adopted by the imprint Vanguard Press at the Perseus Books Group, which I profiled way back in 2008. (Vanguard was shuttered in 2012, and Perseus was acquired by Hachette in 2016). There have also been more behind-the-scenes deal structures like this that I’ve come across/heard about that I can’t really talk about specifically for confidentiality reasons, but trust me, they exist.

As Ron Charles notes, one thing imprints like this do is to shift more of the prospective investment of a new book onto the author. Which, again, has been around before, but I’ll be interested to see if it spreads more widely to the Big 5, where it’s never really caught on in a big way.

What feels new to me is the reliance on freelance labor. On the one hand, sure, I’m a freelance editor! I embraced the lifestyle even before the pandemic. If you offered me double what I make now, I’d still have a hard time imagining going back to a more traditional job.

Link to the rest at Nathan Bransford

PG notes that he hasn’t seen any Author Equity publishing contracts nor does PG know anything about the investors/managers the company has.

However, promising to give authors a percentage of the “profit” from the sales of her/his books is a system that’s perfectly set up to scam authors. Why might that be?

Gross revenue received by a business of any sort is not terribly easy to fiddle with. Basically, gross revenue is the money and other items with a monetary value the business receives. If a business receives payment in dollars, wheat, corn, gold, timber or diamonds, each of those has a market value that can be used as basis for calculating gross revenues.

Profits, on the other hand, are quite prone to fiddling. Salaries and benefits paid to staff are subtracted from the gross proceeds before profit is calculated. Business travel to exotic locations is a deductible expense that reduces profits.

Similarly, office rents, printing and shipping expenses reduce profits. Depreciation of equipment is another deduction that reduces profits. All sorts of things can be jammed into business expenses to effectively reduce profits.

Gross revenues from the sale of an author’s books are not susceptible to nearly as much “tweaking” as profits are. Auditing of royalties is also an easier process with gross revenues as the basis for royalties.

OpenAI: ‘The New York Times Paid Someone to Hack Us’

From Torrent Freak:

OpenAI accuses The New York Times of paying someone to hack OpenAI’s products. This was allegedly done to gather evidence for the copyright infringement complaint the newspaper filed late last year. This lawsuit fails to meet The Times’ “famously rigorous journalistic standards,” the defense argues, asking the New York federal court to dismiss it in part.

In recent months, rightsholders of all ilks have filed lawsuits against companies that develop AI models.

The list includes record labels, individual authors, visual artists, and more recently the New York Times. These rightsholders all object to the presumed use of their work without proper compensation.

A few hours ago, OpenAI responded to The New York Times complaint, asking the federal court to dismiss several key claims. Not just that, the defendants fire back with some rather damning allegations of their own.

OpenAI’s motion directly challenges the Times’s journalistic values, putting the company’s truthfulness in doubt. The notion that ChatGPT can be used as a substitute for a newspaper subscription is overblown, they counter.

. . . .

“In the real world, people do not use ChatGPT or any other OpenAI product for that purpose. Nor could they. In the ordinary course, one cannot use ChatGPT to serve up Times articles at will,” the motion to dismiss reads.

‘NYT Paid Someone to Hack OpenAI’?

In its complaint, the Times did show evidence that OpenAI’s GPT-4 model was able to supposedly generate several paragraphs that matched content from its articles. However, that is not the full truth, OpenAI notes, suggesting that the newspaper crossed a line by hacking OpenAI products.

“The allegations in the Times’s complaint do not meet its famously rigorous journalistic standards. The truth, which will come out in the course of this case, is that the Times paid someone to hack OpenAI’s products,” the motion to dismiss explains.nyt hacked

OpenAI believes that it took tens of thousands of attempts to get ChatGPT to produce the controversial output that’s the basis of this lawsuit. This is not how normal people interact with its service, it notes.

It also shared some additional details on how this alleged ‘hack’ was carried out by this third-party.

“They were able to do so only by targeting and exploiting a bug […] by using deceptive prompts that blatantly violate OpenAI’s terms of use. And even then, they had to feed the tool portions of the very articles they sought to elicit verbatim passages of, virtually all of which already appear on multiple public websites.”

Link to the rest at Torrent Freak

PG notes that allegations made in lawsuits may or may not be true. Only when a court issues a final verdict can anyone know what was true and provable and what was not.

Protecting Your Work

From Booklife:

The recent suspensions of authors from Amazon’s Kindle Direct Publishing for “copyright infringement”’ provide a powerful lesson on the importance of protecting one’s work. During this year’s BookLife Indie Author Forum, I took part in a panel discussion devoted to copyright issues. Last year, I also facilitated a roundtable discussion by the Independent Book Publishers Association, during which we talked about the hot topic of KDP suspensions for copyright infringement.

Case in point: I have an author-publisher friend who had a book on Amazon since the CreateSpace days without incident. For years, this book had been in publication, and the author owned the copyright. Several months ago, the author received an email from KDP saying that the book included copyright or trademark infringement and that their entire account would be suspended. For a publisher, this is a major problem.

The author’s inquiries about the reason and requests for further documentation and resolution were ignored. He contacted KDP on a regular basis, and, because of his persistence, the account was magically restored, and the book is live again. Compared with some of the other horror stories I’ve heard, my friend should be happy.

Another author told me he spent over $20,000 in legal fees for two books after KDP suspended his account for “copyright infringement.” His requests for clarification were ignored, and no resolution has been provided. Is anyone safe?

If you’re anything like me, you might think that the solution is simply to use publishing sites such as IngramSpark (my favorite), Draft2Digital, or Kobo, which also distribute your title to Amazon. Wrong. One author used one of these providers and shared that Amazon said that the company would have to contact the publisher, which was him, and then the distributor. When he contacted the distributor, the distributor contacted Amazon, which responded that there were no problems with the book and that it was available for purchase. When the author checked, it was not. This problem has still not been resolved.

As problematic as this is, just imagine if you had multiple books. All of your titles can be suspended if your KDP account is frozen. What happens to your royalties during this time? And if you spent money on Amazon ads, you would be paying the same entity that is holding your royalties during the suspension. If you were to continue advertising, on or outside of Amazon, you could lose money indefinitely.

The terms and conditions say Amazon can terminate without cause and keep the royalties owed, including any sales of inventory on hand. The terms only permit dispute resolution through the American Arbitration Association. Ever call the American Arbitration Association? One person was quoted an arbitration fee of $1,725 plus legal fees and an estimate of five to 10 months for resolution. Ouch! This amount is cheaper than the $20,000 I quoted earlier, but many authors cannot afford $1,725 in legal fees.

Here are some of the things that can get your KDP account suspended: using two different ISBNs for the same book format—i.e., one ISBN on IngramSpark and one on KDP (but using separate ISBNs for the paperback, hardcover, and e-book versions is fine); rights reverting to you from a previous publisher but have not been cleared by KDP; having a metadata change that implies a change in rights ownership; changing your imprint name (If you use a publishing provider such as IngramSpark, you can add an imprint name to your dashboard. This means that you need to check which one you use for each book you publish to avoid it defaulting to the wrong one); someone reports you for copyright infringement (even if the claim is not valid); or a bot error that is beyond an author’s control.

What can you do once your account is suspended? The answer varies depending on what triggered your suspension, which, according to some of those affected, is hard to get a clear answer from Amazon about. Here are a few things you can provide:

1. A screenshot of your ISBN account showing your name as owner and the imprint name with your book’s ISBN displayed

2. Approved copyright documentation from copyright.gov, not just the application (which can take up to eight months to receive)

3. Invoices and bank statements for editing costs from both your end as the publisher and from the editor’s end

4. Similar invoices and statements for cover design

Link to the rest at Booklife

Supreme Court Questions State Efforts to Regulate Social-Media Content

From The Wall Street Journal:

The Supreme Court sounded dubious Monday of state laws requiring online platforms such as Facebook and YouTube to publish nearly all user content, although several justices suggested that the ability to remove noxious social-media posts should not mean tech companies are free to block personal communications such as Gmail or chat messages.

The court heard nearly four hours of argument to determine the constitutionality of a pair of state laws that seek to prevent online platforms from moderating users’ posts. By the end, it seemed clear the court was unwilling to accept either side’s conception of what social media is: an edited publication entitled to full First Amendment freedoms; or a common carrier like a phone company that must transmit information without discriminating among its users.

“So you say this is just like a newspaper, basically. It’s like the Miami Herald,” Justice Samuel Alito told Paul Clement, the lawyer representing the industry. “And the states say no, this is like Western Union. It’s like a telegraph company” that just delivers messages, he said.

“I look at this and I say it’s really not like either of those,” Alito said.

In 2021, when Donald Trump was banned from Twitter (now known as X) after the Jan. 6 Capitol riot and conservative activists asserted their views were being suppressed by social-media sites, Florida and Texas passed laws requiring the platforms to post nearly all user content without regard to the viewpoints expressed.

The moves set off battles in lower courts, with judges reaching conflicting conclusions on whether the state regulations were lawful. Together, the two cases could set important ground rules for free-speech protections online.

Trade groups representing Meta, Google and X sued the states, saying such requirements infringe on their First Amendment rights to decide what is said on their websites. To require viewpoint neutrality meant that “if we have suicide prevention [content], we have to have suicide promotion,” Clement said. “That should be a nonstarter.”

Several justices expressed sympathy with that argument but observed that ruling against the states might also entitle the internet companies to police what messages are transmitted via other services they provide, such as individual email accounts or direct messaging.

Justice Amy Coney Barrett asked Clement how the court could write an opinion saying state restrictions were unconstitutional regarding news feeds on Facebook and YouTube, but not when it came to services such as the shopping platform Facebook Marketplace “or Gmail or DMs.”

Clement didn’t want to give ground on that point, but U.S. Solicitor General Elizabeth Prelogar, who also argued against the state laws, suggested there was a legitimate distinction between social-media sites focused on expression and those that were more akin to a service.

Different rules could apply to different functions a company performs, said Prelogar, representing the Biden administration. A railroad such as Amtrak is a common carrier and can’t discriminate among passengers. But if Amtrak publishes a magazine passengers can read during their travel, it would be entitled to First Amendment protection for the editorial decisions the company makes over what to include, she said.

Arguing in the Texas case, Prelogar agreed that social media didn’t fit neatly into Supreme Court precedents. “It’s not necessary here to try to figure out how the First Amendment applies to new technology in general or to every possible website or the internet in particular,” she said.

She recommended the court rule narrowly against what she said was a singular defect in the Texas law: the state’s aim of amplifying some voices on the platforms “by suppressing the platform’s own protected speech.”

Not so said the Texas solicitor general, Aaron Nielson. The platforms could say anything they want, even criticize user posts, he said. Users were free to block unwanted content, he said. “All that’s left is voluntary communications between people who want to speak and people who want to listen,” he said.

. . . .

Chief Justice John Roberts, disputing the idea that the platforms hold a monopoly over public discourse, said Texas had gotten the First Amendment backward.

“What the government’s doing here is saying, You must do this, you must carry these people; you’ve got to explain if you don’t. That’s not the First Amendment,” he said. Rather than impose requirements on private parties, the First Amendment bars the government from telling them what they must or can’t say, Roberts said.

Among other provisions, the Texas law prohibits platforms from discriminating against users based on their viewpoints. Justice Elena Kagan asked if the platforms claim to have the categorical right to ban users for what they believe—to decide, for instance, that when it comes to antisemites “we’re not even going to let them post cat videos.”

Clement said yes. If “you are a notorious antisemite, we do not want you to participate in this conversation,” he said.

The cases, Moody v. NetChoice and NetChoice v. Paxton, are the latest in a series the court has used to project the First Amendment into the online world.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Is There Any Remedy When You’re Censored?

From The Wall Street Journal:

It’s said that for every right there’s a remedy. Three cases before the Supreme Court will test whether that’s true for the freedom of speech.

In National Rifle Association v. Vullo, a New York state official took aim at gun advocacy by threatening regulatory hassle for bankers and insurers that continued to do business with the NRA. Recognizing the threat, they dumped the organization. Now that the official, Maria Vullo, is being sued, she claims that under the qualified-immunity doctrine, she can’t be ordered to pay damages.

Qualified immunity broadly protects officials from liability, so most plaintiffs who are censored don’t bother seeking damages for past suppression. Instead they seek injunctions against future censorship. In Murthy v. Missouri, however, the Biden administration is trying to foreclose that remedy, too.

Although the government pressured social-media platforms to censor users, it now claims the plaintiffs shouldn’t get an injunction because they can’t show that they are likely to be censored again. They also want injunctive protection for their ability to read other authors, but again the government objects. More seriously, even if the court sustains the injunction in Murthy, it won’t be sufficient, as it doesn’t bar the full breadth of the current censorship. Injunctions will always be inadequate in the face of secret suppression. In this case, because the government kept its role secret, it has taken more than half a decade to get an injunction against the censorship.

Americans are thus in a strange predicament. Under Supreme Court doctrine, they can’t be confident of getting either damages for past censorship or a prompt and effective injunction against future censorship. And it gets worse. In NetChoice v. Paxton, in which the justices hear oral arguments on Monday, there’s a danger the court will strike down Texas’ free-speech statute. That law treats the dominant social-media platforms as common carriers and bars them from discriminating on the basis of viewpoint.

This sort of antidiscrimination law is the only effective remedy for the current regime of government censorship. It’s unlikely that federal law will adequately limit federal censorship, so state law is structurally essential to stop it. And only when common-carrier antidiscrimination rules are applied to the platforms will the federal government be fully precluded from imposing censorship through them.

A decision that state common-carrier laws can’t be used to stop federal censorship through the platforms would render such censorship all but irremediable. Damages are generally unavailable for past censorship, and injunctions are too slow and otherwise inadequate against future censorship—so a decision against an antidiscrimination rule would make it a trifecta against free speech.

This risk is especially startling because it’s only recently that Americans have needed a remedy against censorship. The government once couldn’t actually suppress speech; it could only punish the speaker, and for this it had to go to court. The government once had to go to court to charge a particular defendant with seditious libel or some other offense and prove its accusation. Now, the government can simply pressure or induce the dominant social-media platforms to suppress speech en masse. That approach doesn’t merely punish speakers; it snuffs out speech. And it places the onus of going to court on the censored individuals.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Big Tech Censorship Goes to the Supreme Court

From The Wall Street Journal:

Can government tell Big Tech companies how to edit content and police their platforms? That’s the question before the Supreme Court on Monday in two cases with major First Amendment implications (Moody v. NetChoice and NetChoice v. Paxton).

NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.

The Florida law bans large social-media platforms from removing the accounts of political candidates, or suppressing posts by or about them. Platforms also can’t take “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” and they must apply their standards “in a consistent manner” among their users.

The Texas law bars platforms from making editorial decisions based on the viewpoint of a user’s expression, which isn’t clearly defined. The law is so broad it could be read to bar platforms from suppressing pro-Nazi speech or content that glorifies eating disorders. Both laws require platforms to explain in detail why posts are removed. Companies could face stiff government penalties and lawsuits.

NetChoice makes a strong case that the laws abridge First Amendment speech rights by restricting the editorial discretion of platforms. Only last term the Court ruled in 303 Creative LLC that Colorado couldn’t compel a website designer to create work that violates her values. The same principle, NetChoice says, should apply to the Texas and Florida laws.

While such social-media platforms as Instagram and YouTube aren’t traditional publishers like newspapers and broadcasters, they exercise editorial judgment when they decide what content to remove, suppress or amplify. They also exercise discretion when curating user feeds and making recommendations.

The states disagree. They claim their laws regulate business conduct, not expression. They also argue that states can prohibit businesses that open themselves to the public from discriminating against customers under the common-carrier legal doctrine that predates the U.S. Constitution.

“Common carriers have generally opened their facilities to all speakers and speech,” Florida writes in its brief. “Requiring them to open that door a crack more interferes with no expression of their own. Thus, the telephone company, internet-service provider, and delivery service have license neither to snuff out the speech they carry, nor to cancel disfavored subscribers.”

This analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.

The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?

. . . .

The Florida and Texas laws do the same. If the laws stand, companies would no doubt refrain from policing their platforms to avoid being bankrupted by litigation. Some conservatives might prefer an online free-for-all, and the free market has given birth to platforms for them. Elon Musk has taken a lighter touch to content regulation since buying X, formerly Twitter. But if you’re worried about the cultural damage from social media now, imagine if sites are obliged to let anything go.

These two cases, by the way, are separate from one the Court will hear in a few weeks concerning Biden Administration pressure on tech platforms to censor conservatives. That case, Murthy v. Missouri, implicates government censorship that strikes us as a First Amendment violation.

Conservatives are understandably concerned that left-leaning tech companies want to exclude their ideas. There is no easy solution to this problem. Exposure and condemnation of the censorship has helped. But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida.

Link to the rest at The Wall Street Journal

PG says government power to control speech is always a bad idea.

Content-neutral time, place, and manner restrictions, as defined by Supreme Court, are as far as government should go.

Florida school requires parental consent for pupils to listen to Black author’s book

From The Guardian:

A Florida school has received backlash after it required parents to provide written consent allowing their children to engage with a Black author’s book. The permission form detailed an activity in which “students will participate and listen to a book written by an African American”.

Chuck Walter, a parent at Coral Way K-8 in Miami, posted a photo of the slip on X, writing: “I had to give permission for this or else my child would not participate???” He tagged the Miami-Dade county public schools superintendent, Jose L Dotres. (Dotres’s office did not immediately respond to the Guardian’s request for comment.)

Walter’s post comes days after another Miami school, iPrep Academy, drew ire for asking for parents’ permission for students to participate in “class and school wide presentations showcasing the achievements and recognizing the rich and diverse traditions, histories, and innumerable contributions of the Black communities”.

The permission slips indicate how some Florida schools are trying to comply with the state’s “Parental Rights in Education” law, more commonly known as the “don’t say gay” law, and the “Stop Woke Act”, both signed by the governor, Ron DeSantis, in 2022. The former prohibits discussions of sexuality and gender in classrooms, while the latter regulates how race and race issues can be taught in schools. Critics have suggested that Florida lawmakers are aiming for erasure or to teach a false history to the state’s children.

The Florida commissioner of education, Manny Díaz, called the situation a “hoax”, posting on X: “Florida does not require a permission slip to teach African American history or to celebrate Black History Month. Any school that does this is completely in the wrong.”

But DeSantis and other Republican lawmakers in the state have created an environment in which teachers are severely limited in how they can discuss race, gender and sexual orientation in all grades, and officials have not provided concrete guidance on how to comply. As a result, some teachers and districts have created policies, like the permission slip policy, to ensure they are acting in accord with the law.

For Miami-Dade county public schools, compliance has included requiring parental consent for all club meetings and events, guest speakers, college adviser visits and other enrichment activities, the Miami Herald reported. Teachers now face time- and resource-consuming hurdles to ensure their students are able to hear from Black historians and Holocaust survivors, for instance, which has been a normal practice in local schools in previous years.

Link to the rest at The Guardian

From Wikipedia:

Florida Man is an Internet meme first popularized in 2013, referring to an alleged prevalence of people performing irrational or maniacal actions in the U.S. state of Florida. Internet users typically submit links to news stories and articles about unusual or strange crimes and other events occurring in Florida, with stories’ headlines often beginning with “Florida Man…” followed by the main event of the story. Because of the way news headlines are typically written, they can be creatively interpreted as implying that the subjects of the articles are all a single individual known as “Florida Man”.

PG wonders if Florida Schools will be the next big Florida _____________ meme.

A Publishing Giant’s Risky Fight Against Book Bans

From The Wall Street Journal:

When Penguin Random House held a board meeting in May, book banning was one of several topics on the agenda. It was supposed to be a routine discussion. The company had mostly kept a low profile on the issue.

Then Skip Dye spoke up. 

Dye, who oversees U.S. library sales for the global book-publishing giant, launched into an impassioned speech about the company’s handling of the issue, saying the publisher wasn’t doing enough to oppose the removal of hundreds of books from public school libraries and classrooms across the country.

While backers of the book bans believed they were targeting titles that were pornographic or otherwise inappropriate for young people, Dye saw an assault on free speech and on the publisher’s authors. 

Novels such as “The Bluest Eye,” written by Nobel Prize winner Toni Morrison, and Malinda Lo’s National Book Award winner “Last Night at the Telegraph Club,” about a young Chinese American lesbian, had been taken off school shelves. 

Penguin Random House had previously kept its actions to writing checks for an industry group challenging the bans, and creating a website with information about them. Its peers in publishing had similarly been reticent on the issue.  

Dye called for more aggressive action. “I said we needed to do more than support online hashtag campaigns and augment other voices—that we needed to be a voice,” Dye said in an interview, noting that he “apologized for becoming impassioned.”

Penguin Random House chief Nihar Malaviya found his call-to-action persuasive and moving. By the end of the meeting Malaviya had created an “Intellectual Freedom” task force to explore the actions the company could take. He put Dye in charge. 

That one high-intensity boardroom exchange ignited the company. It now fully embraces the fight against book bans, entering a sensitive debate that is playing out in school boards and state houses across the country. 

At risk: potentially alienating a large chunk of customers on an issue at the crux of culture wars that have polarized the nation in ways not seen in decades.

Two weeks after the board meeting, the company became the only major U.S. publisher to join a federal suit in Florida that challenges bans in public school libraries on First Amendment grounds. In November, Penguin Random House filed a federal lawsuit seeking to block school book banning in Iowa. 

“We don’t want a small group of parents deciding on who should have access to which books in the entire community,” said Malaviya, 49, in an interview. The publisher’s stance is that teachers, librarians and school administrators, as expert educators, already make decisions about what is appropriate for young readers, and should be left to do their jobs.

Despite the risks, Penguin Random House’s leadership said that failing to act had moral and financial costs.

An internal company report showed that the sales of some banned titles subsequently declined, one by 91%, between 2022 and 2023. That’s been damaging for the company as well as for authors trying to establish their literary careers.

“We have two missions: a cultural mission and a commercial mission,” Malaviya said. 

Growing bans

Penguin Random House has started hosting anti-book-banning events, giving away several thousand copies of its most frequently banned titles, and has orchestrated a letter-writing campaign targeting local and school board officials. 

School boards and school districts removed more than 1,500 book titles from an assortment of publishers from public school classrooms and libraries in the 12 months through June 2023, according to a recent study by PEN America, a literary and free-speech organization that has been vocal in opposing bans. 

There were 3,362 cases of banned books nationwide, a 33% year-over-year increase. More than 1,400 book bans took place in Florida, followed by 625 bans in Texas. 

Parents have expressed concerns about picture books for elementary school students that they said included inappropriate content related to sex and gender. 

Lindsey Smith, a parent at Woodfield Elementary School in Gaithersburg, Md., said a picture book called “Pride Puppy” caught her attention. The book, about a lost dog at a Pride parade, includes an illustration of a person holding a sign that reads “The Future is Intersectional” and a wagon filled with vegetables labeled “Queer Farmers.” Smith, a mother of four who founded a local chapter of Moms for Liberty, described the book as “full of political agendas.”

A spokesman for the school district said books deemed “welcoming and inclusive” were supplemental and “not required.”

Andrew Wooldridge, publisher at Orca Book Publishers, said “Pride Puppy” is intended for children ages 3 to 5. When asked how he responds when parents raise concerns that “Pride Puppy” is inappropriate for young readers, Wooldridge said, “My usual reaction is: have you read the book?”

The U.S. Supreme Court in a landmark 1982 decision, Board of Education, Island Trees Union Free School District No. 26 v. Pico, found that the First Amendment provided some protection against school board officials removing books from school libraries.

The current book-banning push has proved a potent political issue and has galvanized intense opposition in some states. In November, about a third of candidates endorsed by the conservative group Moms for Liberty were elected, down from around 45% in prior races.

Those results reflect a survey taken on behalf of the American Library Association in early March 2022 that found a majority of parents believed “school librarians in their district generally listen to the concerns of parents and try to work with them if they have concerns.”

‘Other worlds’

The issue is personal for both Dye and Malaviya. Dye, 61, grew up in a poor household in eastern Tennessee. Access to a school library set him on a different road than the one his parents traveled. He remembers thumbing through “The Boxcar Children” series, books about orphaned children who made a boxcar in the woods into a home, and “Mr. Rabbit and the Lovely Present,” about a rabbit who helps a girl find a gift for her mom.

“I was very dependent on libraries, particularly my school library,” said Dye. “We had a reading teacher who introduced me to books and other worlds.”

Malaviya immigrated to the U.S. from India as a 13-year-old, knowing little about American history. Eager to learn, he would eat his lunch quickly and then head to the school library to read. 

“Having any book that I wanted to read readily available in my high school library was so beneficial to me,” Malaviya wrote in an internal note to staff last fall. “Not every book we publish will resonate equally with everyone, but each of our books deserves the right to be discovered, read, discussed and debated.”

Penguin Random House, he said, had more books on banned lists than any other publisher, and many targeted books were written by underrepresented authors and covered LGBTQ themes. “Book-banning activities have a disproportionate impact on certain books and authors,” Malaviya said in an interview. “We didn’t think it was right.”

The company began to hear from some of its top authors on the issue last year. Jodi Picoult, a bestselling fiction writer whose works have been widely banned across the U.S., privately voiced her concerns last March to Barbara Marcus, president of Random House Children’s Books, at an industry gala, the author said.

“It feels terrible and scary because it’s happening with greater and greater frequency,” Picoult said in an interview. Her banned novels include “Nineteen Minutes,” about a school shooting and its aftermath, and “The Tenth Circle,” which deals with a high school date-rape case. In Iowa, Picoult’s books have been banned in more than 30 school districts, according to a database created by the Des Moines Register.

In his role selling books to school libraries, Dye has heard from librarians like Lindsey Kimery who are on the front lines of the fight, facing parents angry about the books available to their kids. Kimery, the coordinator of library services for Metro Nashville Public Schools, said she became involved in the issue in 2022, when Tennessee began to consider legislation that would ban certain titles.

The backlash she faced for opposing bans took an emotional toll. “I’d come home from work, and then work in the evenings, advocating for public school libraries,” said Kimery. “My hair started falling out. Who hates libraries and librarians?”

Penguin Random House’s board meeting last year was a turning point. Malaviya had been promoted to interim CEO after his predecessor, Markus Dohle, resigned in December 2022 following the company’s failed bid to acquire rival Simon & Schuster. Dohle was a demonstrative leader, comfortable on stage, where he often flashed a thumbs-up.

By contrast, Malaviya, a data expert and technologist, was humble in demeanor and presentation, more comfortable focusing on others and confident that his calm, analytical approach to problem-solving would lead to good outcomes. His style was to lead by listening.

. . . .

Cases in Florida and Iowa

Suing to stop book bans was a major goal for the new task force. The publisher felt targeting individual school districts would be too limiting, so the idea was to focus on states.

“It’s easy to put out a statement saying we deplore censorship, but if we are deploying the assets of the company, we are using time, energy and resources and that investment has to be maximized,” said Novack, who is part of the task force.

When Novack learned the law firm Ballard Spahr was working on a book-banning lawsuit against Escambia County School District in the state of Florida with PEN America, he called an attorney there and asked, “Can we get in?”

Escambia County seemed like the perfect venue for such a fight because its restrictions on public school libraries were, in the publisher’s view, so extreme. The county lets individuals challenge books on grounds they are pornographic or contain depictions of sex, and says those titles should be removed from circulation pending review. The county also restricted access to books by or about the LGBTQ community and books that discuss racism, said Novack.

In an early victory, a federal judge ruled the plaintiffs in the Florida case can pursue their lawsuit on First Amendment grounds. In addition to Penguin Random House, plaintiffs include PEN America, authors and parents of local students.

In Iowa, Penguin Random House is challenging a state education law that bans from classrooms and school libraries books that depict sex acts up to grade 12 or address sexual orientation and gender for kids up to sixth grade.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

New York City values vs. Oakley, Kansas (population 2,026) values?

New York City values vs. Dickinson, North Dakota (population 25,167) values?

New York City values vs. Brevard, North Carolina (population 7,700) values?

New York City values vs. Chama, New Mexico (population 920) values?

New York City values vs. Redwood Falls, Minnesota (population 5,095) values?

Who decides what is taught to elementary school children and teenagers in these and tens of thousands of other similar places?

Federal Judges vs. State Judges

Since New York City plaintiffs are allowed to sue local school district boards and board members in federal court under Article III, Section 2, of the United States Constitution, all the lawsuits filed by New York publishers that PG has read about have been filed in federal vs. state courts.

Explanation: In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives United States federal courts the power to hear lawsuits that do not involve a federal question. For a federal court to have diversity jurisdiction over a lawsuit, two conditions must be met. First, there must be “diversity of citizenship” between the parties, meaning the plaintiffs must be citizens of different U.S. states than the defendants. Second, the lawsuit’s “amount in controversy” must be more than $75,000.

Practicalities: Attorneys or state judges who want to become Federal District Judges (who are the federal judges who try cases instead of hearing appeals of tried cases like appellate judges do) are nominated by the President of the United States and approved by the U.S. Senate. Federal judges serve until they die or voluntarily retire by usually taking “Senior Status”. (More than a few federal judges are very old because they can only be forced out of office by impeachment proceedings involving both houses of Congress like the impeachment of a United States President.)

In point of fact, a federal judge has to display exceedingly poor behavior or issue excessively bizarre rulings to be forced from office.

Results: Some federal judges become very arrogant in their treatment of counsel who appear before them. Attorneys who are members of prestigious law firms who may well have appeared before a judge on many prior occasions may find themselves treated with more respect than Joe-bag-of-donuts general practitioners who spend most of their court time in local and state courts representing ordinary people who don’t have a lot of money.

Therefore: While a given federal judge may feel a sense of noblesse oblige towards groups of small-town parents who object to contemporary New York City standards reflected in textbooks created and sold by well-known publishers represented by expensive law firms, in PG’s experience, there may be a tendency to discount the concerns of ignorant locals and the school boards they elect in New York City v. Hicksville disputes.

The First Time I’ve Had a Book Censored

From Publishing Perspectives:

The move made by the French government against the novel Bien trop peitit (Far Too Small) in July 2023─that book being part of the 15-title Collection L’Ardeur─marked a rare decision in France. Not only was the government’s decree troubling for the national publishing community but it also had the unintended effect of helping to give the book new visibility in the marketplace.

Éditions Thierry Magnier is part of the Actes Sud publishing group, and Manu Causee’s novel Bien trop petit (Far Too Small) was published in September 2022 as part of the collection, described as mildly erotic literature for a young and informed audience. When released, the book was rated for ages 15 and 0lder. This was listed on the back cover, and the book was not a major success in bookstores until nine months later─when its sales were boosted by the controversy of interior minister Gérald Darmanin’s action.

Here is how the publisher’s sales text is written to describe the Collection L’Ardeur, literature neither considered nor intended by Éditions Magnier as pornography:

Readdarefantasy─three words that sum up the ambition of the L’Ardeur collection. Since its beginnings, our house has been proud to defend courageous literature which is interested in adolescence as it is, with its gray areas, its excesses, its heightened emotions. But adolescence is also a period when the body metamorphoses, where sexual life begins. What could be more logical, then, than to open our catalog to texts which speak of sexuality, desire, fantasy?

L’Ardeur resolutely places itself on the side of pleasure and the free and multiple exploration that our bodies offer us.”

Publisher Magnier uses the term traumatic when he describes the experience of having the book censored last summer.

“This is the first time I’ve had a book censored,” he says.

The Collection L’Ardeur, Magnier says, “was created for teenagers as a counterpoint to what emerged few years ago around ‘dark fiction.’ In France and abroad, ‘dark fiction’ was literature like Fifty Shades of Grey, in which women are objectified and men are stereotyped as rich with nice cars, and so on.

“We wanted to bring erotic literature to young people, without being educational, and to tell a different story from those you see on the Young Adult shelves,” Magnier says. And in the title that’s become so controversial, it’s youthful male sexuality that’s at issue.

Link to the rest at Publishing Perspectives

OpenAI’s admission it needs copyright material is a gift to the publishing industry

From The New Publishing Standard:

The Writers Union of Canada is among the latest to, rightly, calls for legislation to regulate the excesses of AI companies as this sector evolves.

But as with so many of these calls for legislation, we need to be clear whether these are reasoned arguments looking to harness AI’s potential to benefit the long-term interests of the publishing industry, or knee-jerk reactions pandering to member’s short-term interests with meaningless soundbites.

In the US we’ve seen the Writers Guild embrace AI as a force for good, fully accepting the AI genie will never go back in the bottle, and so looking for the best ways to work with AI companies to benefit Writers Guild members.

“We have to be proactive because generative AI is here to stay,” said Mary Rasenberger, Authors Guild CEO, explaining, “They need high-quality books. Our position is that there’s nothing wrong with the tech, but it has to be legal and licensed.“

SAG-AFTRA, the US actors union, has taken the same approach.

Proactive rather than endlessly reactive.

While at the other end of the spectrum the outgoing head of the UK’s Society of Authors, Nicola Solomon, is peddling nonsense about how 43% of writers jobs will be devoured by the AI bogeyman.

The Writers Union of Canada has tried to find a mid-way path, and acknowledges AI can bring benefits to writers, but cannot help but seize on statement by OpenAI’s CEO Sam Altman saying that AI needs to use copyrighted material as some kind of admission the company is stealing writers’ IPs.

Given the current legal interpretation of what constitutes fair use, that assertion may or may not have legs, but for the AI opponents such details are neither here nor there. As and when the law on fair use is clarified one way or the other, then we can fling mud.

Similarly, demanding creators be paid for their efforts is right, but suggesting this is not happening is wrong.

The fact that Altman and his company have, since at least May 1923 at the White House AI summit, been talking about ways to pay for the use of copyrighted material, and since mid-summer have been signing deals with content-producers to do just that (American Journalism Project, Associated Press in July 2024, Axel-Springer in December), is being conveniently ignored.

Bloomberg last week reported that Thomson Reuters is looking to sign a deal with AI companies.

Tom Rubin, OpenAI’s chief of intellectual property and content, told Bloomberg News: “We are in the middle of many negotiations and discussions with many publishers. They are active. They are very positive. They’re progressing well. You’ve seen deals announced, and there will be more in the future.”

So these opponents of AI are missing opportunities to do deals that will favour creatives, for the sake of a sound-tough soundbite.

And in this context, we should be clear that the New York Times law suit against OpenAI is happening because negotiations with OpenAI failed, not because OpenAI was unwilling to pay.

In any case, Altman has made clear OpenAI can manage just fine without NYT data if necessary.

We are open to training [AI] on The New York Times, but it’s not our priority. We actually don’t need to train on their data. “I think this is something that people don’t understand. Any one particular training source, it doesn’t move the needle for us that much.”

But this is not the only flaw in the Canada Writers Union case. The CWU has also gone down the “humans-only” road with its interpretation of copyright law.

Copyright is an exclusive right of human creators. Existing copyright legislation protects human creativity and originality, by virtue of requiring the exercise of skill and judgment to obtain copyright in a work. This should not be changed to grant copyright protection to AI generated products or to allow copyrighted works to train models without permission.

And again we have the juggling act with different issues mixed into a pot and violently stirred for the sake of a sound-tough soundbite.

No-one is asking for copyright law “be changed to allow copyrighted works to train models without permission.

And the other part of the soundbite – The law “should not be changed to grant copyright protection to AI generated products” – falls into the other classic Luddite’s Weekly trap.

On the one hand they are claiming, and Altman himself agrees, that AI cannot do its work without copyrighted material, which as of now is defined as human-produced. And at the same time they are claiming copyright “is an exclusive right of human creators.”

Link to the rest at The New Publishing Standard

Who is going to receive the cash if a large publisher signs a license to utilize their books, magazine articles, photographs, etc.?

PG can’t speak for magazines and photographic publications, but, at least for ebooks, the authors are licensing their rights to publishers, not selling those rights. Arguably, under a standard trade publishing agreement, the author hasn’t given her/his publisher the right to use their books as grist for an AI mill. The traditional publisher typically has the right to print, publish, and sell the author’s works.

Granting permission for the author’s books to be utilized as fuel for an AI is something that was not foreseen when the author signed a publishing agreement. It is common for a publishing agreement that reserve rights not granted to the publisher for the author’s use so long as the exercise of those rights doesn’t interfere with the publisher printing, publishing, and selling the manuscript as a book of some sort or another.

Another issue that a great many large publishers will likely have is publishing agreements that were written and signed long before the internet, digital publishing, or anything except print, publish in a printed serial form, licensing as a Book-of-the-Month edition, etc.

And, of course, does the author’s literary agent get 15%?

Censorship: Texas ‘Book Rating’ Law Is Blocked on Appeal

From Publishing Perspectives:

Late-day news from Austin today (January 17) is that the Fifth Circuit Court of Appeals has ruled “HF 900” a violation of the First Amendment protection in the United States. This is the result of a major lawsuit led by the Association of American Publishers, American Booksellers Association, the Authors Guild, the Comic Book Legal Defense Fund, and bookstores Blue Willow in Houston and BookPeople in Austin.
A joint statement from the plaintiffs provided to Publishing Perspectives reads, “We are grateful for the Fifth Circuit Court of Appeals’ decisive action in striking down this unconstitutional law.

“With this historic decision the court has moved decisively to ensure the constitutionally protected speech of authors, booksellers, publishers, and readers, and prevent the state government from unlawfully compelling speech on the part of private citizens.

“The court’s decision also shields Texas businesses from the imposition of impossibly onerous conditions, protects the basic constitutional rights of the plaintiffs, and lets Texas parents make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”

The plaintiffs also provide three key highlights, quoting from the ruling:

The “district court was correct that the government-speech doctrine does not apply. The ratings are the vendor’s speech, not the government’s.”

The court concluded that the “plaintiffs are likely to succeed on the merits of [their compelled-speech] claim. . . ‘[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. . . ’ But the law requires plaintiffs to ‘either speak as the state demands’ or suffer the consequences.”

The “Supreme Court has said that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Because [the law] threatens the plaintiffs’ right to be free from compelled speech, the plaintiffs have shown an irreparable injury. They have also shown that they will suffer irreparable economic injury.”

Link to the rest at Publishing Perspectives

Taylor-made deals: how artists are following Swift’s rights example

From The Guardian:

A revolution is brewing in the music business as a new generation of female acts, following the example of Taylor Swift, are seizing ownership of their music rights and refusing to sign deals that cede complete control to music companies.

Swift is nearing the end of her project to re-record her first six albums – the ones originally made for Big Machine Records – as a putsch to highlight her claim that the originals had been sold out from under her: creative and commercial revenge served up album by album. Her public fight for ownership carried over to her 2018 deal with Republic Records, part of Universal Music Group (UMG), where an immovable condition was her owning her future master recordings and licensing them to the label.

It is a power-play template for younger acts who are now rising up – especially female pop stars, historically among the most exploited figures in music – alert to the fact that owning their recordings and songwriting is everything. Olivia Rodrigo made ownership of her own masters a precondition of signing with Geffen Records (also part of UMG) in 2020, citing Swift as a direct inspiration. In 2022, Zara Larsson bought back her recorded music catalogue and set up her own label, Sommer House. And in November 2023, Dua Lipa acquired her publishing from TaP Music Publishing, a division of the management company she left in early 2022.

At Glastonbury last summer, Rina Sawayama made a veiled jibe at the 1975’s Matty Healy for laughing at racist comments on a podcast and for the fact that he “owns my masters”, due to his directorship at Dirty Hit Limited (although his directorship was in fact terminated in April 2023). This claim about ownership skips over the complexities of contract law – Sawayama presumably having signed over the rights to her recordings in exchange for the label’s financial investment – but emotionally it plays to a fanbase who increasingly see “the industry” as the inherent enemy of art and creative autonomy. “The artists were creating those works, so really they should be owning them from an emotional point of view,” says Brian Message, a partner at Courtyard Management.

Artists today are more industry-literate and aware of the pitfalls and bear traps of the past, simply because they have to be. A multitude of older acts – perhaps most notably George Michael and Prince – had to take legal action over, in their eyes, being ripped off or badly exploited, while others such as Radiohead have made ownership of their rights in renegotiations an economic and moral mission. Some acts had prescient management on their side, with Bono recounting in his Surrender memoirs in 2022 that band manager Paul McGuinness negotiated with Island Records for U2 to take a lower advance and lower royalties as “it meant that at the end of a period of time we’d get back our rights and regain ownership of our recordings”.

Prince and George Michael are bleak warnings from history, but the moves by Swift, Rodrigo and others can stand as roadmaps for the future. It also means the music industry has had to adapt away from contracts based on ownership. There are two kinds of rights at stake here: the rights to the master recordings of an artist’s work, and songwriting rights, known as publishing. One senior music publishing executive says their part of the business was ahead of the curve, explaining that publishing deals tend to work on exclusive licensing terms or retention periods. “Publishers pivoted from a rights-ownership business to the servicing of rights,” they say. Those retention periods are getting shorter, they add, down from about 25 years three decades ago to between 12 and 15 years today.

David Martin, CEO of the Featured Artists Coalition, says there is “a propensity towards owning rights” for artists, but some acts are still prepared to sign away ownership for what they think might be their only shot at the big time. “We have members who are still signing major label deals,” he says. “Some of the terms in some of those deals are terms that we’d expect artists to be thinking very carefully about.”

Message says he steers acts away from ownership-based contracts. “We have a default position that we won’t advise our artists to do life-of-copyright deals,” he says. “It’s not that we wouldn’t do them, but our strong advice would always be to come up with a licence arrangement of some description.”

This is the ideological underpinning of BMG and AWAL (Artists Without a Label), which is now under the ownership of Sony Music Entertainment. “The philosophy is flipping the relationship,” says Alistair Norbury, president of repertoire and marketing at BMG UK. “There had to be a fairer and more transparent way to work with the creative community.”

Acts on BMG’s roster – notably Kylie Minogue, Suede, Sigur Rós and Louis Tomlinson – are on licensing or assignment deals, so ownership of the recordings eventually reverts to them. “They want to be with a record label where they have creative control and ownership coming back to them at some point,” says Norbury.

Link to the rest at The Guardian and thanks to C. for the tip.

PG says three cheers for musical artists who don’t give up rights forever.

‘How to murder your husband’ writer sentenced for murdering husband

From The BBC:

An Oregon judge has sentenced Nancy Crampton Brophy, a romance author who apparently foretold of her crime in an essay titled “How to murder your husband”, to life in prison for the shooting death of her late spouse.

Crampton Brophy, 71, was found guilty of second degree murder last month.

A jury found that she shot her husband of 26 years in 2018 for a $1.5m (£1.2m) life insurance pay-out.

Before her crime, Crampton Brophy had been a self-published author whose works of steamy romance and suspense include novels such as “The Wrong Husband” and “The Wrong Lover”.

Her late husband, Daniel Brophy, was a chef and respected teacher at the Oregon Culinary Institute.

He was found shot twice in the kitchen of the Institute in June 2018.

His widow was convicted of the murder last month.

The case attracted much attention for an essay Crampton Brophy had written years before the crime, titled “How to murder your husband”.

“The thing I know about murder is that every one of us have it in him/her when pushed far enough,” she had said in the now-deleted post.

She listed a number of ways to commit mariticide, from guns and knives to poison and hitmen before writing “it is easier to wish people dead than to actually kill them”.

She added: “If the murder is supposed to set me free, I certainly don’t want to spend any time in jail”.

A judge ruled against admitting the essay as evidence at her trial because it was penned years earlier as part of a writing seminar.

But prosecutors did not need the text.

They successfully argued that Crampton Brophy had the motive and the means to murder her partner, showing the couple had fallen on hard times financially, and she stood to pocket a hefty insurance pay-out after his death.

Link to the rest at The BBC

PG suggests that, if you’re planning to commit a crime, it’s a very poor practice to write about a similar crime beforehand or afterwards.

That said, stupid people committing crimes makes life for law enforcement investigators a lot easier.

If you spend a few days as an observer in criminal court, you’ll hear a lot about what one of PG’s granddaughters calls, “bad choices.”

How art is used against artists, like Young Thug, in court

From The Economist:

The “p” in “Pushin P”, a song featuring Young Thug, does not refer to the street name for methamphetamine, according to the rapper’s lawyers—rather, it stands for “positivity”. The threatening connotations of “Thug” are also misleading, they claim. That supposedly stands for “Truly Humbled Under God”. And his lyrics, which often reference drugs and violence, are supposedly written from the perspective of a fake persona. Prosecutors do not buy it. Jeffrey Williams, the Atlanta-born artist behind the pseudonym, stands accused of eight counts, including racketeering and gang conspiracy. (He denies all charges.) In a trial which recommences on January 2nd, at least 17 sets of lyrics will be submitted as evidence against him. Young Thug is perhaps the best-known rapper to have his art used in this way, but he is not alone. In America and Britain, rap lyrics are increasingly presented by prosecutors as confessions. How is art used in court—and why is rap music singled out?

Most art forms usually find their way into court only when the case is about the work itself, such as trials involving theft or forgeries. Art can also be thrust into the dock when it offends the establishment. In the 1920s police in America arrested blues singers when their songs were dubbed the “devil’s music”. “Lady Chatterley’s Lover”, a novel by D.H. Lawrence, a British writer, about an affair was at the centre of an obscenity trial in 1960. Lawyers in Nevada slapped Judas Priest, a British rock band, with a lawsuit over alleged subliminal messaging as the “Satanic Panic” took hold in the 1980s. Repressive regimes continue to try artists they dislike—a Russian court in 2012 convicted Pussy Riot, a punk band, of hooliganism for singing “Virgin Mary, Put Putin Away” in a Moscow cathedral.

But art is rarely used as evidence of other crimes. In 2022 “How to Murder Your Husband”, an essay listing different ways to commit the crime, was barred from a trial in America in which the author, a romance writer, was convicted of killing her spouse. (Judges noted that the text had been written years earlier, presumably before she began planning.) The same holds true for music. Before rappers picked up their microphones, lyrics were rarely used as evidence in court, says Jack Lerner of the University of California, Irvine.

Like artists in other genres, rappers have faced their fair share of obscenity trials. But today they are not usually prosecuted for their art alone. As in Young Thug’s trial, lyrics are used as evidence against artists charged with other offences, typically relating to drugs or violence. The same is rarely true of other genres. Country singers regularly belt out murder ballads: Johnny Cash, who sang about shooting a man in Reno “just to watch him die”, was arrested seven times, including on drug charges, but there is no record of his lyrics being used to jail him. A New York Times investigation found that since 1950 just four trials had used non-rap lyrics or written fiction as evidence of assault or violent threats. Hundreds of criminal cases have involved rap.

Link to the rest at The Economist

Blogging Resumes Tomorrow

Today has been consumed by the creation of responses to a large number of Takedown Orders (212) PG received today for TPV postings, citing alleged violations under Section 512(c)(3)(A) of the Digital Millennium Copyright Act

He received them from what appears to be a Takedown Order Generating company located in Britain.

PG suspects this organization spidered all of PG’s available posts and pulled out any posts that included excerpts from their clients’ publications, all of which appeared to be British publishers – The Economist, The Telegraph, The Guardian, etc., etc.

He further suspects that no actual humans were involved in determining whether Takedown Orders were, in fact legitimately permissible given the nature and purpose of PG’s use of excerpts from the various publications and all other Fair Use considerations.

PG has done a lot of research and will be filing his responses early tomorrow, within the statutory time frame permitted for doing so. As you might have anticipated, PG believes that his excerpts were and are permitted under the laws of the US and other civilized Western Nations.

He’ll share more information about his adventures in Takedown Land as events transpire.

Lord of the Rings fan fiction writer sued for publishing own sequel

From The BBC:

A fan fiction writer has been sued by the estate of JRR Tolkien for copyright after publishing his own sequel to The Lord of the Rings.

US-based author Demetrious Polychron published a book called The Fellowship of the King in 2022.

He dubbed it “the pitch-perfect sequel to The Lord of the Rings.”

The court ruled that Polychron must stop distributing copies of the book and destroy all physical and electronic copies.

. . . .

In April 2023 Polychron attempted to sue the Tolkein estate and Amazon, claiming the TV series, Rings of Power, infringed the copyright in his book.

The case was dismissed after the judge ruled that Polychron’s own book was infringing on Amazon’s prequel that was released in September 2022.

The Tolkien Estate then filed a separate lawsuit against Polychron for an injunction to stop The Fellowship of the King from being further distributed.

On Thursday Judge Steven V Wilson called Polychron’s lawsuit “frivolous and unreasonably filed” and granted the permanent injunction, preventing him from selling his book and any other planned sequels, of which there were six.

The court also awarded lawyer’s fees totalling $134,000 (£106,000) to the Tolkien Estate and Amazon in connection with Polychron’s lawsuit.

The estate’s UK solicitor, Steven Maier of Maier Blackburn, said: “This is an important success for the Tolkien Estate, which will not permit unauthorised authors and publishers to monetise JRR Tolkien’s much-loved works in this way.

“This case involved a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis, and the estate hopes that the award of a permanent injunction and attorneys’ fees will be sufficient to dissuade others who may have similar intentions.”

Link to the rest at The BBC

PG hadn’t heard of the author named in the OP nor could he find out who the author had managed to hire as his attorney.

That said, this was an easy-to-predict slam-dunk win for the Tolkien Estate and its licensees. Mr. Polychron’s actions weren’t even close to any sort of copyright gray area.

Any competent attorney Mr. Polychron might have consulted about his Tolkien “fanfiction” plans would have told the author that it was a really stupid idea. And that it would cause the Tolkien folks roaring into court swinging a legal Thor’s Hammer.

If Mr. Polychron was trying to build his name and reputation in the book business, even a maximum-flashy Manhattan public relations firm would have cost him much less.

How to Interpret the Constitution

From The Wall Street Journal:

It is a testament to our nation’s commitment to the rule of law that, nearly 250 years after its ratification, Americans still argue about the Constitution. And as often as we argue about the outcomes of controversial hot-button constitutional cases, we argue about the methodologies that lead judges to make their rulings.

Today originalism—the idea that constitutional meaning should be considered as being fixed at the time of enactment—is the dominant judicial philosophy, thanks in part to decades of persuasive arguments put forward by conservative and libertarian lawyers and scholars. But there are different flavors of originalism, corresponding to different understandings of “original meaning”—the framers’ intent, a provision’s “public meaning,” or its expected application, to name a few—and various liberal lawyers and politicians propose their own interpretative methods, originalist or otherwise.

Cass Sunstein, a Harvard Law School professor, has written “How to Interpret the Constitution,” a clear, accessible survey that discusses originalist interpretations alongside their competitors. Among those nonoriginalist approaches are John Hart Ely’s argument for democracy-enforcing judicial review, Ronald Dworkin’s moral reading of the Constitution and James Bradley Thayer’s advocacy of extreme judicial restraint. Those are all varieties of what has been called “living constitutionalism”; they all allow that the Constitution may evolve in meaning without being amended.

Mr. Sunstein argues repeatedly that the Constitution “does not contain the instructions for its own interpretation.” To some degree, this is true: Though statutes often include definitions in their wording, the Constitution, for the most part, does not. For example, the first words of the First Amendment read: “Congress shall make no law respecting an establishment of religion.” Neither “respecting,” “establishment,” nor “religion” are set out with clear definitions, and the Supreme Court has entertained many possible meanings for each over the course of American history.

There is also no explicit constitutional command, in the text of the Constitution or in the works of the Founders, that those tasked with interpreting it must follow any particular method, either originalist or living-constitutionalist. “The idea of interpretation is capacious,” Mr. Sunstein writes. He therefore proposes his own first principle for choosing among methods: “Any particular approach to the Constitution must be defended on the ground that it makes the relevant constitutional order better rather than worse.”

Originalists propose that we resolve constitutional ambiguities by unearthing the law’s true and unchanged meaning. Mr. Sunstein, by contrast, proposes that judges and other constitutional interpreters rely on their “firm intuitions” to determine which constitutional rules are desirable and then see what theories might yield those rules. To do so, the author borrows from John Rawls, the giant of 20th-century liberal political theory, to endorse a methodology of “reflective equilibrium,” in which “our moral and political judgments line up with one another, do not contradict each other, and support one another.”

“In deciding how to interpret the Constitution,” Mr. Sunstein writes, “we have to think about what we are most firmly committed to, and about what we are least likely to be willing to give up.” He reveals how he would apply this methodology in his own case by listing his 10 “fixed points,” or constitutional outcomes that resonate with his own sense of rightness and justice. They are “clearly correct” propositions in the author’s view and include the contentions that “the Constitution does not forbid maximum hour and minimum wage laws” and that “the First Amendment should be understood to give very broad protection to political speech.” Of course, you might believe exactly the opposite. That, to Mr. Sunstein, is equally legitimate. One begins to wonder at this point how much “interpretation” exactly is going on.

Consider Mr. Sunstein’s claim that judges and justices should interpret laws in a manner that improves the constitutional order. Why shouldn’t we just allow legislators, who figure nowhere in Mr. Sunstein’s philosophy, to make legitimate changes to legislation when needed? We have mechanisms for improving our nation’s laws, and we have one for improving our Constitution. The Republicans who revamped our constitutional system in the aftermath of the Civil War by devising the Reconstruction Amendments—banning slavery, guaranteeing the equal protection of the law and enforcing individual rights against the states—understood that they couldn’t simply project their moral and political views onto the unamended law. They had to change the Constitution.

Like most nonoriginalists, Mr. Sunstein evades the key insight that gives originalism its appeal. It begins with a phrase from the Constitution that refutes Mr. Sunstein’s premise that the document doesn’t contain instructions for its own interpretation. “This Constitution,” it proclaims, “shall be the supreme law of the land.” The Constitution is a legal document, even if its provisions are sometimes more ambiguous at first glance than we would want a law to be. And laws have the crucial characteristic sometimes known as “fixation”: They remain unchanged until changed by authorized means. Constitutional interpretation must be constrained by this basic principle of legal reasoning.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Italian Publishers: Toughen Europe’s AI Act Regulations

From Publishing Perspectives:

A potentially pivotal moment occurs this week in the closely watched development of the European Union’s “AI Act.”

Markets in many parts of the world, not just in Europe, are following along for clues and cues in terms of how artificial intelligence can be developed and applied “safely”—and even that term safely can be hotly debated, of course.

On Wednesday (December 6), the AI Act is to have its fifth “trilogue.” That’s the term for a negotiating session in which the European Parliament, the European Commission, and the Council of the European Union. Previous trilogue meetings on the Artificial Intelligence Act were held in June, July, September, and October. Originally, the idea was that this December trilogue would finalize the bill for the bloc this year, but there’s increasing concern that the timing of such progress will be take longer. This, on legislation that saw its first draft in 2021 and was first proposed in 2019.

What has happened in the interim—you won’t be surprised to read—is the rise of “foundation models.” Sometimes called “general purpose,” these are the systems designed as large-language models built for “deep learning” that can be adapted for a wide array of scenarios. This contrasts, of course, with the concept of a traditional program designed to handle a specific and narrow task set, maybe speeding up a bit of office drudge work. Such less ambitious programs require nothing like some foundation models’ contentious free-range feeding on information—often copyrighted content—to build their algorithmic-response structures.

A foundation model is a form of what’s called “generative artificial intelligence,” meaning that it can generate output from a broad base of ingested data.

At the highest intentional level, the over-arching core of discussion around this legislation has been, to quote the EU’s material, to handle “concerns especially with regard to safety, security, and fundamental rights protection.” But if the devil is usually in the details, a construct of digital details presents such a major chance for devilry that many observers now are worried about this important legislation’s progress.

Needless to say, the upheaval around OpenAI last month when its board fired and the rehired Sam Altman seemed to confirm fears that a major corporate player in the AI space could be thrown into turmoil by inscrutable internal governance issues. As Kevin Chan at the Associated Press is writing today, once the Altman fiasco had played out, European Commissioner Thierry Breton said at an AI conference, “‘At least things are now clear’ that companies like OpenAI defend their businesses and not the public interest.”

And yet, much discussed in coverage on the run-up to Wednesday’s trilogue is an unexpected resistance that’s been mounted by France, Spain, and Italy, which presented a pitch for self-regulation among AI players.

At The Guardian, John Naughton wrote up this “Franco-German-Italian volte face,” as he calls it, as the result of everyone’s worst fears: “the power of the corporate lobbying that has been brought to bear on everyone in Brussels and European capitals generally.” More broadly, the assumption is that in each EU member-state seeming to make that about-face and start talking of self-regulation as the way to go, something has been promised by industry advocates for the local national AI companies, a divide-and-conquer effort by lobbyists.

Link to the rest at Publishing Perspectives

PG notes that the reaction of the European publishers sounds a lot like that of American publishers.

As far as regulation is concerned, the current AI programs/services he has tried have their AI capabilities online, so geographical fences like the the European Union’s “AI Act” are unlikely to prevent individuals or organizations who wish to use AI services offered over the internet from a provider located anywhere in the world.

As one cyberlaw website put it, “Some believe that the internet should be operated as if it were a land all its own, independent of national policy.”

Sarah Silverman Hits Stumbling Block in AI Copyright Infringement Lawsuit Against Meta

From The Hollywood Reporter:

A federal judge has dismissed most of Sarah Silverman‘s lawsuit against Meta over the unauthorized use of authors’ copyrighted books to train its generative artificial intelligence model, marking the second ruling from a court siding with AI firms on novel intellectual property questions presented in the legal battle.

U.S. District Judge Vince Chhabria on Monday offered a full-throated denial of one of the authors’ core theories that Meta’s AI system is itself an infringing derivative work made possible only by information extracted from copyrighted material. “This is nonsensical,” he wrote in the order. “There is no way to understand the LLaMA models themselves as a recasting or adaptation of any of the plaintiffs’ books.”

Another of Silverman’s arguments that every result produced by Meta’s AI tools constitutes copyright infringement was dismissed because she didn’t offer evidence that any of the outputs “could be understood as recasting, transforming, or adapting the plaintiffs’ books.” Chhabria gave her lawyers a chance to replead the claim, along with five others that weren’t allowed to advance.

Notably, Meta didn’t move to dismiss the allegation that the copying of books for purposes of training its AI model rises to the level of copyright infringement.

The ruling builds upon findings from another federal judge overseeing a lawsuit from artists suing AI art generators over the use of billions of images downloaded from the Internet as training data. In that case, U.S. District Judge William Orrick similarly delivered a blow to fundamental contentions in the lawsuit by questioning whether artists can substantiate copyright infringement in the absence of identical material created by the AI tools. He called the allegations “defective in numerous respects.”

Some of the issues presented in the litigation could decide whether creators are compensated for the use of their material to train human-mimicking chatbots that have the potential to undercut their labor. AI companies maintain that they don’t have to secure licenses because they’re protected by the fair use defense to copyright infringement.

According to the complaint filed in July, Meta’s AI model “copies each piece of text in the training dataset” and then “progressively adjusts its output to more closely resemble” expression extracted from the training dataset. The lawsuit revolved around the claim that the entire purpose of LLaMA is to imitate copyrighted expression and that the entire model should be considered an infringing derivative work.

But Chhabria called the argument “not viable” in the absence of allegations or evidence suggesting that LLaMA, short for Large Language Model Meta AI, has been “recast, transformed, or adapted” based on a preexisting, copyrighted work.

Another of Silverman’s main theories — along with other creators suing AI firms – was that every output produced by AI models are infringing derivatives, with the companies benefiting from every answer initiated by third-party users allegedly constituting an act of vicarious infringement. The judge concluded that her lawyers, who also represent the artists suing StabilityAI, DeviantArt and Midjourney, are “wrong to say that”  — because their books were duplicated in full as part of the LLaMA training process — evidence of substantially similar outputs isn’t necessary.

Link to the rest at The Hollywood Reporter

ACLU, Parents, and Students Sue Alaska School District Over Book Bans

From Publishers Weekly:

On November 17, a group of eight local plaintiffs joined by the American Civil Liberties Union of Alaska and advocacy group the Northern Justice project filed suit against Matanuska-Susitna Borough (Mat-Su) school district north of Anchorage, seeking the return of 56 books said to be improperly banned from school shelves. The suit was filed on behalf of six parents of minor children and two Mat-Su students who are over the age of 18, who claim that the actions of the school board violated their “First and Fourteenth Amendment rights” to free speech and political expression.

“On April 21, 2023, the School Board ordered the Matanuska-Susitna Borough School District to remove 56 books from all of its school libraries because the books contained ideas or concepts that either the Board or some members of the public did not like. The District carried out this removal of books,” the complaint states. While acknowledging that “school districts have broad discretion in the management of school affairs,” the suit argues that “such broad discretion is still bounded by the protections of the U.S. Constitution” and that the districts removal of the books infringes on students First Amendment right “to receive ideas and information as a necessary predicate to their meaningful exercise of the rights of speech, press, and political freedom.”

The books ordered removed by the board include classics such as Toni Morrison’s The Bluest Eye, Kurt Vonnegut’s Slaughterhouse Five, and Khaled Hosseini’s The Kite Runner. The removed books also include books “with protagonists of color or LGBTQ+ protagonists” and “nonfiction reference materials discussing adolescent health and development.”

The plaintiffs seek “an injunction, declaratory relief, and nominal damages against the Board’s unconstitutional removal of books, to protect their right and freedom to explore a wide range of ideas.”

In a statement, ACLU of Alaska legal director Ruth Botstein, said the Mat-Su board put “its personal views” ahead of the rights of students and parents it serves. “Removing classic reads and award-winning literature from bookshelves violates students’ rights to receive ideas and information. This is a foundational component of the rights of young Alaskans to exercise freedom of speech, press, and political expression. Book banning in any public setting is unacceptable.”

The suit in Alaska is the latest in a legal effort to turn back an ongoing, politically-organized nationwide wave of book banning. In addition to the action in Alaska, an ACLU suit is currently pending in Missouri, challenging Senate Bill 775, a school library obscenity law that opponents say forces librarians to censor their collections under the “threat of arbitrary enforcement of imprisonment or fines.”

Link to the rest at Publishers Weekly

FTC calls out consumer protection and competition intersections in Copyright Office AI proceeding

From JD Supra:

The U.S. Federal Trade Commission (FTC) staked out its role in policing the potential competition and consumer protection implications of generative AI technologies’ use of copyrighted materials in comments submitted in the U.S. Copyright Office’s proceeding on AI and copyright. The proceeding seeks information on the use of copyrighted works to train AI models, levels of transparency and disclosure needed regarding copyrighted works, and the legal status of AI-generated outputs, among other things. In its comments, the FTC reiterated its expertise addressing competition and consumer protection issues involving AI, identified copyright issues related to generative AI that implicate competition and consumer protection policy, and introduced testimony from an October 2023 FTC roundtable with creative professionals. The FTC also promised vigorous efforts to protect consumers in the rapidly evolving AI marketplace.

The FTC’s AI Enforcement

The FTC’s mandate – under the FTC Act and other statutes – to promote competition and protect consumers gives it the power to address unfair or deceptive acts or practices and unfair methods of competition. The FTC has characterized AI as the latest in a series of new technologies that pose novel and important challenges for consumers, workers, and businesses, which falls within the purview of the FTC’s “economy-wide mission.” According to the FTC, as companies deploy AI-enabled systems across a wide range of industries and people incorporate AI-powered products and services into their daily lives, the potential for harm to consumers increases.

The FTC has experience applying its existing legal authority to address alleged unlawful practices and unfair competition involving AI. Prior actions and guidance have addressed a variety of consumer protection allegations, such as algorithms that rely on consumer’s personal information, algorithm-driven recommendations communicating deceptive claims, and algorithms making biased decisions. The FTC has also called attention to potential advertising concerns relating to AI, and has highlighted the risk of fraud stemming from the use of chatbots, deepfakes, and voice clones.

Consumer Protection, Competition, and Copyright

In its comments to the Copyright Office, the FTC highlights important intersections across consumer protection, competition law and policy, and copyright law and policy.  The Commission’s comments note three areas of interest where the FTC might seek to address unfair or deceptive practices to ensure a competitive marketplace.

First, the FTC notes that decisions about where to draw the line between human creation and AI-generated content may cause harm to both creators and consumers. Creators may be harmed by their work being used to train an AI tool without their consent. Consumers, on the other hand, may be harmed if there is a lack of transparency about AI authorship.

Second, the FTC argues that questions about how to address liability for AI-generated content can implicate consumer protection and competition policy. These questions include what liability principles should apply, assigning and apportioning liability, treatment of pirated content, and the role of disclosures, among other issues. As policymakers seek answers to these questions, there may be overlap and potentially some conflict with consumer protection or competition interests. For example, as the FTC notes, “the use of pirated or misuse of copyrighted materials could be an unfair practice or unfair method of competition under Section 5 of the FTC Act.”

Third, the FTC argues that consumer protection and competition principles may call for policy protections that “go beyond the scope of rights and the extent of liability under the copyright laws.” There may be times when consumer protection or competition policy and copyright policy are aligned, as in the example above where misuse of copyrighted materials would likely violate both the FTC Act and copyright law. The FTC raises the possibility, however, that there may also be circumstances where companies run afoul of Section 5 with their AI-generated content even if that content would not violate copyright law.

Impact of Generative AI on Creative Economy

The FTC also seeks to highlight impacts on content creators. Along with its written remarks, the FTC submitted the transcript of its October 4, 2023, “Creative Economy and Generative AI” roundtable, which featured musicians, authors, actors, artists, software developers, and other creative professionals discussing the impact of generative AI on their work. The FTC transcript noted views shared by participants on topics such as: (1) works being used to train generative AI without participants’ consent; (2) insufficient or ineffective mechanisms for obtaining consent, including reliance on opt-out approaches; (3) lack of transparency and disclosure about training data and authorship of AI-generated content; (4) the ample use cases of AI for creative professionals but the need for better guardrails to protect creators; and (5) the putatively great power imbalance between the creators and the generative AI companies.

Link to the rest at JD Supra

PG is anything but an expert on the FTC’s jurisdiction, but color him skeptical about whether the agency has jurisdiction over Generative AI programs.

PG did some quick and dirty research and found the FTC has about 1000 people on its payroll, about two-thirds of whom are attorneys. As PG has mentioned on multiple occasions, he’s a retired attorney and has high regard for the general intelligence of his fellow attorneys.

However, with the exception of patent attorneys, who must have an undergraduate degree in the science or engineering fields, a large portion of the bar members anywhere PG knows about have non-science or engineering or math degrees as undergraduates. Indeed, law school is one of the few options for a humanities major who would like to be able to support a family in a reasonably comfortable manner.

In short, the people working at the FTC undoubtedly have a lot of opinions about artificial intelligence, but little ability to understand how it works or what dangers are real and what dangers are imaginary. The fact that judges are all attorneys gives PG another reason to worry about involving AI research in the US legal system.

Here’s a statement from the FTC website about the agency’s mission:

The FTC enforces federal consumer protection laws that prevent fraud, deception and unfair business practices. The Commission also enforces federal antitrust laws that prohibit anticompetitive mergers and other business practices that could lead to higher prices, fewer choices, or less innovation.

Whether combating telemarketing fraud, Internet scams or price-fixing schemes, the FTC’s mission is to protect consumers and promote competition.

Perhaps PG missed something, but telemarketing fraud, internet scams or price-fixing schemes don’t sound like the main features of large language models.

First Sale Doctrine in Trademark and Copyright Law

From BonaLaw:

Federal law allows owners of copyrights or trademarks to file suit for alleged infringement of their exclusive rights. Through a lawsuit, they can recover damages or ask a court to enjoin further unauthorized use of their protected materials. Certain uses of copyrighted or trademarked materials are allowed by law, even without the owner’s permission.

The first sale doctrine allows the resale of products that constitute or contain someone else’s intellectual property without the owner’s permission, as long as the person lawfully owns the product. The first sale doctrine is codified in U.S. copyright law, and court decisions have applied it to trademarks. It can serve as a defense to a copyright or trademark infringement lawsuit in certain situations.

The First Sale Doctrine in Copyright Law

The first sale doctrine states that a copyright owner cannot prevent someone who has lawfully purchased a copyrighted work, such as a book, from selling, loaning, or giving that item to someone else. This allows the distribution of copyrighted materials beyond the initial sale by the copyright owner. Without the first sale doctrine, no one would be able to sell or otherwise dispose of books, CDs, DVDs, or other tangible works that they have purchased without the copyright owner’s authorization. Bookstores and libraries would need permission every time that they sold or loaned a book.

Federal copyright law has codified the first sale doctrine at 17 U.S.C. § 109. Limits apply to the doctrine when a copyrighted work is in digital rather than physical form. Section 109 also contains exceptions for certain types of media.

Limits on Resale of Digital Copies

The first sale doctrine pre-dates the digital era. It assumes that copyrighted materials exist in physical form. People now buy mp3 files instead of CDs, digital movies instead of DVDs, and ebooks instead of books. Digital media files are not distinct, tangible items that can literally change hands after a sale. The process of copying a digital file is simpler than copying a CD or DVD, and much simpler than copying a book.

The U.S. Copyright Office has concluded that the first sale doctrine does not apply to the unauthorized resale of copyrighted materials in digital form. In a report issued in 2001, it stated that transmitting a digital file from one user to another creates a new copy of the copyrighted work.

Several court decisions have adopted the Copyright Office’s conclusions. For example, in 2018, the Second Circuit Court of Appeals affirmed a New York federal court’s ruling against a company that allowed consumers to sell digital music files that they had purchased through the iTunes store.

Sale vs. Licensing of Work

For the first sale doctrine to apply, the person attempting to sell their copy of a copyrighted work must actually own that copy. A person who buys a book from a bookstore owns the paper on which the book is printed. They can sell that item to someone else. The same can be said for a CD purchased at a music store. That said, not all exchanges of money for copyrighted materials constitute a “sale.”

Many software companies include end-user license agreements (EULAs), stating that the consumer is only purchasing a license to use their software. If the EULA states that the license is not transferable, the consumer cannot legally sell or otherwise convey the software to anyone else.

Link to the rest at BonaLaw

Mark Meadows sued by book publisher over false election claims

From The Hill:

The publisher of Mark Meadows’s book is suing the former White House chief of staff, arguing in court filings Friday morning that he violated an agreement with All Seasons Press by including false statements about former President Trump’s claims surrounding the 2020 election.

“Meadows, the former White House Chief of Staff under President Donald J. Trump, promised and represented that ‘all statements contained in the Work are true and based on reasonable research for accuracy’ and that he ‘has not made any misrepresentations to the Publisher about the Work,’” the publishing company writes in its suit, filed in court in Sarasota County, Fla.

“Meadows breached those warranties causing ASP to suffer significant monetary and reputational damage when the media widely reported … that he warned President Trump against claiming that election fraud corrupted the electoral votes cast in the 2020 Presidential Election and that neither he nor former President Trump actually believed such claims.”

The suit comes after ABC News reported that Meadows received immunity to testify before a grand jury convened to hear evidence from special counsel Jack Smith, reportedly contradicting statements he made in his book. 

. . . .

Meadows’s book, “The Chief’s Chief,” was published in 2021 and spends ample time reflecting on the election.

“Meadows’ reported statements to the Special Prosecutor and/or his staff and his reported grand jury testimony squarely contradict the statements in his Book, one central theme of which is that President Trump was the true winner of the 2020 Presidential Election and that election was ‘stolen’ and ‘rigged’ with the help from ‘allies in the liberal media,’ who ignored ‘actual evidence of fraud,’” the company writes in the filing.

According to Meadows’s testimony, as reported by ABC News, Trump was being “dishonest” with voters when he claimed victory on election night. ABC reported that Meadows admitted Trump lost the election when questioned by prosecutors.

Link to the rest at The Hill

Court Offers First Glimpse Into Whether AI Machine Learning Is Copyright Infringement Or Fair Use

From Mondaq:

As we previously blogged, multiple generative AI platforms are facing lawsuits alleging that the unauthorized use of copyright-protected material to train artificial intelligence constitutes copyright infringement.  A key defense in those cases is fair use.  Specifically, AI platforms contend that they don’t need a license to use copyright-protected content—whether scraped from the Internet or obtained from a pirate trove of books—for the purpose of developing and improving large language models (LLMs) under the theory that such use is transformative and fair use under the Copyright Act.  Whether fair use prevails in this battle is one of the biggest copyright questions of the day.

While many of the generative AI actions are pending in the U.S. District Court for the Northern District of California, a federal court in Delaware recently had the opportunity to opine on the merits of this important fair use question.  In Thomson Reuters v. Ross Intelligence, 2023 WL 6210901 (D. Del. Sept. 25, 2023), the owner of Westlaw (Thomson Reuters) claims, among other things, that an AI startup (Ross Intelligence) infringed Thomson Reuters’ copyright by using Westlaw’s headnotes to train Ross’s legal AI model.  The parties cross moved for summary judgment on various grounds, including on Ross’s fair use defense.  

Though the decision explores multiple interesting questions of copyright law, including the copyrightability of Westlaw headnotes (maybe) and whether the Copyright Act preempts Thomson Reuters’ claim for tortious interference (yes), its analysis of Ross’s fair use defense—in particular, the court’s assessment of whether Ross’s alleged use of Westlaw’s headnotes (assuming they are protected by copyright) is “transformative—is where the court appears to have broken new ground.

The court begins its fair use analysis by discussing two cases from the Ninth Circuit that deal with so-called “intermediate copying.”  In Sega Enterprises v. Accolade, 977 F.2d 1510 (9th Cir. 1992), the court held that it was fair use for a company to copy Sega’s copyright-protected console code for the purpose of learning the software’s functional components and making new games that were compatible with Sega’s console.  Similarly, in Sony Computer Entertainment v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit held it was fair use for a company to create a copy of Sony’s software in order to create a new gaming platform that was compatible with Sony’s games.  The Thomson Reuters court noted that the Supreme Court “has cited these intermediate copying cases favorably, particularly in the context of ‘adapting the doctrine of fair use in light of rapid technological change.’”  2023 WL 6210901, at *8 (quoting Google v. Oracle, 141 S. Ct. 1183, 1198 (2021)) (cleaned up).

Thomson Reuters attempted to distinguish the intermediate-copying cases by arguing that, unlike the companies in Sega and Sony that merely sought to “study functionality or create compatibility,” Ross sought to train its AI with Westlaw’s “creative decisions” specifically to “replicate them” in the AI’s output.  Ross, on the other hand, contended that “its AI studied the headnotes and opinion quotes only to analyze language patterns, not to replicate Westlaw’s expression,” and thus was lawful “intermediate copying.”  The court held that whether Ross’s use was transformative would turn on the “precise nature of Ross’s actions.”  

Here’s the key text:

It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes.  But if Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors, then Ross’s comparisons to cases like Sega and Sony are not apt.

. . . .

To the extent that LLMs are ingesting copyright-protected material solely to understand language patterns and not to replicate their creative expression (which may very well be the case for many LLMs), this opinion suggests that using such material to train AI is transformative.  But if the material is being used to train AI to output the “creative drafting” discerned from the original, then the use is likely not transformative.  Thus, as the Thomson Reuters court observes, the fair use question in these cases may turn on the exact nature of the AI training process.

Link to the rest at Mondaq

PG apologizes if the rest of this post is boring for anyone who isn’t a law geek, but the following may help clarify PG’s interest.

The OP intrigued PG because he got into a bit of trouble a long time ago when he suggested, in an article he wrote for The Journal of the American Bar Association, that West Publishing didn’t have a legitimate copyright to the books it published that consisted of the opinions of a large number of courts across the country.

West was a venerable professional publisher, founded in 1872 to print law books for the use of attorneys and judges.

West evolved to publish the statutes for the United States government and every state.

West also published the court opinions written by judges in the federal court system and all states.

Because the statutes and case opinions are public documents, anyone who desires to publish them is free to do so.

West contended that the improvements it made in these public documents it published were protected by copyright laws.

West built up a large business based upon the changes it made to improve the quality of the federal and state court opinions. These included:

  1. West employees proofread the opinion and corrected grammatical errors.
  2. West employees checked all of the statutory and case citations included in the opinion and corrected them to reflect generally used conventions of legal citations. (Judges, like any other human beings, sometimes make mistakes when they write their opinions. The conventions used in creating such citations can make correctly creating the citations to statutes and cases an error-prone activity.)
  3. For example, “Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011),” is West’s citation for the court opinion in the case of Stephen Stearns v. Ticketmaster Corp, et al (et al is an abbreviation of the Latin term “et alia,” which means “and others.”) that was published in volume 655 of the Federal Reporter, Third Series (identified by the abbreviation “F.3d”), beginning on page 1013. The citation also shows the decision was issued by the United States Court of Appeals for the Ninth Circuit (abbreviated as 9th Cir.), in 2011.
  4. It was and is considered bad form for an attorney to cite a case other than in the form prescribed by “Blue Book Citations” in legal documents submitted to a court. West citations were the basis for Blue Book Citations. As mentioned earlier, most judges were happy to have West correct their citation errors. That service helped a judge avoid snide remarks from other judges in the judicial cafeteria.

West also categorized cases according to a West-created “Key Number System.” This is a classification system that organizes cases by topic, allowing legal researchers to quickly find cases related to a particular issue. This system was created in the 19th century, starting with seven categories: persons, property, contracts, torts, crime, remedies, and government.

The Key Number System could be quite helpful before the digitization of cases and statutes.

In 1967, the Ohio State Bar Association entered into a $7,000 agreement with Data Corporation of Beavercreek, Ohio, to create a full-text, interactive research service of the Ohio statutes.

In 1973, Mead Data Central, the successor of Data Corporation, introduced LEXIS, an online computer research service that consisted of the full text of Ohio and New York codes and cases, the U.S.
code, and some federal case law. The LEXIS search engine was clunky by today’s standards, but it allowed attorneys to search the statutes and case opinions much faster and at a more granular level than could be done with West’s printed books.

West and LEXIS (Mead Data Central)

IBM, Microsoft and Big Tech Antitrust Folly

From The Wall Street Journal:

The continuing trial of Google, along with lawsuits against Amazon and Meta, have brought antitrust back into the public eye. These suits recall the 1969 case against IBM and the 1998 case against Microsoft, the great antitrust battles of the latter half of the 20th century.

Supporters of aggressive antitrust enforcement think that only antitrust suits prevented IBM from commandeering the personal-computer market and Microsoft from taking over the internet. But that’s an urban legend.

Historical evidence rebuts the claim that the antitrust suit forced IBM to stop bundling application software with its machines, jump-starting the modern software industry. As early as 1966, IBM had already made the decision to unbundle independent of the suit because it could no longer provide the variety of software that users demanded.

In the 1960s, IBM led the mainframe computer industry by offering a product that consumers valued for its technical quality and complementary products, coupled with IBM’s customer service. Does that mean IBM would have swallowed the personal-computer industry if the government hadn’t stopped it?

No. IBM was aggressively developing its PC while the trial dragged on. To create it, IBM had given a unit in Boca Raton, Fla., the autonomy of a startup. The company introduced its first PC in August 1981. The machines were selling briskly by the time the Justice Department dropped its antitrust suit in January 1982.

Yet the company’s mainframe computer business proved a liability in the new market. Existing divisions fought for control of the PC, and executives quickly eliminated the autonomy of the PC unit, assigning the new product to legacy divisions. A legion of agile “clone” makers quickly wrested the market away from IBM forever.

IBM had considered the PC a minor complement to mainframe computers, but the PC ended up killing off the traditional mainframe. The once-dominant company lost $8 billion in the second quarter of 1993.

Microsoft’s story is similar. The company also created a unit with considerable autonomy to create its browser, Internet Explorer. The company pressured its operating-system customers to adopt Explorer and engaged in other contracting practices that would be subjected to sanctions in the final antitrust judgment. By 2001, Internet Explorer had vanquished Netscape Navigator in the “browser war.”

Yet far from exploiting the internet, Microsoft managed its browser as a complement to its operating system, the company’s cash cow. Careful historical scholarship suggests that the company did so not because of the antitrust suit but because of many of the same internal forces that hindered IBM’s PC.

Microsoft disbanded its autonomous browser unit and assigned the new technology to its legacy divisions. The effort to dethrone Navigator had always been motivated by the fear that a browser could replace Microsoft’s operating system, and an independent Internet Explorer unit would threaten the operating-system business in the same way Netscape had.

Microsoft had a brighter future than IBM and continued to dominate the browser market for a few years, but Google, a company not burdened with existing assets and capabilities, would exploit the internet more fully.

If there was an antitrust case from the late 20th century that might have had dramatic consequences for technology, it was the long-running suit against AT&T, which resulted in the breakup of the telephone giant in 1982. Unlike today’s targets, however, AT&T was a regulated monopoly. Its breakup was an act of deregulation in the name of antitrust.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

As the OP mentioned, in 1969, the government launched an antitrust suit against IBM. Despite a huge court tussle, the suit was finally dismissed by the Reagan administration in 1982.

We don’t know what would have happened had the ’69 antitrust suit had not been filed and consumed a huge amount of time of many smart people at IBM, but by 1982, Microsoft was on a roll with PC-DOS and the momentum toward the personal computer was well underway.

Clones of PC-DOS lead by MS-DOS from Microsoft and clones of IBM’s PC personal computers proliferated like rabbits. Compaq, founded in 1982, became the first major producer of PC clones by 1984 and sold larger businesses very effectively.

Radio Shack’s Tandy PC clones proliferated through about 8,000 store locations in urban and small-town locations across the US, UK, Canada and Australia in the 1990’s, aggressively driving the cost of personal computers down so more families and small businesses could afford them.

UK: Society of Authors Questions Spotify’s Publisher Deals

From Publishing Perspectives:

In a statement provided to Publishing Perspectives for today’s report (October 11), the 12,400-member Society of Authors in London is expressing “deep concern” in learning from press reports last week that ‘all major book publishers’ have agreed new limited streaming deals with Spotify.’”

As our readership knows, Spotify CEO Daniel Ek led an invitational press conference on October 3, announcing the opening in Australia and the United Kingdom of its premium audiobook offer. The move is said by the company to make available at least 150,000 audiobooks as part of Spotify Premium subscriptions, subscribers receiving 15 hours of listening time monthly.

As Anne Steele pointed out in her article for the Wall Street Journal, Spotify says it has made agreements with the Big Five publishing houses and many independent publishers.

“As far as we are aware,” the society’s leadership writes, “no authors or agents have been approached for permission for such licenses, and authors have not been consulted on license or payment terms.”

“Publishing contracts differ but in our view, most licenses given to publishers for licensing of audio do not include streaming. In fact, it is likely that streaming was not a use that had been invented when many such contracts were entered into.”

. . . .

“We know the devastating effect that music streaming has had on artists’ incomes,” the Society’s statement reads, “and the impact of streaming and subscription video on demand platforms on screenwriter incomes and their working conditions. We have long been concerned about streaming models for books.

“The streaming of audiobooks competes directly with sales and is even more damaging than music streaming because books are typically only read once, while music is often streamed many times.”

. . . .

The organization references Sian Bayley’s October 3 announcement story at The Bookseller in making its point.

In that article, as the Society of Authors points out, Bayley wrote, “Book publishers have long expressed reservations about subscription deals for digital content, but Spotify has offered variations of the typical pooled income arrangement, with a more limited offer that publishers believe will assure agents and authors that their income streams will not be undermined.”

The Society of Authors statement goes on even to allude to what might be an appearance of collusion, writing, “Authors and agents have simply not been contacted about such offers, let alone reassured. The fact that all major publishers have entered such arrangements at the same time seems to raise questions that perhaps should be reported to the competition authorities.”

The Society of Authors then concludes with a concise list of what it sees as its requirements in this development. It writes, “We demand that all publishers:

  • “Inform their authors and agents with full transparency about the deals they have negotiated, to seek permission in full respect of their right not to give permission and to remove their books from the Spotify catalogue.
  • “Negotiate an appropriate share of the receipts on a clear and equitable payment model, which should equate to no less than the amount that would be received from a sale of the same audiobook.
  • “Ensure that with all licenses that Spotify applies frictions, as with e-lending, such as time limited loans and guarantees of payment, whatever proportion of the book is read.
  • “Ensure that licenses are time limited and should not allow sublicensing or use on other platforms.
  • “Indemnify authors if the unauthorized use conflicts with existing film or other such deals, or if it leads to claims of copyright infringement by rights holders of quotations or images included in that.
  • “Ensure that licenses include safeguards to prevent pirating of authors’ and narrators’ works and voices including for use in AI systems.”

The controversy here is based in serious considerations about how authors, their literary agents, publishers, and distributors handle the agreements behind the kind of offer Spotify and others may make to consumers for streaming access to copyrighted content.

Link to the rest at Publishing Perspectives

PG doesn’t know more about the details of the streaming agreements signed by publishers or how publishers think they are entitled to grant licenses to Spotify for streaming or how publishers intend to compensate authors and audiobook narrators for the rights they are purporting to grant to Spotify.

PG speculates that publishers have the idea that there is no real difference between the sale of audiobooks under existing publishing agreements with authors and narrators and what they’re planning to do with Spotify.

Will revenues received by the publisher from Spotify be broken down by author and book title? What happens when a Spotify user streams 20% of an audiobook? In a more conventional audiobook sales environment, when a reader acquires an audiobook, the reader pays a lump sum and the author’s royalties are calculated and paid as a percentage of that sum.

A typical publishing contract permits the author to conduct an audit of the publisher’s sales records for the books the publisher has under contract. Typically, the author is entitled to perform the audit in person or designate an individual, individuals or an accounting firm (usually through its auditing department) to perform the audit on behalf of the author.

PG has always believed that the audit rights in a publishing contract include not only the sales records of the publisher with respect to the author’s books but all of the contracts the publishers have made with book wholesalers, bookstores and bookstore chains, etc.

Audiobooks have their own licensing issues that are different from those for printed books and ebooks.

The right to create and sell an audiobook is a derivative right owned by the author of a book and can be licensed by the author separately from the license to “sell” an ebook or a printed book.

An audiobook requires a narrator. Absent a contract stating differently, the narrator has exclusive rights to the audio narration he/she has performed.

Someone needs to create a recording of the narrator. Whoever creates the recording – turning on an audio recorder or overseeing the recording process as it takes place to make certain the recording is audible and meets commercial standards for the audiobook industry. The creator of the recording is the owner of that recording, absent a written contract granting the author or publisher the ownership rights to the recording, including the right to create duplicate recordings that can be sold/licensed to audiobook purchasers.

If music or bits of music are added to the audio, the composer and performers of the music are the owners of their own creation and performance rights, etc. etc.

Why a Little-Known Copyright Case May Shape the Future of AI

PG thought he had blogged about this case before but couldn’t find any evidence of doing so when he searched TPV.

From Copywrite Lately:

While a flurry of AI copyright lawsuits from prominent authors and artists grab headlines, another case has quietly taken something more important: a head start.

Even die-hard copyright geeks would be forgiven for overlooking a lawsuit first filed over three years ago by information services company Thomson Reuters against AI start-up Ross Intelligence. That’s because the case involves Westlaw, a legal research tool that’s about as sexy as the underwear section in a 1940s Sears catalog. I say this with peace and love as a longtime Westlaw user, but let’s be honest—headnotes and key numbers are simply no match for the likes of Sarah Silverman and John Grisham.

It’s time to start paying attention though, because a Delaware District Court judge just ordered this low-profile AI case to trial, largely denying the parties’ motions for summary judgment on copyright infringement and fair use (read the opinion here). This means that a jury could weigh in on some of the thorniest copyright questions involving artificial intelligence as early as May 2024.

Thomson Reuters v. Ross Intelligence

The issues at play in Thomson Reuters v. Ross Intelligence largely mirror those I’ve discussed in connection with recent class action copyright lawsuits filed against the creators of Stable Diffusion, ChatGPT and other generative AI tools. In a nutshell, plaintiffs allege that Ross hired a third-party contractor to unlawfully copy Westlaw content—including its proprietary Key Number System and case headnotes—in order to train Ross’s own AI-driven natural language legal search engine.

Unlike the creative works ingested by AI tools in the recent lawsuits filed against OpenAI and Stability AI, the copyrights in Westlaw are more limited. Thomson Reuters doesn’t own any of the underlying judicial opinions that make up its database. It does, however, claim copyright in its keynote organization system as well as its original case summaries and headnote descriptions. These “editorial enhancements” are drafted by the company’s attorney-editors in what I’d imagine is the most thankless job this side of working for Louis Litt.

But according to Ross, it wasn’t interested in the Westlaw key numbers or headnotes. Instead, the goal of its system was for users to ask questions and for the search engine to spit out quotations directly from judicial opinions—no commentary necessary. In other words, Ross contends that the output of its tool won’t infringe any original copyrighted material owned by Thomson Reuters, notwithstanding the so-called “intermediate copies” of West’s key numbers and headnotes that may have been made to initially train Ross’s dataset. These copies, Ross claims, are fair use.

In January, Thomson Reuters moved for summary judgment on its copyright infringement claim, and both sides moved for summary judgment on Ross’s fair use defense.

Judge Stephanos Bibas ultimately declined to determine the scope of protection to be given the Key Number System or to decide whether Westlaw’s headnotes added sufficient non-trivial material to the underlying judicial opinions to meet copyright’s originality threshold. While the court did find that Ross committed an act of “actual copying” by scraping and reproducing headnotes during the AI training process, whether that copying constitutes infringement will depend on whether or not the headnotes are protected expression. That issue will be decided by a jury.

The court likewise ruled that a jury needs to decide whether there are substantial similarities in protectable expression (as opposed to unprotectable material) between Westlaw’s headnotes and summaries and thousands of “bulk memos” created by Ross’s third-party contractor to train Ross’s AI tool.

Fair Use

The court found disputed issues of fact on all four fair use factors, meaning that a jury will be tasked with answering most of the questions underlying this key defense.

The Purpose and Character of the Use

Interestingly, the court’s first factor analysis largely focused, not on the commercial nature of Ross’s competing tool, but on disputes over whether Ross’s copying was transformative—an inquiry that some observers (but, ahem, not this one) thought would take a backseat following the Supreme Court’s recent Warhol decision.

Judge Bibas noted that whether Ross’s so-called “intermediate copying” (copies made during the input stage of the training process) was transformative would depend on the precise nature of Ross’s actions: “It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes.” If, on the other hand, “Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors,” then the copying would weigh against a transformative fair use. This raised a material question of fact that a jury needs to decide.

The Nature of the Copyrighted Work

While declining to definitively rule that Westlaw’s headnotes were too unoriginal to satisfy the second fair use factor, the judge certainly signaled that he didn’t think plaintiffs’ contributions were at the “core of intended copyright protection,” and specifically distinguished them from “traditionally protected materials, such as literary works or visual art.”

The Amount and Substantiality of the Copying

Because it was unclear how much of Ross’s copying was of protectable expression, the court found that a jury would need to decide the third fair use factor too. Interestingly, the court also noted that copying could be deemed insubstantial if Ross’s AI actually works in the way the company claimed—i.e., if the tool outputs only the unprotectable judicial opinion, not any original expression. This suggests that the presence or absence of substantial similarity at the output stage may influence the court’s input stage rulings as well.

The Effect of the Use Upon the Market for the Work

Finally, on the fourth fair use factor, the court declined to decide whether Ross’s use of Westlaw’s material had a “meaningful or significant effect” on the value of the original or its potential market. Focusing not merely on economic effects, but “public benefits” of the copying, the court concluded that a jury would be best situated to answer these questions:

Link to the rest at Copywrite Lately

The OP brought to mind a case decided a very long time ago (BI – Before Internet) that caused PG to write an article for a legal publication. PG’s article was titled “Who Owns the Law?”

One problem with BI writings is that PG has not been able to locate an online copy of “Who Owns the Law?”

Basically, the copyright issue he wrote about BI was more than a little similar to the dispute described in the OP.

In PG’s ancient article, he wrote about West Publishing, now owned by the same Thomson Reuters mentioned in the OP.

Way back when, West was a closely-held and secretive company that claimed broad copyright protection for the volume and page numbers universally used by lawyers and judges to identify state and federal court opinions West published in printed form.

Here’s an example of a case citation:

Stearns v. Ticketmaster Corp., 655 F. 3d 1013 (9th Cir. 2011)

West assigned the 655 F. 3d 1013 portion of the citation. (Translated, it means the volume (655), reporter (F. 3d, which is an abbreviation for Federal Reporter, Third Series) and page number in volume 655, (1013) where the printed case may be found.

(The Federal Reporter series of books is reserved for decisions from the various United States Court of Appeals, the second-highest courts in the United States. 9th Cir means the decision was handed down by the 9th Circuit Court of Appeals. There are twelve regional circuits that cover the United States. The 9th Circuit is geographically the largest of the circuits by a large margin. It includes the states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska and Hawaii. The 9th Circuit also includes Guam, and the Northern Mariana Islands.) (You’ve taken your first steps toward mastering legal research.)

West’s copyright rationale was that the company fixed the sort of typos and citation errors that were embarrassingly common during those times before spell check. West further added page numbers to the thick books containing lots of court opinions that the company printed.

West also added a short summary describing what the court case was all about. West also had (and may still have) an enormous outline of the law, which it called the West Key Number System. Its attorneys would go through each case and identify portions that correlated with its Key Number System for other court cases.

From an attorney’s point of view, if you found a case opinion similar to the one you were working on that included a West Key Number citation, you could look up that Key Number Citation and, hopefully, find a number of in-state and federal case opinions addressing issues you were working on at the moment. In some instantiations, the West Key Number index would also show you case opinions in other jurisdictions, which might suggest a line of legal argument for the hometown case you were handling.

The Key Number system was rendered obsolete almost immediately when online search systems were published that allowed an attorney to perform Boolean searches against all decisions rendered by courts in the jurisdiction. As extensive as West’s Key Number system was, it was a blunt instrument when computerized legal research came on the scene.

Additionally, West printed the cases in thick books with page numbers. Lawyers used the West page numbers in their court papers to point the judge to the particular portion of the case opinion they wanted the judge to examine.

This made it more likely that the judge would tell his judicial clerk or secretary to get a copy of a case or, at least, copies of the pages the attorney wanted the judge to read that were buried in a 50-page appellate case opinion.

A technology company then called Mead Data Central, later changed to Lexis-Nexis, referring to the Lexis online research system for lawyers and the Nexis news, magazine, academic journal, scientific publications, etc. repository that had the same computer search capabilities as were used by Lexis.

Lexis basically tore apart every West book full of court opinions, state and federal statutes and other similar collections of federal, state and local government publications that lawyers would find helpful.

After removing the materials West had added to the original government documents, Lexis sent the judicial opinions, statutes, etc., offshore, where a zillion less-expensive fingers and thumbs keyboarded them into the Lexis-Nexis computer systems. The computer systems made the electronic copies of the documents searchable.

West sued Mead Data Central, the owner of Lexis, for copyright infringement.

Mead said these were public documents and West couldn’t assert copyright protection for government documents prepared by government employees.

West said that its case citations and page numbers were copyrighted because West had developed a system of organization and included page breaks and page numbers that weren’t in the original court documents. The fact that inserting page numbers required no creativity activity that Congress intended to encourage with copyright laws didn’t bother West. It worked hard to do a good job, and Lexis shouldn’t be able to steal West’s hard work.

The hometown trial judge bought West’s dubious theory and agreed that the data West used- the words included in court opinions and government documents – were in the public domain and unprotected by copyright law. However, the hometown judge held that “the (West) arrangement and pagination of this public material reflects the skill, discretion and effort of the person crafting the arrangement.”

In other words, West didn’t own the words, but, by working hard to insert page numbers and put the cases from Alaska into a different printed book than the cases from California (“by the sweat of the West’s brow”), West was entitled to copyright to volume and page numbers in its case publications.

Since lawyers had used case numbers and page citations in documents submitted to the court to point the judge to the location of the particular court case the lawyers wanted the judge to consider out of a library full of books containing thousands of court cases (Judges don’t respond well to requests from lawyers to “Look it up yourself.”) West had built an effective monopoly on the way judges and lawyers had established so each group could do their jobs.

Mead appealed, and West, realizing that, sooner or later, some appellate court would reverse earlier court decisions, entered into a super-secret settlement agreement that effectively allowed Mead the right to use West case numbers and page numbers.

As mentioned, PG worked for Lexis a long time ago but never persuaded corporate counsel to let him see a copy of the West settlement documents. PG quickly realized that one reason for the secrecy was that the settlement provided West and Lexis with a shared monopoly on case citations.

The brutal truth about earning out

From Blake Atwood:

What does earning out mean?

When an author signs a book deal with a publisher, the publisher pays the author in the form of an advance on future sales, aka an advance against royalties, aka an advance.

Let’s be optimistic and say that your literary agent sold your book to a publisher for $100,000. That means that prior to your book having gone on sale, you will have made $85,000.

Don’t forget: your lit agent gets 15 percent of what you earn. That number isn’t always the same for every agent, but 15 percent is typical.

That advance money may be paid in a lump sum, but it may also be doled out to you at specific publishing milestones, e.g., when you sign the contract, when you submit your manuscript to the publisher, and when the book is published.

Let’s assume that it takes approximately two years for those three events to happen. At that rate, you’re paid $28,333 three times over two years. Can you already see how even a sizable advance may not mean an author can quit their day job? We haven’t even accounted for taxes yet!

To “earn out” means that a publisher sells enough of that author’s book so that the publisher recoups their investment in the author.

In other words, the publisher needs to earn $100,000 before the author will ever see more money as a result of sales of their book.

Considering that an author stands to earn maybe $2.50 per hardcover book and less for other editions, at best, the publisher will have to sell 40,000 books for the author to earn out their $100,000 advance.

. . . .

According to Jane Friedman, 70 percent of authors don’t earn out their advance.

In other words, a majority of authors are paid anywhere between $5,000 and $1,000,000 in an advance and their book sales never match how many the publisher thought they could sell.

Fortunately for these authors, they don’t have to pay the advance back to the publisher. The advance is a calculated financial risk that publishers take on their authors.

. . . .

Literary agent Jeff Kleinman shared an apt visual for advances and royalties: Imagine a jar filled with 100,000 marbles. When you sign a book deal, you and your agent are given those 100,000 marbles. The publisher takes the jar back. Once they fill it back up with 100,000 marbles made through book sales, then the jar overflows and the author (and agent) “earn out” and begin to see royalty checks on top of what they’ve already been paid through the advance.

But that only happens 30 percent of the time.

Link to the rest at Blake Atwood

Here’s a link to Blake Atwood’s Author Page on Amazon. If you appreciate Blake’s insights, you might want to check out his books.

PG notes that it’s not unusual for a wide variety of little nibbles that some publishers and agents sometimes take from the author’s royalties. Some publishers and some agents add little fees for this and that, which can add up. Fedex fees charged by the agent to send you your royalty statements and royalty checks are one small example.

PG regards items such as these as part of the cost of doing business as a literary agent and, as such, the costs should be borne by the agency.

(Note: For simplicity’s sake, the following hypothetical does not include book wholesalers that all large and many small publishers use to warehouse and ship orders to individual bookstores and book chains and whoever else wants to purchase them.)

And don’t forget the notorious reserve against returns. For those who are unfamiliar with this process and how it is sometimes manipulated, PG will provide a quick overview.

  1. Publishers are happy to ship bookstores as many printed copies as the store is willing to accept. How can you expect the bookstore to make towering stacks of a book unless they have lots and lots of copies?
  2. All big bookstores and most small bookstores have the right to return any unsold hardcopies of a book the publisher has shipped to them and receive for full credit of the wholesale price the publisher charged them for the books in the first place.
  3. As an example, Bob’s Big Books orders 200,000 printed copies of Lucky Anna’s first book at the wholesale price of of $10 per book. To spare you any arithmetic, this means that Bob is receiving books with a retail price of Two Million Dollars. If Bob sells all 200,000 copies of the books at the suggested retail price, Bob will be depositing Two Million Dollars into his bank account. Of course, out of the two million, he’ll be paying rent, salaries, taxes, etc., but if Bob is a good manager, he’ll make a bunch of money after paying the related expenses involved with selling 200,000 copies of the book.
  4. However, although Bob has plenty of Lucky Anna’s books to stack up in his bookstore, he sells only 25,000 copies of the book.
  5. What is Bob going to do with 175,000 unsold copies?
  6. Under a long-standing system used by traditional publishing in the US, Bob can send his unsold 175,000 copies of Lucky Anna’s book back to the publisher for full credit.
  7. Bob only has to pay for the 25,000 books he sells for a total of $250,000
  8. The publisher then has 175,000 more hardcopy books sitting copies sitting in a warehouse somewhere.

What’s a Publisher to Do?

1. In a reasonable-sounding accounting manner, the Publisher holds a financial reserve against book returns. Lucky Anna is only paid a royalty for amounts the publisher has actually received, less a reserve for returns.

2. Let’s assume hypothetically that a salesperson for a traditional publisher makes a two million dollar sale of a single title written by Lucky Anna to Bob’s Bookstore. The Publisher determined that setting a return against reserves of $1,900,000 would be prudent.

3. Conveniently, even though the Publisher shipped Two Million Dollars worth of one of Lucky Anna’s books to Bob’s Bookstore, after subtracting the $1,900,000, the reserve amount the Publisher set, The Publisher is required to pay Lucky Anna royalties only on the $100,000 remaining after subtracting the $1,900,000, the amount the publisher has set as a reserve against returns.

4. Multiply the calculations for Bob’s Books by 1,000 other bookstores, and you can see the calculations getting very sticky.

5. When Bob’s Bookstore returns $1,750,000 worth of Lucky Anna’s books to the Publisher, theoretically, the Publisher should pay Lucky Anna royalties on the $150,000 Bob sold beyond the amount the Publisher estimated that Bob would return for credit.

6. “However,” the Publisher thinks, “not every bookstore is like Bob’s. Some of the other bookstores will certainly return a higher percentage of books they didn’t sell than Bob did.”

7. Traditional publishing contracts allow the Publisher to withhold “a reasonable reserve for returns.”

8. “Reasonable” is, of course, in the mind of the Publisher.

9. Back to our hypothetical, the Publisher has sold books to a zillion other bookstores. The Publisher reasonably decides that not every bookstore is exactly like Bob’s. Some will sell a higher percentage of the books shipped to them than Bob did and others will sell a much smaller portion of the books shipped to them than Bob did.

10. Theoretically, a smart and highly computerized publisher would have track records on what the rate of returns each bookstore demonstrated for at least a few hundred of the titles the Publisher had released. But that would require the Publisher to spend a lot of money on analysts and statisticians to examine the data and calculate probable return rates for fiction, non-fiction, various genres, etc. And what English major wants to walk into that bramblebush?

11. PG’s understanding is that, to the extent traditional publishers think about the number or percentage of books that will be returned for credit, they either use intuition and listen to the music of the publishing spheres or they just lump almost all books into a big bucket. Rules of thumb prevail to the extent anyone thinks about accurate forecasting.

12. Given this fundamental truth, PG understands that most traditional publishers hold a higher amount of reserves against returns than they expect they will ever need.

13. Whether anyone does an accurate job of recalculating Lucky Anna’s past royalties should reserves for returns be much higher than the number of actual returns would justify, PG doesn’t know. He has his suspicions, however.

14. However, PG is certain that mistakes will be made by the Publisher and its underlings. He suspects that, on occasion, a mistake will be identified and remedied. On other occasions, a mistake will go unidentified or be ignored on the theory that the Lucky Anna will never ask about it.

15. Theoretically, Lucky Anna’s literary agent is double-checking the publisher’s reports for errors and jumping on the publisher when she locates one. Or, more often than not, the agent is out pushing for new business and delegates the arithmetic to the agent’s underpaid staff. This brings in more English majors earning low salaries into the mix.

16. More than a few agents have lots of turnover of back-office staff and not a lot of time to train newbies thoroughly. Or they have close to no back-office staff.

17. In the United States, there is no official set of requirements that must be met before an individual hangs out a shingle saying they’re a literary agent and are accepting new submissions.

18. Someone can get out of prison after serving a ten-year sentence for accounting fraud on one day and open up shop as a literary agent the next day.

19. What could go wrong?

20. PG acknowledges that there are some very hard-working and dedicated employees in at least some publishers and at least some literary agencies. He has no intention of slandering such individuals. However, he will say that for most authors, accurately assessing who will do a good job on their books and who will not is effectively impossible.

George R.R. Martin and other authors sue OpenAI for copyright infringement

From The Verge:

More authors sued OpenAI for copyright infringement, joining other writers in pursuing legal action against generative AI companies for using their books to train AI models.

The Authors Guild and 17 well-known authors like Jonathan Franzen, John Grisham, George R.R. Martin, and Jodi Picoult filed the lawsuit in the Southern District of New York. The plaintiffs hope to get the filing classified as a class action.

According to the complaint, OpenAI “copied plaintiffs’ works wholesale, without permission or consideration” and fed the copyrighted materials into large language models.

“These authors’ livelihoods derive from the works they create. But the Defendant’s LLMs endanger fiction writers’ ability to make a living in that the LLMs allow anyone to generate — automatically and freely (or very cheaply) — text that they would otherwise pay writers to create,” the lawsuit said.

The authors added that OpenAI’s LLMs could result in derivative work “that is based on, mimics, summarizes, or paraphrases” their books, which could harm their market.

OpenAI, the complaint said, could have trained GPT on works in the public domain instead of pulling in copyrighted material without paying a licensing fee.

OpenAI said in a statement to The Verge that the company is optimistic it is “having productive conversations with my creators around the world, including the Authors’ Guild, and have been working cooperatively to understand and discuss their concerns about AI.”

“We’re optimistic we will continue to find mutually beneficial ways to work together to help people utilize new technology in a rich content ecosystem,” the company said.

Link to the rest at The Verge

AI Update: Copyright And Other Things

From Kristine Kathryn Rusch:

It is probably not a bright idea for me to write this post. I finished it a few days ago, and things changed. You Patreon folk will see it at least a week before the website folk, and by then, I expect everything to be different again. So I’ll be updating it. Those of you hearing it on audio will hear a version recorded in the middle of September. Sorry about that.

Anyway…

At the beginning of September, Can Stock Photo announced it was going out of business. I have used Can Stock Photo since 2009 to source the art you usually find at the top of this blog. When AI art became good enough to pass as regular art, I got a lot more cautious with the downloads for reasons I’ll discuss later in this post.

What I did on Can Stock Photo, and apparently, what I’ll do going forward on a different site, is that I would only use art uploaded before 2020 or so. That way, I knew the art was the work and property of the artist, and not created by some website that more than likely stole someone’s artwork to train the bots.

I can’t improve on Can Stock’s words in their closing notice:

After nearly 20 years in business we have been forced to make this very difficult decision and would like to thank our many thousands of talented contributors and customers for making it possible. The industry has changed significantly over this time, with CanStock launched in 2004 during the early mass adoption of digital cameras, and before ‘social media’ was even a phrase. Today of course everyone has a capable digital camera in their pocket, and the advent of AI means amazing images can be created for free from programs with just a few keywords. Decreased business and increasing costs has made it no longer possible to keep operating, to our great disappointment.

In theory, the licenses that every person who used Can Stock Photo agreed to will remain in effect, although the prudent thing to do is download the license for each piece of art used, particularly on those used in for-profit ventures, like covers and the like.

You should be doing that anyway. When you contract with an artist, it should be a valid contract. When you download art from a commercial site, you should also download the license for that art. It’s easier and better for all around to keep these licenses in two files, one on your computer and one in paper…because, yes, folks, computers die, programs disappear, and sometimes you can’t access something you downloaded ten years ago because the programs have changed so much that the files are no longer compatible.

What remains compatible? Paper.

Why would you want to do this? Well, we’ve been reviewing our licenses at WMG Publishing, some twelve years old, because we’re opening stores with merchandise. Most of our covers come from artists like Philcold, whom we found on Dreamstime, and then worked with directly for projects like my Diving series and Dean’s Seeders series.

Not every license allows for merchandise. Many don’t even allow book covers over a certain number of sales. A lot of writers who are careless about such matters simply make an assumption that they have the right to use these things.

They don’t. And to make matters worse, the licenses and terms change all the time. So if you go on, say, Dreamstime, to look at the license today for something you licensed in 2015, today’s license does not cover the 2015 download. What covers the 2015 download is the 2015 license that existed on the day you downloaded the art.

Yes, some sites save their previous licenses, and some sites don’t. It is up to you to know what, exactly, you licensed.

Then you need to understand it. It isn’t something that’s a one and done. Copyright law shifts all the time. That’s why I took a two-semester class in copyright law at University of Nevada, Las Vegas, in 2021. I know copyright, but I don’tknow all of it. I have a current copy of The Copyright Handbook, and I use it.  I also keep track of various court cases and read a lot of law blogs on copyright.

That does not make me an expert or an intellectual property attorney. I’m not even close. But I am informed because this is my business. It’s my job to stay ahead of everything that’s going on.

And a lot is happening on the copyright front with the copyright of works that incorporate artificial intelligence.

In an important case that came down in August, Judge Beryl A. Howell of the US District Court for the District of Columbia ruled with the copyright office and against a computer scientist who claimed that a two-dimensional piece of art created by his AI program deserved copyright protection.

The essence of Howell’s decision, as explained by Bloomberg Law, is this:

Howell found that “courts have uniformly declined to recognize copyright in works created absent any human involvement,” citing cases where copyright protection was denied for celestial beings, a cultivated garden, and a monkey who took a selfie.

The ruling is the first in the country to examine whether or not AI art is copyrightable. That’s iimportant because, for now, that and the ruling from the copyright office are the guide. As Howell herself noted in the decision, there’s a lot more for the courts to decide. She wrote:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an“author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works,how copyright might best be used to incentivize creative works involving AI, and more.

But these issues aren’t settled yet, and might not be settled for years. The way that novel questions of the law get settled in the United States is for them to wend their way through the courts. Sometimes the appellate courts agree, and then the issues are decided.

Occasionally, though, the issues are so complex and the courts are so divided that the issues will make their way to the United States Supreme Court. Unless that happens in an expedited manner, issues like that won’t see a resolution for eight to ten years, maybe more.

Link to the rest at Kristine Kathryn Rusch

Along with Kris, PG recommends The Copyright Handbook, published by Nolo Press as a good acquisition for an author’s library. It’s written with laypersons in mind. Much of the book is not difficult for a non-lawyer to read and digest.

One of the benefits of The Copyright Handbook for an author is issue-spotting. The book may help the author to suspect that she/he/they are on slippery ground or that they’re getting into an area that might end up being slippery.

That said, The Copyright Handbook is not a substitute for a competent attorney for anything but the simplest copyright questions/issues. (PG thinks he’s still competent on most days, but he’s no longer a practicing attorney.)

Peak TV Is Over. A Different Hollywood Is Coming.

From The Wall Street Journal:

Fewer new shows in production. A higher bar to get shows renewed. Rich paydays going only to an elite few.

The labor pact writers struck with studios and streamers this week, ending a five-month strike,  will likely accelerate the retrenchment that was already under way in Hollywood for more than a year. It represented a formal end to “peak TV,” a decade that included an explosion of programming for viewers—and job opportunities for talent in Tinseltown.

Writers won major concessions in the deal, including new bonus payouts and higher royalties. Those hard-won victories are especially important given the hard financial realities of the entertainment business. 

A combination of debt-laden mergers, mounting losses in streaming, and the fast-shrinking cable TV bundle, has led to a push on Wall Street for entertainment companies to rein in spending. 

The streamers will have to find a way to pay increased talent costs—from the writers’ settlement, along with an earlier deal with directors and whatever is finalized with actors—without adding to their overall production costs.

That will likely mean that companies will make fewer new shows and cancel even more that are on the bubble. In effect, while many people in Hollywood will get better pay as a result of the deal, the contraction in spending means there will be less work to go around.

“The gusher of spending—I don’t see that marketplace coming back,” said Kevin Reilly, who held top programming positions at Fox, NBC and the streaming service HBO Max, championing shows like “The Office” and “The Shield” along the way. “Everyone will get a better piece of what they’ve created. But if anyone is thinking, ‘Let the good times roll!’—that won’t happen.”

One veteran TV producer predicted the number of scripted shows Hollywood produces could fall by one-third in the next three years. “The contraction in investment in content will by definition restrict the amount of work that’s needed,” the executive said.

For most of a decade, streaming companies were antiestablishment insurgents. Now, streamers, from Netflix to Max to Disney+ to Amazon Prime Video, are the new establishment, and the negotiations with writers reflected that. 

Mike Royce, a writer-producer whose credits include “Everybody Loves Raymond” and the Netflix reboot of “One Day at a Time,” said pushing for better terms was a no-brainer, regardless of whatever programming cuts might be coming, because the old system wasn’t working.

“There is no, ‘You’ll cut off your nose to spite your face,’ ” he said. “Our faces had already been eaten. The world we were in, we had lost so much.”

Writers were upset that streaming didn’t offer the same rewards for success as traditional TV. Under the new deal, they secured bonuses when their streaming shows perform well. They were concerned about a movement toward smaller writing rooms—a cost-cutting measure as streamers continued to bleed money—and won a provision that imposes minimum staffing requirements. 

The studios held the line on key issues. Streamers won’t publicly release viewing data, despite the writers’ demands for transparency, but instead will give data on how shows fared to the Guild confidentially to share with its members in aggregate form. 

Link to the rest at The Wall Street Journal

What is Amazon’s [redacted] ‘Project Nessie’ algorithm?

From TechCrunch:

The FTC’s lawsuit against Amazon alleging anti-competitive practices is largely full of things we already knew in a general sense: price hikes, pressure to use Amazon fulfillment and so on. But then we get to a sea of redactions and the mysterious “Project Nessie.” What is it, and could it possibly be as alarming as the unredacted sections make it sound?

The project, product or process is referred to more than a dozen times in the complaint filed by the FTC. And it’s one of those situations where the redactions probably make it sound scarier than it actually is.

Probably.

The first reference comes on page 6:

Amazon has also [redacted] through a [redacted] operation called “Project Nessie.” [redacted] Amazon’s Project Nessie has already extracted over [redacted] from American households.

What is it extracting? Money? Data? Something quantifiable, or else the document would not say “over.” Though I wouldn’t put it past Amazon, the context does not suggest anything physical or private, like video or biometrics.

An Amazon blog post from 2018 spotted by GeekWire describes Nessie as “a system used to monitor spikes or trends on Amazon.com.” Much of the timeline in the lawsuit takes place since then, however, so this definition (such as it is) may no longer be accurate, if it ever was.

Then, on page 11, among discussions of “anti-discounting” tactics, we have:

Amazon has deemed Project Nessie [redacted]: it has generated more than [redacted] in excess profit for Amazon.

In addition to overcharging its customers…

So Nessie does result in profit, but not necessarily directly, even though the last sentence implies it.

A bit of redaction sleuthing: An earlier sentence describes Nessie as a “[redacted] algorithm,” with the blackout text composed of no more than five or six characters (and note, “a” not “an”). Price? Profit? Sales? “Search” would just about fit too.

Last in Nessie references in the lawsuit is the whole section 7, which is four pages dedicated purely to Project Nessie.

Project Nessie is an algorithm [redacted]. Aware that this scheme belies its public claim that it “seek[s] to be Earth’s most customer-centric company,” [redacted].

How distressing. It later refers to “Part VI.A.3, above” in the middle of a redacted paragraph; the section is about how “Amazon maintains its monopolies by suppressing price competition with its first-party anti-discounting algorithm.”

Amazon recognizes the importance of maintaining the perception that it has lower prices than competitors. Behind closed doors, however, Amazon executives actively [redacted].

Instead, [redacted] “prices will go up.”

So what are we to make of this mysterious Project Nessie? It’s a highly secret internal algorithm and associated operation that makes them a lot of money, likely by manipulating price or search.

Are those small, seemingly arbitrary changes to price we see on items — up by a few cents today, down by a few tomorrow — Project Nessie in action, increasing or decreasing the price as needed based on the immense amount of sales data they have access to? This seems the most likely explanation, and the ability to dictate price based on what a customer is likely to pay would be both highly profitable and fit the description of “belying” the customer-first narrative.

Or could it be that search — which we know Amazon heavily manipulates in favor of certain sellers — is also being juiced in some unknown way? It could also be something else entirely, more arcane or technical.

One thing is sure: Amazon doesn’t like talking about it. (I contacted the company for comment and have not heard back yet.)

Will we ever find out what it is? It seems very unlikely that this entire lawsuit and trial will not shed at least a little light on it.

Link to the rest at TechCrunch

Amazon’s latest actions against fake review brokers: 2 fraudsters found guilty of facilitating fake reviews in Amazon’s store

From Amazon:

Two individual fake review brokers were found guilty of illegal business operations intended to deceive Amazon customers and harm Amazon selling partners through the facilitation of fake reviews. These verdicts are the result of local law enforcement’s investigation and a criminal referral supported by Amazon.

From March 2021 to March 2022, the China-based defendants used third-party messaging applications to advertise and sell fake reviews to bad actors operating Amazon selling accounts. In exchange for a fee, the defendants left fake positive reviews to boost a bad actor’s product ranking, or fake negative reviews to lower the ranking of a competitor’s product.

Following the criminal referral, local law enforcement conducted an investigation and confirmed the review brokers’ illicit activities in Amazon’s U.S. store. The defendants were officially sentenced to two-and-a-half years in prison and three years of probation in China, marking Amazon’s second criminal judgement of this kind.

“Amazon is pleased to see that these fraudsters are being held accountable for their actions,” said David Montague, Amazon’s vice president of Selling Partner Risk. “The verdicts are a testament to the partnership of local officials in bringing down those who attempt to deceive our customers and harm our selling partners. We look forward to continuing to partner with law enforcement toward the mutual goal of bringing fake review brokers to justice.”

Link to the rest at Amazon

The most impressive part of the OP to PG is that Amazon relied upon local Chinese law enforcement to handle the arrest and whatever trial procedure China uses to punish the fake review scammers.

FTC Sues Amazon for Illegally Maintaining Monopoly Power

Today’s Press Release from The Federal Trade Commission:

The Federal Trade Commission and 17 state attorneys general today sued Amazon.com, Inc. alleging that the online retail and technology company is a monopolist that uses a set of interlocking anticompetitive and unfair strategies to illegally maintain its monopoly power. The FTC and its state partners say Amazon’s actions allow it to stop rivals and sellers from lowering prices, degrade quality for shoppers, overcharge sellers, stifle innovation, and prevent rivals from fairly competing against Amazon.  

The complaint alleges that Amazon violates the law not because it is big, but because it engages in a course of exclusionary conduct that prevents current competitors from growing and new competitors from emerging. By stifling competition on price, product selection, quality, and by preventing its current or future rivals from attracting a critical mass of shoppers and sellers, Amazon ensures that no current or future rival can threaten its dominance. Amazon’s far-reaching schemes impact hundreds of billions of dollars in retail sales every year, touch hundreds of thousands of products sold by businesses big and small and affect over a hundred million shoppers. 

“Our complaint lays out how Amazon has used a set of punitive and coercive tactics to unlawfully maintain its monopolies,” said FTC Chair Lina M. Khan. “The complaint sets forth detailed allegations noting how Amazon is now exploiting its monopoly power to enrich itself while raising prices and degrading service for the tens of millions of American families who shop on its platform and the hundreds of thousands of businesses that rely on Amazon to reach them. Today’s lawsuit seeks to hold Amazon to account for these monopolistic practices and restore the lost promise of free and fair competition.”

“We’re bringing this case because Amazon’s illegal conduct has stifled competition across a huge swath of the online economy. Amazon is a monopolist that uses its power to hike prices on American shoppers and charge sky-high fees on hundreds of thousands of online sellers,” said John Newman, Deputy Director of the FTC’s Bureau of Competition. “Seldom in the history of U.S. antitrust law has one case had the potential to do so much good for so many people.”

The FTC and states allege Amazon’s anticompetitive conduct occurs in two markets—the online superstore market that serves shoppers and the market for online marketplace services purchased by sellers. These tactics include:

  • Anti-discounting measures that punish sellers and deter other online retailers from offering prices lower than Amazon, keeping prices higher for products across the internet. For example, if Amazon discovers that a seller is offering lower-priced goods elsewhere, Amazon can bury discounting sellers so far down in Amazon’s search results that they become effectively invisible.
  • Conditioning sellers’ ability to obtain “Prime” eligibility for their products—a virtual necessity for doing business on Amazon—on sellers using Amazon’s costly fulfillment service, which has made it substantially more expensive for sellers on Amazon to also offer their products on other platforms. This unlawful coercion has in turn limited competitors’ ability to effectively compete against Amazon.

Amazon’s illegal, exclusionary conduct makes it impossible for competitors to gain a foothold. With its amassed power across both the online superstore market and online marketplace services market, Amazon extracts enormous monopoly rents from everyone within its reach. This includes:

  • Degrading the customer experience by replacing relevant, organic search results with paid advertisements—and deliberately increasing junk ads that worsen search quality and frustrate both shoppers seeking products and sellers who are promised a return on their advertising purchase.
  • Biasing Amazon’s search results to preference Amazon’s own products over ones that Amazon knows are of better quality. 
  • Charging costly fees on the hundreds of thousands of sellers that currently have no choice but to rely on Amazon to stay in business. These fees range from a monthly fee sellers must pay for each item sold, to advertising fees that have become virtually necessary for sellers to do business. Combined, all of these fees force many sellers to pay close to 50% of their total revenues to Amazon. These fees harm not only sellers but also shoppers, who pay increased prices for thousands of products sold on or off Amazon.  

The FTC, along with its state partners, are seeking a permanent injunction in federal court that would prohibit Amazon from engaging in its unlawful conduct and pry loose Amazon’s monopolistic control to restore competition.

Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Hampshire, New Mexico, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, and Wisconsin joined the Commission’s lawsuit. The Commission vote to authorize staff to file for a permanent injunction and other equitable relief in the U.S. District Court for the Western District of Washington was 3-0.

NOTE: The Commission issues a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest.

Link to the rest at The Federal Trade Commission

PG will spare visitors to TPV by not embedding the entire 172-page complaint.

If you need a bigger US v. Zon fix, the complaint is available for download at the FTC link above.

FTC Sues Amazon, Alleging Illegal Online-Marketplace Monopoly

From The Wall Street Journal:

The Federal Trade Commission and 17 states on Tuesday sued Amazon AMZN -4.35%decrease; red down pointing triangle, alleging the online retailer illegally wields monopoly power that keeps prices artificially high, locks sellers into its platform and harms its rivals.

The FTC’s lawsuit, filed in Seattle federal court, marks a milestone in the Biden administration’s aggressive approach to enforcing antitrust laws and has been anticipated for months.

The agency’s chair, Lina Khan, is a longtime critic of Amazon who wrote in the Yale Law Journal in 2017 that earlier generations of competition cops and courts abandoned the law’s concerns over conglomerates such as Amazon. She has had trouble convincing courts of her antitrust views, however, having earlier lost cases against both Microsoft and Meta Platforms.

The federal agency and the states alleged that Amazon violated antitrust laws by using anti-discounting measures that punished merchants for offering lower prices elsewhere. The government also said sellers on Amazon were compelled to use its logistics service if they want their goods to appear in Amazon Prime, the subscription program whose perks include faster shipping times.

The FTC said sellers feel they must use Amazon’s services such as advertising to be successful on the platform. Between being paid for its logistics program, advertising and other services, “Amazon now takes one of every $2 that a seller makes,” Khan said at a briefing with the media Tuesday.

“The lawsuit filed by the FTC today is wrong on the facts and the law, and we look forward to making that case in court,” said David Zapolsky, Amazon’s general counsel and head of public policy. “The practices the FTC is challenging have helped to spur competition and innovation across the retail industry, and have produced greater selection, lower prices, and faster delivery speeds for Amazon customers and greater opportunity for the many businesses that sell in Amazon’s store.”

The federal agency’s claim that Amazon prevents vendors from offering lower prices on competing websites echoes a claim made in a suit brought last year by the state of California.

“Amazon is now exploiting its monopoly power to enrich itself while raising prices and degrading service for the tens of millions of American families who shop on its platform and the hundreds of thousands of businesses that rely on Amazon to reach them,” Khan said in a statement.

The FTC said it is seeking a court order “that would prohibit Amazon from engaging in its unlawful conduct and pry loose Amazon’s monopolistic control to restore competition.” The lawsuit doesn’t say whether the FTC will ask the court to break up the company, and Khan declined in a briefing with reporters to say whether it would.

“The FTC doesn’t have a particularly good history of bringing monopolization cases,” said Rick Rule, who headed the Justice Department’s antitrust division during the Reagan administration. “Most of the last ones that they brought were in the ’60s and ‘70s and lasted into the ‘80s, and there were various theories but they never went anywhere.”

. . . .

Until recently, it has been rare for federal agencies to file monopoly lawsuits seeking to break up companies accused of anticompetitive behavior. While the FTC and Justice Department regularly seek to block what they see as illegal acquisitions, the government doesn’t often move against companies for anticompetitive behavior unrelated to acquisitions.

. . . .

The FTC’s lawsuit alleges that Amazon, despite its reputation for low prices and convenient delivery among many consumers, steadily grew from an online bookseller into a gatekeeper of online commerce that used its size to squash any budding rivals.

The Justice Department, in its lawsuit over Google search, similarly alleged that Alphabet used its scale to thwart competition. In that case, the government said Google used restrictive agreements with Apple and others to be the default search provider. That enhanced Google’s reach while starving other search engines of the data they needed to improve, the DOJ alleges.

Link to the rest at The Wall Street Journal

On a list of the many things PG is not, an antitrust expert or a political analyst would be among the most prominent.

That said, he wonders what the PR issues will be in the Justice Department suit. Amazon has about 230 million customers in the U.S. (out of a total adult population of about 260 million.)

Amazon is unlikely to do anything as a company to stir up the populace, but PG would be surprised if various groups of Amazon customers don’t arise to encourage their elected representatives to criticize the Amazon lawsuit.

Amazon also has 1.1 million sellers in the U.S. Per PG’s quick and dirty online research, KDP has over 1 million authors that publish through the platform. Informed estimates of total royalties paid by KDP to authors in 2022 place the amount as over $500 million.

In a popularity contest, Amazon would crush the Federal Trade Commission and, likely, the entire government of the United States.

Antitrust counsel representing Amazon will take a firm grip on official comments about the lawsuit coming from Amazon and its executives.

However, PG expects the formal and informal web of Amazon sellers will get vocal about this once the word gets around. Ditto for authors who earn most of their royalties from Amazon sales.

Antitrust lawsuits against large, well-known companies in the United States are relatively rare. In 2022, the Justice Department filed only 242 antitrust lawsuits, mostly involving companies/parties even the well-read group of people who visit TPV are unlikely to recognize.

PG is going to follow the progress of this lawsuit from afar and will provide whatever reports he believes would interest visitors to TPV.

Generative AI vs. Copyright

From Publishers Weekly:

The balance between copyright and free speech is being challenged by generative AI (GAI), a powerful and enigmatic tool that mimics human responses to prompts entered into an internet search box. The purpose of copyright law, according to the U.S. Constitution, is “to promote the Progress of Science and useful Arts, by securing to Authors and Inventors the exclusive Right to their exclusive writings.” The problem is that GAI’s ability to incentivize progress and innovation threatens the entertainment industry’s dependence on copyright to protect creative works.

Copyright law strikes a balance between those who create content and the public’s interest in having wide access to that content. It does this via granting authors a limited monopoly over the dissemination of original works by giving them the exclusive right to reproduce, distribute, and create derivative works based on copyrighted material. However, the concept of exclusive rights doesn’t really apply to artificially intelligent robots and computers scraping ideas and facts from public websites.

Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement. To prove copyright infringement, one must prove that the defendant had access to the copyrighted work and that the defendant’s work is substantially similar to protected aspects of the first work.

For AI output to infringe upon a book, it must have taken a substantial amount of copyrightable expression from the author’s work. When it comes to text, GAI is an artful plagiarist. It knows how to dance around copyright. The predictive model emulates, it doesn’t copy. Insofar as text generated in response to a prompt is not substantially similar—a legal term of art—to the data it is scraping, it is not an infringement. In other words, don’t overestimate the value of litigation.

The fair-use doctrine is another limitation on the exclusive rights of authors. Its purpose is to avoid the rigid application of copyright law in ways that might otherwise stifle the growth of art and science. Fair use is highly fact specific. Which is another way of saying it’s a murky and contentious area of the law.

Several cases decided before the advent of GAI suggest fair use encompasses the ingestion and processing of books by GAI. For example, in 2015, in Authors Guild v. Google, the court ruled that Google’s digitizing of books without consent to create a full-text searchable database that displayed snippets from those titles was a transformative use that served a different purpose and expression than the original books.

Fair use favors transformative uses. However, over time, the concept evolved from using a protected work as a springboard for new insights or critiquing the original to taking someone else’s photographs or other images and including them in a painting and declaring it a fair use.

In 2023, in Andy Warhol Foundation for the Visual Arts v. Goldsmith, the U.S. Supreme Court held that the claim to fairness is severely undermined “where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it.” AI-generated works can devalue human-created content, but is that the kind of economic harm contemplated in the Supreme Court’s decision?

To sum up, on a case-by-case basis, courts must determine if substantial similarity exists and then engage in line drawing—balancing free expression and the rights of creators.

. . . .

In an age of disinformation, an author’s brand, a publisher’s imprint, and the goodwill associated with them are valuable assets. I believe the industry is less vulnerable than many think. But, to quote Nick Lowe, “Where it’s goin’ no one knows.”

Link to the rest at Publishers Weekly

PG notes that the author of the OP is an attorney, so he will cut and paste his disclaimer from the post he just published so no one who reads only this TPV post will not be misled.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an article for Publishers Weekly.

Using Generative AI? Consider These 7 Tips From a Legal Expert

From Learn2G2:

As G2’s General Counsel, it’s my job to help build and protect the company, so it’s likely no surprise that generative AI is top of mind for me (and lawyers everywhere!).

While AI presents an opportunity for organizations, it also poses risks. And these risks raise concerns for all business leaders, not only legal departments.

With so much information out there, I recognize these waters can be difficult to navigate. So, to help get to the crux of these concerns and boil them down into a helpful guide for all business leaders, I recently sat down with some of the top minds in the AI space for a round-table discussion in San Francisco.

There, we discussed the changing landscape of generative AI, the laws affecting it, and what this all means for how our businesses operate.

We came to the agreement that, yes, generative AI tools are revolutionizing the way we live and work. However, we also agreed that there are several legal factors businesses should consider as they embark on their generative AI journeys.

Based on that discussion, here are seven things to consider when integrating AI into your company.

Understand the lay of the land

Your first task is to identify whether you’re working with an artificial intelligence company or a company that uses AI. An AI company creates, develops, and sells AI technologies, with AI as its core business offering. Think OpenAI or DeepMind.

On the other hand, a company that uses AI integrates AI into its operations or products but doesn’t create the AI technology itself. Netflix’s recommendation system is a good example of this. Knowing the difference is pivotal, as it determines the complexity of the legal terrain you need to navigate and deciphers which laws apply to you.

G2 lays out the key AI software in this developing field. When you have a bird’s-eye view of the possible tools, you can make better decisions on which is right for your business.

Keep an eye out on the latest developments in the law, as generative AI regulations are on the horizon. Legislation is rapidly developing in the US, UK, and Europe. Likewise, litigation involving AI is actively being decided. Keep in touch with your attorneys for the latest developments.

Choose the right partner, keeping terms of use in mind

You can tell a lot about a company by its terms of use. What does a company value? How do they handle the relationship with their users or customers? The terms of use can serve as a litmus test.

OpenAI, for instance, explicitly states in its usage policies that its technology shouldn’t be used for harmful, deceptive, or otherwise unethical applications. Bing Chat requires users to comply with laws prohibiting offensive content or behavior. Google Bard, meanwhile, focuses on data security and privacy in its terms – highlighting Google’s commitment to protecting user data. Evaluating these terms is essential to ensuring your business aligns with the AI partner’s principles and legal requirements.

We compared the terms of use and privacy policies of several key generative AI players to help us determine which AI tools would work best for our company’s risk profile and recommend you do the same.

Between your company and the AI company, who owns the input? Who owns the output? Will your company data be used to train the AI model? How does the AI tool process, and to whom does it send personally identifiable information? How long will the input or output be retained by the AI tool?

Answers to these questions inform the extent to which your company will want to interact with the AI tool.

Navigate the labyrinth of ownership rights

When using generative AI tools, it’s paramount to understand the extent of your ownership right to the data that you put into the AI and the data that is derived from the AI.

From a contractual perspective, the answers depend on the agreement you have with the AI company. Always ensure that the terms of use or service agreements detail the ownership rights clearly.

For example, OpenAI takes the position that between the user and OpenAI, the user owns all inputs and outputs. Google Bard, Microsoft’s Bing Chat, Jasper Chat, and Anthropic’s Claude similarly each grant full ownership of input and output data to the user but simultaneously reserve for themselves a broad license to use AI-generated content in a multitude of ways.

Anthropic’s Claude grants ownership of input data to the user but only “authorizes users to use the output data.” Anthropic also grants itself a license for AI content, but only “to use all feedback, ideas, or suggested improvements users provide.” The contractual terms you enter into are highly variable across AI companies.

Strike the right balance between copyright and IP

AI’s ability to generate unique outputs creates questions about who has intellectual property (IP) protections over those outputs. Can AI create copyrightable work? If so, who is the holder of the copyright?

The law is not entirely clear on these questions, which is why it’s crucial to have a proactive IP strategy when dealing with AI. Consider whether it is important for your business to enforce IP ownership of the AI output.

Presently, jurisdictions are divided about their views on copyright ownership for AI-generated works. On one hand, the U.S. Copyright Office takes the position that AI-generated works, absent any human involvement, cannot be copyrighted because they are not authored by a human.

Link to the rest at Learn2G2

The article goes on to discuss several other interesting legal and intellectual property points.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an online article.

The First App to “Help” Libraries and Schools With Book Bans Has Arrived–It’s Not What It Seems

From Bookriot:

In response to a manufactured panic over books, there comes a capitalist solution to eliminate the professional knowledge and expertise of those who work at the intersections of education and literacy. Last week, a new program was launched, marketing itself as a means to help schools, libraries, and parents navigate the new reality of life with book bans. BookmarkED, who soft launched their product during a Texas State Senate Committee on Education meeting March 30, 20023, is “a solution to the ongoing challenge of banned and challenged books in school libraries across North America, with Texas being the fastest growing in this space, followed closely by Florida.” The soft launch occurred two and a half months before Texas passed the READER Act.

Founded by Steve Wandler, who works in the education technology space, BookmarkED aims to “empower parents to personalize school libraries.” The purpose is to ensure that parents get to decide the “individual literary journey for their children, based on their personal values and interests,” while teachers and librarians can keep “confidently recommending and providing more personalized books to their students, knowing precisely the learning outcomes they will achieve.” As a bonus, the technology will help libraries “simply and efficiently navigate the ever-changing challenged books landscape.” BookmarkED’s website states the idea was conceptualized by a Texas superintendent.

In the press release for the technology, Wandler noted that library workers rely on year-old data on book bans and that BookmarkED would provide current data on the books being banned across the country. He notes that “we equip schools with real-time data at the state and national level for challenged books, which no other solution in the market is capable of.” The press release cites data on book bans from the American Library Association’s report earlier this year.

Parents would be able to decide which books their kids have access to at the school library and have “real time” access to what their students are checking out. School libraries would know which books are being challenged statewide, ostensibly so they can take part in the mass censorship or prepare for challenges to those titles in their own collection. The website for BookmarkED purports this would save districts money around the book challenge process and ensure educators can make “informed selections for materials that support curriculum.” In a lengthier explanation at his blog, Wandler notes that such information would protect librarians and educators from liability. Again citing American Library Association figures, he writes that “with more and more books being challenged, school districts need a solution to track the latest challenges to ensure compliance.”

As if developing an app that creates a “personalized reading experience” for parents to control for their students in public institutions weren’t enough of a claim, things get muddier as Wandler notes that there currently exist no tools to help educators and librarians know what books are being challenged. In the same blog post, he writes:

“Libraries currently rely on challenged book data from the previous year, which is immediately out of date as more books become challenged. This is a skyrocketing expense as challenged book reviews and duplicate requests must be checked and updated manually. The ALA estimates these challenged book reviews cost $20 thousand per challenge, which is upwards of $32 million total.”

He fails to include a citation to the information provided here, wherein ALA estimates book challenges at $20,000 per challenge — a staggering and, most likely, incorrect figure all together. I’ve conservatively estimated about $800 per book challenge previously, and there seems to be no data on ALA’s website to provide evidence of the $20,000 cost. That said, in some Texas districts such as Spring Branch Independent School District, officials have cited a $30,000 cost for a single book challenge.

Moreover, the press around the app claims that there is no resource out there tracking book challenges beyond ALA’s annual list. This is patently untrue. Dr. Tasslyn Magnusson began tracking book challenges in October 2021, and her work was later picked up by EveryLibrary (January 2022) and PEN America (February 2022).

Link to the rest at Bookriot

PG is of two minds regarding the legislation described in the OP.

  1. This law seems to be a very expensive way of dealing with the problems it purports to solve.
  2. If teachers are assigning or making available books, etc., that parents reasonably believe will be harmful to their children, PG believes that parents have a reasonable interest in helping their children avoid such books.

PG has noted a tendency in some areas of contemporary American civilization for those in public education to assume they know more than parents do about what their children should be taught, including what children should be reading.

Some parents are rightly concerned that some educators will encourage their children to read books that the parents believe will be harmful to the children’s welfare – personal, emotional, social and spiritual. Some parents believe their children are too young or too emotionally or socially immature to handle some of the books that some educators believe will be good for their children to read.

In saying this, PG acknowledges that there are always some crazies in any community who will exaggerate or overreact to things or practices they believe will be detrimental to some aspect of their children’s well-being.

Unfortunately, some teaching in higher educational institutions believe that one of their most important tasks involve inculcating their students with the latest in social justice theory and beliefs. In some cases, colleges and universities are graduating a significant number of social justice warriors who are anxious to use whatever influence or position they may hold to spread the social justice gospel to any who will listen to them.

And, of course, children are required to listen to their teachers. Parents are required to see that their children are properly educated, almost always in the public school system. The consequences for failing to carry out this obligation can result in the children being taken out of their custody and placed with foster parents or in various government institutions.

In a prior life, PG acted as the attorney for parents who were trying to keep custody of their children as well as juvenile justice authorities who were attempting to remove children from a horrible and dangerous home situation.

He has seen both sides of these sorts of legal proceedings and can say that, in some cases, the juvenile authorities were on the right side and in other cases, the juvenile justice authorities were acting improperly and not entitled to take custody to the children.

As an older attorney friend once commented to PG, “Thank goodness for human nature. Without it, lawyers wouldn’t have anything to do.” Parents, children, judges and government officers and everyone else (including PG) are all full to the brim with human nature.

In years past, PG has known a few families who adopted the unconventional practice of home-schooling their many children with extremely successful outcomes. The relevant state laws at the time required that the parents keep detailed records of their home-schooling activities and file periodic reports with local authorities describing the education of their children.

One such home-schooling family included a couple of children who became Medical Doctors when they grew up. To the best of PG’s knowledge, each of the many children in this family graduated from an accredited four-year college or university.

Supreme Court Rules Against Andy Warhol in Copyright Case

From The New York Times:

The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.

The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

She focused on the fact that Warhol and Lynn Goldsmith, the photographer whose work he altered, were both engaged in the commercial enterprise of licensing images of Prince to magazines.

“To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals,” Justice Sotomayor wrote. “As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use.”

In dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., wrote that the decision “will stifle creativity of every sort.”

“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”

The dueling opinions, from two liberal justices who are often allies, had an unusually sharp tone.

Justice Kagan’s opinion, Justice Sotomayor wrote, was made up of “a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last.”

Justice Kagan responded that Justice Sotomayor wholly failed to appreciate Warhol’s art.

“The majority does not see it,” Justice Kagan wrote. “And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.”

The decision was also unusual for including more than a dozen reproductions of artworks by Warhol and others, most of them in color.

The portrait of Prince at issue in the case was taken in 1981 by Lynn Goldsmith, a successful rock photographer on assignment for Newsweek.

In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.

In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, mask-like appearance.” Vanity Fair ran one of them.

Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Ms. Goldsmith received no money or credit.

The majority’s analysis, Justice Kagan wrote, was simplistic and wooden.

“All of Warhol’s artistry and social commentary,” she wrote, “is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion.”

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869, concerned the limits of the fair-use defense, which allows copying that would otherwise be unlawful if it involves activities like criticism and news reporting.

Lower courts differed about whether Warhol’s alterations of the photograph transformed it into something different. Judge John G. Koeltl of the Federal District Court in Manhattan ruled that Warhol had created something new by imbuing the photograph with fresh meaning.

But a three-judge panel of the U.S. Court of Appeals for the Second Circuit said that judges should compare how similar the two works are and leave the interpretation of their meaning to others.

“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” Judge Gerard E. Lynch wrote for the panel. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

Justice Sotomayor wrote that a crucial factor in the fair-use analysis — “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” — weighed in Ms. Goldsmith’s favor.

“Warhol himself paid to license photographs for some of his artistic renditions,” Justice Sotomayor wrote. “Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.”

Other Warhol works, like Warhol’s images of Campbell’s soup cans, were a different matter, she wrote.

“The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose,” Justice Sotomayor wrote. “Rather, the soup cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism.”

Link to the rest at The New York Times and thanks to K. and others for the tip

PG has previously showed the original photo beside the Warhol print. Here it is again:

These are the two images that were considered by the Supreme Court in today’s decisions. The photographer, Lynn Goldsmith, who created the photo on the left, won her case against Andy Warhol (his foundation to be specific), the artist who created the painting on the right.

PG suggest that many appellate courts have problems with copyright cases involving visual images. Quite often he has the impression that the judges/justices begin with an approach that boils down to “I’ll know it when I see it,” and move on from there with references to various prior copyright cases that support their visual conclusions.

Copyright infringement cases involving written works tend to be slightly more predictable and involve multiple paragraphs from one book compared to multiple paragraphs from another. That said, decisions tend to go down to the judicial golden gut.

One of the other characteristics of the Supreme Court opinions on copyright infringement is that, most of the time, the Supremes tend not to accept such appeals, allowing the decisions of the U.S. Circuit Courts of Appeal to stand.

The problem with the Supremes not feeling particularly comfortable with copyright is that various Circuit Courts do not always agree on how copyright infringement should be assessed, so, excluding slam-dunk copyright violations, appealing a close federal trial court’s decision may result in a win for one party which would have likely gone another way had the appeal been heard in a different Circuit Court of appeal due to the differences between the Circuits.

That said, 90% of copyright lawsuits are slam dunks for one side or the other, which explains why only a small number of Federal District court cases end up going to trial because the party likely to lose is invented to reach an agreement to settle the case prior to a trial to save a lot of expensive legal fees.

Here’s the entire opinion so you can review all 87 pages, including pictures and giant traditional and historic margins!

Judge Sets Second Hearing on Motion to Block Texas Book Rating Law

From Publishers Weekly:

On August 18, Federal Judge Alan D. Albright heard the first round of oral arguments in Austin, Tex., on a motion to block HB 900, Texas’s controversial new book rating law. But with Texas attorneys filing a motion to dismiss the case just days earlier, on August 16, Albright said he would need more time before ruling on either motion. The judge has set a second hearing for August 28, adding that he would rule before the law is set to take effect on September 1.

The plaintiffs in the case fighting HB 900 include two Texas bookstores—Austin’s BookPeople and Houston’s Blue Willow Bookshop—together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund. Dubbed the READER Act by supporters (an acronym for “Restricting Explicit and Adult-Designated Educational Resource”), the bill was signed by Texas governor Greg Abbott on June 12. Among its provisions, the law requires book vendors to review books—including both new books and books it has previously sold—and to rate them for sexual content under a vaguely articulated standard. Books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools. Books rated “sexually relevant,” (if the books portrays any kind of sexual conduct) would be available only with written parental consent.

As articulated in their July 25 complaint, the plaintiffs argued that the law is an unconstitutional restraint on the freedom to read and that the law imposes an untenable burden on the book vendors tasked with rating millions of books. As evidence of this, the plaintiffs said that a survey of six school districts in Texas revealed more than six million books and items in circulation that would require rating. Texas has more than 1,250 independent school districts; Spring Branch Independent School District in Houston determined that the process for the district to review a single book required 220 staff hours and cost a total of $30,000.

Texas attorneys opened the August 18 arguments by reiterating their argument that the plaintiffs lack standing to challenge the law, asserting that there was no “economic injury” to the plaintiffs, who “feared too many things.” The harm was purely “speculative,” said the attorneys. Furthermore, the state argued that any prospective injury should be attributable to the individual school districts deciding which books to purchase, not the state. And finally, the state argued that the law does not compel or restrict speech as the plaintiffs argue. “If this bill didn’t exist,” the state argued, “you cannot sue the school district to force them to buy books from the vendor.”

In his questions, Albright pointed out that the law as currently written does appear vague and unclear. He focused on the plaintiffs’ inability to “get relief” from the school districts should books be rated incorrectly. In addition, he noted that the law must address the future implications of a law, in this case, the potential for financial injury.

Albright also offered several implied criticisms of the law in the course of seeking clarification, asking whether or not John Steinbeck’s Of Mice and Men would be deemed obscene because it contains a rape, and subsequently E. Annie Proulx’s Brokeback Mountain and the Bible, both of which have explicit sexual references. He also asked after the fate of books depicting paintings by Caravaggio (the judge’s “favorite painter,” he said) and Michelangelo. Albright acknowledged that there were certainly works that could easily be deemed “sexually relevant,” but the part of the law that allowed books to be objected to if they were “patently offensive” and violated community standards, he implied, was problematic.

“Community standards vary wildly across Texas,” Albright said, echoing a point often made by opponents of the law. “What would be deemed acceptable in Austin might likely be objected to somewhere else.”

In response, the state countered that there were “clear guidelines” as to what was considered sexual content. But Albright pointed out that the law’s broadly articulated standard is essentially cut-and-pasted from the state’s obscenity law, noting, for example, that anything depicting a female breast below the top of the areolae was considered sexual: “You just excluded Caravaggio and Michelangelo,” the judge told attorneys.

Link to the rest at Publishers Weekly

PG cautions that a judge’s comments and questions during a hearing do not always reflect how she/he will rule. However, the OP does lead one to conclude the court is skeptical of the state’s defense of the law.

New York Times considers legal action against OpenAI as copyright tensions swirl

From National Public Radio:

The New York Times and OpenAI could end up in court.

Lawyers for the newspaper are exploring whether to sue OpenAI to protect the intellectual property rights associated with its reporting, according to two people with direct knowledge of the discussions.

For weeks, the Times and the maker of ChatGPT have been locked in tense negotiations over reaching a licensing deal in which OpenAI would pay the Times for incorporating its stories in the tech company’s AI tools, but the discussions have become so contentious that the paper is now considering legal action.

The individuals who confirmed the potential lawsuit requested anonymity because they were not authorized to speak publicly about the matter.

A lawsuit from the Times against OpenAI would set up what could be the most high-profile legal tussle yet over copyright protection in the age of generative AI.

A top concern for the Times is that ChatGPT is, in a sense, becoming a direct competitor with the paper by creating text that answers questions based on the original reporting and writing of the paper’s staff.

It’s a fear heightened by tech companies using generative AI tools in search engines. Microsoft, which has invested billions into OpenAI, is now powering its Bing search engine with ChatGPT.

If, when someone searches online, they are served a paragraph-long answer from an AI tool that refashions reporting from the Times, the need to visit the publisher’s website is greatly diminished, said one person involved in the talks.

So-called large language models like ChatGPT have scraped vast parts of the internet to assemble data that inform how the chatbot responds to various inquiries. The data-mining is conducted without permission. Whether hoovering up this massive repository is legal remains an open question.

If OpenAI is found to have violated any copyrights in this process, federal law allows for the infringing articles to be destroyed at the end of the case.

Link to the rest at National Public Radio

As PG has mentioned on a couple of previous occasions, he has doubts about the copyright infringement claims like the Times is asserting because, to the best of PG’s knowledge, no AI stores the original copyrighted works or is capable of reproducing them.

Instead, the contents of the Times plus a huge number of other texts are used to train the AI model, then deleted after training is complete. The AI can then utilize the ingested texts in order to come to an understanding of the meanings of the texts and use that understanding to create new expressions of knowledge as needed to respond to a wide range of queries and commands that individual users submit.

PG doesn’t think the AI can ever recreate the words of the original Times stories. The AI uses the information it has ingested to create new responses to tasks individual users want it to perform.

The analogy PG thinks is correct happens when he reads a story in the Times or elsewhere, then uses that knowledge to answer questions posed by others or to create other writings that don’t replicate the original Times articles and may include ideas, facts, etc. that he has picked up during his extensive reading of a large collection articles from a great many sources.

Booksellers Want Justice Department to Investigate Amazon

From BookRiot:

As the Federal Trade Commission moves towards what looks like a lawsuit against Amazon, several authors, booksellers, and anti-trust activists want Amazon’s bookselling to also be investigated.

The Authors Guild, the American Booksellers Association, and antitrust think tank Open Markets Institute sent a letter Wednesday to the Justice Department and the Federal Trade Commission requesting that they disrupt the monopoly on the book market that Amazon has.

The retail giant’s influence on the book world can’t be overstated — 40% of physical books sold in the U.S. are sold by Amazon, as are 80% of e-books sold. Amazon’s 2008 purchase of Audible has also helped it dominate the realm of audiobooks. The reason this is an issue for the world of publishing is that, for one, it has resulted in fewer books sold by physical bookstores across the country. And Amazon has a tendency to highlight well-known authors, making it even harder for other, lesser-known authors to get attention on their books.

The letter cites the importance of free-flowing ideas within a democracy as the reason why Amazon’s role as a bookseller should be looked into by the government, “The open access to the free flow of ideas is essential to a well-functioning democracy. The government has the responsibility to ensure that actors with oversized power cannot control or interfere with the open exchange of ideas.”

Link to the rest at BookRiot

PG suggests that it’s difficult to make a case that Amazon is harming consumers with its low prices and the huge variety of books on offer — far, far more than any physical bookstore can stock.

As far as ebooks are concerned, how many ebooks do the members of the American Booksellers Association sell each year and what is the price of those ebooks?

Does anyone know of any evidence that Amazon interferes with “access to the free flow of ideas” with its huge collection of print books, old and new, and ebooks, offered at lower prices than anyone else provides? As PG has mentioned before, being a large and successful business organization is not a violation of antitrust laws.

He further suggests that selling printed and ebooks from a stock far larger than any physical bookstore has for sale at significantly lower prices than the members of the American Booksellers Association routinely charge doesn’t hurt readers or other consumers in any measurable way.

Judge Finds Revived Amazon E-book Monopoly Suit Should Proceed

From Publishers Weekly:

For a second time in two years, a magistrate judge in New York has recommended that a consumer class action lawsuit accusing the Big Five publishers of colluding with Amazon to fix e-book prices should be dismissed. But while the judge recommended tossing the case against the publishers, the court found that monopolization and attempted monopolization claims against Amazon should proceed.

In a 59-page report, magistrate judge Valerie Figueredo found sufficient facts at the pleading stage to “plausibly allege that Amazon’s conduct has allowed it to charge supracompetitive commission fees, leading to reduced competition in the e-book platforms-transaction market and higher e-book prices for consumers.”

The case was first filed in the Southern District of New York on January 14, 2021, led by Hagens Berman (which was also the firm that sued Apple and five major publishers for colluding to fix e-book prices in 2011). It alleged that the Big Five publishers—Hachette Book Group, HarperCollins, Macmillan, Penguin Random House, and Simon & Schuster—were co-conspirators in a hub-and-spoke scheme with Amazon to suppress retail price competition and keep e-book prices artificially high. In March 2021, a second, associated suit accusing Amazon and the Big Five publishers of a conspiracy to restrain price competition in the retail and online print trade book markets was also filed.

But last year, after a marathon July 27, 2022 hearing, Figueredo recommended that the presiding judge in the case, Gregory Woods, toss both cases for lack of evidence. In two brief September 29, 2022 orders, Woods accepted Figeuredo’s “well-reasoned” and thorough reports, and dismissed the cases without prejudice, giving the plaintiffs a chance to file amended complaints.

Which they did. In a 125-page Second Consolidated Amended complaint filed last November, Hagens Berman revised and refiled their claims, including arguments that Amazon’s dominance in the e-book market enables it to “coerce” e-book publishers into “entering into contractual provisions that foreclose competition on price or product availability,” which ultimately harms consumers by keeping e-book prices artificially high. “In a but-for competitive market, Amazon could not earn such a supracompetitive profit without price or product availability,” which ultimately harms consumers by keeping e-book prices artificially high. “In a but-for competitive market, Amazon could not earn such a supracompetitive profit without losing sales to a competitor and experiencing reduced profits,” the amended complaint argues. “Yet Amazon has been able to both maintain its market share and extract its supracompetitive transaction fees by exercising its market power to block competition.”

In its defense, Amazon insists that its MFNs and other contract terms are standard and “not inherently anticompetitive,” and that there is no evidence the company’s conduct “had the effect of raising agency commissions to anticompetitive levels.” But that’s not a question to be resolved at the pleading stage, Figueredo noted, concluding that the plaintiffs “have adequately pled anticompetitive conduct to support their monopolization and attempted monopolization claims.”

Link to the rest at Publishers Weekly

Judgment Phase of Internet Archive Copyright Case Appears Imminent

From Publishers Weekly:

It’s now been more than four months since a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books. But after a court order late last week, the parties finally appear headed toward the judgment phase of the litigation.

Since the verdict, the parties have (per the court’s order) been conferring over the contours an “appropriate procedure to determine the judgment to be entered in the case.” And after numerous extensions through the spring and summer, judge John G. Koeltl appears to have run out of patience. In a July 28 order, Koeltl gave the parties until August 11 to deliver their recommendations, adding “no more extensions.”

. . . .

In his emphatic March 24 opinion, Koeltl found the Internet Archive infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as CDL (controlled digital lending). “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

In court filings, the publishers have asked for damages and injunctive relief, including the destruction of potentially infringing scans. Lawyers for the Internet Archive have argued that statutory damages should be remitted per section 504 of the Copyright Act, which offers some relief where the infringer is a “nonprofit educational institution, library, or archives,” and the infringers “believed and had reasonable grounds for believing” that its use of the work was fair use.

Link to the rest at Publishers Weekly

A US Court Temporarily Blocks a Library and Bookstore Law

From Publishing Perspectives:

This weekend, Maria A. Pallante, president and CEO of the Association of American Publishers prepared a message for the association’s membership, writing, “I am very pleased to report that District Court Judge Timothy Brooks has granted preliminary injunctions today in Arkansas on both of AAP’s challenges to Act 372, pending final resolution on the merits.”

Arkansas’ Republican governor, Sarah Huckabee Sanders, had signed the act into law in March, making it in the opinion of many one of the United States’ most severe measures among waves of US book-banning efforts. This law, which was set to go into effect Tuesday (August 1) would, as Pallante describes it, “subject librarians and bookstore owners to criminal prosecution for making content deemed inappropriate (by the state) available to minors, including older minors.”

So repugnant was the thought of criminalizing librarians’ and booksellers’ work that on June 2, the association announced that it was part of a coalition taking Arkansas to court. The association characterizes banning access to various books as a violation of the First Amendment rights of Arkansas’ reading citizens.

You’ll hear this court action referred to as injunctions, plural, and what that refers to is the bench’s temporary blockage of two parts of Act 371. As the AAP describes these two sections, “One component made it a crime for libraries, booksellers, and any brick-and-mortar establishment to display or make available works that might be harmful to minors. This would have required libraries and booksellers to limit all readers to books appropriate for minors or exclude all minor readers from their premises.

“The second provision made it possible for any person in Arkansas to demand the removal of a book the person deemed inappropriate, limiting readers to one person’s opinion about what books should be in the library, and it would have permitted or encouraged review boards to engage in viewpoint- and content-based discrimination.”

. . . .

What has resulted from the court’s Saturday grant is not only a stay against the law going into effect on schedule but also an extensive and what seems to be a deeply felt 49-page document from Judge Brooks.

At a couple of headers, he includes literary quotes, such as Ray Bradbury’s Fahrenheit 451 lines, “There is more than one way to burn a book. And the world is full of people running
about with lit matches.”

In one of his most compelling passages, Judge Brooks writes:

“For more than a century, librarians have curated the collections of public libraries to serve diverse viewpoints, helped high school students with their term papers, made recommendations to book clubs, tracked down obscure books for those devoted to obscure pastimes, and mesmerized roomfuls of children with animated storytelling. So, the passage of Act 372 prompts a few simple, yet unanswered questions.

“For example: What has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the general assembly’s newfound suspicion? And why has the state found it necessary to target librarians for criminal prosecution?

“To better understand the present moment and why these questions have surfaced, we must first understand the history, purpose, and function of public libraries in America.”

The Arkansas Library Association was part of the coalition of plaintiffs involved in the effort to stop Arkansas’ Act 372, as was the Central Arkansas Library system; the Freedom to Read Foundation; Pearl’s Books; WordsWorth Books; and the now-familiar core four national organizations which include AAP, the American Booksellers Association; the Authors Guild; and the Comic Book Legal Defense Fund.

Link to the rest at Publishing Perspectives

PG says the Arkansas law was stupid in that it would almost certainly result in litigation that the state would lose. Although PG tends to be on the conservative side of some issues, he regards the law as a form of virtue signaling by the legislators who voted for it.

Local grassroots actions to engage librarians in discussions about how they handle books likely to offend some large portion of the local community is a much better approach in PG’s extraordinarily insightful opinion. Parents going to the library with their children would be the best approach to making certain the children didn’t cross any parental lines in their reading material.

That said, once children reach a certain age if they want to read a book, they’ll do so regardless of parental wishes or diligent supervision. This has been a pattern of behavior that has existed since the creation of libraries and probably before that in some other form.

Somehow, the world has continued and virtuous adults have continued to appear on a regular basis.